DEPARTMENT OF DEFENSE DEFENSE CONTRACT AUDIT AGENCY NORTHEAST REGION LEXINGTON, MASSACHUSETTS and DCAA COUNCIL OF LOCALS 163, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
DCAA COUNCIL OF LOCALS 163,
AMERICAN FEDERATION OF GOVERNMENT
Case No. 93 FSIP 171
DECISION AND ORDER
DCAA Council of Locals 163, American Federation of Government Employees, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel or FSIP) 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 Defense (DOD), Defense Contract Audit Agency (DCAA), Northeast Region, Lexington, Massachusetts (Employer).
After investigation of the request for assistance, the Panel directed the parties to participate in a telephone conference with Staff Associate Gladys M. Hernandez for the purpose of resolving the dispute over groundrules for successor agreement negotiations. The parties were advised that if no settlement were reached, Ms. Hernandez 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, including the issuance of a binding decision.
Ms. Hernandez held telephone conferences with the parties on November 17 and 18, 1993. With her assistance, the parties resolved 10 of the 11 outstanding issues.(1) She has reported to the Panel on the one remaining issue based on the record developed by the parties. The Panel has now considered the entire record.
The Employer, 1 of 5 regional offices within DCAA, oversees 25 major field audit offices and 44 suboffices in 9 states. It is responsible for: (1) performing audits for DOD, as well as other Federal agencies under OMB Circular A-73; and (2) providing DOD with accounting and financial advisory service to assist in the negotiations, administration, and settlement of contracts and subcontracts. The Union represents a bargaining unit of approximately 746 General Schedule employees, the majority (676) of whom are professional auditors; others are administrative and clerical personnel. The parties' relationship is governed by the terms of a regional collective-bargaining agreement which was due to expire in April 1993, but remains in effect until a successor is implemented.
ISSUE AT IMPASSE
The parties essentially disagree over who should pay the travel expenses and per diem allowances incurred by the Union negotiators from Connecticut and New York to participate in anticipated proceedings before the Federal Mediation and Conciliation Service (FMCS) and the Panel.
POSITIONS OF THE PARTIES
1. The Employer's Position
The Employer proposes the following:
The Union shall pay all of their expenses for travel/per diem for representatives associated with mediation with FMCS and for any ensuing proceeding with FSIP. Every member of the negotiation team is to be present for mediation and impasse, unless an emergency prevents his/her attendance.
Generally, its proposal is fair and reasonable. It is also consistent with earlier Panel decisions which require parties to "share costs."(2) When it agreed to section 2.b. of the groundrules,(3) the Union recognized its responsibility to share the cost of negotiating for a successor agreement, as it does for arbitrating grievances. Requiring the Union to pay for all its negotiators' travel costs to participate in proceedings before the FMCS and FSIP would ensure that these proceedings "move with resolve and intent to get agreement." Such requirement is not intended to allow the Employer "to 'control' [the Union] and hinder the negotiations process," as the Union argues. Rather, it gives both parties financial incentive to make "prudent use of [their] time at the table." Moreover, in the movement toward "total quality partnership each side must assume responsibility for fiscal restraints in all areas of labor-management relations."
The Union's claim that it cannot afford travel expenses and per diem allowances is unsupported. In fact, "it appears weak upon a constructive examination of [employees'] dues-paying history." In this regard, it estimates that the Union currently has approximately $218,400 to finance its representational obligations, "which are far broader than just grievance-arbitration proceedings." It is "inconceivable" that the Union has exhausted all these monies, particularly given the paucity of the representational expenses it has historically incurred. The Union's financial claim is also "specious" because of its failure to provide the Employer or the Panel with copies of the "financial information" it has filed with the Department of Labor. Finally, while the Union may not be concerned with the Employer's bargaining costs, as it has expressed on a number of occasions, the Employer must be, especially given current budget cuts in DOD.
2. The Union's Position
The Union's proposal is as follows:
Management will pay travel/per diem for the Union representatives from Connecticut and New York for up to 2 weeks of mediation with FMCS.(4) The maximum duration of mediation associated with these term negotiations shall be 2 weeks. Management will pay travel/per diem for the Union representatives for impasse proceedings ordered by the FSIP. Management will pay travel/per diem for the Union representatives for any renegotiations or other proceedings caused by agency head disapproval of any part of the ratified and approved agreement forwarded for final approval. In order to minimize costs, the Council may designate any number of negotiation representatives less than five, providing that the negotiator(s) present will have full authority to act on behalf of the full bargaining team.
The Employer should pay the Union negotiators' travel expenses and per diem allowances because: (1) otherwise "the unequal availability of resources provides [it] with a weapon at negotiations;" (2) "the financial standing of [the] Union will impair [its] ability to provide representation if [it] has to expend money for travel costs which would otherwise be available for representation;" and (3) with negotiations being held at the Employer's offices, only Union negotiators have to travel. Also, for the parties to have "the exchange of positions and vigorous debate necessary to reach a quality collective bargaining agreement," the Employer must invest "time and money." The 2-week limit for mediation addresses the Employer's fear that the Union "intend[s] to be in mediation for 10 years or more." In this regard, the travel costs to the Employer for 2 weeks of mediation would be "approximately $3,000 maximum." The Employer, with an annual budget "in excess of $50 million," is in a better financial position than the Union to bear such costs. The $3,000 are better spent on successor negotiations than, for example, on the "stay-in-school" program for which the Employer has requested $201,600. With regard to the Panel, it "would [not] allow either side to be 'inefficient' or 'non-productive' for so long that the costs of meetings, if any were required, would be exorbitant."
Under its proposal, the Employer's goals of "minimizing cost and maximizing productivity" would be met by allowing the Union to designate a lesser number of bargaining-team members for mediation and impasse proceedings. By contrast, in proposing otherwise and requiring the Union to pay for all its negotiators' travel-related expenses, the Employer "discloses a punitive motive." Finally, the Union should not have to bear the cost of renegotiating an agreement ratified by Union members but disapproved by the agency head.
After examining the evidence and arguments presented, we conclude that neither party's proposal adequately resolves the matter. With regard to the primary issue, travel expenses and per diem allowances: We believe that, since the Employer is to cover the costs for the Union negotiators from Connecticut and New York through 5 weeks of unassisted bargaining, it is fair for the Union to pay them for all its negotiators should subsequent proceedings be necessary. In such circumstances, it is reasonable to require the Union to share the costs associated with negotiations in which both parties have an equal stake. In this regard, we note that the Union's argument that it lacks sufficient financial resources to do so is unsubstantiated by the record.
With respect to the payment of travel expenses and per diem allowances related to renegotiations of all or part of the agreement, we shall order the party responsible for the renegotiations to incur the costs. We believe such wording is warranted to avoid the Union's having to incur such costs if the renegotiations are the result of the agency head's disapproval of the agreement. In other words, requiring each party to assume 100 percent of the travel expenses and per diem allowances necessitated by the actions of its ratifier is fair. Furthermore, it should bring pressure to bear on both parties to conduct effective and responsible negotiations. Finally, in the absence of an articulated reason from the Employer as to why we should order the Union (but not the Employer) to have all its negotiators present at FMCS and Panel proceedings, we shall allow the Union to retain some control over its travel expenditures by permitting it to bring less than a full complement of bargaining-team members to those proceedings, should they become necessary, provided that those present have full authority to act on behalf of the Union.
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 pursuant to the Panel's regulations, 5 C.F.R. § 2471.6 (a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the parties to adopt the following wording:
The Union shall pay the travel expenses and per diem allowances of its negotiators related to mediation before the FMCS as well as FSIP proceedings. The Employer shall pay such expenses and allowances for renegotiations related to the agency head's disapproval of all or part of the successor agreement, while the Union shall pay such expenses and allowances related to nonratification of all or part of the agreement by the Union membership. In order to minimize the cost, the Union, at its discretion, may have less than its entire bargaining-team at the table, provided that those present have full authority to act on behalf of the Union.
By direction of the Panel.
Linda A. Lafferty
January 7, 1994
1.As is relevant to the issue at impasse, the parties agreed that negotiations will be held at the Employer's facility in Lexington, Massachusetts, Mondays through Fridays for 5 weeks, beginning the second Monday after the Union's negotiators have completed a March 1994 course on mutual gains bargaining co-sponsored by Cornell University and the Federal Labor Relations Authority, at the Employer's expense. No travel funds will be expended on the Employer's three negotiators because they are all stationed in Lexington. The parties also agreed that the Employer would pay the travel expenses and per diem allowances for three of the five negotiators which the Union may have at the table during the 5 weeks o