DEPARTMENT OF HEALTH AND HUMAN SERVICES PUBLIC HEALTH SERVICE INDIAN HEALTH SERVICE WINDOW ROCK, ARIZONA and LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF HEALTH AND HUMAN SERVICES
LABORERS INTERNATIONAL UNION
Case No. 06 FSIP 45
DECISION AND ORDER
The Department of Health and Human Services, Public Health Service, Indian Health Service, Window Rock, Arizona (IHS or 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 Laborers International Union of North America, AFL-CIO (LIUNA or Union).
After investigation of the request for assistance, which concerns the payment of the Union’s travel and per diem expenses to negotiate an initial master labor agreement (MLA) for a recently-certified nationwide consolidated bargaining unit, the Panel determined that the parties should return to the bargaining table for concentrated efforts over a 30-day period, with the assistance of the Federal Mediation and Conciliation Service (FMCS). The Panel also determined that if any issues remained unresolved at the close of the 30-day period, the parties were to provide the Panel with their final offers and written statements of position, with supporting arguments and evidence. After considering the entire record, the Panel would resolve the dispute through the issuance of a Decision and Order. When additional mediation did not result in a voluntary settlement of the dispute, the parties submitted their final offers and written supporting statements in accordance with the Panel’s determination. The Panel has now considered the entire record.
The Employer’s mission is to provide a comprehensive health services delivery system for American Indians and Alaska Natives, with the opportunity for maximum tribal involvement in developing and managing programs to meet their health needs. The Union represents approximately 8,000 professional and nonprofessional employees who typically work as nurses, medical officers, doctors, housekeeping aides, food service workers, maintenance workers, and in various support staff positions, at grades GS-3 through –15 and WG-3 through 8. Once it is implemented, the MLA will replace numerous collective bargaining agreements between IHS and LIUNA at the local level.
The parties began bargaining over their initial MLA in December 2004 after reaching agreement on ground rules. Section 3 of their ground rules specifies that the Employer would pay for the Union’s travel and per diem expenses for up to four of the bargaining sessions. It also states: "The parties have not agreed on the payment of travel and per diem beyond the first four sessions, but have agreed to attempt to resolve that issue through mediation and possible impasse proceedings." The parties continued MLA negotiations through August 2005, when the Employer reopened bargaining over the payment of travel and per diem expenses for the Union’s bargaining-unit team members in accordance with Section 3 of their ground rules.
ISSUE AT IMPASSE
The parties essentially disagree over the extent to which the Employer should reimburse the Union for bargaining-unit members’ travel and per diem expenses in connection with future bargaining over their initial MLA.
POSITIONS OF THE PARTIES
1. The Employer’s Position
The Employer proposes the following wording:
To date, the Agency has paid approximately $19,719.17 in travel and per diem expenses for bargaining unit employees as it relates to the IHS wide negotiations with LIUNA. Once LIUNA has paid at least $14,000.00 in travel and per diem expenses for its bargaining unit members for future bargaining sessions, the parties will then be equally responsible (as outlined below) for the travel and per diem expenses for bargaining unit members.
After LIUNA has paid the above amount in travel and per diem expenses, future travel and per diem expenses will be paid as follows:
One bargaining unit member at negotiations – LIUNA pays
Two bargaining unit members at negotiations – IHS and LIUNA each pay for one
Three bargaining unit members at negotiations – LIUNA pays for two, IHS pays for one
Four bargaining unit members at negotiations – IHS and LIUNA each pay for two
Five bargaining unit members at negotiations – LIUNA pays for three and IHS pays for two
Six bargaining unit members at negotiations – IHS and LIUNA each pay for three.
After negotiations have been concluded each party will pay 100 percent of the expenses for their bargaining teams for any FMCS, FSIP and/or FLRA proceedings related to master collective bargaining agreement.
Its proposal would require the Union to pay its "fair share" for the remaining bargaining sessions. To date, the Employer has paid approximately $19,719 on behalf of the Union for the four sessions that occurred prior to the current impasse. It hoped that "by paying for the first four sessions  the Union would reciprocate by reaching an equitable agreement regarding travel and per diem expenses for future bargaining sessions." Instead, the Union proposes to pay only one-half of its expenses for three 1-week sessions, but only after IHS has paid $300,000. That sum "is not based on any document, prior ground rules, bargaining history, etc.," and "is so outrageous that it must simply be ignored." In fact, the Employer has never paid any travel and per diem expenses for bargaining unit employees "for any negotiations prior to the negotiations" over the MLA. In addition, because the parties have not placed a limit on the number of future bargaining sessions, the Union’s proposal would provide it with "no incentive to bring the negotiations to a close." This is inconsistent with, among other things, previous Panel decisions involving the payment of travel and per diem expenses that endorse "the concept that both parties should have a financial interest to conduct negotiations in an efficient manner." Finally, the last part of the Union’s proposal, which would require the parties to revisit this same issue again at a later date, "is unacceptable." Ground rules that "cover all aspects of the entire negotiations process (negotiation, FMCS, FSIP, and FLRA) need to be completed once and for all," as the Employer proposes.
2. The Union’s Position
The following wording is proposed by the Union:
The Union will pay ½ the cost of travel and per diem
for its bargaining team after I.H.S. pays the equivalent of the money
they will save in negotiating one contract rather than 18 in release
time alone over the next 2 years (approximately $300,000.00);
If we do not have any agreement during that time,
the Union will pay for ½ travel and per diem for its bargaining team
for three 1-week sessions;
Thereafter the parties will revisit the issue of the travel and per diem so as to try to incentivize agreement rather than allowing I.H.S. to drain the Union's resources in order to force an agreement favorable to I.H.S. and contrary to the interests of I.H.S. employees and patients.
The Employer’s insistence that the Union pay for all of its future travel expenses until it has paid out nearly as much as management has paid to date is "a blow to the necessary relationship building between the parties, and an attempt to create a huge advantage [for] the Agency bargaining team." It also overlooks the fact that, because of the new consolidated bargaining unit, the Employer will save at least $300,000 in official time over the next 2 years by bargaining at the national, rather than local level. Moreover, contrary to the Employer’s claim, previous Panel decisions do not support its position that the Union should bear at least half of its travel expenses when bargaining a term labor agreement. In this regard, Panel decisions "that do not involve a consolidated bargaining unit are of little value" on this issue since they would result in only one local contract. The Panel, however, previously has required federal agencies to pay all of a union’s travel expenses in negotiations not involving a consolidated unit, and 70 percent of the estimated travel expenses for a union’s negotiators in a case that did involve a consolidated bargaining unit.
In rendering its decision, the Panel also should consider the travel and per diem payment practices in other consolidated units, such as those at the Social Security Administration and the Department of Veterans Affairs, which are far more favorable to the unions representing employees in those agencies than the Employer is proposing for LIUNA. Finally, the reason the Union proposes that the parties renegotiate the topic of travel reimbursement, after the Employer has expended $300,000 and the Union has paid one-half of its costs for three 1-week sessions, is because it simply cannot afford this level of expenditure indefinitely. Its approach "would give both parties the incentive to conclude negotiations in a more expeditious fashion," while the Employer’s "could drain the Union’s treasury" yet not lead to an MLA "that would stand the test of time."
Having carefully reviewed the evidence and arguments presented by the parties in support of their positions, we conclude that neither side has offered a solution that appropriately balances the equities involved. In this regard, requiring the Employer to pay $300,000 before the Union incurs any financial burden would give it virtually no incentive to conduct negotiations expeditiously. Moreover, the parties’ recent history demonstrates that it would be ill advised to adopt an approach that could result in another impasse over this same issue. On the other hand, the part of the Employer’s proposal that conditions its future contributions on the cost of previous bargaining is unpersuasive, given that its expenditures were the result of a voluntary agreement between the parties. Accordingly, we shall order the adoption of a modified version of the Employer’s final offer that provides both sides with a financial interest in conducting their negotiations in an efficient and effective manner.
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 adoption of the following wording: