BARGAINERS BEWARE OF THIS BEGINNER’S BLUNDER
As we have noted before, one way a union can stop an agency from rocketing through bargaining just to get the dispute before the FSIP is to file a ULP alleging that the agency engaged in bad faith bargaining. If the Panel is populated with people who respect the law, which it has not always been, then it should reject jurisdiction until the ULP is resolved. If it does not and issues a decision, the ULP can be a way to have the FSIP-imposed deal voided and the prior agreement terms enforced retroactively until a new deal is signed. However, this strategy depends on the union drafting the grievance or ULP charge properly. For example, …
Let’s assume that during negotiations the agency engaged in multiple examples of bad faith bargaining. That could include refusing the union’s legitimate information requests, refusing to answer union questions or explain why it rejected union ideas, refusing to spend a reasonable amount of time at the bargaining table, engaging in piecemeal bargaining, insisting on permissive proposals, etc. In short, it tried very hard to make the time spent in bargaining futile for the union.
But when the agency petitioned the FSIP to take jurisdiction because the parties were at impasse, the union filed a grievance only claiming that the parties were not at impasse because there was still a potential for the parties to reach agreements on certain issues without Panel involvement. Hence, moving to FSIP so quickly indicated bad faith.
If that case goes to arbitration, there is a good chance that the union will lose the case on a technicality. Many arbitrators will insist that they can only address issues raised in the grievance procedure. While tossing the words “bad faith” into a grievance or a ULP is important, it is just as important to put into the grievance record a description of what kind of bad faith the agency engaged in. If the union only cited an agency insistence on a permissive subject, many arbitrators will refuse to hear claims of the other kinds of bad faith bargaining for the first time in the hearing. This is not to say that the union must list every incident of bad faith in its written grievance, but it should list a few examples of each kind. If they can list all of them, GREAT.
We raise this because it is heartbreaking to see obvious examples of an agency’s long-term campaign of bad faith bargaining go uncorrected just because a particular arbitrator takes a limited view of the issues s/he is empowered to address. Of course, if your agreement includes a provision that unquestionably states that arbitrators can only address issues raised in the grievance or initial written grievance, then this advice goes double for you.
If you think that FLRA will let the union correct that problem when the union files exceptions to the arbitrator’s award, think again. They have been very clear that they will not address issues the parties failed to put before the arbitrator.