SMALL BUSINESS ADMINISTRATION WASHINGTON, D.C. and COUNCIL 228, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
COUNCIL 228, AMERICAN FEDERATION OF
Case No. 05 FSIP 108
DECISION AND ORDER
Council 228, American Federation of Government Employees, AFL-CIO (Union), 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 Small Business Administration, Washington, D.C. (Employer or SBA).
Following an investigation of the request for assistance, which involves the payment of Union travel and per diem expenses incurred during negotiations over an Employer-initiated mid-term change in conditions of employment, the Panel determined that the matter should be resolved through single written submissions. The parties were informed that after considering the entire record, the Panel would take whatever action it deems appropriate to resolve the matter, which may include the issuance of a Decision and Order. The parties' final offers and written submissions were received in accordance with the Panel's determination, and the Panel has now considered the entire record.
The Employer aids, counsels, and assists small businesses. The Union represents a nationwide bargaining unit of 2,500 employees in the field and at its Washington, D.C. headquarters office, at grades GS-5 through -13.1/ Employees work as specialists in business development, business management, business operations, contracts, information technology, grants, procurement management, lender relations, and surety bonds; as financial analysts; as program assistants; and as attorneys and paralegals. The parties have conflicting views of the status of their master agreement (MA). The Employer states that the 1999 MA is currently in effect by operation of Article 50, Duration and Term, Section 1(a). The Union believes that the CBA has expired. The parties recently resumed bargaining over a successor MA in December 2005.
ISSUE AT IMPASSE
The Panel asserted jurisdiction over a disagreement concerning the extent to which the Employer should pay the travel and per diem expenses for Union representatives in connection with the parties' negotiations over a plan the Employer implemented on May 31, 2005, to offer certain employees, grades GS-11 through -15, Voluntary Separation Incentive Payment (VSIP) and Voluntary Early Retirement Authority (VERA) opportunities.
1. The Union's Position
The Union proposes:
The Employer will pay the travel and per diem expenses of 3 representatives of AFGE Council 228 if the negotiations are held outside of New York, NY; or, the Employer will pay the travel and per diem expenses of 2 representatives of AFGE Council 228 if the negotiations are held in New York, NY.
The location for negotiations shall be determined by the Employer and C-228 will be notified as soon as possible of the decision.
This agreement does not affect the number of Union representatives who will participate in the negotiations without receiving travel and per diem.
The payment of travel and per diem expenses will be in accordance with applicable laws and regulations, and the practice the parties have followed on previous similar occasions.
Its proposal is nearly identical to wording in a recent agreement the parties reached concerning payment of the Union's travel and per diem expenses to cover bargaining over ground rules for the resumption of the parties' negotiations over their MA. It reflects a practice that goes back to 1993 under which the Employer has paid the travel and per diem expenses of Union representatives at least 15 times: 7 partnership meetings, 5 mid-term or impact-and-implementation bargaining sessions, 2 MA bargaining sessions, and 1 or more training sessions. Furthermore, if, as the Employer proposes, bargaining sessions are held in Washington, D.C., the Employer's costs would be mitigated, since none of its representatives would need to travel. At this time, when the Union is facing "significant expenses related to [MA] negotiations," the Union's costs also should be moderated. Finally, as to affordability on the Employer's part, it "has never claimed in any of its submissions to the Panel that it doesn't have the funds to pay the travel and per diem expenses proposed by the Union."
2. The Employer's Position
The Employer is proposing
The SBA will pay travel and per diem expenses for 1 [Union] representative to attend the negotiations for the substantive issues with the Agency in the above matter;
The negotiations will take place in Washington, D.C., and the dates(s) and time(s) the negotiations will occur will be determined jointly by the parties;
The Agency will have three representatives on its management team;
The Agency will not pay the Union members' travel and per diem expenses for the costs associated with the ground rules negotiations;
The payment of travel and per diem will be in accordance with applicable laws and regulations.
Historically, on some 10 occasions the Agency has paid the travel and per diem expenses of Union negotiators. Among these, seven occurred in connection with partnership meetings where Article 5 requires the Employer to make the payments, or training and bargaining sessions involving the successor MA and the implementation of a new performance appraisal system, where such payments are required under Article 28 or a separate MOU. As to bargaining that occurred just before or just after partnership meetings, those payments are "consistent with the Agency's practice of contributing toward Union travel and per diem expenses" as part of "a mutual commitment to contain travel expenses in connection with representation." In another two instances, the Employer's payment of the Union's travel and per diem expenses was justified because the negotiations involved a pilot program affecting 24 district offices throughout the country. In only one instance, which involved impact-and-implementation bargaining over the establishment of the Loan Liquidation Center and related VERA and VSIP opportunities, did the Employer pay one of two Union representatives' travel and per diem expenses. This was done to keep costs to a minimum and to avoid compromising the negotiating process. That level of support is consistent with the Employer's proposal in the instant case. Regarding the Union's actual need for such financial support, to minimize its expenses, the Union previously has relied in part on representatives who are located in Washington, D.C.
Preliminarily, we note that the parties' final offers go beyond the issue over which the Panel asserted jurisdiction. In this regard, the proposals address bargaining location, the number of representatives, and the applicability of law, rule, and regulation. In addition, the Employer attempts to restrict its obligation to reimburse the Union's travel and per diem expenses only to any future bargaining in connection with a mid-term change that already has been implemented, and where it is unclear that further negotiations will occur. This also is inconsistent with the statement of the issue at impasse the parties received when they were informed that the Panel had asserted jurisdiction over their dispute.2/ To correct these deficiencies, after carefully considering the record in this case, we shall order the Employer to pay for the travel and per diem expenses of one Union representative in connection with the parties' negotiations. In our view, this is consistent with their past practice involving mid-term bargaining, and should afford incentives to both sides to contain travel costs and bring this matter to closure expeditiously.
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:
The Employer shall pay the travel and per diem expenses for one Union representative in connection with the parties' negotiations over the plan the Employer implemented on May 31, 2005, to offer employees at grades GS-11 through -15 VERA and VSIP opportunities.
By direction of the Panel.
H. Joseph Schimansky
December 16, 2005
Only a few WG employees are part of the bargaining unit. Another union represents field employees in Colorado, Montana, and Texas.
In its determination letter of September 27, 2005, the Panel specifically stated that it had asserted jurisdiction over “the issue of the payment of travel and per diem expenses for Union representatives in connection with the parties’ negotiations over the plan the Employer implemented on May 31, 2005, to offer employees at grades GS-11 through -15 VERA and VSIP opportunities.” This