The Department of Labor is usually thought of as being very responsive to the interests and concerns of unions. No doubt that is generally true and, as a result, it is usually unthinkable that this federal agency would pursue an unfair labor practice against a union that represents its own employees.
Moreover, some people think of the Federal Labor Relations Authority’s Office of General Counsel as the agency that prosecutes unfair labor practices against other federal agencies. In other words, it is essentially the arm of the government that protects unions against evildoers in the government. A charge frequently made by unions against agencies is that the agency is refusing to bargain with the union as required by law.
And, while the vast majority of unfair labor practices are filed by unions against agencies, there are occasionally cases that arise where taxpayers’ money spent by the General Counsel’s office is used against unions on behalf of agencies.
So, when the Department of Labor filed an unfair labor practice against the union that represents a number of DOL employees, it was unusual. When the FLRA’s Office of General Counsel prosecuted a case against a union, that was also unusual. And when the charge against the union was refusing to bargain with the agency, it became an even more unusual case.
To add to the confusion, according to the decision of the Administrative Law Judge that tried the case, the union essentially admitted all of the charges but denied it had committed an unfair labor practice.
Here’s what happened. The agency wanted to renegotiate a labor contract that had been in place since 1992. The agency wanted to renegotiate the contract. The union thought the existing contract was pretty good and didn’t want to change.
The agency sent a notice to the union on Jan. 11, 2002 indicating it wanted to bargain on a new contract. The union admitted the agency’s letter was sent within the time period necessary to open negotiations. The union did not formally respond so on Feb. 5, 2002, an agency representative contacted the union expressing an interest in beginning negotiations but also indicating the agency would wait until after the election of new union officers if the union preferred to do that.
The union formally responded on Feb. 19, 2002. It argued that since the negotiations had not started within the required 10 day time period after the agency expressed interest in opening contract negotiations, the contract had rolled over automatically. Subsequent attempts by the agency to get the union to bargain were unsuccessful.
The parties did begin bargaining in December 2002 when a new window for opening the contract negotiations arose under the existing bargaining agreement.
That argument didn’t fly and, according to the Administrative Law Judge, the union’s actions were an unfair labor practice. Moreover, concluded the ALJ, the subsequent bargaining of a new contract did not make the proceeding irrelevant because “It is important that the Union and its members understand that its conduct and strategy were fundamentally, legally flawed and that it cannot repeat such conduct.”
And, the way these cases sometimes work out, the parties could not agree on the terms of a new contract. The Federal Service Impasses Panel was given jurisdiction in the case. On Jan. 7, 2005, the FSIP issued its decision that essentially favored the agency on most of the issues. The decision of the FSIP dictating the terms of the new agreement was issued about 10 days after the decision was issued on the unfair labor practice.