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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

United States of America 




In the Matter of 

Indian Health Service  
Navajo Area Indian Health Service  
Window Rock, ARIZONA  



Local 1376, Laborers international  
  union of north america, AFL-CIO

    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, AFL-CIO (Union).  

     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.  


     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  

a.  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  

a.  The Employer’s Position     

     With respect to how impasses should be handled, the Employer proposes the following wording: 

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.

Its 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 agreed:  

[There 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 hereby orders the following:  

1.     Payment of Travel and Per Diem Expenses  

     The parties shall adopt the Employer’s proposal.

2.     Impasse Procedures  

The parties shall withdraw their proposals.

By direction of the Panel.  

H. Joseph Schimansky  
Executive Director


April 23, 2004  
Washington, D.C.

1/   Initially, the Navajo Area had eight bargaining units, each with their own CBA.  In 1996/1997, the eight bargaining units were consolidated into one unit and the interim CBA was negotiated at that time.

2/   According to both parties, the farthest distance a Union negotiator may be traveling is approximately 3 hours. 

3/   By “Ground Rule #6,” the Union is referring to the Employer’s final offer on this issue.