DEPARTMENT OF AGRICULTURE AGRICULTURE RESEARCH SERVICE NORTHERN STATES AREA FARGO, NORTH DAKOTA AND LOCAL 3748, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF AGRICULTURE
AGRICULTURE RESEARCH SERVICE
NORTHERN STATES AREA
FARGO, NORTH DAKOTA
LOCAL 3748, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 92 FSIP 223
DECISION AND ORDER
Local 3748, 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 Department of Agriculture, Agriculture Research Service, Northern States Area, Fargo, North Dakota (Employer or ARS).
After investigation of the request for assistance, the Panel directed the parties to have an informal conference with Staff Associate Ellen J. Kolansky for the purpose of resolving the outstanding issues. The parties were advised that if no settlement were reached, Mrs. Kolansky would notify the Panel of the status of the dispute, including the final offers of the parties and her recommendations for resolving the issues. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Mrs. Kolansky met with the parties on January 12 and 13, 1993, in Fargo, North Dakota. At that proceeding, the parties reached agreement on 9 of 14 issues in dispute; subsequently, the Union withdrew an additional matter. Mrs. Kolansky has reported to the Panel on the four unresolved issues, and it has now considered the entire record.
The Employer operates three applied research laboratories and conducts field studies to solve problems related to human nutrition, insect biology, plant pathology, genetics, and soil. The Union represents approximately 261 bargaining-unit employees scattered among 8 different locations: 3 in North Dakota; 1 in South Dakota; 3 in Minnesota; and 1 in Madison, Wisconsin. Employees hold positions such as biology technician, chemist, computer clerk, nurse, procurement agent, and secretary. The parties' negotiated agreement, executed in April 1985, has been rolled over annually since 1988; it will remain in effect until negotiations for the successor agreement, culminating in these proceedings, are complete.
ISSUES AT IMPASSE
The four issues that remain for Panel resolution concern: (1) travel and per diem for Union representatives; (2) impact-and-implementation bargaining procedures; (3) a contract reopener; and (4) in-house mail delivery methods.
POSITIONS OF THE PARTIES
1. Travel and Per Diem for Union Representatives
a. The Employer's Position
The Employer's proposal is as follows:
ARS agrees to pay 62.5 percent of the travel expenses incurred by Union officials and stewards while using official time available under the terms of this Agreement.
Although the current agreement specifies that the Employer is to pay reasonable travel and per diem expenses arising from the Union's representational activities, it believes that the Union can afford to assume a portion of the financial burden. Not only would such sharing motivate the Union to keep costs low, but a precedent for an apportionment exists since, as part of groundrules negotiations for a successor agreement, the Union agreed to pay 37.5 percent of travel-related expenses. Furthermore, the Union can keep such costs to a minimum by using the telephone, facsimile machine, computer, and printer to facilitate communications. Moreover, the Employer already generously supplements bargaining and other representational activities by paying salaries and benefits of bargaining-unit employees engaged in such Union duties.
b. The Union's Position
The Union proposes:
Union representatives who are unit employees will be allowed a reasonable amount of travel and per diem in conjunction with official time to perform representational activities described in Article 3, Section 5.
Under the current system of reasonable travel and per diem, the Employer has not demonstrated any history of abuse that suggests a change is justified. Although the bargaining unit is spread over a 4-state region, during the last 4 years the Union kept such expenses to under $100. In this regard, "the parties work very hard to resolve conflicts before they reach the grievance stage." When travel is necessary, Union representatives generally go by car, limit the trip to 1 day, or, if more time is needed, stay with friends or relatives to avoid hotel costs. Its recent decision to share travel and per diem expenses with the Employer was possible only because it knew the number and frequency of negotiating sessions, calculated its share of the costs, and saved for 2 years to meet the expenses. Since future expenses would be open-ended, the Union might be vulnerable should management act in ways that create need for extensive travel; the current economic climate may dictate staffing cutbacks that could require the Union to become more active. Finally, already agreed upon procedures for approval of travel and per diem expenses give the Employer the discretion to require a different mode or duration for the travel, or to disapprove the request.
Having considered the evidence and arguments on this issue, we conclude that the parties should adopt the Union's proposal to resolve the dispute. In light of the parties' positive experience under the current practice of reasonable travel and per diem, including the Union's conservative approach toward the use of travel and its problem-solving orientation, we find that the Employer has failed to demonstrate a need for changing the status quo.
2. Impact-and-Implementation Bargaining Procedures
a. The Employer's Position
Essentially, it would emphasize an expeditious impact-and-implementation bargaining procedure to address changes in working conditions. In this regard, it proposes to include the sentence: "Time is of the essence in all matters concerning this article." The Union would provide written counterproposals at the time it requests bargaining. Such bargaining requests would be required within 14 days of discussions concerning the changes. In emergencies, however, the Employer would be permitted to implement changes immediately. A 30-day, expedited interest arbitration procedure would be established whereby the parties could select an arbitrator from a standing panel of three; Panel approval would not be sought. The party choosing to use the procedure would be required to pay all related expenses, including the arbitrator's fees and the Union's travel and per diem costs. If the expedited procedure were not invoked, either party could bring a matter to the Panel. Such procedures, it argues, would facilitate making changes in working conditions in support of the mission. Lack of such specific timeframes for conducting negotiations was a defect in the previous agreement. As a result, negotiations tended to be protracted. The expedited interest arbitration procedure also should speed resolving disputes, and "would be in accordance with the Panel's own regulations because this process would occur prior to any declaration of impasse."
b. The Union's Position
The Union proposes the following:(1)
ARS will follow the procedures of this section prior to implementing any proposed changes to established personnel policies and practices and other matters affecting the working conditions of employees in the unit, including past practices that are not enumerated in the Agreement.
(A) The Union will be advised in writing of proposed new or changes to established personnel policies and practices. Notices will include a specific ARS official to contact for this matter.
(B) Within 10 calendar days of its receipt of the notice, the Union will be given the opportunity to request a discussion of the proposal with [the] designated ARS official. The discussion will take place as soon as possible. Union representatives will be on official time during such discussions and may make written or oral comments, suggestions or alternate proposals.
(C) If differences of opinion remain after good-faith discussion of the issue, within 21 calendar days of the discussion the President may request, in writing, negotiations, which shall take place within 30 calendar days of the request for negotiation, over the proposed changes. Implementation will be delayed until agreement is reached or any proposals not agreed to by the parties have been decided by the FSIP. If implementation occurs it will be in accordance with the agreement or the FSIP.
Somewhat more expanded timeframes than those proposed by the Employer are needed to permit consultations with the geographically scattered bargaining unit. In addition, clarifying the Employer's proposals is often time consuming because the one labor-relations specialist who deals with all labor relations issues is difficult to reach. In this regard, during discussions concerning the parties' recent "maxiflex" program, months passed before conflicts that the Union found in the Employer's proposal were straightened out. As to using a "time is of the essence" provision, such wording would be virtually unenforceable, and is unnecessary since the contract will contain definite timeframes within which the parties are to act. Finally, regarding expedited interest arbitration, not only could such a provision be costly, but it also would "eliminate the Union's statutory right to take issues that are at impasse to the FSIP."
Upon consideration of the arguments and evidence presented, we conclude that the Union's proposal on impact-and-implementation bargaining procedures should be adopted. Generally, both parties recognize that definite timeframes are useful to ensure that negotiations, if requested, will move forward expeditiously. We are neither persuaded that the somewhat shorter time period or earlier receipt of Union counterproposals suggested by the Employer would significantly shorten negotiations; nor are we persuaded that adding the phrase "time is of the essence" would enhance the process. The difference between the parties' positions on expedited interest arbitration, however, is pivotal. Since the Employer is not proposing mere advisory arbitration, but a procedure invoked without Panel approval in which the parties would be bound by the outcome, we find that the Union's proposal, which conforms with the statutory framework regarding impasse procedures, is superior. For this reason, we shall order the adoption of the Union's proposal.
3. Contract Reopener
a. The Employer's Position
In brief, the Employer proposes that either party may reopen the parties' agreement to renegotiate a maximum of three articles at the 18-month point. Related procedures would require it to pay the Union's expenses if the Employer unilaterally requests bargaining, limit actual bargaining to 1 week, and apply the travel and per diem provision as previously determined by the Panel to Union-initiated bargaining as permitted in the agreement. Since the contract is a document that the parties live by on a daily basis, the reopener would permit them to make adjustments at an early stage to sections that become problematic. Because such clauses provide this kind of flexibility, they are common in labor agreements.
b. The Union's Position
It believes that the Employer should withdraw the reopener proposal so that the parties do not find themselves engaged in continuous bargaining. In this regard, during their 15-year relationship, the parties spent 6 ½ years negotiating the initial agreement, 3 years waiting for the Employer to come to the table to bargain over the successor agreement, and lived through five reorganizations and three related petitions to determine the appropriate bargaining unit. There is sufficient opportunity for the parties to make any necessary adjustments to their successor agreement because, by its terms, it may be amended should future legal or regulatory changes be in conflict, and, of course, it may be reopened by mutual agreement.
Concerning a reopener clause, we are persuaded that the Employer should withdraw its proposal. We find that the parties had an extended opportunity to weigh and debate the pros and cons of the various contract provisions during the face-to-face portion of negotiations which spanned a 9-month period. Furthermore, the new agreement may be reopened to deal with conflicting laws and regulations, the parties may bargain at midterm over new topics not covered by the agreement, and they may mutually agree to reopen the contract. We, therefore, find a further reopener pro