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DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL 270

DECISION AND ORDER

 

Since 1916, the National Park Service (NPS or Agency) has been entrusted with the care of our national parks. NPS is a bureau of the U.S. Department of the Interior.  More than 20,000 employees work in a wide variety of disciplines and organizations, from parks to regions to national programs, throughout the National Park Service. American Federation of Government Employees, AFL-CIO, Council 270 (AFGE or Union) represents 1400 bargaining unit employees, working under a newly consolidated unit from Maine to Virginia; Region 1. 

BARGAINING HISTORY & PROCEDURAL HISTORY

                Ground Rules between the parties were signed in July 2017.  The parties bargained between January 2018 and March 2020; NPS and AFGE engaged in 28 negotiation sessions.  The parties reached tentative agreements on 32 articles and remained at impasse on nine (9) articles.  In May 2020, NPS filed for the assistance of the Panel.  (FSIP Case No. 20053).  The parties had not been to mediation.  In June 2020, NPS withdrew its request for FSIP’s assistance to engage in mediation with Federal Mediation and Conciliation Services (FMCS).

            In June and July, 2020, NPS and AFGE participated in virtual mediation sessions with FMCS. The parties were able to reach agreement on two (2) of the nine (9) articles at impasse, leaving seven (7) outstanding articles in the CBA.  In July 2020, the Agency submitted this request for Panel assistance.

            The Panel ordered the parties to a telephonic Informal Conference with Member Nelsen in September 2020.  As the parties were only able to reach agreement on one (1) of the seven (7) articles at impasse at the Informal Conference, Member Nelsen ordered the parties to submit their written statements of positions for the remaining six (6) articles. The parties both timely submitted their briefings.

 

PROCEDURAL ISSUE

            The Union raised a procedural challenge to the Panel’s retention of jurisdiction over this matter.  Specifically, the Union stated, in its rebuttal statement, that it “agrees and accepts” the Agency’s proposals for the six (6) remaining articles of the new CBA and was ready to sign in agreement as soon as practicable.  The Union then stated that as a result of this agreement, the parties were no longer at impasse.  In support of its position, the Union reasoned that in accordance with 5 C.F.R. § 7119(c)(1), it is unlawful for the Panel to maintain jurisdiction over the matter because the Union has agreed to all of the Agency’s proposals.  That is, the Union claims that the Panel no longer has jurisdiction because there is no longer an impasse.  The Union claimed the Agency was acting in bad-faith[1] by, rather than signing the proposals the Union agreed to, insisting on the Panel maintaining jurisdiction and entering a final order of the Agency’s proposals.

            The Agency requested the Panel maintain jurisdiction over this matter in order to end negotiations of the new CBA, which started in July 2017.  Agreements reached by the parties during the negotiations are tentative because they are subject to Union ratification; the membership of the Union, through a vote, can disagree with the agreement reached, sending the parties back to the bargaining table.  Under the Statute[2], the Panel may take whatever final action is necessary to resolve the dispute, including the issuance of a Decision and Order. The Order is “final and binding” during the term of the parties' collective bargaining agreement unless the parties agree otherwise.  The Agency points to the significant amount of taxpayer resources that have been spent during the years-long negotiation process to support its insistence on the Panel maintaining jurisdiction and issuing an order.[3]  Also, in support of its position, the Agency cites to the Panel’s decision to issue a final order in U.S. Nuclear Regulatory Commission and NTEU, notwithstanding the union agreeing to the agency’s proposals after the Panel had asserted jurisdiction.[4]

            The Statute is clear that the Panel has jurisdiction to resolve negotiation impasses properly before it.[5]  If the parties do not arrive at a settlement after the Panel’s assistance, the Panel may, in accordance with 5 U.S.C. § 7119(c)(5)(b)(3), “take whatever action is necessary and not inconsistent with this chapter to resolve the impasse.”[6]  Here, the Panel asserted jurisdiction over the Agency’s request for assistance with the impasse in August 2020, and since then the parties have not entered into a settlement.  Furthermore, there is no signed agreement between the parties as evidence that the parties resolved the impasse.  While the Union is now agreeable to the Agency’s language, there remains no binding agreement between the parties.  Without that signed agreement, the impasse is not resolved and the Panel’s jurisdiction continues.

            The Panel properly asserted and maintains jurisdiction over this matter.  The parties were not able to reach settlement with the Panel’s assistance.  Now the Panel is statutorily tasked with taking the action needed to bring final resolve to the impasse.  The parties are in agreement over the language in the Agency’s proposals for the six (6) remaining articles of their new CBA.  To resolve the impasse, the Panel orders the parties to adopt the Agency’s proposals, in full, for those articles.

 

ORDER

 

Pursuant to the authority vested in the Federal Service Impasses Panel under 5 U.S.C. § 7119, the Panel hereby orders the parties to adopt the provisions as stated above. 

                                                            

                                                                                          

 

   

                                                                                                Mark A. Carter

                                                                                                FSIP Chairman

 

December 20, 2020

Washington, D.C.

 

 

ATTACHMENT

 

  • Agency’s Proposals

 

 

[1] The Union raises an unfair labor practice (ULP) concern, however, the Union had not filed a ULP complaint with the FLRA or filed a grievance over an alleged violation of the bargaining ground rules; the more appropriate forums for challenging concerns over bargaining behavior in these negotiations.

[2] 5 U.S.C. §7119 (c)(5)(C) – the final action of the Panel shall be binding on such parties during the term of the agreement.

[3] The Agency estimates that bargaining the parties’ new CBA, which began in 2016, cost the Agency between $450,000 - $500,000.

[4] 20 FSIP 035 (July 2020)

[5] 5 U.S.C. § 7119(a) states: “The Federal Mediation and Conciliation Service shall provide services and assistance to agencies and exclusive representatives in the resolution of negotiation impasses. The Service shall determine under what circumstances and in what matter it shall provide services and assistance.”  5 C.F.R. § 2470.2(e) defines an impasse as follows: The term “impasse” means that point in the negotiation of conditions of employment at which the parties are unable to reach agreement, notwithstanding their efforts to do so by direct negotiations and by the use of mediation or other voluntary arrangements for settlement.

[6] The Federal Service Labor-Management Relations Statute commits to the Panel broad authority to make swift decisions in order to end disputes when the negotiation process has failed.  Council of Prison Locals v. Brewer, 735 F.2d 1497 (D.C. Cir. 1984).  As federal employees have no legal right to strike, the Civil Service Reform Act, Title VII authorizes the Panel to complete the bargaining process, ensuring the duty to bargain has a practical effect.  Dep't of Def., Army-Air Force Exch. Serv. v. Fed. Labor Relations Auth., 659 F.2d 1140, 1146 (D.C. Cir. 1981).