DEPARTMENT OF LABOR WASHINGTON, D.C. and LOCAL 12, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF LABOR
LOCAL 12, AMERICAN FEDERATION OF
Case No. 03 FSIP 59
DECISION AND ORDER
The Department of Labor (DOL), Washington, D.C. (Employer), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and Local 12, American Federation of Government Employees, AFL-CIO (Union).
Following investigation of the Employer’s request for assistance, which arose from negotiations over ground rules for a successor master collective-bargaining agreement (MCBA), the Panel determined that the dispute should be resolved through an informal conference with Chief Legal Advisor Donna M. DiTullio. The parties were informed that if no settlement was reached during the informal conference, Ms. DiTullio would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision.
Pursuant to this procedural determination, Ms. DiTullio convened an informal conference with the parties on July 2, 2003, during which they resolved several issues and made progress in narrowing their differences on others. At the conclusion of the meeting, eight issues remain unresolved. Ms. DiTullio has reported to the Panel and it has now considered the entire record.
The Employer’s mission is to foster and promote the welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and health care benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements. The Union represents a bargaining unit of approximately 3,750 professional and non-professional employees, both General Schedule and Wage Grade, stationed in the Washington Metropolitan Area. The parties’ current MCBA, which was implemented in 1992, remains in full force and effect until replaced by a successor. Appendix A of the MCBA contains partial ground rules for negotiations over a successor MCBA; it provides that the parties are to negotiate over additional ground rules, not addressed therein, including: (1) the site, facilities and services for contract negotiations; (2) the schedule of contract bargaining sessions; and (3) mediation procedures, should the parties require third-party assistance on any contract article. It was during the parties’ negotiations over these additional ground rules matters that the dispute arose.
ISSUES AT IMPASSE
Essentially, the unresolved issues concern: (1) whether the Employer should provide the Union with hard copies of research materials to be used during bargaining; (2) the number of days each week when bargaining is to convene and the total number of days for negotiations; (3) bargaining recesses; (4) the presence of observers during bargaining sessions; (5) mediation procedures following negotiations; (6) how negotiability problems are to be handled; (7) ratification of the agreement by the Union membership; and (8) information requests submitted by the Union.
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union proposes the following:
The Department will provide to the Union team a hard copy of the Department of Labor Manual Series, the Dept. of Labor Personnel Regulations, Title 5 of the U.S. Code, Code of Federal Regulations Volumes 5 and 29, and such others which may be necessary, along with appropriate updates, for use at negotiations.
Unless mutually agreed otherwise, the parties shall bargain no more than three days a week, for no less than ten hours a day, for a period of not less than 110 calendar days.
Bargaining will not be scheduled on any day that AFGE Local 12 has a general membership meeting or steward training.
Any DOL employee may observe any negotiating session on his or her own time, subject to a limit of 10 employees at any one time.
Prior to requesting FSIP assistance, the parties will ask the Federal Mediation and Conciliation Service (FMCS) to provide mediation assistance for a period not to exceed two days. Immediately thereafter, either party may request the FSIP to authorize the use of a mediator/arbitrator to resolve all issues at impasse.
a. The Department will, after fully exploring the matter with the Union, provide the Union with a written allegation on any matter on which it believes it has no duty to bargain under the Statute, in accordance with the Federal Labor Relations Authority rules.
b. The Union may institute an appeal of the Department’s duty-to-bargain determination on or before the 15th workday after the date on which the Department serves the written determination on the Union.
c. The Department will not issue any duty-to-bargain allegations within the meaning of Section 7117 of the Statute prior to the end of the 40th bargaining day.
d. Either Party may submit proposals and initiate negotiations on an item determined to be negotiable by the Federal Labor Relations Authority. Such negotiations will commence within thirty (30) bargaining days from the date of the receipt of the determination.
The agreement reached is subject to ratification by the Union membership.
No proposal shall be ripe for negotiation until all information requests have been complied with.
With respect to research materials, hard copies are much easier to use as research tools than electronic versions. The Employer has far more financial and personnel resources than the Union and, therefore, it could easily absorb the cost and expend the time to copy research documents, as necessary, and provide them to the Union. Requiring the Employer to provide updates, would ensure that both the Employer and the Union are using the latest versions of reference materials. As to negotiation sessions, the majority of the Union’s bargaining-team members are elected Union officers who have representational obligations to bargaining-unit employees, in addition to serving on the negotiation team. Limiting negotiation sessions to 3-days a week would allow these Union officers to attend to other representational matters and avoid unscheduled recesses of bargaining sessions. While the Union has other representatives and stewards who could handle some representational matters, the Union representatives on the bargaining team are the most experienced and, therefore, are more able to handle complicated representation matters such as adverse actions which often arise. Bargaining 3-days a week for 10-hours a day is a significant amount of time to spend at the table each week; the proposed schedule would allow the parties, on a concentrated basis, to devote the majority of their time each week to negotiating a successor MCBA. Furthermore, the negotiation of a new MCBA should last for a minimum of 110 calendar days because it is anticipated that, in addition to the 47 existing articles that could be reopened, there likely would be several new articles proposed that may require extensive negotiations. The parties also have the flexibility to extend bargaining beyond 110 calendar days should additional negotiations be needed. Since the current MCBA is over 11-years old, many articles may require extensive revision; therefore, a minimum of 110-calendar days for negotiations is a reasonable proposal.
Concerning recesses, bargaining should be recessed on the two Thursdays each month when the Union has a general membership meeting and steward training because Union officers are needed to attend those meetings. In this regard, Union officers actively are involved in conducting the meetings and, in addition, they would need time to prepare as well as handle any follow-up work that emanates from them. Up to 10 observers should be allowed to attend bargaining sessions at any given time because employees, many of whom pay dues to the Union, have a right to know how their Union leadership is handling negotiations; moreover, allowing observers could be part of training for future Union negotiators. Since employees would observe bargaining sessions while on their own time, i.e., during breaks or when on leave, there would be no cost to the Employer. Regarding mediation procedures, in the past, the parties have not had much success in using the services of the FMCS; in the Union’s view, FMCS tends to release parties too quickly to the Panel. In light of the parties’ history, 2 days of mediation is enough time to spend with FMCS. Moreover, limiting mediation to 2 days would allow the parties to both fulfill their statutory requirement to engage in mediation before seeking Panel assistance and keep the bargaining process fluid. Before the Panel, either party could request an impasse process for resolving the remaining issues, with the Union favoring private mediation/arbitration. Only at that stage are the parties likely to bring to closure any unresolved issues.
On the issue of negotiability, the proposed procedure would provide the parties with sufficient opportunity to work around any negotiability and duty-to-bargain problems before the Employer makes a formal assertion of nonnegotiability. Requiring management to delay raising, until the 40th day of bargaining, any claims that proposals are outside the duty to bargain for any reason, should provide the parties with adequate time to consider solutions to the issue. Ultimately, this may avoid the need for the Union to file a negotiability appeal with the FLRA. Requiring the parties to resume negotiations within 30 days of receipt of a ruling from the FLRA that a proposal is negotiable should help bring closure to the unresolved issues in an expeditious manner. Concerning the ratification process, although the parties already have an agreed upon ground rules provision in Appendix A of the current MCBA that addresses Union ratification of a successor term agreement, the wording is ambiguous and requires clarification. In this regard, the agreed upon wording permits Union ratification "as appropriate." The additional wording proposed would clarify that the new MCBA would be subject to ratification by the Union’s membership, thereby eliminating ambiguity. Finally, as to information requests made by the Union during the bargaining process, the Employer has a poor track record of providing necessary and relevant information. Adoption of the proposal would place pressure on the Employer to respond to the Union’s information requests, or face a delay in bargaining over a particular matter.
2. The Employer’s Position
The Employer’s proposals are as follows:
The Department will maintain up-to-date regulations [of] Department of Labor Manual Series (DLMS) and Department of Labor Personnel Regulations (DPR) on LaborNet to be accessible to the Union electronically.
Negotiations and Recesses
Once negotiations commence, the parties will negotiate from Monday through Friday continually for a period of up to seventy-five (75) calendar days or until an agreement is reached, whichever is sooner.
Either before or at the end of the seventy-five (75) calendar day period, if the parties are in need of mediation services, they will utilize the services of the FMCS.
Neither party may bring observers to any bargaining sessions.
Matter is already addressed and agreed to in the ground rules-Appendix A of the parties’ Collective Bargaining Agreement.
Negotiability disputes will be handled in accordance with the Federal Labor-Management Relations Statute (Statute). The parties will sever all matters declared non-negotiable from the negotiation process upon issuance of written statement from Management to the Union. These matters will proceed on a separate track to the FLRA as provided by established rules and regulations of the FLRA. Concurrently, the remaining matters will continue in the bargaining process through resolution and/or ratification, as appropriate.
Information requests will be handled in accordance with the Statute.
Matter is already addressed and agreed to in the ground rules-Appendix A of the parties’ Collective Bargaining Agreement.
On the issue of research materials, since the DOL Manual Series and DOL Personnel Regulations are available electronically to the Union via LaborNet, there is no need to provide paper copies as well. Using an electronic version of these documents is a more economical and efficient use of Government resources. Other research tools which the Union desires should be procured by the Union at its own expense. Negotiation sessions should take place 5-days a week, Monday through Friday, continuing for a period of up to 75 calendar days. Bargaining teams should make a full-time commitment to negotiations over a successor MCBA in order to get the job accomplished expeditiously. The Employer has arranged for Union bargaining-team members to be on 100-percent official time during the contract bargaining period and, therefore, their focus should be on contract bargaining alone; the Union has many other representatives it could appoint to attend to other representational matters while team members attend to negotiations. A cap of 75 calendar days for negotiations is reasonable because several reopened articles may require only minor adjustment; 75 calendar days should be an adequate amount of time to conclude negotiations. Should the parties require additional time in which to conclude bargaining, they always have the option of mutually agreeing to extend negotiations.
The proposed mediation procedure would give the parties the flexibility of seeking mediation assistance at any time during the bargaining process when it appears advisable to do so. With respect to observers, they should not attend bargaining sessions because their presence would tend to distract negotiators; without them, the parties are more likely to focus on bargaining rather than "performing" for their audience. As to impasse procedures, additional wording is unnecessary since the matter already has been addressed in the agreed upon ground rules provisions in the current MCBA. The proposal concerning how the parties are to handle negotiability disputes follows statutory requirements. Severing negotiable provisions from those declared nonnegotiable would help the bargaining process move forward; without a severability provision, the parties may have to table negotiations for months, or years, while they are awaiting a ruling from the FLRA on the negotiability of the Union’s proposals. There is no need for an additional ground rule provision concerning Union information requests because the Statute provides an adequate procedure. Finally, it is unnecessary to supplement the agreed upon ground rules in the current MCBA with respect to Union ratification because the parties already have negotiated wording on that topic.
Preliminarily, after considering the parties’ bargaining history with respect to this dispute, we encourage both sides to enter into negotiations over a successor MCBA with the intent of fulfilling their statutory obligations to bargain in good faith and to seriously pursue collective bargaining with the goal of reaching a full and complete resolution in a diligent manner. By the same token, in reaching our decisions on the individual issues identified below, our underlying goal is to establish ground rules which promote the statutory requirement of an effective and efficient Government.
Having carefully considered the parties’ arguments and evidence, we shall order the adoption of the Employer’s position on the issue of research materials. In our view, since the DOL Manual Series and DOL Personnel Regulations are available electronically, it is unnecessary for the Union to receive hard copies. In addition to being more economical and efficient, agency policies and regulations that are available on-line are likely to be updated more frequently than the hard copy versions. As to the other reference materials the Union requests, we believe that they should be procured at its own expense, as the cost is unlikely to be significant and it is only fair that the Union absorb some of the expense associated with the negotiations.
With respect to negotiation sessions and bargaining recesses, we are persuaded that resolution of these issues should be based on a compromise solution requiring the parties to negotiate for a minimum of 4 days a week–-every day except Thursday–-8 hours a day, unless mutually agreed otherwise, for a maximum of 80 calendar days. A scheduled break from negotiations 1-day a week should help avoid unplanned bargaining recesses and allow Union negotiators to attend to other representational matters which, occasionally, may require their attention. Moreover, a 1-day recess each week from face-to-face bargaining would permit both sides to research positions and refine contract wording. Overall, the bargaining schedule to be imposed should facilitate the parties’ ability to focus on the objective of negotiating a successor MCBA as expeditiously as possible.
As to the attendance of observers at bargaining sessions, although there is some merit in the Union’s position, we conclude that the number of observers that would be permitted under its proposal is excessive. Therefore, we shall order that the parties adopt a modified version of the Union’s proposal which would permit each side to have one silent observer during bargaining sessions attending on their own time. A limited number of observers is unlikely to distract the negotiators and would provide each side with an opportunity to develop future negotiators. With respect to a mediation procedure, we prefer a modified version of the Employer’s proposal to reflect that mediation may be requested at any time during the 80-calendar-day period. This would permit the parties to decide, based on events at the table, when to bring in an FMCS mediator to assist them. In addition, it would allow FMCS to retain its customary discretion to determine how long the parties should remain in mediation.
On the issue of negotiability disputes, we believe that aspects of both parties’ proposals are warranted. In this regard, the Union’s proposal, which would require the Employer to refrain from issuing a formal written declaration of nonnegotiability concerning a Union proposal until the parties are well into the bargaining process, may have the positive effect of focusing the parties on the development of alternative wording that could cure the Employer’s negotiability concerns. The Union’s proposal shall be modified, however, to shorten to 14 calendar days the time period in which the parties are to resume bargaining following receipt of a determination by the FLRA that a Union proposal is within the duty to bargain. Moreover, we shall permit an exception to this 14-day requirement where either party intends to seek judicial review of the FLRA’s decision pursuant to 5 U.S.C. § 7123(a) of the Statute. We also shall order the adoption of the portion of the Employer’s proposal requiring the parties to sever from negotiations proposals asserted to be outside the duty to bargain which the parties are unable to resolve voluntarily. In our view, this should permit the parties to proceed towards the implementation of a successor MCBA without becoming side-tracked by negotiability concerns.
Finally, on the issues of impasse process, ratification and information requests, we are not persuaded that there is a need to supplement either the parties’ partial ground rules agreement or existing statutory requirements with the additional wording the Union proposes. Accordingly, we shall order the Union to withdraw its proposals on those issues.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following:
1. Research Materials
The parties shall adopt the Employer’s proposal.
2. Negotiation Sessions and Recess
The parties shall adopt the following compromise wording to resolve their dispute:
Once negotiations commence, the parties shall negotiate a minimum of 4 days a week (every day except Thursday), for 8 hours a day, unless mutually agreed otherwise, for a maximum of 80 calendar days.
The parties shall adopt a modified version of the Union’s proposal which provides as follows:
The Union and Employer each are permitted to have in attendance during bargaining sessions any DOL employee, limited to one silent observer from each side, to observe the proceedings while on his or her own time.
4. Mediation Procedures
The parties shall adopt the Employer’s proposal, modified as follows:
Either before or at the end of the 80-calendar-day period for negotiations, if the parties are in need of mediation services, they will utilize the services of the Federal Mediation and Conciliation Service.
5. Negotiability Disputes
The parties shall adopt the following compromise wording:
a. The Employer will, after fully exploring the matter with the Union, provide the Union with a written allegation on any matter on which it believes it has no duty to bargain under the Statute, in accordance with Federal Labor Relations Authority (FLRA) regulations.
b. The Union may institute an appeal of the Employer’s no duty-to-bargain determination on or before the 15th calendar day after the date of the receipt by the Union of a written allegation from the Employer which asserts that the matter proposed is inconsistent with the obligation to bargain under 5 U.S.C. § 7117(a) of the Statute.
c. The Employer will not issue in writing any duty to bargain allegations within the meaning of Section 7117 of the Statute prior to the end of the 40th calendar day of negotiations.
d. Within 14 calendar days of receipt of a determination by the FLRA that a matter proposed for negotiations is within the duty to bargain, either party may initiate negotiations on the matter, except when either party indicates its intent to pursue judicial review of the FLRA’s de