DECISION AND ORDER
The U.S. Department of Health and Human Services, Centers for Disease Control and Prevention (Agency or CDC) located in Atlanta, Georgia filed a request for assistance with the Federal Service Impasses Panel (Panel) under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, concerning a dispute from negotiations over a successor collective bargaining agreement (CBA). The CDC’s mission is to protect America from health, safety and security threats, both foreign and in the United States. To accomplish its mission, CDC conducts critical science and provides health information that protects our nation against expensive and dangerous health threats.
The American Federation of Government Employees, Local 2883 (Union) is one of eight unions at the CDC and represents a bargaining unit consisting of approximately 2,000 employees located in Atlanta and Miami. The bargaining unit includes some of the following positions: grants management specialist; information technology specialist; health communication specialist; and management analyst. The parties are covered by a 2013-CBA over 47 Articles that expired in July 2017. The agreement remains in effect until the parties reach a successor CBA.
BACKGROUND AND PROCEDURAL HISTORY
On June 7, 2017, the Agency notified the Union that it wished to renegotiate all 47 articles of the parties’ CBA. On October 11, 2017, the parties executed a ground rules agreement for successor CBA negotiations. The parties initiated successor CBA negotiations in October 2017, and continued those negotiations until November 2018. The parties sought Federal Mediation and Conciliation Service (FMCS) assistance in November 2018 and January 2019. The FMCS Mediator released the parties in March 2019, and the Agency filed a request for Panel assistance in July 2019, in Case No. 19 FSIP 056 over the 47 articles in dispute.
During the Panel’s investigation of that case, the Agency submitted an unsolicited revised final offer over five articles to the Union and the Panel’s Staff. On September 20, 2019, the Panel accepted jurisdiction over 42 articles in dispute, but declined to assert jurisdiction over the five articles that the Agency revised during the Panel’s process: Article 7 Union Rights; Article 9 Dues Deductions; Article 35 Grievances; Article 36 Arbitration; and Article 47 Agreement Duration and Changes. The Panel determined that there was a colorable question as to whether the parties exhausted bargaining and mediation efforts over the Agency’s revised articles. The Panel directed the parties to resume concentrated negotiations with the assistance of FMCS for a 45-day period over the 42 articles in dispute. During those negotiations, the parties resolved 39 articles. On January 13, 2020, the Panel issued a Decision and Order over the remaining three articles in dispute in Case No. 19 FSIP 056.
After the Panel issued its Decision, the parties resumed negotiations on the five articles that the Panel declined to assert jurisdiction over with FMCS’s assistance on the following dates: May 19, 2020; June 3, 2020; June 9, 2020; July 1, 2020; July 28, 2020; and July 30, 2020. Despite the parties mediation efforts, they were unable to reach agreement over the five articles. Therefore, on July 30, 2020, the FMCS Mediator released the parties from mediation. On August 20, 2020, the Agency filed a second request for Panel assistance in the instant case.
On November 11, 2020, the Panel advised the parties that it asserted jurisdiction over the five articles in dispute and ordered the parties to provide their written position statements by November 23, along with any rebuttal statements by November 30. The parties timely provided their position statements. The Union requested an extension of time to submit its rebuttal statement. The Agency did not object. The extension was granted and the parties were permitted to provide their rebuttal statements by December 7. The Union timely provided its rebuttal. The Agency did not provide a rebuttal statement.
POSITIONS OF THE PARTIES
- Article 7 Union Rights
- Agency’s Position
The Agency asserts that its proposal follows Executive Order (EO) 13837 Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use with respect to the Union’s official time use. Specifically, the Agency states that its proposal is consistent with the EO for requests, tracking, and the use of official time under section 7131(a), (c), and (d) of the Statute. As a result, the Agency requests that the Panel implement its article.
- Union’s Position
The Union asserts that its main objective for this article is to ensure that the bargaining unit employees’ rights are protected. In this respect, the Union states that its proposal ensures that the Union is able to meet its statutory duty to represent and protect the bargaining unit. The Union contends that its article is consistent with the Statute. The Union further contends that the Agency’s position to adopt the EO violates the Statute. Finally, the Union argues that the Agency’s section 7.4, 7.5, and 7.6(h) proposals interfere with internal Union business.
The Panel will adopt the Agency’s proposal with modification. The parties’ main disagreement concerns the Union’s use of official time under the Statute. The Agency proposes that Union representatives may receive up to one hour of official time per bargaining unit employee for section 7131(d) activities under the Statute each fiscal year. The Agency also proposes that the Union will receive “reasonable amounts” of official time for section 7131(a) and (c) activities. Currently, there are approximately 2,000 employees in the bargaining unit. The Agency’s proposal for section 7131(d) time would equate to roughly 2,000 hours of official time. The Union proposes that the Agency grant its representatives official time that is “reasonable, necessary, and in the public interest.”
The Union argues that the Agency’s position to formulate proposals consistent with the EO violates the Statute. The Union’s argument has no merit. Further, the Union did not produce any authoritative source to support its position. As a result, the Panel will deny the Union’s conclusory argument.
The Union next argues that the Agency’s section 7.4, 7.5, and 7.6(h) proposals interfere with internal Union business. The Agency’s section 7.4 proposal indicates that the Union has a right to designate officers of its choice, which is consistent with the Statute. The Agency does propose to limit the number of Union stewards to one per 100 bargaining unit employees; however, because the Agency did not provide any explanation for this limitation, the Panel will remove this language. The remainder of the Agency’s proposal indicates that the Union will provide the Agency contact information for the Union’s officers. The Union has not explained how this would interfere with its internal Union business.
The next proposal the Union argues that interferes with its internal Union business is section 7.5. In that proposal, the Agency requires Union representatives to stagger their official time use over the course of the fiscal year to ensure that the Agency’s ability to meet its mission requirements are not comprised. The Union has not explained how this proposal interferes with its internal Union business, nor is it clear to the Panel how a proposal to balance the Agency’s needs to ensure that its mission is met with the Union’s right to official time is not a proper proposal for collective bargaining.
Finally, the Union argues that the Agency’s section 7.6(h) proposal interferes with internal Union business. That proposal states that when a Union representative needs to leave the work site and his or her immediate supervisor is unavailable, the representative will request to be released from another supervisor in the chain of command prior to leaving. Once again, it is not clear here how a proposal to balance the Agency’s need to ensure it mission is met with the Union’s right to official time interferes with the Union’s internal business. As a result, the Panel will deny all of the Union’s arguments that the Agency’s three proposals interfere with its internal Union business.
Turning to the merits of the parties’ proposals, the Panel has stated that official time agreements that do not exceed one hour per bargaining unit employee union time rate ordinarily are considered reasonable, necessary and in the public interest. The Panel has required the moving party who seeks official time in excess of that amount to demonstrate that the requested time is reasonable, necessary, and in the public interest. The Union has not met that burden here.
The Union only made conclusory statements that its official time proposal is needed to represent the bargaining unit and is consistent with the Statute. The Union put forth no further explanation, nor did it provide any evidence to support its position. As a result, the Panel will adopt the Agency’s 7131(d) proposal. The Panel will, however modify the Agency’s section 7131(a) and (c) proposal.
The Agency’s proposal for section 7131(a) and (c) activities provides the Union official time that is “reasonable, necessary, and in the public interest.” While this official time, which consists of negotiations of collective bargaining agreements, attendance at impasse proceedings, and participation in Federal Labor Relations Authority (FLRA) proceedings is required under the Statute, the Panel will modify the language, per below to ensure that the Union’s official time rate does not exceed 1 hour per bargaining unit employee.
“The Union will be afforded official time under section 7131(a), (c), and (d) of the Statute that shall not exceed 1 hour per bargaining unit employee. If, however, the Union exhausts the official time bank, the Agency will grant the Union’s use of official time for section 7131(a) and (c) consistent with the Statute.”
Finally, the Agency proposes under section 7.3 to exclude official time for worker’s compensation claims. However, it provided no rationale for such an exclusion. Thus, the Panel will reject the Agency’s language.
- Union’s Position
The Union’s main objective in this article is to ensure that employees are permitted to make a request to the Agency to deduct Union dues from their pay and become a member of the Union. The Union proposes to carry over the language in the parties’ 2013-CBA to the successor CBA over dues deductions, along with an update to the language, which the Union states is consistent with 5 C.F.R. §2429.19, Revocation of assignments. The Union asserts that its proposal offers the parties the ability to maintain the status quo, which it states has worked for the parties since 2013, while complying with government-wide regulations.
- Agency’s Position
The Agency’s position on this article is that its “proposal incorporates changes in revocation of dues withholdings in accordance with FLRA rule effected [sic] August 10, 2020.”
The Panel will adopt the Agency’s proposal with modification. The parties’ main disagreement is over the employee’s revocation of a due’s assignment to the Union. The Agency proposes under section 9.5 that for revocation notices for employees hired on or after August 10, 2020, who have had dues assignments in effect for more than one year, the employees can terminate the assignment at any time after the initial one-year period expires. For dues assignments in place prior to August 10, 2020, the Agency proposes that the employee may only revoke those assignments by submitting a request for revocation on or before December 31. The Agency also proposes that revocations will only be effectuated if the Union President or designee has initialed the form. If the form is not initialed, then the Agency proposes to return the form to the employee to contact the Union for a signature.
The Agency’s rationale for its proposal is that it incorporates the Authority’s recently issued regulation explaining how section 7115(a) of the Statute operates. The new regulation appears at section 2429.19 of the Authority’s Regulations and became effective August 10, 2020. It states that “after the expiration of the one-year period during which an assignment may not be revoked under 5 U.S.C. § 7115(a), an employee may initiate the revocation of a previously authorized assignment at any time that the employee chooses.” The employing agency must process the employee’s dues-revocation made after the first year “as soon as administratively feasible.” The Authority explained that the rule applies to the revocation of assignments that were authorized under section 7115(a) on or after August 10, 2020, but will not apply to the revocation of assignments that were authorized prior to the effective date of the regulation.
The Agency’s proposal is mostly consistent with the Authority’s recently published rule explaining an employee’s right to revoke his or her dues withholding after one year. The inconsistent part of the proposal relates to the requirement that an employee must be hired on or after August 10, 2020, to revoke their union dues at any time after the one-year period. The Authority’s regulation does not condition the ability to revoke union dues based on an employee’s start date. Instead, the ability to revoke a union dues withholding at any time depends not on an employee’s start date, but on when the revocation was submitted. Thus, the Panel will modify the Proposal to ensure that it is consistent with law, rule, and regulation as follows:
“An employee may initiate and the Agency will process a dues revocation consistent with law, rule, and regulation.”
The Union also states that its proposal is also consistent with the Authority’s regulation. Its proposal is partially consistent with the regulation; however, the Union requires the employee to provide the dues revocation form to the Union prior to the Agency. This language appears to be inconsistent with the new regulation, which states that “an agency must process the revocation as soon as administratively feasible.” Nowhere in the regulation does it first require the employee to present the dues revocation form to the Union. What’s more, the regulation requires agencies to process the revocation “as soon as administratively feasible.” The Union’s proposal would have the opposite effect and would delay the process.
Similarly, the Agency’s proposal requires the employee to obtain the Union President’s or designee initial on the dues revocation form before the Agency will process the request. The effect of this proposal would mean that the employee would have to provide the dues revocation form to the President for signature, which would not only delay the process, but could create unforeseen consequences resulting in the Union not signing the form. Then, the Agency would be in a position to have to potentially violate the contract if it processed the revocation without the Union’s signature. As a result, the Panel will adopt the Agency’s article, but modify section 9.5 to remove the language that requires the Union President or designee to sign off on the revocation prior to the Agency processing the request.
The Panel will also strike the Agency’s language in section 9.1, which indicates that the Agency may modify the CBA after it becomes effective if there is a later-issued rule or regulation which amends the topics in the article. In Patent and Trademark Office, the Authority held it is an unfair labor practice to enforce any rule or regulation which is conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the regulation was prescribed. As such, the Panel will impose the following modified language:
“The parties agree that the provisions of this Article will be applied consistent with the law and may be modified in order to ensure that the provisions remain consistent with the law.”
The Union argues that two subsections within section 9.2 of the Agency’s proposal interfere with internal Union business. The first subsection states that in order for an employee to be eligible to pay Union dues, he or she must not have any other current allotment for the payment of dues to a labor organization. The second subsection states that the employee must submit a written request to the Labor Relations Officer or designee authorizing the deduction on SF-1187.
Section 7115(a) of the Statute provides that if an agency receives, from an employee in an appropriate unit, a written assignment authorizing a deduction of dues, the agency shall honor the assignment and make an appropriate allotment to the exclusive representative. It is unclear to the Panel how the Agency’s proposal, which requires the employee to make a written request authorizing his or her dues deduction is not a permissible proposal. Similarly, it is not clear how the Agency’s proposal, that an employee cannot make a dues payment to two different Unions interferes with the Union’s internal business. As a result, the Panel will deny the Union’s argument.
- Article 35 Grievances
- Agency’s Position
The Agency states that its proposal seeks to streamline the grievance process by moving from a three-step grievance process to a two-step process. In addition, the proposal defines matters excluded from the grievance process, which the Agency states is consistent with the Statute and EO 13839 Promoting Accountability and Streamlining Removal Procedures. Finally, the Agency states that its proposal seeks to require both parties to adhere to the timeframes at each step of the grievance process by allowing the employee to advance to the next step if the Agency does not respond, or permitting the Agency to dismiss the grievance if the Union or employee fail to abide by the proposed timeframe.
- Union’s Position
The Union states that it favors a broad-scope grievance procedure compared to the one offered by the Agency. The Union states that the Panel is to impose a broad-scope grievance procedure unless the limited-scope proponent can persuade it to do otherwise. The Union argues that the Panel is expected to rule against the limited-scope proponent who fails to convincingly establish that such a grievance procedure is more reasonable in that particular setting.
The Union argues that in this particular setting, the Agency has not established convincingly that the limitations that it proposes to the grievance procedure are more reasonable than the broad-scope procedure that the Union proposes, which is maintained in the parties’ current CBA. The Union states that the Agency proposes to remove important matters from the grievance procedure such as performance ratings, adverse actions, and other matters appealable to the Merit Systems Protection Board. The Union asserts that grievances over these matters constitute an overwhelming majority of the grievances filed by the employees. Thus, the Union requests that the Panel adopt its proposal, in favor of a broad-scope approach to the parties’ grievance procedure.
The Panel will impose the Agency’s proposal with modification. The parties’ disagreement centers on the Agency’s proposed exclusions from the grievance procedure. The Agency proposes to exclude the following matters from the parties’ grievance procedure, which the Union opposes: prohibited personnel practices that can be reported to the Agency’s Inspector General or the Office of Special Counsel; complaints concerning individual rights related to a reduction-in-force; any adverse action taken under 5 U.S.C. § 7512; non-selection for non-bargaining unit positions; non-selection for bargaining unit positions from amongst properly rated and ranked candidates with the exceptions that employees may file grievances alleging unlawful discrimination and for non-selection from the exercise of a priority consideration; complaint’s concerning veteran’s preference; separation or termination of an employee serving a probationary, trial period, temporary, or time limited appointment; return of an employee serving in a supervisory or managerial position; the termination of an employee in the Student Educational Employment Program, including STEP and SCEP; a notice of proposed action or warning; an action terminating a temporary promotion; the substance of performance standards, elements, and measures, and the determination as to whether an element or measure is critical or non-critical; ratings on individual performance elements and performance measures; progress reviews and counseling sessions; order to divest; and any matter raised in an on-going unfair labor practice (ULP) charge. The Agency does state that if any of the actions are alleged to have been taken for discriminatory reasons, those actions may be grieved.
The Agency’s rationale to support its proposed exclusions is that the exclusions are consistent with EO 13839 and the Statute. The Union defends is position by pointing to the AFGE v FLRA case. The Panel has now consistently recognized the significance of that Federal court case setting forth the precedent concerning grievance exclusions. In that case, the court stated that a proponent of a grievance exclusion must “establish convincingly” in a “particular setting” that its position is the “more reasonable one.” The Panel has recognized that this language means that a party seeking to exclude this topic has a burden to demonstrate that exclusion is reasonable under the “particular circumstances” of the dispute before the Panel.
Here, the Agency seeks to exclude grievances involving any adverse actions based on its reliance of the EO. Adverse actions are the most serious personnel actions and involve removals, but also include suspensions, reductions in grade and pay, and furloughs of 30 days or less. The EO states that an agency “shall endeavor” to exclude grievances involving removal actions in a negotiated grievance procedure “[w]henever reasonable in view of the particular circumstances.” Aside from the Agency pointing to the EO, which encourages agencies to exclude removal actions, the Agency did not provide any additional rationale for the proposed exclusion. As a result, the Panel finds that the Agency has not demonstrated “convincingly” that its position is the more reasonable one and should strike the exclusion.
The Agency proposes to exclude ratings of record from the grievance procedure based on the EO. Under section 4(A) of the EO, it directs agencies to not subject assignment of ratings of record to the grievance procedure. The Panel has applied this direction to agencies to remove these actions where the union has not rebutted the agency’s arguments. Aside from making mere conclusions that the Panel should impose a broad-scope grievance procedure, the Union has not provided any rationale or evidence in support of its position. Beyond that, the Panel finds that the Agency’s proposal is the most reasonable. As explained by the FLRA in a case enforcing an interest arbitrator’s imposition of a grievance exclusion, and interpreting the AFGE decision, “…the Arbitrator’s factual findings show that he examined the evidence and found the Agency’s arguments as to a limited-scope grievance procedure ‘persuasive…The Arbitrator’s findings show that he did not unlawfully place the burden on the Union, but properly assessed the persuasive weight of each side’s presentation in reaching his conclusion. Accordingly, the Union has not established that the award is contrary to AFGE v. FLRA”. NAGE, Local R3-77 and PBGC, 59 flra No. 168 (2004). Contrary to our dissenting Member’s view, the Panel has determined that under the precedent of the FLRA cited here, where the Panel determines as fact that the Agency argument in support of a limited scope grievance process is persuasively more reasonable as it has here and in the following portions of this decision and order, that the exclusion should be imposed. The Panel has found that the Agency proposals in this case, as in others, is the more reasonable. As a result, the Panel will impose the Agency’s performance rating exclusion.
Next, the Agency proposes to exclude the substance of performance standards, elements, and measures, and the determination as to whether an element or measure is critical or non-critical. As the Panel has stated in prior cases, the Panel will exclude these actions, as a proposal challenging those matters may interfere with management rights under the Statute. As a result, the Panel will remove these actions from the grievance procedure.
The Agency proposes removing non-selection of non-bargaining unit positions and non-selection of bargaining unit positions from amongst properly rated and ranked candidates from the grievance procedure. As to the latter, the Agency’s proposal is consistent with government-wide regulations. As to the former, the Agency’s proposal is consistent with management rights, since the Union does not have a representational responsibility to non-bargaining unit employees. Thus, the Panel will impose those exclusions.
Finally, the Agency proposes to exclude any matter raised in an on-going unfair labor practice charge from the grievance procedure. The Agency’s proposal is consistent with the case law. The Panel will impose the exclusion, along with the following exclusions: the separation or termination of an employee serving a probationary, trial period, or time limited appointment; the return of an employee serving in a supervisory or managerial position; an action terminating a temporary promotion; and employee progress reviews and counseling sessions.
For the remaining exclusions proposed by the Agency, the Agency did not provide any further explanation establishing the basis for the removal of those matters. Thus, the Panel will not exclude those actions from the parties’ grievance procedure.
- Article 36 Arbitration
- Agency’s Position
The Agency states that its proposal is aligned with the Statute, ensures general cost saving measures, defines the role of the arbitrator, and clarifies the arbitration process. The Agency asserts that the key proposals it seeks require the moving party to incur the expenses associated with arbitration, which include obtaining a list of arbitrators from FMCS, the cost of a hearing room, and the expenses and fees of the arbitrator. The Agency also states that its proposal limits the discretion and authority of the arbitrator to amend the CBA, to address statutorily excluded matters, or to hear new issues not raised in the grievance.
Additionally, the Agency proposes to bifurcate the hearing process to allow the arbitrator to render a decision on the arbitrability issues prior to hearing the merits of the grievance. The Agency also proposes to implement an expedited arbitration procedure to provide a swift and economical method for the resolution of disputes. Finally, the Agency believes that it is prudent to set forth a time limit for having issues heard by an arbitrator to avoid the issues becoming moot.
- Union’s Position
The Union proposes to carry over the parties’ language in the current CBA over the arbitration article. The Union states that this language has been successfully used by the parties since 2013, without any issues. The Union states that its arbitration article represents the standard language that is used in CBA across the Federal government.
The Panel will impose compromise language. The parties’ disagreement is over the procedures they will use for the arbitration of a grievance. Neither party provided much, if any rationale to support the adoption of their proposal. The Agency did not indicate why the parties should alter the status quo language by identifying issues that the parties have had adhering to the current language and how the new language would address those issues. Similarly, the Union did not provide much in the way of support for its proposal. As a result, the Panel will defer to the status quo language where appropriate.
Under the status quo and the Union’s section 36.1 proposal, the parties will be required to invoke arbitration within 30 days from the last grievance response. Within 10 days from invoking arbitration, the invoking party is required to request a list of arbitrators from FMCS, and the parties will strike names until they arrive at one arbitrator. Both parties proposed a “coin toss” to determine which party will have the ability to strike an arbitrator from the FMCS list first, with the Agency offering a more elaborate plan. The Agency indicated that if the coin lands on heads, then the Union strikes first, but if the coin lands on tails, the Agency strikes first. Neither party explained the need for a coin toss, but one can assume that the parties have had trouble agreeing on who shall strike the first arbitrator. The Panel will adopt the Agency’s more defined approach to striking arbitrators, or the parties always can agree to scrap the entire idea in favor of an old-fashioned game of “rock, paper, scissor.”
The Panel will remove the language from the Union’s proposal that permits the parties to request a new list of arbitrators from FMCS in the event that the last surviving arbitrator on the list is not mutually agreeable to the parties. This language could allow a party to delay the arbitration by simply disagreeing with the final arbitrator appearing on the list of struck arbitrators. That would not be effective or efficient.
The Panel will adopt the Union’s 36.1 proposal, which requires both parties to split the costs associated with the arbitration. This approach will ensure that both parties have some “skin” in the game and should incentivize the parties to reach agreements prior to invoking arbitration. Consistent with that order, the Panel will adopt the Agency’s section 36.6. proposal, but modify it to require both parties to share the expenses associated with a transcriber. Thus, the Panel imposes the following modified language:
“If the parties mutually agree that a transcription of the arbitration is necessary, the parties shall split the costs evenly.”
The Panel will modify the Union’s section 36.4 proposal to allow the parties to bifurcate the arbitration process, as the Agency proposes, when there is a question of arbitrability. This will ensure that only appropriate matters are arbitrated and not waste the parties’ valuable time and resources. This has been a consistent approach adopted by the Panel.
The Panel will also adopt the Union’s 36.1 pre-hearing activities proposal, which is clear and concise. The Panel will adopt the Agency’s section 36.7 proposal, which permits the parties to file exceptions to an arbitration award in the appropriate venue. Finally, the Agency proposed an expedited arbitration procedure for select matters in section 36.8, such as final decisions to withhold a within-grade increase, suspensions of 14 days or less, AWOL charges, to name a few. The Agency, however, did not explain the need for the proposal, nor did it explain the need for a sunset provision in section 36.9. In theory, an expedited process and sunset clause could serve the parties’ and employees’ interests where there are a significant amount of grievances pending, but without further explanation, it is difficult to discern its need. As a result, the Panel will not adopt those proposals.
- Article 47 Agreement Duration and Changes
- Agency’s Position
The Agency states that its proposal seeks to make the contract effective for a five-year duration and provides an opportunity for the parties to open and renegotiate changes in law, rule, or regulation during the term of the contract.
- Union’s Position
The Union argues that the Agency’s proposal requires it to waive its statutory right under section 7111(f)(3)(A) of the Statute. Specifically, the Union states that an agreement that is longer than three years, would make the Union susceptible to a raid from another labor organization seeking to represent the bargaining unit. The Union states that the Agency’s proposal unlawfully restricts its ability to bargain future changes to the successor CBA. The Union also states that the Agency has introduced new language that the parties did not bargain over contained in sections 47.1, 47.4, 47.5, 47.6, and 47.7, and the language contained in those articles waives its rights under the Statute. Finally, the Union states that the Agency has proposed to include language in this article that the parties reached agreement over in Articles 2, Bargaining and Negotiations and Article 3, Mid-term Bargaining.
The Panel will impose the Agency’s proposal with modification. The parties’ dispute centers around the duration of the successor CBA. The Agency proposes a five-year term, while the Union proposes a two-year term. The Union argues that by having a contract with a duration of more than three years waives its statutory rights under section 7111(f)(3)(A) of the Statute. The Union’s argument is unpersuasive and speculative. The Union presented no authoritative source to suggest that a proposal which offers a contract term of over three years is permissive. As a result, the Panel will deny the argument.
On the merits, neither party demonstrated support for their proposed duration of the CBA. The Agency did not provide any rationale or evidence to justify the Panel imposing its language. Similarly, aside from the Union’s legal argument, it did not demonstrate why its proposal is superior to that of the Agency’s. In the absence of either party providing support for their proposal, the Panel will impose its own language on the parties.
The Panel has consistently imposed durational clauses in CBAs that will provide the parties stability and allow the parties a reasonable period of time to effectuate the terms and conditions of the new contract. Consistent with that notion, it is effective and efficient for the parties to implement a contact with a duration that will not require them to utilize their resources and bargain anew in a short period of time. Thus, the Panel orders a comprise on the length of the contract, which will require the parties to adhere the successor CBA for three years. This length of time will also render the Union’s legal argument addressed above moot.
The Union argues that the Agency’s section 47.1 proposal, which requires the successor CBA to remain in effect unless the parties mutually agree or are required by law to amend it, is unlawful. First, the Union presented no authoritative support for this argument. Second, it is standard practice for a CBA to remain in effect unless both parties agree to modify it. Otherwise, the parties would be in a perpetual state of renegotiation, which is neither effective or efficient.
The Agency’s proposal requires the parties to modify the agreement to ensure that it is consistent with law. This is a permissible proposal, as a provision in a CBA that is contrary to law is not enforceable under the Statute. Further, under section 47.1(C), the Agency reaffirms the Union’s right to engage in bargaining over such changes. As such, Panel will deny the Union’s argument.
The Panel will modify the Agency’s section 47.1(C) proposal and the second paragraph of proposal 47.4, by removing the language which permits the Agency to sever and negotiate over provisions in the agreement that might become inconsistent with later issued government-wide rules and regulations. As discussed above, it is permissible for an agency to modify an agreement in order to ensure that the provision in question is consistent with law, but it is impermissible to do so if the rule or regulation was implemented after the agreement became effective. As for executive orders, the Authority has held that executive orders issued pursuant to statutory authority are to be accorded the force and effect given to law enacted by Congress. Thus, the Panel will impose the following language to ensure that this article is permissible:
“Provisions of this Agreement that are or become inconsistent with law or executive orders issued pursuant to statutory authority may be severed from the Agreement in accordance with the Statute. The Union will be provided the opportunity to bargain consistent with the Statute.”
In section 47.4, the Agency proposes that any changes in law, regulation, or “decisions of appropriate authorities” may necessitate changes in personnel policies, practices, or other matters affecting working conditions. The Agency states that if the changes leave it with no discretion in the matter, the Union will be notified of the change. But, if the “law or regulation leaves administrative discretion to the Employer, the Union will be given the opportunity to meet and confer over such implementation.” The Authority has consistently held that insofar as an agency has discretion regarding a matter affecting conditions of employment it is obligated under the Statute to exercise that discretion through negotiation unless precluded by regulatory or statutory provisions. The Agency’s proposal appears to be consistent with the case law, but it is unclear as worded. Therefore, in an effort to ensure that the language is consistent with law, the Panel will impose the following language in place of the Agency’s proposal:
“If the Agency has discretion over a condition of employment, and it is not outside the duty to bargain, then the Agency will negotiate over it. However, where a law or applicable regulation provides the Agency sole and exclusive discretion over a matter, the Agency is not obligated to exercise that discretion through bargaining.”
The Union also argues that the Agency’s proposals, specifically in section 47.1, 47.4. 47.5, 47.6. and 47.7 are an attempt to waive the Unions’ rights to negotiate. The Union further argues that the parties are not at impasse over this language and the Agency introduced new language during the final stage of the Panel’s process. The Union’s arguments are without merit.
First, the Union put forth no evidence to support its claim that the Agency offered proposals that the parties did not negotiate. Second, parties are permitted to make modifications over their proposals during the Panel’s dispute resolution phase in order to reach an agreement, or offer language that it is more reasonable in an effort to convince the Panel to adopt its position. The Union argues against this benefit, yet it took advantage of it by modifying a proposal within Article 9.
Similarly, the Union provides no support for its conclusory statement that the Agency’s proposals waive the Union’s rights under the Statute. Looking at the language of the Agency’s proposals in those sections mentioned by the Union, aside from two sections discussed above, the Union’s arguments are without merit. As a result, the Panel will deny those arguments.
Finally, the Union argues that the parties reached agreement in Article 2, Bargaining and Negotiations, and Article 3, Mid-term Bargaining Criteria and Procedures, which conflict with the Agency’s proposals in the aforementioned sections. The Union did not explain how any of the agreements reached in those articles conflict with the Agency’s proposals. Further, a review of those articles does not indicate an apparent conflict between the agreed upon language and the Agency’s proposals. For the remainder of the article, the Panel will impose the Agency’s proposals.
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
Member Newman concurring in part and dissenting in part:
I respectfully dissent from the determination of the majority of the Panel over excluding the following matters from the parties’ grievance procedure under Article 35: the separation or termination of an employee serving a probationary, trial period, or time limited appointment; the return of an employee serving in a supervisory or managerial position; an action terminating a temporary promotion; and employee progress reviews and counseling sessions. Under AFGE, the proponent of such an exclusion must establish convincingly in this particular setting that its position is the “more reasonable one.” Here, the Agency did not meet this burden. The Agency did not provide any rationale for excluding the aforementioned matters aside from asserting that its proposals are consistent with EO 13839. As a result, I disagree that the Agency satisfied its burden and that those matters should be excluded from the grievance procedure.
January 17, 2021
- Parties’ proposals
 See, e.g., HHS, 2019 FSIP 031 (2019).
 65 FLRA 817, 819 (2001).
 See AFGE, 712 F.2d 640 (D.C. Cir. 1983).
 712 F.2d 640 (D.C. Cir. 1983).
 See e.g., U.S. Dep’t of Def., Dep’t of the Air Force, Fairchild Air Force Base, 19 FSIP 070 at 10-11 (2020).
 5 U.S.C. 7512.
 EO 13839, Section 3.
 See e.g., Dep’t of Commerce, NOAA, NWS, 20 FSIP 021 (2020).
 5 C.F.R. § 335.103(d).
 See e.g., U.S. Dep’t of the Navy, Navy Region Mid-Atl., Norfolk, Va., 70 FLRA 512 (2018).
 5 U.S.C. § 7111(f)(3)(A) states, that “[e]xclusive recognition shall not be accorded to a labor organization…if there is then in effect a lawful written collective bargaining agreement between the agency involved and the exclusive representative covering any employees included in the unit specified in the petition, unless the collective bargaining agreement has been in effect for more than three years.
 See, e.g., Office of the Adjutant Gen., Ga. Dep't of Defense, Atlanta, Ga., 54 FLRA 654 (1998).
 See NFFE, Local 15, 30 FLRA 1046, 1070 (1988).
 NTEU, Chapter 6, 3 FLRA 748, 759–60 (1980).
 The Union also stated in its rebuttal, that the Agency’s proposals conflict with agreements made in Article 27; however, the Union did not provide that article to the Panel.
 712 F.2d 640 (D.C. Cir. 1983).