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The FLRA has held that an agency should not carry out orders to resolve certain contract issues while continuing to bargain over a new contract – clarifying that the contact remains in effect until a new one is negotiated.
The ruling involves negotiations between HHS and the NTEU union over a successor to a 2010 contract, in which the Federal Service Impasses Panel (a semi-independent arm of the FLRA) imposed contract language on 19 issues that had gone to impasse. The department then notified the union that it would carry out that order even though negotiations continued over six other issues.
An arbitrator and now the FLRA held, though, that the 2010 contract was to remain in effect until a successor agreement was in place and that with issues still outstanding, the agency did not have the authority to implement an order changing some of the terms of that contract. While HHS argued that it was only carrying out a binding order of the FSIP, the FLRA said order “does not require the agency to implement the nineteen articles prior to completing bargaining on the remaining articles, but instead requires the parties to adopt the nineteen articles” into the final contract.
“Further, Authority precedent requires the parties to satisfy their statutory bargaining obligations prior to implementing any change to conditions of employment,” it said.
The NTEU union said that after the Biden administration took office the HHS dropped enforcement of those provisions and returned to bargaining, which is still ongoing. “Although the change in administration last year did much to repair the damaged relationship between the union and the agency, it is gratifying to now have a decisive rejection of HHS’s actions in implementing contract articles while the agreement was still being negotiated. This should deter similar actions by any agency in the future,” it said.
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