United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    The National Treasury Employees Union (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 Department of the Treasury, U.S. Customs Service, Washington, D.C. (Employer).

    Following investigation of the Union’s request for assistance, which involves an impasse over ground rules for a successor National Labor Agreement (NLA), the Panel determined that the case should be resolved through an informal conference with a Panel representative. The parties were informed that if no settlement was reached, the representative would notify the Panel of the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. The Panel would then resolve the dispute by taking whatever action it deemed appropriate, which could include the issuance of a binding decision.

    In accordance with the Panel’s procedural determination, Panel Member John G. Cruz met with the parties on December 19 and 20, 2002, at the Panel’s offices in Washington, D.C. During the informal conference, the parties were able to resolve a number of issues voluntarily, but a complete settlement was not reached.⁽¹⁾ At the conclusion of the meeting, the parties were given the opportunity to provide final offers and supporting statements in writing by December 30, 2002, and any rebuttal statements by noon on January 3, 2003. Both parties’ submitted statements in accordance with Member Cruz’s instructions. The Panel has now considered the entire record.

BACKGROUND

    The Employer’s mission is the enforcement of customs and related laws and the collection of revenues from imports. The Union represents a nationwide consolidated bargaining unit of approximately 11,000 employees. Bargaining-unit employees hold positions such as customs inspector, import specialist, K-9 enforcement officer, and administrator, at grades GS-5 through GS-11. The status of the parties’ NLA may be a matter in dispute. In addition, although many of the NLA’s terms and conditions are being adhered to, a significant number of changes were unilaterally implemented by the Employer on or about October 1, 2001, regarding the Employer’s National Inspectional Assignment Policy (NIAP), and various Local Inspectional Assignment Policies (LIAPs). The Employer’s actions are the subject of a national level grievance-arbitration award, currently before the Federal Labor Relations Authority on exceptions filed by both sides, as well as numerous local grievances.

ISSUES AT IMPASSE

   The parties essentially disagree over: (1) the bargaining schedule; (2) whether NIAP-related articles should be negotiated first, and any agreement (either voluntary or imposed by the Panel) concerning them implemented in advance of the outcome of the rest of the negotiations; and (3) whether the Employer should pay any of the Union’s travel and per diem expenses and, if so, how much.

1.  The Employer’s Position

    The Employer proposes the following wording on the schedule of future negotiations:

1. No later than June 9, 2003 the parties shall exchange a complete list of all topics they intend to raise during re-negotiation of the NLA.

2. The parties shall exchange proposals and commence bargaining the week of June 23-27, 2003, and meet again the weeks of July 7-11 and July 21-25, 2003.

3. The parties shall meet the week of August 4-8, 2003 with an FMCS mediator, if necessary, to resolve any remaining issues. Upon release from mediation, if any, either party may request assistance from the FSIP.

4. Although bargaining hours shall commence at 8:30 a.m. on all bargaining days, to expedite agreement negotiations shall routinely continue beyond normal business hours unless the parties agree otherwise.

With respect to the issue of whether NIAP-related articles should be severed from the rest of the negotiations over a successor NLA, the Employer proposes that:

The parties shall negotiate and execute a comprehensive national labor agreement addressing any and all negotiable topics the parties wish to raise. Any agreements reached at the bargaining table are tentative, and shall not become final until such time as a full agreement is reached and executed. Any proposals declared non-negotiable by the agency shall not serve to stay the effective date of other provisions contained in the agreement. Provisions agreed to during negotiations and not referred for negotiability determination shall become effective upon agency head approval and bargaining unit ratification.

In addition, the Employer proposes that "each party be responsible for payment of travel and per diem expenses for its own representatives," and that, "if the parties reach impasse either may invoke the services of the FSIP."

    The Employer’s proposed bargaining schedule will speed up the negotiating process, "minimize costs to the Government and the Union, and result in an agreement within the original time frame proposed by the Agency." This is because it takes account of the fact that new "personnel flexibilities" associated with the Employer’s transfer into the Department of Homeland Security (DHS) are not scheduled to be proposed until June 1, 2003. Negotiations before that date over topics which may be affected by the transfer could end up "wasting time and money," as the parties are "highly unlikely" to reach voluntary agreements over them.

    The Employer argues that: (1) the Union previously was afforded 60 days to negotiate a revised NIAP, but "failed to do so, insisting that NIAP-related matters could only be addressed in conjunction with other contract articles;" (2) if the Union were "allowed to negotiate on NIAP-related topics in isolation from other contract articles," the Employer would be "seriously disadvantage[d]" by forcing it to bargain only on issues the Union wants to change, and causing it to lose "all bargaining leverage" on the other articles; (3) it also make little sense to bargain on matters such as the assignment of work and overtime before potential changes to underlying personnel flexibilities are issued as a result of the creation of the DHS; and (4) by requiring the parties to negotiate and implement the NIAP-related articles first, the Panel would be usurping the FLRA’s review of whether the revised NIAP was properly implemented, and providing the Union with an "extraordinary remedy" without "any finding of wrong-doing by the Agency."

    As for the issue of travel and per diem expenses, the Employer also argues that: (1) adoption of the "compact" bargaining schedule outlined above would minimize the parties’ travel and per diem expenses; (2) the Union is financially robust and fully capable of paying the travel and per diem expenses of its own negotiators, as amply documented in its most recent financial report; and (3) to order the Employer to pay travel and per diem expenses under such circumstances would be "fiscally irresponsible." The Employer also urges the Panel to consider that its proposal is consistent with the Panel’s "long recognized" view that employer reimbursement for such expenses should be based on economic need, and not "treated as an unwritten financial entitlement for Federal unions." Finally, the Employer argues that its proposal is fair because the Agency is already absorbing the salary and benefit costs of bargaining-unit negotiators, which is "roughly equal" to their travel and per diem expenses.

2.  The Union’s Position

    The Union proposes that the parties be bound by the following terms regarding the exchange and schedule of future negotiations, and whether NIAP-related articles should be severed from the rest of the negotiations:

The parties shall exchange their proposals on NIAP-related term contract articles in electronic format (i.e., Microsoft Word) by February 14, 2003. Negotiations over the NIAP-related articles shall occur for at least two (2) weeks during the period February 17, 2003 through March 14, 2003. Once final agreement is reached voluntarily or through third party assistance, and the provisions have undergone agency head review under 5 U.S.C. 7114(c), the NIAP-related articles will become effective. Copies of these articles will be printed and distributed by the Agency to all bargaining unit employees within thirty (30) days of the effective date.

Negotiations over other than NIAP-related articles, if desired by either party or required by law or regulation, shall resume within forty-five (45) days from when the Office of Personnel Management (OPM) makes an announcement concerning the scope of bargaining on conditions of employment regarding bargaining unit employees within the Department of Homeland Security. Within thirty (30) days of that announcement, the parties shall exchange their proposals in electronic format. The parties shall meet to negotiate for two (2) weeks each month for a period of no more than three (3) months from the date when the bargaining commences. Once final agreement is reached on other than the NIAP-related articles voluntarily or through third party assistance, and the provisions have undergone agency head review under 5 U.S.C. 7114(c), the entire term contract will become effective.

The Agency will print and distribute copies to all bargaining unit employees within thirty (30) days from the effective date. In addition, the Agency will provide one hundred (100) copies to the NTEU National Office and twenty-five (25) copies to each local NTEU chapter by that date.

On the issue of the payment of travel and per diem expenses, the Union proposes alternative approaches, depending on whether the Panel decides that the NIAP-related articles should be negotiated and implemented first. The Union’s relevant proposal in this regard is:

The Agency should be directed to follow the procedures previously used for term contract negotiations, and establish a budget ($25,000) within which the Union would manage the travel and per diem costs of the bargaining team members employed by Customs.

The Union argues that: (1) overall, adoption of the Union’s ground rules proposals would "accomplish the intent of Congress" in enacting the Civil Service Reform Act, which was to recognize "the right of Federal employees to bargain collectively in decisions which affect them;" (2) NIAP-related articles should be negotiated, and implemented, prior to any other bargaining the parties may want to conduct "because the inspectional assignment policy has traditionally been negotiated as a separate agreement;" (3) NIAP is also the parties’ most important condition of employment issue, as it affects the Employer’s mission, the quality of work life, and the compensation of Customs officers; and (4) a bifurcated approach would permit stability in the workplace to be achieved in a more timely fashion, and could limit the Employer’s financial liability in connection with pending grievances that were filed after it unilaterally implemented changes in NIAP at the beginning of Fiscal Year 2002.

The Union notes that it has been attempting to get the Employer to agree to the bifurcated approach proposed by it for some time, that it was the Employer’s initial preference to negotiate NIAP separately from other contract provisions, and that adoption of the Union’s approach would be no different than when parties negotiate issues mid-term. Moreover, while immediate bargaining has the advantage of creating the potential that the parties will find solutions to their long-standing disputes, in the end, the Employer "is protected from any unreasonable Union proposals or bargaining strategy by the Panel." As to the Employer’s proposed bargaining schedule, waiting until June 2003 would unnecessarily delay negotiations for 5 months, and "raises the question of why the Agency is before the Panel now," when it has the right to negotiate a successor agreement at any time under the parties’ NLA.

    With respect to the payment of travel and per diem expenses, the Union argues that the Employer should assume a reasonable amount of the cost of the negotiations, particularly in view of the fact that the Union has withdrawn its request to bargain a new contract. In this regard, if the Panel adopts the Union’s proposal to bifurcate the negotiations, the Employer should be required to pay per diem and travel related costs in one manner. Should the Panel deny the Union’s request for a bifurcated process, the Employer should be ordered to follow the procedures previously used in term negotiations, and provide the Union with a budget of $25,000 within which it would manage the expenses of the bargaining team members employed by the Agency. The parties’ past practice in this connection should be given "great weight," as should previous Panel decisions which typically have ordered parties to share in the costs of negotiations. Finally, "any argument to the effect that the Union has adequate funds to pay these costs is just as irrelevant as the Agency’s ability to pay."

CONCLUSIONS

    Having carefully considered the evidence and arguments submitted by the parties, we are persuaded that a modified version of the Employer’s final offer should be adopted to resolve their dispute over the bargaining schedule, and whether the NIAP-related articles should be negotiated separately from the rest of the successor agreement. Preliminarily, we note that the creation of the DHS could have a profound and unforeseen impact on the successor negotiations which neither the Panel nor the parties have the authority to circumvent. While it is true that the starting date proposed by the Employer would delay bargaining until June 2003, any negotiations that would occur prior to that date are likely to be unproductive in view of these special circumstances. Even were there no special circumstances, the Union has failed to provide compelling reasons for why the Panel should adopt its proposal and take the unusual step of severing the NIAP-related articles from the parties’ negotiations over the rest of the contract. Moreover, the Panel is persuaded that it is worth adopting a proposal that is intended to speed up the negotiating process while simultaneously minimizing the costs to be incurred by the parties in negotiating an agreement. In this regard, the bargaining schedule proposed by the Employer shall be modified, however, so that the NIAP-related articles are the first subjects addressed by the parties. Neither side disputes that these articles involve important matters, and the Employer was willing to give them priority during the informal conference as long as they would not be bifurcated from the rest of the negotiations.

    With respect to the payment of travel and per diem expenses, we shall order the Employer to pay up to $15,000 toward the costs incurred by Union bargaining team members employed by the Agency in connection with the negotiations. Although less than proposed by the Union and previously provided by the Employer under similar circumstances, in our view this amount effectively balances the parties’ interests and is generally consistent with the Employer’s practice of contributing toward the Union’s travel and per diem expenses while at the same time acknowledging that employer reimbursement for such expenses should be based at least in part on economic need, and not treated as an entitlement. Finally, there is no evidence in the record that the matter of the printing and distribution of copies of the successor agreement had ever been raised as a ground rules issue in this case, prior to the Panel’s receipt of the Union’s final offer on December 30, 2002. Accordingly, it is not addressed in the Order below.

    Pursuant to the authority invested 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 5 C.F.R. § 2471.11(a) of its regulations, orders that the following wording be inserted into the partial ground rules agreement reached by the parties on December 20, 2002, as items 4, 7, and 9:

4. Exchange of Proposals and Bargaining Schedule. The parties shall exchange their proposals on NIAP-related articles on June 9, 2003, in electronic format (Microsoft Word). Negotiations over the NIAP-related articles shall occur for at least 2 weeks during the period from June 9 through July 3, 2003. The parties are free to explore whether any agreements reached on the NIAP-related articles should be implemented prior to the completion of bargaining over the rest of the NLA.

On July 7, 2003, the parties shall exchange their proposals on other than NIAP-related articles, and negotiations over such matters shall commence on July 21, 2003. The parties shall meet to negotiate for at least 2 weeks during each successive 4-week period for no more than 12 weeks of unassisted negotiations.

. . . . .

7. Travel and Per Diem. The Employer shall pay travel and per diem expenses for union negotiators (which includes lodging, meals, and incidentals) in accordance with the Federal Travel Regulations, up to a maximum of $15,000 for these successor NLA negotiations.

 

. . . . .

9. Agreement Status and Severability. Absent mutual agreement between the parties to do otherwise, any and all agreements reached at the bargaining table are tentative, and shall not become final until such time as a comprehensive National Labor Agreement is executed by the parties. Any impasse between the parties shall be resolved using the procedures established in the Statute, which may be invoked by either party after completion of all negotiations. Any proposals declared non-negotiable by the agency head shall not serve to stay the effective date of other provisions contained in the agreement and approved by the agency head. Provisions agreed to during negotiations and not referred for negotiability determination shall become effective upon agency head approval and ratification by the bargaining unit.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

March 11, 2003
Washington, D.C.