United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
NATIONAL LABOR RELATIONS BOARD
OFFICE OF THE GENERAL COUNSEL
NATIONAL LABOR RELATIONS BOARD
Case No. 92 FSIP 233
DECISION AND ORDER
The National Labor Relations Board Union (NLRBU or 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 National Labor Relations Board, Office of the General Counsel, Washington, D.C. (Employer).
After investigation of the request for assistance, the Panel determined that the impasse, concerning groundrules for successor-agreement negotiations, should be resolved on the basis of written submissions from the parties, with the Panel to be limited to selecting one party's final package, to the extent that it is otherwise lawful. Written submissions were made pursuant to this procedure and the Panel has considered the entire record.
The Employer administers provisions of the National Labor Relations Act, which vests it with the authority to, among other things, prosecute complaints in unfair labor practice cases involving private sector employers and unions. The Union represents two separate bargaining units of professional and nonprofessional employees, respectively, totaling approximately 1,200 who hold positions such as attorney, field examiner, and secretary. Each is covered by a collective-bargaining agreement which expired on February 27, 1992, but whose terms generally remain in effect.
ISSUES AT IMPASSE
A preliminary issue of disagreement between the parties concerns whether the Panel should "bifurcate" their groundrules dispute. A second group of issues over which the parties disagree involves such matters as: (1) the meeting schedule and site of the negotiations; (2) official time; (3) the Union's use of facilities at locations other than the Employer's headquarters office in Washington, D.C.; and (4) the payment of the Union's travel and per diem expenses.
a. The Union's Position
The Union prefers that the Panel "establish groundrules only for the development, exchange, and telephonic discussion of written initial and response proposals." Once these initial groundrules are established and the parties exchange proposals and responses, they would then bargain over the meeting schedule, the site of the talks, and the division of travel and per diem expenses. "It is not reasonable" to bargain over these issues until the parties have exchanged substantive proposals and each side knows "what is on the table to bargain." This approach is further justified by the inordinate length of time it took the parties to reach their last agreement, which "bled" its treasury "nearly dry." Moreover, any claim by the Employer that a bifurcated approach would place it at a disadvantage "is difficult to comprehend" as the groundrules apply equally to both parties.
b. The Employer's Position
The Employer opposes bifurcating the dispute. In its view, the Union's argument "does not support a deviation from the parties' historical practice of entering into a complete agreement prior to the commencement of negotiations." In this regard, the parties have been negotiating collective-bargaining agreements since 1935, and are experienced with respect to the issues which may arise. Such an approach would also be disruptive and not conducive "to a prompt resolution of all outstanding issues." Finally, the real reason behind the Union's proposed approach is "to gain a strategic advantage by selectively choosing those issues that it wishes to negotiate first." This would preclude the Employer from adjusting its position on official time as part of a package proposal encompassing all aspects of a groundrules agreement, and require the Panel to resolve any impasse resulting from subsequent negotiations over official time "without considering the parties' positions on other groundrules provisions."
Having considered the parties' arguments with respect to this preliminary issue, we conclude that a bifurcated approach to their groundrules dispute should not be adopted. In our view, the Employer's position is more faithful than the Union's to the Statute's mandate that its provisions be interpreted in a manner consistent with the requirement of an effective and efficient Government. The Union's approach, on the other hand, would result in a further delay in the start of substantive negotiations, and could well lead to another groundrules dispute. The Panel has never favored the piecemeal resolution of impasses and, accordingly, declines to impose one now under the circumstances presented.
2. Final-Package Offers on Remaining Issues
a. The Union's Position
On the substantive groundrules issues remaining in dispute, the Union essentially proposes that: (1) there be two 3-week bargaining sessions in alternating locations, with a 30-day break in between; the parties meet initially for 3 weeks in a city selected by the Union which is home to one of its bargaining-team members, and then resume negotiations in Washington, D.C., for the second 3-week period; if an agreement is not reached, a final 2-week session be held in Washington, D.C., with the assistance of the Federal Mediation and Conciliation Service (FMCS); either side be permitted, at any time during the negotiations, unilaterally to request the services of FMCS; if agreement is not reached after 1 week with FMCS assistance, it be understood that the parties are at impasse; thereafter, either side could request Panel assistance, with the understanding that should the Panel order the parties to resume negotiations, the parties would jointly request that such negotiations be limited to a 1-week period; (2) it be granted a bank of 400 hours of official time for preparing proposals, participating in impasse proceedings, pre-ratification preparation and training, and conducting a ratification vote; (3) it be permitted to use "agency facilities and equipment" when negotiations are conducted at an office other than the Employer's headquarters in Washington, D.C.; and (4) the Employer pay 50 percent of its travel and per diem expenses when the parties are outside of Washington, D.C., and 100 percent when they meet in Washington, D.C., with a cap of $30,000 for the entire bargaining process.
Its final-package offer is intended to "limit meeting time, and as a result travel time, inconvenience, and expenses to the minimum amount necessary to reach agreement or impasse." The costs under its proposal are "predictable and finite and not open-ended for either party." In particular, its proposed overall cap of $30,000 is reasonable given the Union's experience during the parties' last term negotiations where it incurred overall travel costs of approximately $80,000. Moreover, a 3-week on, 30-day off, 3-week on, schedule would allow the parties to concentrate on negotiations for more sustained periods of time, and permit them to evaluate their positions on unresolved issues in a manner that the 2-week breaks proposed by the Employer would not. The parts of its offer dealing with FMCS and the Panel "facilitate the bargaining process by forcing the parties to get to their bottom line," and reflect a "realistic approach" to resolving issues. In this regard, the Employer's proposal presumes that the parties can dictate to FMCS when a mediator will be made available, while its proposal contemplates that FMCS will schedule the meeting.
By using the phrase "agency facilities and equipment," it intends to privilege use of Employer property and services such as "intra-office mail service, telephones (including speaker phones), libraries, etc." While "such is routine and traditional," and the Employer's use of the word "space" in its proposal is probably inadvertent, "it nevertheless could result in a change in prior arrangements which will prejudice the NLRBU." Finally, its proposal on official time amounts to only 100 hours more than it received in the previous groundrules agreement, and would ensure that the "lack of preparedness" which occurred then is not repeated.
b. The Employer's Position
The Employer basically proposes that: (1) there be three 2-week sessions in alternate locations, with a 2-week break after the first and second sessions, and a 24-day break after the third session; the first meeting be held in Seattle, Washington, the home of the Union president; the negotiations be moved to Washington, D.C., for the second session, and the third session be held in a city selected by the Union which is home to one of its bargaining-team members; thereafter, if no agreement is reached, there be a 24-day recess, followed by a fourth 2-week session, in Washington, D.C., with FMCS assistance; should the parties be at impasse, Panel assistance be requested no later than 3 weeks after the conclusion of the fourth session; (2) there be a bank of 350 hours of official time to be used for preparing proposals, participating in impasse proceedings, and pre-ratification preparation and training; (3) the Union be allowed the use of "agency space and equipment" when the parties are outside of Washington, D.C.; and (4) "budget permitting," its maximum reimbursement to the Union for travel and per diem expenses incurred by its committee members for the entire negotiating process be capped at $23,000.
Its proposals with respect to the unresolved issues "are fair, reasonable, and justified" and should "be adopted in their entirety." In this regard, its offer to pay the Union up to $23,000 of its travel and per diem expenses is over 50 percent more than was provided under the parties' prior groundrules agreement. The Union's proposal that it pay up to $30,000, on the other hand, is "totally unacceptable," particularly given the other increased expenses the Employer will incur as a result of its offer to alternate in the selection of negotiating sites.(1) Its inclusion of the phrase "budget permitting" in its proposal merely reflects the reality that its appropriation for FY 1993 has been reduced below the expected level. It "remains committed to comply with its obligations under this proposed agreement," but does not believe it should be compelled, under current circumstances, "to make all required expenditures without regard to its budgetary situation." Finally, its offer of 350 hours of official time in connection with the negotiations represents an increase of 50 hours over the previous groundrules agreement; "there is no justification," however, for the substantial increase sought by the Union, particularly in light of statements made by both parties suggesting that "not every article of the contract will be the subject of extended negotiations."
Upon careful examination of the final-offer packages presented by the parties, we conclude that, on balance, the Union's provides the better basis for resolving the parties' impasse. We note preliminarily that the parties are now in agreement on a number of items, and that the final-offer procedure appears to have been successful at narrowing their dispute on some of those that remain. The major differences at this point concern whether: (1) the schedule for bilateral negotiations should be three 2-week sessions, or two 3-week sessions; (2) the total bank of official time available for the Union's use in connection with the process should be 350 or 400 hours; and (3) the total reimbursement to the Union for travel and per diem expenses should be capped at $23,000 or $30,000.
In our view, the Union's final package provides marginal benefits over the Employer's for the following reasons. Two 3-week negotiating sessions should provide for more concentrated efforts than the alternative proposed by the Employer, and also reduce costs, as the parties would be required to travel less frequently. A bank of 400 hours of official time for preparation and follow-through is reasonable, given that the Union has a 5-member bargaining team; moreover, thorough preparation could reduce the total number of hours spent at the bargaining table. Finally, we are persuaded that capping the Employer's reimbursement of Union travel and per diem expenses at $30,000 is fair, given the Union's experience during the parties' previous term negotiations. Accordingly, we shall order the adoption of the Union's final package on the substantive groundrules issues.
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:
The parties' groundrules dispute shall not be bifurcated.
2. Final-Package Offers on Remaining Issues
The parties shall adopt the Union's final package.
By direction of the Panel.
Linda A. Lafferty
February 10, 1993
1.To the extent that the Employer continues to maintain that the Union's travel and per diem proposal is nonnegotiable because it interferes with management's right to determine its budget, such a contention appears to be without merit. In this regard, the case cited by the Employer in this connection, National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456 (1990), states that "proposals that simply have cost ramifications cannot be said to inject a union directly into the budget formulation process." Moreover, the Federal Labor Relations Authority has specifically rejected similar budget arguments in previous cases (see, e.g., National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 29 FLRA 1288 (1987).