Arbitrator says HHS committed ‘clear and patent violation’ of NTEU labor agreement

HHS committed a “clear and patent violation” of its 2010 collective bargaining agreement with NTEU, according to an independent arbitrator.

In the latest chapter of a contentious federal labor dispute, an independent arbitrator has determined that the Department of Health and Human Services committed an unfair labor practice against the National Treasury Employees Union.

HHS, according to the third-party arbitrator, committed a “clear and patent violation” of its 2010 collective bargaining agreement with NTEU, arguing that it was premature for the agency to unilaterally implement the terms of a Federal Service Impasses Panel decision before reaching a new collective bargaining agreement with the union.

In his decision, dated Dec. 12 but recently delivered to NTEU, Alexandria, Virginia-based attorney Roger Kaplan gave HHS and NTEU 90 days to agree on a remedy.

“The parties will meet, discuss and negotiate with respect to the harm caused to bargaining unit employees by the agency’s violation and the measure and allocation of make-whole relief,” Kaplan wrote, adding that he would extend his jurisdiction over the matter if a resolution isn’t reached in those 90 days.

This latest ruling follows a decision in September from another arbitrator who found that HHS had bargained in “bad faith” with NTEU when it called an early end to the 18-week bargaining schedule it had previously agreed to.  The arbitrator in this matter ordered both parties to resume negotiations on a collective bargaining agreement.

“Once again, NTEU has fought successfully to uphold the law and force HHS leadership to properly negotiate a fair collective bargaining agreement,” NTEU National President Tony Reardon said in a statement. “This is an important victory for federal employees who simply want their employers to follow basic labor law and respect their right to have a strong voice in the workplace.”

NTEU filed a grievance last April, after the Federal Service Impasses Panel,  a seven-member board that serves as a component of the Federal Labor Relations Authority, ruled on more than a dozen NTEU-HHS collective bargaining proposals and upheld a majority of the changes proposed by HHS to modify the existing agreement with the union.

That ruling laid the groundwork for HHS modifying its policies to telework, leave and official time without NTEU’s approval.

“NTEU has said all along that agency management cannot force employees to work under a one-sided, partial edict that takes away important rights and benefits,” Reardon said. “It has been a long, slow process but we intend to hold HHS accountable for their bad faith bargaining, illegal short cuts, and overall disrespect for the collective bargaining process.”

Meanwhile, negotiations remain ongoing for another six contract articles, and a mediator is helping both parties reach an agreement on those terms.

The labor impasse between the HHS and NTEU serves as one of the biggest examples of agencies seeking to implement the terms of three Trump administration executive orders focused on the federal workforce.

Similar labor disputes have also come into focus at the Department of Veterans Affairs, the Environmental Protection Agency and the Social Security Administration.

“HHS is fast running out of excuses to do the right thing and return to the bargaining table where they can meet with employees, face to face, and negotiate a fair agreement that is in the best interest of the employees, the agency and the taxpayer,” Reardon said.

An HHS spokesperson told Federal News Network the agency wouldn’t comment on pending litigation, but said HHS “is working with employees and their union representation to improve the operations of the department with the aim of making the federal government a better place to work and better able to deliver the services to the American people.”

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