Favorable FSIP Decision Regarding Term Bargaining Ground Rules

FSIP Member Marvin E. Johnson, Esq.
Marvin E. Johnson, Esq.

On December 31, 2016, an arbitrator from the Federal Service Impasses Panel (FSIP) issued a favorable decision regarding the negotiation impasse between NTEU and HHS over the ground rules that will govern the parties’ term negotiations for the consolidated collective bargaining agreement (CBA). As I previously shared, the parties had reached impasse over two issues: (i) the term bargaining schedule and (ii) the payment of travel and per diem expenses for NTEU’s bargaining team members.

On the issue of the bargaining schedule, Panel Member Marvin Johnson, noting that the parties agreed to limit the number of articles (20 articles per side, with two new articles) that will be opened, adopted a modified version of NTEU’s last best offer, stating the union’s proposal “logically ties the number of weeks of bargaining to the number of articles opened.” He ruled that bargaining will be conducted for 14 weeks if 30 or fewer articles (in total) are opened by the parties, and for 18 weeks if 31 or more articles are opened by the parties. He also directed the parties to commence bargaining no later than 30 days after they exchange written proposals, which the parties had agreed would be on the 30th day following receipt of this decision. Consequently, the parties must exchange written proposals on February 3, 2017, and commence bargaining within thirty (30) days of that date. Member Johnson flatly rejected HHS’s proposal for an open-ended bargaining schedule, noting that it represented “a step backward from its earlier position that the bargaining could be concluded in one (1) year.”

Official travelOn the issue of payment of the union team members’ travel and per diem, HHS had refused to pay for more than 50 percent of the total cost of the union’s team (six negotiators, four of whom would be traveling). Member Johnson ordered the agency to pay reasonable travel and per diem costs for three employees on the union negotiating team, who must travel from outside of the Washington, D.C. commuting area, for the entire negotiations process, including all third-party proceedings. NTEU must pay the travel and per diem costs of one employee on the union’s negotiating team whose costs are the highest of the four employees who must travel.

The Panel also addressed some discrepancies in the language submitted in each party’s last best offer regarding a number of the other ground rule provisions even though the parties indicated that they had reached agreement on all of the other ground rule provisions not submitted to impasse. To resolve those discrepancies, Member Johnson imposed the language in NTEU’s last best offer, citing the fact that it had been initialed by the agency’s chief negotiator and HHS failed to offer a rebuttal in its post-mediation-arbitration position statement.

We are pleased that the ground rules issues have been resolved, and we look forward to having productive negotiations with HHS to address the concerns of our chapter leaders and members on the existing contract language and obtaining a significantly improved master CBA at the end of these negotiations.

Please send me your proposals to improve the current CBA language, including Article and Section of the CBA (if applicable), by no later than Friday, January 27, 2017, for consideration.