UNION NEGOTIATORS MUST READ AND STUDY THIS CASE
FLRA just issued a decision loaded with lessons for union negotiators. It involved an agency unilaterally implementing ground rules for the renegotiation of the term agreement. The agency threw the proverbial kitchen sink full of defenses up in the arbitration and its appeal to FLRA. We are not going to summarize the case beyond that here, leaving it to you to read the details—and there are many. But we are going to highlight below a few things from the case that no union negotiator should forget. The case is Dep’t of Navy, Jacksonville, NC and AFGE Local 2065, 73 FLRA 137 (2022).
#1 – Here is an excerpt from the FLRA decision. Keep track of the dates we have underlined.
“On November 30, 2018, while the grievance was pending, the Agency notified the Union that the parties were at impasse over ground rules. The same day, the Agency stated that it would be implementing its last best offer on the ground rules on December 15. In response, the Union requested that the Agency delay implementation of its proposed ground rules, recognize the Union’s bargaining representative, and continue bargaining. The Agency refused, and, on December 21, it presented the Union with proposals in order to begin term-agreement negotiations. The Union filed a … grievance on January 4, 2019, alleging that the Agency violated the duty to bargain in good faith when it unilaterally implemented ground rules and initiated term negotiations without negotiated ground rules. The Agency denied the … grievance, and the Union invoked arbitration. On March 14, 2019, the Agency unilaterally implemented a new term agreement pursuant to the disputed ground rules.
The contract required the Union to file its grievance “within [fifteen] days after the event giving rise to the grievance or within [fifteen] days after the [Union] reasonably should have known of the event giving rise to the grievance.”
No one should be surprised that the agency alleged the grievance was too late. After all, the agency notified it of its intent on November 30 and the union did not file a grievance until January 4. Luckily for the union this particular arbitrator held that the “grievance time frame begins to run not based upon the date the Agency gives notice of its intent but instead on the date . . . the Union knows the Agency has acted.” He found that was December 21. That could very easily have gone the other way, voiding the entire grievance. FLRA blessed this arbitrator’s conclusion writing, “The Agency fails to identify any contractual wording that either defines the term “grievable event” or conflicts with the Arbitrator’s interpretation or application of that term. Consequently, the Agency’s argument does not demonstrate that the award fails to draw its essence from the parties’ agreement.”
In our FEDSMILL opinion, had this case come before the Trump FLRA it would have gone the other way and sided with the agency. It loved to second guess arbitrators’ contract interpretations.
The safest course of action in a situation like this is to file early and reserve the right to amend or add to the grievance as events develop. Personally, we would have filed no later than 15 days of the December 15 notice.
#2 – At arbitration the union alleged that several sections of the agreement were violated, but never cited any articles and sections in the grievance as required by the contract. As would most arbitrators, this one dismissed all the Union’s contractual claims specifically because they were not raised in the grievance. But in a second stroke of very good luck, this particular arbitrator held that contract obligation did not apply to allegations that the statute was violated and he found that the wording of the grievance was sufficient to put the agency on notice that the union was alleging a statutory ULP. Not all arbitrators will make that leap. The safer course of action would have been to cite the statutory ULP section, i.e., 5 USC 7116(a)(1 and 5) in the grievance.
#3 – The agency further argued that the union was required to petition FSIP before December 15 to get involved once the agency declared impasse. By failing to do so, it waived its right to object to implementation of the ground rules.
On this point, the Arbitrator noted that the record contained “no evidence that a federal mediator declared the parties at impasse or that the Federal Mediation and Conciliation Service referred the matter to the Panel.” The Arbitrator also determined that the parties could not have been at impasse because “no bargaining had, in fact, occurred.” Thus, he saw no waiver by failing to invoke the Panel’s services.
FLRA backed the arbitrator up here by writing,
“The Authority has recognized that a union may waive its right to bargain over a proposed change in conditions of employment, either explicitly through agreement or implicitly through inaction. An agency may implement changes in conditions of employment if, as relevant here, there is no timely invocation of the statutory impasse procedures after impasse following good‑faith bargaining. Here, the Arbitrator found that: the Agency did not allow the Union’s designated representative to participate in ground-rules negotiations; the Agency refused to bargain before notifying the Union of its intent to implement the proposed ground rules; and there was “no evidence that a . . . [m]ediator declared the parties at impasse.” The Agency does not challenge these factual findings as nonfacts and, therefore, we defer to them. Moreover, these factual findings support the Arbitrator’s determination that the Union did not waive its statutory bargaining rights. “
Frankly, the union took a risk here by not petitioning FSIP as soon as it was notified the agency intended to implement its ground rules proposal. If the Union had been unable to prove the agency bargained in bad faith and parties were not at an impasse, the entire grievance would have been rejected. A safer course of action would have been to contact FSIP to notify it that the agency is alleging an impasse, but that the union rejects that claim on the grounds that the agency has not bargained in good faith. Consequently, the union would ask the Panel not to take jurisdiction in the face of a pending ULP allegation.
#4- Finally, the Agency argued that the Arbitrator lacked the authority to award a status-quo-ante remedy because the Union failed to request such relief in its grievance, as required by Article 13, Section 7. Here again the union benefitted from good fortune because the parties could not agree on the issue statement for the arbitrator. So, FLRA wrote, “Where the parties fail to stipulate the issue for resolution, arbitrators may formulate the issue on the basis of the subject matter before them, and the Authority accords substantial deference to this formulation. The Authority has held that arbitrators do not exceed their authority where the award is directly responsive to the formulated issues. In assessing whether arbitrators have exceeded their authority, the Authority grants arbitrators broad discretion to fashion remedies that they consider appropriate.” It went onto write,
“Here, because the parties did not stipulate the issues, the Arbitrator framed the relevant issues as: Did the Agency commit ULPs by initiating term negotiations without a negotiated ground‑rules agreement and unilaterally implementing its proposed ground rules? What is the appropriate remedy, if any? In resolving these issues, the Arbitrator found that the Agency committed bad-faith-bargaining ULPs, and the Arbitrator awarded a status‑quo‑ante remedy. The Agency does not argue that the formulated issues restricted the arbitrator’s remedial authority. Further, the remedy is directly responsive to the framed issue of an appropriate remedy for the Agency’s ULPs. Thus, the Agency’s argument provides no basis for finding that the Arbitrator lacked the authority to direct a return to the status quo ante. For the foregoing reasons, we deny the Agency’s exceeded-authority exception.
This arbitrator wrote the issue statement broadly enough to enable himself to impose a status quo ante order. NOT ALL ARBITRATORS WILL DO THAT AND A UNION-HOSTILE FLRA LIKE WE HAD UNDER PRESIDENT TRUMP WILL NOT GIVE ARBITRATORS THAT DISCRETION. Consequently, the far safer course would be for a union to include in the grievance a remedy statement such as, “The union requests all appropriate remedies be imposed, including an order to return to the status quo ante, voiding the imposed agreement and making the union as well as the employees whole for any harm done them by the violations.”
While we are not trying to scare union leaders away from bargaining, the reality is that it can be a legally complex process. We have noted before that the book, COLLECTIVE BARGAINING LAW FOR THE FEDERAL SECTOR, Dewey Publishing (2009), breaks the bargaining process into about 75 different legal stages and highlights the core legal precedents in each. Union leaders involved in a lot of bargaining, term or mid-term, or who deal with an anti-union agency leadership should read it or something like it to make sure they are not making an unintended technical error that dooms the union.
