In the latest of a series of split decisions favoring management, the FLRA has held that if a federal union files an unfair labor practice regarding bargaining over a contract, it cannot later also file grievances related to those same negotiations on similar grounds.
The dispute arose over negotiations between HHS and the NTEU union. The union filed a ULP asserting that the agency was bargaining in bad faith by rejecting an order from the Federal Service Impasses Panel regarding the ground rules for negotiating a new contract. Bargaining later began, though, and the union ultimately filed four separate grievances asserting that the department committed ULPs in various ways during those talks.
Arbitrators who heard those grievances produced a mix of decisions favorable to each side in some ways. However, the FLRA majority vacated all of those decisions, saying that its law and precedent, a ULP charge “bars a later-filed grievance if the ULP charge and the grievance involve the same issue.” That applied in this case, it said, because the ULP and the grievances “arose while the parties were bargaining the same agreement” and “ advance substantially similar legal theories.”
Dissenting, FLRA chairman Ernest DuBester said that each of the grievances “alleged that the agency took specific and discrete actions that violated its duty to bargain in good faith” and those actions “had not yet been taken when the ULP was filed . . . there is no question that the union was entitled to challenge each of these actions as ULPs through the parties’ negotiated grievance procedure.”
DuBester has dissented from a number of decisions in recent years with a 2-1 split in favor of Republicans on the FLRA board. President Biden has named him chairman—and has renominated him for another term—but has not yet nominated anyone to replace one of the Republican members whose term has expired but is serving on extension. Federal unions have pushed for such a nomination to change party control of the board, potentially paving the way for reversing those decisions.