United States of America

 BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF AGRICULTURE GRAIN INSPECTION PACKERS AND   STOCKYARDS ADMINISTRATION WASHINGTON, D.C.
and  NATIONAL COUNCIL OF FEDERAL GRAIN   INSPECTION LOCALS, AMERICAN   FEDERATION OF GOVERNMENT   EMPLOYEES, AFL-CIO	Case No. 04 FSIP 41

 DECISION AND ORDER

        The Department of Agriculture, Grain Inspection Packers and Stockyards Administration, Washington, D.C. (Employer) and the National Council of Federal Grain Inspection Locals, American Federation of Government Employees, AFL-CIO (Union) filed a joint 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.

      After investigation of the request for assistance, the Panel determined that the dispute, which concerns two ground rules for negotiations over the parties’ successor national collective bargaining agreement (NCBA), should be resolved through single written submissions.  The parties were advised that, following the receipt of their submissions, the Panel would take whatever action it deems appropriate to resolve the matter, which may include the issuance of a Decision and Order.  Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.  

BACKGROUND

        The Employer facilitates the marketing of grain by inspecting all grain that is exported from the United States to other countries.  The Union represents 400 employees in a nationwide, consolidated bargaining unit made up of three locals located in Destrehan, Louisiana; Portland, Oregon; and League City, Texas.  Employees work as grain inspectors, agricultural commodity graders, technicians, aides and secretaries, at grades GS-5 through -9.  The parties' NCBA expired in 1984, but has been renewed every year since then.

 ISSUES AT IMPASSE

      The parties essentially disagree over: (1) how ratification of the successor NCBA by the Union’s membership should be conducted, and (2) whether the successor NCBA should supercede all existing agreements and memoranda of understanding (MOU) between the parties (Employer), or such agreements should remain in effect after implementation of the successor NCBA unless specifically superceded through bargaining (Union).

POSITIONS OF THE PARTIES

 1.  Ratification of the Successor NCBA

     a.     The Employer's Position

     The Employer proposes the following wording on the issue of ratification:

The Union membership will be permitted to ratify the provisions agreed to by the respective representatives prior to any issues at impasse being referred to the Federal Service Impasses Panel (FSIP).  If the provisions are not ratified, the parties will resume bargaining and [will] not [be] restricted from renegotiating any previously agreed provisions.  If the parties reach agreement on any or all of the issues referred to the FSIP, without an FSIP decision, the Union membership will be permitted to also ratify those provisions.  If these provision(s) are not ratified, the parties will resume bargaining but [will be] restricted to those provisions of the subsequent ratification.  No further ratification will involve those disputes decided by the FSIP.

Its proposal contemplates two separate ratification votes by the Union’s membership.  The first, which would take place before any impasse procedures were held, would cover all sections except those that the parties believe are at impasse.  The second vote would cover any items agreed to voluntarily during a Panel impasse resolution procedure, but not those imposed by the Panel.  The procedure is to ensure that the ratification vote does not serve as a “referendum” on the “most contentious” issues.  Otherwise, under the Union’s proposal, “a Panel decision could easily sway the [U]nion membership to ratify or not ratify the overall contract based solely on the Panel’s decision concerning a very small portion of the contract.”

 2.   The Union's Position

      On the subject of ratification, the Union’s proposal is as follows: 

The Union membership will act to ratify the provisions agreed to by the respective representatives after disposition by the FSIP.  If the new National Agreement is not ratified, the parties will resume bargaining on issues that were agreed to by the parties.  Provisions imposed by the FSIP, while constituting part of an agreement if it is otherwise ratified, do not require renegotiation over the objection of management.

Unit employees should have the opportunity to ratify the successor NCBA in the traditional way, i.e., after all bargaining has been completed and tentative agreements have been reached on all items, including any that were taken through impasse procedures.  In this manner, the Union’s members would be able to “know the entirety of what they are voting on” before they vote.  Of course, any Panel-imposed sections would not be subject to ratification.  Consistent with ratification being “related to internal Union processes,” the Union informed the agency on December 11, 2002, that it would follow that practice with the tentative agreement resulting from successor NCBA negotiations.

 CONCLUSION

       Having carefully considered the evidence and arguments presented by the parties on the issue of ratification, we are persuaded that neither side has demonstrated a need to adopt its proposal.  Our decision is guided by the general rule that union members have the right to ratify agreements that govern their conditions of employment.  We note in this regard that the Union has notified the Employer of its intent to exercise this right.  In our view, the Union’s members should be free to choose, through their representatives, the manner in which ratification will occur, including, but not limited to, electing to ratify the provisions their representatives have agreed to prior to any issues at impasse being referred to or decided by the Panel.  Accordingly, the parties shall be ordered to withdraw their proposals. 

 2.    Status of Existing Agreements

        a.    The Employer’s Position

        On the issue of interim agreements, the Employer proposes that “the new National agreement [] supercede all existing agreements between the parties.”  Under the Employer’s approach, prior agreements and MOUs would essentially be terminated. If either party believes, however, that certain agreements may be needed in the future, it could propose that the substance of those agreements be included in the successor NCBA.  The proposal is a good fit with agreed-to portions of the ground rules.  In particular, Ground Rule 1 provides Union bargaining team members with 200 hours of preparation time, plus other time available under the current NCBA.  Such amounts would give the Union sufficient time to research the existence of various MOUs that they might want to make a part of their contract proposal package.  In addition, the relevant part of Ground Rule 3 provides:

The parties will submit all of its proposals in the order it desires them addressed at least 30 days in advance of the initial bargaining session.  Negotiations will be limited to these initial proposals that may include provisions from the existing National Agreement and/or provisions from other existing National agreements between the parties such as Memorandums of Understandings (MOUs).

This wording permits the Union the option of proposing to retain specified MOUs.  If this procedure is not followed, the Union might attempt to resurrect old agreements in the future that “conflict with the new contract, possibly causing grievances and/or unfair labor practice charges.”  The requirement to raise them or lose them as part of contract bargaining will “foster orderly negotiations” and “assist in furthering the open and honest dialog desired in contract negotiations.”

       b.   The Union’s Position   

            As to the retention of interim agreements, the Union proposes that:

At the time of proposal exchange or before, parties may submit a list of MOUs that each contends are no longer valid due to timeliness or changes in law or regulation.  The parties will agree to in writing which MOUs both parties concur need no longer stand.  The agreed dissolution of invalid agreements will occur prior [to] face-to-face negotiations.  All MOUs otherwise are considered valid and in force.  The status of MOUs will not interfere with the time table established in these ground rules for negotiating the master National Agreement.  National Agreements (MOUs) will be addressed in the Article:  Laws and governing Regulations.

The discussion of interim national agreements and MOUs “is inherently part of the negotiation process and not the ground rules and by agreeing to this [the Employer’s proposal] would give an advantage to management in the forthcoming negotiations.”  Requiring bargaining on these agreements “would add to the burden of renegotiating a National Agreement” by unnecessarily lengthening negotiations and increasing associated costs.  Furthermore, MOUs provide a flexible means of “deal[ing] with day to day business procedures,”[1]^/ while “the [NCBA] primarily provides a solid structure for the labor/management relationship.”

CONCLUSIONS

        On the issue of the status of interim agreements and MOUs, after careful evaluation of the parties’ final offers and supporting statements, we shall order adoption of the Employer’s proposal to resolve their dispute.  Preliminarily, we note that the parties have not negotiated a successor NCBA for 20 years, and presumably have not undertaken an inventory of existing interim agreements and MOUs during that time.  Thus, the Employer’s approach would serve the legitimate purpose of requiring each side to identify those existing agreements they propose to retain, or forego their continued application during the term of the successor NCBA.  The amount of preparation time available to the Union appears to be adequate for this task.  Moreover, we are persuaded that the benefits of the Employer’s proposal outweigh the Union’s concerns that the process would be time consuming and potentially append inappropriate topics to the parties’ agreement.

ORDER 

        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 5 C.F.R. ' 2471.11(a) of its regulations, hereby orders the following:

1.     Ratification of the Successor NCBA 

       The parties shall withdraw their proposals.

2.     Status of Existing Agreements

       The parties shall adopt the Employer’s proposal.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

July 12, 2004
Washington, D.C.