DEPARTMENT OF HEALTH AND HUMAN SERVICES PUBLIC HEALTH SERVICE Indian Health Service Navajo Area Indian Health Service Window Rock, ARIZONA and Local 1376, Laborers international union of north america, AFL-CIO
States of America
THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
OF HEALTH AND HUMAN SERVICES
Case No. 04 FSIP 19
The Department of Health and Human Services,
Public Health Service, Indian Health Service, Navajo Area Indian Health Service,
Window Rock, Arizona (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 the Local 1376, Laborers International Union of North America,
After investigation of the request for
assistance, the Panel determined that the dispute, which concerns ground rules
for negotiating a successor collective-bargaining agreement (CBA), should be
resolved through an informal conference by telephone with Panel Member John G.
Cruz. The parties also were advised
that if no settlement was reached, Member Cruz would report to the Panel on the
status of the dispute, including the parties’ final offers and his
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,
Member Cruz conducted an informal conference with the parties on February 4,
2004. During the course of the
teleconference, the parties explored their interests and made some progress
towards resolution of the issues. Thereafter,
the parties submitted to the Panel, and each other, their final offers on two
issues along with statements of position and rebuttal statements. Accordingly, Member Cruz has reported to the
Panel on the two remaining issues, and it now has considered the entire record.
The Employer is a component within the Indian
Health Service providing medical services to the Navajo Tribe. The Union
represents approximately 3,000 professional and non-professional bargaining-unit
employees who hold positions such as nurse, medical officer, doctor,
housekeeping aide, food service worker and maintenance worker.
The parties are operating under a partial interim CBA that expired on
March 28, 1999.1/
Until a successor agreement can be implemented, the terms of the interim
agreement are still in effect.
ISSUES AT IMPASSE
The parties disagree over: (1) who should pay
the travel and per diem expenses for Union representatives on official
time during the negotiations (Ground Rule #4), and (2) procedures to be used
should an impasse arise (Ground Rule #6).
1. Payment of
Travel and Per Diem Expenses
The Employer’s Position
The Employer proposes to provide
Union negotiators on official time with a government vehicle for travel to and
from the negotiations. The past
practice for CBA negotiations has been that each party pays for its own
representatives’ travel and per diem expenses.
A past practice should not be altered without a demonstrated need, or at
a minimum an assertion by the Union that it cannot afford to pay its own
expenses. The Union has neither demonstrated a need to change the past practice,
nor cited an inability to pay. Moreover,
the Employer disagrees with the Union that the parties should include the
practices that developed under partnership when determining which side is
attempting to change the status quo, since those occurred under a
separate agreement. The
Employer’s final proposal is offered as a compromise, in light of an
unconfirmed statement by the Union that at least once in previous CBA
negotiations a Union representative was provided a government vehicle.
b. The Union’s Position
Essentially, the Union proposes that
management pay the travel and per diem expenses for all of the Union’s
negotiators, in accordance with the Federal Travel Regulations.
The Employer has paid for the travel and per diem expenses of the
Union’s representatives in
connection with partnership activities, so unlike the Employer’s, its proposal
is consistent with the parties’ past practice.
In addition, since the Employer pays travel expenses when an employee is
in “duty status [for] required training, mandatory meetings and the like,”
the Employer should have to pay for these expenses when the employee has been
granted official time.
Having carefully reviewed the evidence and
arguments presented in support of the parties’ positions, we shall order the
adoption of the Employer’s proposal on the payment of travel and per diem expenses.
In our view, the Union has not demonstrated a need, financial or
otherwise, to force the Employer to pay these costs for the Union’s bargaining
team. The Employer’s offer to
supply a vehicle to Union negotiators on official time appears adequate for the
short distance the negotiators will need to travel.2/
It would also provide some support to the Union while giving both
sides an incentive to conduct their negotiations expeditiously.
2. Impasse Procedures
The Employer’s Position
respect to how impasses should be handled, the Employer proposes the following
If the parties reach an impasse regarding any issues or article, either party can request the assistance of the Federal Service Impasses Panel (FSIP). Neither mutual written agreement that the parties are at impasse, nor certification from the Federal Mediation and Conciliation Service (FMCS) that the parties are at impasse is required for either party to be able to request the assistance of FSIP. However, the parties understand that the FSIP could refuse to take jurisdiction if FSIP determines that the parties are not at impasse.
proposal would ensure that the Union does not attempt to delay the normal
progression of an impasse by refusing to provide mutual written agreement.
The wording was formulated to counter the Union’s stance during the
ground rules negotiations that the parties should mutually agree they are at
impasse before either could request the Panel’s assistance.
Although the Union now appears to have changed its position, its current
proposal is in violation of the unfair labor practice (ULP) settlement agreement
which preceded these ground rules negotiations.
b. The Union’s Position
The Union would add the
following provision to the ground rules to which the parties have already
will be] a two-day bargaining session without the assistance of the Federal
Mediation and Conciliation Service to see if the parties can come to some
agreement on the outstanding issues. If that is not possible, then a second
session would be scheduled with the mediator after which time Ground Rule #6
would become operative.3/
Its proposal “is consistent with the rights and obligations set forth in Chapter 71, good labor relations practices and the specific practices of the same parties in the past.”
On the issue of impasse procedures, we are
not persuaded that there is a need to supplement the existing statutory
requirements with the additional wording proposed by either side.
In this regard, the Employer’s proposal essentially mirrors existing
procedures under which either party may request the Panel’s assistance without
the other’s consent, while the Union’s arguably is inconsistent with the
parties’ ULP settlement agreement. Accordingly,
we shall order the parties to withdraw their respective proposals on this issue.
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 § 2471.11(a) of its regulations her