DECISION AND ORDER

This case, filed by the U.S. Department of the Air Force, Joint Base Elmendorf-Richardson, Alaska (Agency) under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, concerns a dispute over a successor collective bargaining agreement (CBA).  The Agency’s mission is to execute agile combat support to enable and sustain lethality.  The American Federation of Government Employees, Local 1101, AFL-CIO (Union) represents a bargaining unit consisting of approximately 1,099 Wage Grade employees that are mostly blue-collar workers, e.g., Maintenance Operators, Plumbers, and Security Officers.  The parties’ current CBA became effective on March 4, 2013, for a three-year term and continues to remain in effect until the parties reach agreement over a new CBA. 

BACKGROUND AND PROCEDURAL HISTORY

On December 4, 2015, the Agency provided the Union notice of its intent to renegotiate the CBA.  The parties negotiated ground rules from January 2016 to May 2016.  After agreeing to ground rules in May, the parties held 65 negotiation sessions and reached agreement on 18 articles from May 2016 to November 2018.  The parties then met with the Federal Mediation and Conciliation Service (FMCS) Mediator Tom Melancon five times to mediate 19 articles from February 2019 to April 2019.  During mediation, the parties resolved several articles; however, because they were unable to reach a complete agreement over their successor CBA, Mr. Melancon released the parties from mediation on April 25, 2019. 

On May 10, 2019, the parties filed a joint request for Panel assistance over the remaining articles in dispute in Case No. 19 FSIP 042.  During the investigation of that case, the parties entered into an agreement to return to mediation and withdraw the request for Panel assistance.  Thereafter, the parties engaged in mediation with Mr. Melancon for four days in August 2019. The parties were able to resolve three articles in dispute, but could not reach a full agreement over the successor CBA.  On August 15, 2019, the Agency filed a second request for Panel assistance in the instant case over Articles 2; 5; 10; 11; 12; 30; 31; and 38.  During the investigation of the case, the parties either resolved or withdrew from the Panel’s consideration Articles 10; 11; 12; 30; 31; and 38. 

On October 23, 2019, the Panel asserted jurisdiction over Article 2, Section 2.3 and Article 5, Section 5.2.1.  The Panel directed the parties to resolve the issues through a Written Submissions procedure limited to five double-spaced pages due by November 26, 2019. The Panel also afforded the parties opportunity to submit rebuttal arguments limited to five double-spaced pages due by December 6, 2019.  The parties timely provided their written submissions, which are attached to this memo; however, neither party submitted a rebuttal statement.  During the Written Submission phase of the Panel’s proceedings, the parties resolved Article 5, Section 5.2.1.  Therefore, the only issue that must be addressed by the Panel is Article 2, Section 2.3.

ISSUE

The issue for the Panel to consider is whether past practices and supplemental agreements will continue to remain in existence after the execution of the new CBA.

FINAL OFFERS AND POSITIONS OF THE PARTIES

Agency’s Final Offer

All Memoranda of Agreement (MOA) and Memoranda of Understanding (MOU) signed prior to the effective date of the CBA should be null and void unless otherwise specified in this agreement.

The Agency would like to terminate all agreements in effect prior to the execution of the successor CBA.  The Agency argues that after a new agreement is reached, the local parties should start fresh without supplemental agreements continuing to remain in effect from the prior CBA that have no relevance or conflict with the agreed upon terms in the new CBA.  The Agency states that the termination of MOAs and MOUs does not include agreements made concerning flexible and compressed work schedules. The Agency states that it would first negotiate with the Union prior to terminating any work schedules.

During the negotiations, the Agency contends that the Union provided the Agency with a binder of over 100 MOAs/MOUs. However, some of the agreements were unsigned drafts and agreements over processes no longer used.  For example, the Agency asserts that the Union presented it with an agreement over parking at the facility; however, because the terms of that agreement were revised many times, it was no longer valid.  The parties met to discuss the Agency’s concerns, and as a result, the Union whittled the agreements down to 37 documents that it wanted referenced in the CBA as binding agreements.  But, the Agency stated that there were still several documents that were unsigned and no longer applicable.  Therefore, the Agency asked the Union to meet again to determine which agreements were still in effect and which ones the Union would like to include in the new CBA.  The Agency contends that the Union was not interested in meeting and that it wanted all 37 documents included in the CBA.  Based on that, the Agency moved forward with its proposal to terminate existing agreements that were executed prior to the effective date of the new CBA.

Union’s Final Offer 

Any prior benefits, practices and/or memoranda of understanding which were in effect on the effective date of this Agreement at the level recognition, shall remain in effect unless superseded by the new agreement or in accordance with 5 U.S.C. Chapter 71. The Agency may request to renegotiate any past MOU/MOA outside this CBA and its Articles in accordance with statute.

The Union argues that any benefits , past practices, MOAs, and MOUs currently in effect, should continue to remain in effect unless they conflict with the successor CBA or the Statute.  To support its position, the Union states that many MOAs and MOUs cover the safety of its employees and its customers, such as the wearing of uniforms, use of cell phones, driver’s licensing, and training.  Others include such topics as overtime and flexible and compressed work schedules.  The Union argues that the termination of these agreements will disrupt Agency operations, impact employees’ conditions of employment, and violate statutes. Therefore, the Union states that any agreements that the Agency wishes to terminate must first be negotiated.

The Union contends that during the negotiations, it provided the Agency with 36 agreements that were signed, dated, and relevant that it wished to remain in effect; however, the Agency never provided the Union counter-proposals or a reason for wanting to terminate those agreements.  Therefore, because the parties were unable to engage in a discussion over the 36 documents, the Union added the last sentence to its last best offer to permit the Agency an opportunity to renegotiate agreements that carry over to the new CBA. 

CONCLUSION

     Having carefully considered the evidence and arguments presented in support of the parties’ positions, as well as the supplemental information provided by the Union that was not available to the parties prior to their submission deadline, we find that the Agency’s proposal is the most equitable solution to resolve the impasse. In this regard, the parties should be responsible for their respective travel-related expenses in the event that the Panel orders in-person proceedings in Washington, D.C. over their headquarters office relocation bargaining. Based on the foregoing, the Panel orders that the parties adopt the Agency’s final offer.[1]  

ORDER

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 hereby orders the adoption of the Agency’s final offer to resolve the impasse:

Each party pays its own travel, lodging, and per diem expenses in the event they reach impasse over the headquarters negotiations and the Panel directs in-person proceedings in Washington, D.C.

By direction of the Panel.

                                    F. Vincent Vernuccio 

                                    FSIP Member

April 6, 2018

Washington, D.C.