United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
| In the Matter of
DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE WASHINGTON, D.C. |
|
|
and NATIONAL BORDER PATROL COUNCIL AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO |
Case Nos. 92 FSIP 238 93 FSIP 12 93 FSIP 15 93 FSIP 34 93 FSIP 40 |
DECISION AND ORDER
The National Border Patrol Council, American Federation of Government Employees, AFL-CIO (Union) filed five requests for assistance with the Federal Service Impasses Panel (Panel) to consider negotiation impasses under the Federal Service Labor- Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Justice, Immigration and Naturalization Service, Washington, D.C. (Employer).
After investigation of the requests for assistance the Panel determined that the parties were at impasse with respect to the groundrules for negotiations. The Panel consolidated the cases for the purpose of holding an informal conference to resolve the disputes. The Panel directed the parties to meet in an informal conference with Senior Legal Advisor Jesse Etelson for this purpose. The parties were advised that if no settlement were reached, Mr. Etelson was to notify the Panel of the status of the dispute, including the parties' final offers and his recommendations for resolving the issues. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasses, including the issuance of a binding decision.
Mr. Etelson met with the parties on January 14, 1993, in Washington, D.C. During that proceeding the parties were unable to reach agreement on the outstanding issues. Mr. Etelson has reported to the Panel, and it has now considered the entire record. The Panel has decided to keep these five cases consolidated for consideration on the merits.
BACKGROUND
The Employer enforces the immigration laws under authority delegated by the Attorney General. Insofar as the employees represented by the Union are concerned, the Employer's mission is to secure United States borders from, and to apprehend, illegal immigrants. The Union represents about 4,000 employees, approximately 3,500 of whom are Border Patrol Agents. The parties have been operating under an expired collective-bargaining agreement (CBA) that they entered into in 1976. The CBA contains a section ("Article 3G") which addresses mid-term bargaining on proposed Agency changes of "regulations covering personnel policies, practices and existing practices and/or working conditions not covered by this agreement." Article 3G does not, however, provide detailed groundrules. The only specific procedural rules are that the Union will present its responsive views on the proposed changes within 30 days of receipt and that, if the Union does not agree with them, formal negotiations must begin within 30 days of the Union's response. The parties have, until recently, worked out any necessary further groundrules on an ad hoc basis. Meanwhile, they reached impasse in negotiations to reach an agreement to replace their 1976 CBA. They sought assistance from the Panel, which, in 1986, directed them to submit the dispute to an arbitrator of their choice. The arbitrator issued his interest arbitration award in 1987. Since then, the parties have been engaged in litigation over the validity and effect of it. One part of that award, reviewed by the Federal Labor Relations Authority (Authority) in 1988, was a groundrules article for mid-term bargaining. Each party filed an exception to a different provision of the arbitrator's groundrules article. The Authority, however, denied both parties' exceptions.(1) At present, the Union is seeking before the Authority to compel the Employer to implement the entire agreement contained in the award, and the Employer is resisting because of certain procedural objections to the manner in which the Authority disposed of some negotiability issues the Employer had raised.
In 1992, the Employer found it necessary to propose an unusual number of initiatives, and it was expected that this increased pace of proposed changes would continue in 1993. The initiatives with which the five above-referenced cases are involved concern issuance of a new Air Operations Manual (Case No. 92 FSIP 238), a new policy for vehicle pursuits (Case No. 93 FSIP 12), closing the Border Patrol Station at Gila Bend, Arizona (Case No. 93 FSIP 15), a new health improvement program (Case No. 93 FSIP 34), and modification of procedures for announcing and filling Border Patrol Pilot positions (Case No. 93 FSIP 40). The Union finds it difficult to handle the heavier schedule of negotiations and has insisted on negotiating detailed groundrules for each set of negotiations. The Employer, in response, has proposed a generic, comprehensive set of groundrules to cover all negotiations over the currently proposed changes and future changes proposed by management. The Employer's proposed groundrules would constitute a supplement to the expired agreement.
ISSUES AT IMPASSE
A preliminary issue of disagreement between the parties concerns whether any groundrules imposed by the Panel should be applicable only to the five sets of negotiations concerning which the Union filed its requests for assistance, or whether they should constitute a generic set of groundrules supplementing or replacing those contained in the expired CBA. The Union has raised jurisdictional questions concerning several of the Employer's proposals, including its proposal for generic groundrules. A second group of issues over which the parties disagree involves such matters as: (1) time limits on information requests and Union proposals; (2) limits on the purpose and scope of Union information requests; (3) scheduling negotiation meetings; (4) sites for negotiations; (5) payment of the Union's travel and per diem expenses; (6) equipment, facilities, services, and local transportation for Union negotiators at locations selected for negotiations; (7) signing off on the agreement; (8) maintenance of the status quo; and (9) miscellaneous procedural and housekeeping matters.
1. Generic Groundrules
a. The Employer's Position
The Employer's generic groundrules proposal is an appropriate response to the Union's demand for detailed groundrules and consistent with Article 38D of the expired CBA, which provides for negotiations to amend or supplement the existing agreement. The parties have bargained to impasse on the issue of generic or case-specific groundrules. The Union's requests for assistance in resolving groundrules issues conferred jurisdiction on the Panel to deal with the entire "matter" of groundrules, not only with specific groundrules issues raised by the Union. The parties' difficulty in agreeing on groundrules portends drawn-out negotiations on a repeated basis. Its proposed generic groundrules are suitable for all Article 3G midterm bargaining for the immediate future.
b. The Union's Position
The parties' practice has been to negotiate any detailed groundrules needed to supplement Article 3G of the expired agreement on an ad hoc basis. Furthermore, in seeking a supplement to Article 3G, the Employer has not followed the procedures of Article 38D, which require either party to "serve notice of intent to negotiate an amendment or to supplement the existing agreement," followed by meeting(s) of the parties at a "mutually agreed time." In general, the Union has not been given the full opportunity to engage the Employer with respect to a generic set of groundrules, and it is entitled under the expired but still operational CBA to continue to negotiate groundrules issues not covered by Article 3G on an ad hoc basis, at least until formal negotiations to replace the expired agreement or to amend or supplement Article 3G result in agreement. Therefore the Panel's jurisdiction with respect to groundrules is limited to the parties' disputes concerning the five cases in which they have reached impasse, and over which the Union has specifically requested the Panel's assistance.
CONCLUSIONS
In cases where jurisdictional questions arise, the Panel is guided by the Authority's decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell), where the Authority determined that the Panel may apply existing case law to resolve an impasse where a duty-to-bargain issue arises. In the unusual cases presented here, we conclude that the Panel has jurisdiction to entertain the Employer's generic groundrules proposals, and that the generic approach is appropriate for the resolution on the merits of the issue. Authority precedent supports the Employer's assertion that a request for Panel assistance operates to confer upon the Panel jurisdiction to consider a "matter" as distinct from specifically defined impasse issues.(2) When the Union made its original proposals for detailed groundrules in one of these consolidated cases, Case No. 93 FSIP 34, the Employer's response included a proposal for generic groundrules. The Union rejected this proposal, citing "the diverse nature of the bargaining issues facing the parties." For this and other stated reasons, the Union responded to the Employer that it "feels that it would be in the interest of both parties to continue to negotiate groundrules on an ad hoc basis." Nevertheless, the Employer presented a set of generic groundrules in advance of the parties' three days of mediation that preceded the Panel's assertion of jurisdiction over these cases. Thus, the Union has had an opportunity to negotiate over generic groundrules but has simply chosen not to. Insofar as the Union's contract arguments are concerned, similar considerations are applicable. The Employer proposed generic groundrules and the Union rejected them on the merits. The Union did not respond to the proposals by asserting, nor does there appear to be any basis for asserting, that the Employer failed to give the notice of intent to negotiate required by Article 38D of the existing CBA.
With regard to the merits of a generic set of groundrules, it is not unusual for parties to negotiate a comprehensive set of groundrules for all midterm negotiations concerning matters such as proposed management changes. Given the undisputed difficulty the parties have experienced in reaching agreement on groundrules for each of the five sets of negotiations giving rise to these consolidated cases, there is a demonstrated need to facilitate these and other anticipated midterm negotiations. A generic set of groundrules should help to meet that need, bearing in mind that neither the immediate cases, nor the anticipated future negotiations is it necessarily desirable to provide groundrules so exacting in detail that they deny the parties the flexibility needed to deal with procedural and housekeeping matters that may arise in the unique circumstances of each set of negotiations. We note that the groundrules that the Panel is now required to impose are limited to the effective duration of the CBA which these groundrules supplement.(3) It is therefore anticipated that a successor CBA (whether or not it is the one imposed in the above-referenced arbitrator's interest award) will supersede the 1976 CBA and any amendments or supplements to it, including those covering groundrules, unless the parties agree otherwise.
2. Specific Groundrules Proposals
A. Time Limits on Information Requests and Union Proposals
(1) The Employer's Position
It is appropriate to set time limits on the Union's demands to bargain about proposed management changes, on submitting proposals and proposed meeting dates, and on making requests for information about the management changes. In INS I, supra, the Authority rejected the Union's contention that the provision imposed by the arbitrator setting a time limit for Union proposals which address changes proposed by management, were outside its statutory duty to bargain, because it requires the Union to waive its right to engage in midterm bargaining. The Authority, therefore, held that the arbitrator did not exceed his authority by imposing such a provision.(4) Similarly, limitations on the time for either party to perform other steps in the bargaining process, such as requesting information, should not be construed as requiring a waiver of statutory rights. The Employer's specific time-limit proposals are essentially that, once management notifies the Union of proposed changes, each of the following steps must be completed within 14 days of the preceding step: (1) the Union will make all relevant requests for information; (2) management will respond appropriately to such requests; (3) the Union will make an unconditional demand to bargain, with its counterproposals and proposed date for beginning negotiations. Such time limits will facilitate negotiations.
(2) The Union's Position
The Statute sets no time limits for submitting proposals or requesting information. The Employer's proposed time limits on Union proposals would require it to submit all of its proposals within the specified time, thereby effecting a waiver of the right to submit any proposals at a later time. The proposed time limit on requesting information would have a similar effect. Therefore, the Union may not be required to negotiate over such proposals, and the Panel is not permitted to impose them. The Union proposes, however, that the Employer be required to furnish information the Union requests and, in Case No. 92 FSIP 238 (where the Union has already submitted its substantive proposals) that the Employer be required to submit its counter-offers or responses, all no later than 20 days before negotiations begin. Like the Employer, the Union asserts that its proposed time limits will facilitate negotiations.
CONCLUSIONS
We agree with the Employer that the time limits it proposes, accepting the Employer's own interpretation of the import of these limits, would not require a waiver of any of the Union's statutory rights. Although one Employer proposal expressly makes failure to submit a timely demand to bargain, with proposals and negotiation dates, "a waiver of the Union's right to bargain over the proposed program change," we accept the Employer's representation that the "waiver" language is to be construed as the equivalent of the Authority-approved wording in the interest arbitration award: "In the absence of timely Union proposals management will have no obligation to enter into negotiations."(5) We do not, of course, construe such a time limit as precluding the Union's submission of modified proposals as negotiations progress. With regard to time limits for requesting information, the Authority has held that the Statute does not preclude the parties from establishing procedures for the furnishing of information, as long as the exclusive representative is not denied the opportunity to secure the requested information in a timely manner and without undue burden or delay.(6) Accordingly, an arbitrator's award establishing such procedures does not deprive a union of its statutory right to request and receive information.(7) Thus, a time schedule for requesting information on specific matters to be negotiated is not to be construed as a waiver of statutory rights. This means, however, that such a schedule does not affect the Union's right to request and receive information discovered to be necessary to clarify information received pursuant to its timely original request or to which it is otherwise entitled under the Statute. With this understanding, in accordance with Carswell we conclude that all of the Employer's time-limit proposals are properly before us for consideration on the merits.
Having considered the evidence and arguments on the merits, we conclude that the parties should adopt the provision awarded by the private interest arbitrator to resolve the issue of facilitating the initiation of midterm bargaining over management-initiated changes. The arbitrator provided that the Union must "present its views and concerns" on national-level changes, and its notice of its intent to start negotiations, within 30 days of receiving notice of such proposed changes from management, and must present its written proposals within 10 calendar days after that. Neither party has demonstrated a need to provide different time limits, and the Union is seeking to enforce the total agreement awarded, including the provision concerning this subject. The arbitrator did not put time limits on requesting or furnishing information. In our view, this omission is justified by the fact that the course of negotiations normally dictates the pace of information exchange, and statutory remedies are available if necessary to ensure that each party meets its obligations with respect to information requests, and otherwise to negotiate in good faith pursuant to § 7114 of the Statute.
B. Limits on the Purpose and Scope of Information Requests
(1) The Employer's Position
The Employer proposes that information requests made in connection with these kinds of midterm negotiations be limited to those for which "the sole purpose . . . is to equip the Union spokesman to develop proposals for bargaining which are responsive to the proposed change, and the Union recognizes that its right to request information is not to be used to make unreasonable and improperly burdensome demands on management." The proposal concludes with a prohibition on Union requests for information already in its possession or for documents "which theoretically may exist, but are not within the purview of [Immigration and Naturalization] Service management." The rationale for the limitation of requests to a specific purpose is that, in the context of preparing for a certain set of negotiations, the Employer should not be burdened with requests for information to satisfy the Union's information needs in connection with other purposes. Similarly, the Employer wishes to avoid being burdened with requests for information already in the Union's possession or with "fishing expeditions" for documents such as notes that hypothetically may have been made by Department of Justice officials with reference to certain telephone conversations. The Employer asserts that the Union has been abusing the right to request information by making such burdensome and peripheral requests that tend to delay the negotiations at hand. Essentially, it wishes to reinforce contractually the prerequisites for information disclosure contained in § 7114(b)(4) of the Statute.
(2) The Union's Position
The Employer's proposal should not be considered because it conflicts with § 7114(b)(4). In this regard, the statutory provision requires disclosure of information "for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." The Employer's proposal would narrow the statutory scope by restricting the purpose to development of bargaining proposals only. Moreover, the proposal would limit the Union to information maintained by the Immigration and Naturalization Service, while the Statute permits disclosure of information maintained anywhere throughout the "agency," which in this case is the Department of Justice.
CONCLUSIONS
While we agree that nothing in the wording of the Employer's proposal necessarily conflicts with the Statute, we believe that its attempt to duplicate or reinforce the statutory limits on disclosure could create more problems than it would solve. To the extent the limitations merely duplicate the Statute, they are unnecessary. The groundrules agreement cannot, by itself, prevent the generation of frivolous requests. In any case, judgments about the validity of requests and timely responses must be made. To the extent that the Employer's proposal attempts to refine the statutory limits on disclosure, we conclude that compliance with the Statute is better left to proceedings in other appropriate forums. Therefore, we shall order that its proposal be withdrawn.
C. Scheduling of Negotiations
(1) The Employer's Position
The Employer proposes that the Union submit, with its demand to bargain, a proposal to begin negotiations "during any 2 alternative weeks within the next 4 weeks[.]" Both parties will "make every effort to meet" within those 4 weeks, and "[i]t is understood that no single Union representative is indispensable." Its recent bargaining history with the Union demonstrates the necessity of requiring the parties to address the issue of scheduling as soon as the substantive issues have been joined. Since the Union is the party seeking negotiations on these management-proposed changes, it should assume the burden of proposing dates within a fixed time. The Union's insistence that its president (and designated chief negotiator) participate in all negotiations has resulted in holding the negotiations hostage to his other commitments. Section 7114 of the Statute requires both parties to provide representatives who will "meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays." The Union's president is not the only Union official who is capable of leading its bargaining team, and his availability should not be a prerequisite for proceeding with negotiations.
(2) The Union's Position
The Union proposes that negotiations in four of the instant cases be scheduled for blocks of 2 weeks, with 1 week only for Case No. 93 FSIP 15. Dates shall be set by mutual agreement, absent which "the matter shall be submitted to an appropriate adjudicatory entity for resolution." The proposed blocks of time are reasonable estimates, based on past experience, as to how long the individual negotiations will last. They do not preclude shorter negotiations, or extensions of these timeframes, by mutual agreement. Neither party may dictate which individuals will represent the other in negotiations, and the Employer's proposal that "no single Union representative is indispensable" is a nonnegotiable attempt to require a waiver of the Union's right to designate its representatives.
CONCLUSIONS
We shall order a modified version of the Employer's proposal to resolve the parties' dispute over this issue. The Employer's proposal has the merit of advancing the negotiations by putting the process of scheduling negotiating sessions into the opening phase of the negotiations. It should do so more efficiently than the Union's proposal which merely requires the parties to seek mutual agreement and submit unresolved scheduling disputes to "an appropriate adjudicatory entity." Agreement in advance to set aside 2-week blocks of time for the duration of negotiations is not demonstrably necessary, and the Panel is less equipped than the parties themselves, on the record presented here, to provide estimated timeframes. Our modification of the Employer's proposal is that no more than one set of negotiations may be required to begin in any 1 month. This appears necessary in view of the number of sets of negotiations already on the parties' agenda, as reflected in these consolidated cases, and those expected to follow. There is no assurance that even the unassisted stage of negotiations in each of these cases can be completed within a week, and the parties' recent bargaining history suggests that at least some third-party assistance may be necessary before all the issues in dispute can be resolved. Therefore, some limitation on the pace of beginning negotiations is necessary to avoid requiring each party to conduct several sets of negotiations/mediation/impasse proceedings simultaneously. Moreover, we believe it is reasonable to require the Union to make authorized representatives, other than its president, if necessary, available to meet this modified bargaining schedule. As the Authority has held, each party's bargaining obligation requires it to provide, if necessary, a substitute for an unavailable representative.(8) Thus, this is not considered an interference with that party's right to designate its own representatives. Accordingly, consistent with Carswell, we reject the Union's contention that this part of the Employer's proposal is nonnegotiable.
D. Sites for Negotiations
(1) The Employer's Position
The Employer proposes that, unless the parties agree otherwise, negotiations will be in Government or commercial space convenient to Metro in Washington, D.C. It seeks a Washington, D.C., location because its representatives and their superiors (the "decisionmakers"), as well as the management records and "policies," are located there, as is AFGE national headquarters. The issues being negotiated are national in scope and require substantial input from national-level management officials. Sites proposed by the Union in the past have had little nexus to the disputes being negotiated, and have sometimes had more to do with the Union negotiators' away-from-bargaining-table activities. Sites far from Washington will require travel time and expenses for management's team and most or all of the Union team. This would "double" the Employer's expense if, as the Union seeks, the Employer must pay for the Union's representatives' travel and per diem expenses.
(2) The Union's Position
The Union has proposed a different site for each set of negotiations to be held. It would propose sites in the future for each future set of negotiations. Each of the sites it has selected has a nexus with the negotiations, or is near one or more of the Union's negotiators. In one case, No. 93 FSIP 34, involving the health improvement program, Dallas, Texas, was proposed because it wants its negotiators to have access to the Cooper Aerobics Clinic, where the Employer's managers and fitness coordinators were trained. It would be disadvantaged if forced to go to Washington, D.C., for all these negotiations. Its president and chief negotiator is in California and all of its officers are far from Washington, D.C., as unit employees are located largely in the Southwest and Florida. Moreover, since these are negotiations over management-initiated changes, not subjects raised by the Union, the Union's convenience should be given considerable weight.
CONCLUSIONS
We believe that the parties should adopt a compromise provision to resolve this issue. Under this compromise, the parties, beginning with the Employer, shall alternate in selecting the site for each set of negotiations. All sites, unless agreed otherwise, will be in the continental United States and in space where the Employer can provide adequate facilities without resorting to commercial renting. Such a procedure is appropriate in the situation presented here, where the parties are faced with a series of presumably short negotiations, each of which might reasonably be concluded in one round at one location, and is based on the premise that, absent a showing of unusual or other compelling circumstances, neither party should be able to force the other consistently to be the "visiting team." Concerning the relative expenses of the rotation approach and the single-site Washington, D.C., approach, the Panel has considered this issue in conjunction with the issue of Union travel and per diem expenses, which follows.
E. Union Travel and Per Diem Expenses
(1) The Employer's Position
The Employer would reimburse the Union for the travel and per diem expenses of a Union negotiating team not to exceed the size of the Employer's negotiating team, for negotiations in Washington, D.C. If negotiations were held elsewhere, the Union would pay all of its own expenses. As long as negotiations are in Washington, D.C., parity in negotiation team size is appropriate, with respect to reimbursement. It does not seek to limit the size of the Union's team, only its own financial responsibility if the Union chooses to bring more members to the table than management does. There is no justification for paying travel expenses so that the Union can augment its team. The Employer also agrees to authorize official time for additional representatives "unless this would be in conflict with the contract." In addition, it now agrees to exclude time spent in bargaining for administratively uncontrollable overtime (AUO) purposes.
(2) The Union's Position
The Union seeks full reimbursement for four Union negotiators in the negotiations in four out of the five consolidated cases involved, a three-member team in Case No. 93 FSIP 15, or, in each case, as many Union representatives as there are Employer representatives, whichever is greater. The principle of parity in reimbursement for negotiating teams is inadequate in situations like many of those presented by the proposed management changes in question because the issues are complex and sometimes technical. The size of the Employer's team is irrelevant because of management's ability, when negotiations are in Washington, D.C., to draw on convenient resources, and even to bring in different negotiators to substitute for each other on different issues in the same negotiations. The Union generally needs at least two negotiation experts at the table, plus whatever number of technical experts is necessary in light of the issues being discussed, and representatives of up to three occupational groups within the bargaining unit which might be affected by the particular proposed changes at issue.
CONCLUSIONS
We believe that resolution of this issue, like the previous one, should be accomplished by adoption of a compromise provision. Under this compromise, negotiations at a site selected by the Employer (presumably in Washington, D.C.) shall require reimbursement according to the Employer's parity of negotiating team proposal. The Employer shall also be responsible for reimbursing the Union for 50 percent of its travel and per diem expenses, using the parity principle for limiting the reimbursable Union negotiating team, for negotiations at sites selected by the Union outside of Washington, D.C. In our view, the Union has not demonstrated sufficient justification for compelling the Employer to underwrite its election to bring more negotiators to the table. It should be understood, however, that the size of the management team is to be measured by the total number of negotiators it uses in any one set of negotiations, except where an emergency necessitates a substitute. Moreover, we believe the Employer's refusal to make any contribution to the Union's expenses when negotiations are held outside of Washington, D.C., would discourage the Union from exercising its rights under the rotation system we have previously adopted. This compromise also gives the Union an incentive to limit the size of its team; to negotiate in Washington, D.C., when it has no particular need to select another site; and to select other sites where at least one of its negotiators is available without travel.
F. Equipment, Facilities, Services, and Local Transportation
(1) The Employer's Position
The Employer offers to provide meeting rooms and telephones when negotiations are held in Government space. The Union would share the cost of any commercial space used. The Union is to make no "transcription, recording or word processed record" of negotiation sessions. The presumption is that meetings will normally be in Government space; if the Union chooses commercial space, however, it should pay half the cost. Special caucus rooms are not essential, since some convenient space for caucusing will usually be available. No provisions for specific equipment or local transportation are necessary. The Employer will undertake responsibility for preparing final copies of agreements reached. Local public transportation will meet the Union's transportation needs. Finally, the making of a verbatim record of negotiation meetings is counterproductive to successful bargaining. Insistence on it has even been considered to constitute a refusal to bargain in good faith.(9)
(2) The Union's Position
The Union proposes that: (1) space provided by the Employer include a separate area adequate for caucusing; (2) the Employer provide the Union with access to "all standard business machines, such as, but not limited to, a telefacsimile machine, an IBM-compatible computer, a laser printer, and a typewriter;" and (3) Union and management be provided an equal number and type of rental cars or other Government transportation. Providing the requested office equipment and caucus space will allow negotiations to proceed more rapidly. The proposal concerning local transportation seeks parity in the type of transportation used by each party. The Employer's proposal to prohibit a "word processed record" of the negotiations is objectionable because it seeks to preclude the Union from bringing any type of computer to bargaining sessions and thereby to force it "to utilize antiquated technology."
CONCLUSIONS
Having considered the circumstances and arguments on this set of issues, we conclude that the parties should adopt, with one modification, the Employer's proposals. That modification is to require the Employer to provide the Union, during negotiations in Government space, with whatever office equipment and facilities are available to the Employer, on an as-needed basis. Such a provision is designed to put the parties on an equal footing with respect to such matters. We do not believe, however, that the Union has demonstrated the necessity for such parity with regard to local transportation. Moreover, Union officials shall be reimbursed, under the formula set forth previously, for all necessary and appropriate transportation expenses, including those in the cities or other locations of the negotiation sites. Concerning verbatim transcriptions of the negotiation meetings, the plain meaning of the Employer's proposal does not purport to preclude the Union from bringing a computer to bargaining sessions. In this regard, we are persuaded that the making of a verbatim record would tend to impede the negotiating process.
G. Signing Off on Agreement
(1) The Employer's Position
The Employer proposes that, "if a final agreement is reached, the parties will sign off on the agreement." This is designed to reflect its normal practice of keeping agreements on individual issues tentative until an entire agreement is concluded, at which time the parties may be required to execute the complete document under § 7114(b)(5) of the Statute. The Panel approved this approach in another dispute.(10)
(2) The Union's Position
Section 7114(b)(5) of the Statute requires either party, on request, "to execute . . . a written document embodying the agreed terms[.]" The Employer's proposal would deprive the Union of the benefit of any agreed terms until a complete agreement is reached.
CONCLUSIONS
We conclude that the parties should adopt the Employer's proposal. In this regard, the Authority has recognized that tentative agreements on particular provisions, subject to reaching a final, complete agreement, are consistent with the process of collective bargaining contemplated under the Statute.(11) Here, the parties cannot agree on the effect of partial agreements. In the circumstances presented, we shall apply the approach approved by the Panel in VAMC as being consistent with the more common practice and one that encourages negotiators to reach agreement on all issues.
H. Maintenance of Status Quo
(1) The Employer's Position
The Employer initially proposed dates for implementation of some of the changes involved in these cases. Those dates have passed, and the Union has alleged in an unfair labor practice charge that the Employer has implemented its proposed changes, at least with respect to Case No. 93 FSIP 15. The Employer, therefore, opposes any contractual requirement to maintain the status quo.
(2) The Union's Position
The Union proposes that any implemented changes be rescinded and that all phases of the proposed changes be held "in abeyance pending the completion of bargaining, including the resolution of all attendant third party procedures." The Employer's proposals for implementation are unlawful because they contemplate making changes in conditions of employment without first fulfilling the obligation to bargain. The Union's own proposal, on the other hand, conforms to statutory requirements.
CONCLUSIONS
We conclude that the parties' groundrules agreement should be silent on the issue of implementation, and, accordingly, both parties shall be directed to withdraw their proposals on this issue. In the absence of a voluntary agreement with respect to implementation, we are persuaded that the parties should be left to their remedies under the Statute, without any contractual modifications.
I. Miscellaneous Procedural and Housekeeping Proposals
In addition to the groundrules proposals discussed above, each party has included in its package of proposals provisions covering, among other things, additional negotiation sessions, FMCS assistance, expenses during mediation, on-site visits, requests for and limitations of caucuses, and handling of impasses. In our view, the groundrules agreement ordered here gives the parties sufficient guidance for resolution of these additional issues, and they have otherwise failed to demonstrate the need for such provisions. We shall, therefore, direct the parties to withdraw these additional proposals.
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 pursuant to 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 following:
1. Generic Groundrules
The parties' groundrules agreement shall be generic to all negotiations described in Article 3G of the parties' 1976 collective-bargaining agreement, and shall be considered an amendment or supplement to Article 3G within the meaning of Article 38D of that agreement.
2. Specific Groundrules Proposals
A. Time Limits
The parties shall adopt the following wording:
The Service shall present the changes it wishes to make to existing rules, regulations, and existing practices to the Union. The Union will present its views and concerns (which must be responsive to either the proposed change or the impact of the proposed change) within a set time after receiving notice from management of the proposed change. In the absence of timely Union proposals management will have no obligation to enter into negotiations. Nothing in this agreement shall require either party to negotiate on any matter it is not obligated to negotiate under applicable law. The time will be 30 calendar days at the national level. At the end of the time period at the national level, the Union will serve notice of its intent to start negotiations. The Union will present its written proposals within 10 calendar days.
B. Limits on the Purpose and Scope of Information Requests
The Employer shall withdraw its proposal.
C. Scheduling of Negotiations
The parties shall adopt the Employer's proposal, with the following addition:
No more than one set of negotiations may be required to begin in any one month.
D. Sites of Negotiations
The parties shall adopt the following wording:
The parties shall meet in the continental United States and in Government space unless agreed otherwise. They shall meet for the first set of negotiations under this agreement in a place selected by the Service. Thereafter, the parties shall rotate in the selection of sites for each set of negotiations.
E. Union Travel and Per Diem Expenses
The parties shall adopt the following wording:
When negotiations are held at a site selected by the Service, it will pay for the travel and per diem expenses of an equal number of Union representatives to the number of negotiating representatives designated by the Service. When negotiations are held at a site outside of Washington, D.C., selected by the Union, the Service will pay for 50 percent of the travel and per diem expenses of an equal number of Union representatives.
F. Equipment, Facilities, Services, and Local Transportation
The parties shall adopt the Employer's proposals, with the following addition:
When negotiations are held in Government space, the Service will provide the Union with whatever office equipment, facilities, and services are available to the Service, on an as-needed basis.
G. Signing Off on Agreement
The parties shall adopt the Employer's proposal.
H. Maintenance of Status Quo
The parties shall withdraw their proposals.
I. Miscellaneous Procedural and Housekeeping Proposals
The parties shall withdraw their proposals.
By direction of the Panel.
Linda A. Lafferty
Executive Director
May 13, 1993
Washington, D.C.
1.United States Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol
Council, 31 FLRA 1123, 1129-31 (1988)(INS I).
2.National Aeronautics and Space Administration, Headquarters, Washington,
D.C., 12 FLRA 480, 498 (1983).
3.See Council of Prison Locals v. Brewer, 735 F.2d 1497, 1500 (D.C. Cir. 1984)(Final action of the Panel is "binding on the parties during the term of the agreement, unless the parties agree otherwise.")
4.Id. at 1129-30.
5.31 FLRA at 1129.
6.Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany
Region, 19 FLRA 790, 791 (1985).
7.Social Security Administration and National Council of SSA Field Operations Locals (NCSSAFOL) American Federation of Government Employees, AFL-CIO
(AFGE), 25 FLRA 238, 243 (1987) (SSA).
8.U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, 36 FLRA 524, 532-33 (1990).
9.See NLRB v. Bartlett-Collins
Co., 639 F.2d 652 (10th Cir. 1981), enforcing 237 NLRB 770 (1978), cert. denied 451 U.S. 961.
10.Veterans Administration Medical Center, Salisbury, North Carolina and Local 1738, American Federation of Government
Employees, AFL-CIO, Case No. 84 FSIP 18 (1984), Panel Release No. 224 (VAMC).
11.See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark
Office, 41 FLRA 795, 802-03 (1991).