In the Matter of












Case No. 98 FSIP 168





    Local 2149, American Federation of Government Employees (AFGE), AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute between it and the Department of Justice, U.S. Attorney’s Office, District of New Jersey, Newark, New Jersey (Employer). After investigation of the request for assistance, the Panel asserted jurisdiction and directed that the parties’ dispute over ground rules for a successor collective bargaining agreement (CBA) be submitted to the undersigned for mediation-arbitration by telephone.

    Accordingly, on November 19, 1998, I conducted an arbitration hearing by telephone with the parties’ representatives. During the course of the proceeding, two of the three issues at impasse were voluntarily resolved.(1) On the remaining issue, each side presented arguments and evidence in support of its position. I have considered the entire record, including the parties’ post-hearing briefs. The record is now closed.


    The Employer prosecutes Federal criminal matters and defends the Federal Government in civil cases in the State of New Jersey. The bargaining unit consists of about 60 nonprofessional employees who hold positions such as secretary, paralegal, and administrative assistant, in grades ranging from GS-5 to -11; they provide administrative support for the approximately 117 attorneys in the office. The parties’ current CBA, which was to have expired in 1985, has been renewed annually, and remains in effect until the successor agreement is implemented.


    The parties basically disagree over whether: (1) provisions which are tentatively agreed upon during bargaining should be initialed by their Chief Negotiators, and (2) such provisions should be reopened only by mutual consent.

1. The Union’s Position

    The Union proposes the following ground rules:

3. d). Only the Chief Negotiator, or designee, is authorized to commit their negotiating team to agreement on a proposal. Such authority will be in writing and will be presented before beginning the negotiations. The two Chief Negotiators initialing the proposal upon reaching a tentative agreement will indicate commitments. The initialed proposal(s) will not prevent the proposals from being reopened for further negotiations at a later date by mutual agreement of the parties.

8. c). Articles signed off as completed cannot be reopened unless by mutual agreement of the parties. As articles are agreed upon, the Chief Negotiators, or his/her designees, will finalize the article by initialing and dating it at the session. Agreement on sections is tentative until the entire article is fully agreed upon.

If its proposal is not adopted, "either party will never know exactly what was agreed to." The absence of such wording could also encourage bad faith bargaining. While the Union prefers not to speculate as to whether "the signing off of a tentative agreement" is a widespread practice in Federal sector negotiations, its proposal is a standard feature of ground rules agreements where the 2nd District of AFGE is a party.(2) Contrary to the position taken by the Employer, the parties "are not buying a house," they "are negotiating a master agreement." Finally, "as a rule, either party should know" that the negotiators have the authority to bargain and to commit the negotiating team to binding agreements on proposals. Otherwise, "either party can continue to change negotiators."

2. The Employer’s Position

    The Employer opposes the inclusion of the Union’s proposal in the final ground rules. Unless the parties mutually agree to be bound by such wording, "the ground rules should remain silent on the point." The Union’s proposal is "counterproductive to an efficient negotiation." Among other things, it "will discourage tentative agreement on proposals and prolong the negotiations" because a "prudent negotiator" would be reluctant to initial off on a proposal without conducting an "exhaustive analysis" of how it might relate to other provisions not yet agreed to. The proposed procedure could also lead to discussions with numerous management officials in various components of the office on a proposal-by-proposal basis prior to final agreement, which would serve to "slow the negotiations dramatically." In addition, the parts of the proposal which would require mutual agreement before an issue can be reopened are troubling. This could embroil the parties in "tangential and unproductive" disputes over whether the ground rules permit a party to reopen a provision.

    The Employer’s position that parties should be able to reach non-binding tentative agreement on proposals is "imminently reasonable." This is how contracts are commonly negotiated "in our personal lives, and in major commercial transactions." Proceeding in this way "makes great sens