An independent arbitrator found last week that the Health and Human Services Department engaged in bad faith bargaining with the National Treasury Employees Union when it rushed to impasse over a union contract last year.

Since last year, NTEU officials have accused management at HHS of engaging in “surface level bargaining,” checking the boxes required to reach the Federal Service Impasses Panel without making a real effort to engage with the union. The impasses panel is made up entirely of non-Senate confirmed Trump administration appointees.

The union filed two unfair labor practice grievances against HHS, the first of which accused the department of unilaterally imposing ground rules for negotiation. The second grievance challenged HHS’ assertion that the parties had reached an impasse after only two days of bargaining and mediation.

In a 97-page decision issued Sept. 30, arbitrator Robert Creo effectively voided an April impasses panel decision that sided mostly with management, gutting telework and holiday leave policies for HHS employees. Creo noted that although some concrete negotiations occurred after the Federal Service Impasses Panel asserted jurisdiction over the negotiations, such progress does not negate HHS’ previous actions.

“The arbitrator finds that any subsequent good faith bargaining, intervention by [the Federal Mediation and Conciliation Service], or jurisdiction of FSIP, does not cure or vitiate any prior violation of the duty to bargain in good faith nor render a determination of the commission of an unfair labor practice moot,” he wrote. “[Once] the bargaining process has been derailed by bad faith, the other party may be affected to such an extent that its actions may no longer be considered independently of the impact of the bad faith actions. The playing field has been tilted and is no longer level and fair.”

Although Creo found that management’s quick request for assistance from the Federal Mediation and Conciliation Service after only one day of bargaining did not constitute bad faith bargaining, he said the decision to seek an impasse declaration after only two days with a mediator was indicative of acting in bad faith.

“It makes little sense to call upon FMCS for an early intervention yet not discuss over 30 of the 34 contested articles via facilitated negotiators with expert mediators,” Creo wrote. “This incongruent conduct is an element which supports a finding that . . . the agency engaged in bad faith bargaining prior to the filing of the Aug. 7, 2018, national grievance. Standing alone even without the other past elements, it could be deemed sufficient to support a finding of bad faith.”

The arbitrator also found fault with HHS’ insistence on parties submitting last best offers despite refusing to discuss management's proposals with union negotiators. Management repeatedly refused to explain or answer questions about a variety of contract proposals during negotiations last year.

“Submission by a party of a [last best offer] that was never subjected to a robust, good faith discussion and open-minded consideration consistent with the clear intent of the statute, is improper,” Creo wrote.

Creo ordered the union and management to return to the bargaining table, although he noted that the parties can incorporate elements upon which they did eventually agree following the filing of the grievance.

“The arbitrator does not want to undo any positive results which were achieved by mutual good faith bargaining,” he wrote. “Therefore, if there are articles both parties conclude should be incorporated into the final term bargaining agreement based upon tentative agreement, then these may be excluded from the return to the table [order] under the status quo ante remedy.”

HHS may appeal the decision, and if it does, the FSIP’s mandated contract would remain in effect. In a statement, an HHS spokesperson declined to comment about how the department would proceed.

“We are not going to comment on pending litigation,” the spokesperson 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.”

In a letter on Monday, NTEU National President Tony Reardon urged HHS Secretary Alex Azar to return to the bargaining table.

“This decision is an opportunity to reset our negotiations and for HHS to meet us again at the bargaining table with a sincere desire to reach agreement on a contract, as required by law,” Reardon wrote. “I am asking you to do the right thing and direct your representatives to abide by the arbitrator’s decision and restart negotiations as ordered. Your employees deserve it.”