In the Matter of Arbitration Between

U.S. EIYVIROI\IMENTAL
PROTECTION AGENCY,
Agencyt
FMCS No.17-52721
and
(Interpretation of Negotiation
AMERICAIT FEDERATION OF Ground Rules)
GOVERNMENT EMPLOYEES,
corrNcrl 238,
Union.

The Undersigned Arbitrator was appointed by the Parties pursuant to the

applicable rules and regulations of the Federal Mediation and Conciliation Service

(FMCS)andthe August l, 2007MasterCollectiveBargainingAgreement('tlre MCBA')

of the Parties. The Partiesare the U.S. EnvironmentalProtectionAgency ("the Agency'')

and the American Federationof GovemmentEmployees,Local 238 ('the Uniod'). The

Parties initially agreed to bifurcate this matter for the Arbitrator to consider issues

concerningthe arbitrability of the instant grievancebefore, if necessary,addressingthe

merits. In an earlier Interim Award, the Undersigned Arbitator found the instant

grievanceto be arbinable.

The grievanceproceededto a hearing on the merits before the Undersignedon

by its SeniorLabor
July 19, 2017nChicago, Illinois. The Agencywasbeenrepresented

Attorney Robert D. Coomber, Washington,D.C. Appearing on behalf of the Agency

were Kenneth White, Senior Counsel currently with ttre Office of Personnel

Management;and Kristi Corbett,EPA Director of Labor and EmployeeRelations.

The Union was representedby Attorney ThomasF. Muther, Jr., with the law firm

MinatranMuther Klinger, P.C. in Denver,Colorado.The Partiesfrled simultaneouspost-

hearingbriefs on or about August 29,2017. Upon the Arbitrator's receipt of thesebriefs

the recordwas closedin this matter.

ISSTTES

The partieshave submittedthe foltowing issuesto be decidedby the Arbitator:

(l) DoesArticle 8.2 of the Parties'2013 Memorandumof Understandingground

rules for negotiations require the Parties to identiff specific articles for

reopeningwithin 15 days of the date the Union advisedthe Agency that the

MCBA was not ratified?

(2) If so, and if the Union did not identiff specific articles for reopeningwithin

15 days of the date the Union advisedthe Agency that the MCBA was not

ratified, hasthe Union waivedits right to subjectthosearticlesto ratification?

PERTTTYENTCONTRACT PROVIS{ONS

Article 41 of the Master Collective BargainingAgreementQ007) ('ttre MCBA",

AgencyExhibit No. 1) providesasfollows:

 ARTICLE 41
Duration

Section 1: This Agreementshall remainin fulI force and effect for t}ree (3) yea{
from the date of approvalby the Agency Heador designeeand may be extended
in one(1) year incrementsthereafter.
*rF*

Section3: If either party desiresto renegotiatethis Agreementupon terrrination,

it will notiff the other party in uniting no lessthan sixty (60) daysbut not more
than ninety (90) daysprior to the expirationdateof the Agreement(or anniversary
date if the Agreementhas been extended). In the event neither Party requests
negotiations,the Agreementwill be automaticallyextendedfor one (1) year.
:F**

Article 8 of the Parties Memorandum of Understanding - Ground Rules for

Negotiations,datedApril 22,2013 ('Ground Rules,"AgencyExhibit 4). Providesin part
asfollows:

8.0 RATIFICATION, EXECUTION, AI\ID AGENCY IIEAD REVIEW

8.1 If the Union choosesto ratiff the agreement,it will advisethe Agency of the
resultsof the ratification vote no later than thirty (30) days following the dateof
ratification.

8.2 If the Union advisesthe Agencythat the MCBA was not ratified, the parties
shall reopenany or all articles for negotiationby providing written notice to the
other party no later than fifteen (15) days of the date the Union advised the
Agencythat the MCBA was not ratified.
*:f:f
PERTINENT FACTS

When the facts giving rise to the instant grievanceoccurred, the Partieswere

operating under a Master Collective Bargaining Agreement ('ttre MCBA") that was

Agency Exhibit No. l, p.77).

effectivefor threeyearsbeginningAugust 1,2007. (,See,

Pursuantto Article 41, Section3 of the MCBA, aparty desiringto renegotiatethe MCBA

upon its termination was required to so notiS the other party between60 and 90 days

beforethe terminationdate.(1d.)

On May 3,2010, in accordancewith that provision, the Union tendereda demand

MCBA. (AgencyExhibit No. 6, p. l)-

to bargainover a successor

Beginning later in May 2010, the Partiesbegannegotiatingover groundrules for

ttreir successorcontact negotiations. (Agency Exhibit No. 6, p. 1). The negotiations

over gtound rules continuedover many months,and it was not until April 22,2013 that

the Partieseventually executedcompletewritten Ground Rules for those negotiations.

(AgencyExhibit No. 6, pp. I - 2; AgencyExhibitNo. 4).

Among other things, the Ground Rules provided that, in the successorcontract

negotiations,each Party would make proposalsto modiff no more than four articles of

the existingMCBA. (Agency Exhibit No. 4, atp.2). On August 26,2013, the Parties

signedan addendumto the GroundRules. {Agency Exhibit No. 5). The addendumto the

Ground Rules provided, among other things, that the Union would offer proposalson

Article 35 (Leave), Article 34 (Reduction in Force and Transfer of Functions), ild

Article 40 (SupplementalAgreement/Mid-termBargaining) of the MCBA, while the

Agencywould offer proposalson Article 22 (Telewo.rk)and Article 39 (Arbitration). (1d.)

4
 Article 8 of the Ground Rulesprovidedthat a final agreementby the negotiating

teams on the terrrs for a new MCBA could be subject to ratification by the Union

membership.(Agency Exhibit No. 4, p. 7.) Section8.1 of the Ground Rules provided

that, in the eventof a ratification vote, the Union would advisethe Agency of the results

of the vote within thirty days after the vote was taken. (Id.) ln the provision that is the

cenfralfocusof the instant arbitratiorUSection8.2 then provided:

If the Union advises the Agency that the MCBA was not ratified, the
partiesshall reopenany or all articlesfor negotiationby providing written
notice to the other party no later than fifteen (15) days of the date the
union advisedthe Agency that the MCBA wasnot ntified. (Id.)
On January14,2016:the negotiatorsfor the Partiesreachedand signeda tentative

agrcementon the terrrs for a new MCBA. (Agency Exhibit No. 7; Agency Exhibit No.

It, p. 216.) On January 28, 2016, however,the Union wrote to the Agency seeking

clarification of certain provisions of the tentativeagreementon Telework, to which the

on February22,2016. (AgencyExhibit No. l l, pp. 217- 218).'

Agencyresponded

On February23,2}l6,the Union notified the Agency that the membershipof the

Union had refusedto ratiff the new terms for the MCBA. That notice from the Union

further statedthat the Union was "putting togethera new team of negotiatorsand will

notiff you of the membersonceit hasbeenfinalized.- (Agency Exhibit No. I l, p.224).

receiptof the Union's noticeof

On February24,2016,theAgencyacknowledged

the non-ratification, stating, "Pleaselet us know when you have a chief negotiatorand

negotiatingteamso we canmeetto discussnext steps." (AgencyExhibit No. I l, p.225).

On March 9,2016, the Agencyinformedthe Union that, pursuantto the Ground

Rules,the Agencywas "reopeningArticle22,Telework in orderto attemptto resolveour

differences."(AgencyExhibit No. I l, p. 226).

 After somefurther communicationsbetweenthe Partiesconcerningthe reopened

negotiations,the Agency on April l,2016 emailedthe Union statingthat, becausethe

Agencyhad identified only the Telework article for renegotiation,and the Union had not

identified any other specific articles for reopening,it was the position of the Agencythat

"the only article currently openfor negotiationsis the telework article." (AgencyExhibit

No. 1l, p.236). A few minuteslater that sameday, the Chief Negotiatorfor the Union

replied,apologizingfor having not yet forwardednew contact proposalsto the Agency,

andstating:

There may be some misunderstandingover what the Union wants to addressin these

upcomingnegotiations.The Partiesopenedup a small goup of articles in the bargaining

that followedthe 2013 GroundRules.... The tentativeagreementfor thosearticleswere

submittedto the Locals for ratification, and we do not want to open any other articlesof

the Master Agleement at this time. We only want to fix what led to the failure of

ratification. There are several provisions that fall into this category, and I hope to

providewrittenproposalsvery soon.(Id, atp.239).

Momentslater, the Agency respondedto the Union proposinga specific

dateandtime for the Partiesto meetto beginnegotiations,without further

addressingthe questionof what articlesmight be the subject(s)of the

negotiations. (Id, at p. 243).

On April 6,2016,the Chief Negotiatorfor the Union emailedthe Agency,stating

that the Union would have proposals for the reopenednegotiations on five articles,

including the Telework article, covered in the tentative agreementthat the locals had

6
failed to ratiff. (AgencyExhibit No. I l, p.247). In that email the Union's negotiator

firther stated:

I'm not sure that I agreewith the interpretationthat you have of Section
8.2 of the Ground Rules. But, I urge the Agency not to hold onto this
technicalissue. As I had said,if we are unableto negotiateat this time on
anything but Telework, the tentative agreementis doomed to again fail
ratification. We would then be right back where we started, and would
havewastedvaluabletime....

(Id.) Laterthat day,the Agency replied, stating:

We agreethat the Telework article is subjectto negotiation. We do not

agreethat the other articles are open for negotiationbecausewe were not
notified of the Union's intent to reopenthe articles within the 15 days
prescribedby the ground rules. You are welcometo submit proposalson
the other articles,but the Agency is making no promisesor agreementto
negotiatethose articles. As we discussed,we will make a decision on
a,geeing to an exception to the ground rules and the allowance of
additionalarticlesafterwe receiveproposalsfrom AFGE...

(1d,p.248).

On April 20, 2016, however, the Agency informed the Union that the Agency

would not renegotiateany article otherthan the Telework article of the MCBA, stating:

The proposed negotiations are limited to one article. As we have

discusse4becauseAFGE did not give timely notice to reopenany article
pursuantto section 8.2 of the groundrules, AFGE has waived its right to
renegotiateany articles other than the telework article, which was noticed
by the Agencyon March 9,2016.

(Agency Exhibit No. I l, p. 254). The next day, April 21, 2016, the Union replied,

stating:

The idea that we are only going to negotiateover one article is simply a
non-starter. Insisting on that is just going to drag these negotiationson
even longer. As I told you, if the Council presentssuch an agreementfor
ratification, it will fail again. At that point, we would be right back where
we arenow. That sfategy is inconsistentwith your stateddesireof getting
this contractfinished.
(1d,p.257.)

In July 2016,Mr. JohnJ. O'Grady, currentPresidentof the Council, infonnedthe

Agencythat he had beenelectedthe new presidentof the Union with authorityto bargain

on its behalf, and indicating that the Union would commencethe reopenednegotiations

with the Teleworkarticle but felt that "there is much in the MCBAI that EPA andAFGE

canimproveupontogetheron behalf ofthe bargainingunit employees." (AgencyExhibit

No. 11,pp. 283 -284).

Eventually, the Parties agreed to commence the reopened negotiations on

September20, 2016, beginning with the Telework article, even though th" Parties

remainedin disagreementover whether any other articles were open for renegotiation.

(See,AgencyExhibit No. 1l at p. 308). Whenthe Partiesmet on September20,2016,

the Union asked to discuss which articles would be revisited, to which the Agency

respondedthat it was preparedonly to negotiatethe provisions of the Telework article

and would make no commitrnentto addressother articles. (Agency Exhibit No. 11, p.

323). Aftet a caucus,the Union announcedthat it would not further discussthe Telework

article until the scope-of-renegotiationsissue was addressed,whereuponthe reopened

negotiationsbroke down. (/d.)

On September29,2016, the Agency filed an unfair labor practice(ULP) charge

againstthe Union with the FederalLabor RelationsAuthority (FLRA), contendingin part

that the Union failed to bargain in good faith when it refusedto confine the reopened

negotiationsto the Telework article and insistedon also discussingthe statusof the other

articles in the tentative agreementthat the Locals had failed to ratiff. (Agency Exhibit
No. 8.) The ULP chargeof the Agency assertedthat the Union had waived its right to

negotiateover anythingbesidesthe Telework article. (1d.)

On October4,2016,the Union filed a ULP chargeof its own, againstthe Agency,

assertingthat the Agency engagedin bad faith bargaining by insisting that it would

renegotiateonly the Telework article. (AgencyExhibit No. 9).

On Octoberl3,2}l6,the Union filed the instantgrievance.(AgencyExhibitNo.

2). The grievance alleged that, on September20, 2016, the Agency misinterpreted

Section8.2 of the Ground Rutesof the Partieswhen the Agency insistedthat it neednot

andwould not bargainover any provision otherthan the Telework article in the reopened

negotiations.(Id.) As a remedy, the grievancerequestedthat the Agency acceptthat

Section 8.2 did not prevent the Union from seeking reopenednegotiations on other

articles of the MCBA, besides Article 22, that had been modified in the initial

negotiationsof the Parties. Alternatively, the instant grievanceaskedthat the Agency

resgmenegotiationswith the Union over the Telework article, while agreeingthat all the

other articlesof the new MCBA would remainunchangedfrom the 2007 MCBA despite

the modificationsreflectedin the tentativeagreement.(/d.)

to the instantgrievance.(Agency
On November14,2016,the Agencyresponded

Exhibit No. 3). Besidesassertingcertainthresholdmatters,that now have beenresolved

in the Interim Award by the UndersignedArbitator, the responsedeniedthat the position

takenby the Agency at the September20,2016 negotiationsreflecteda misinterpretation

of Section8.2 of the Ground Rules. Further, and in any event, the Agency arguedthat

the Union was not entitled as a remedy to an order stating that the other articles of the

9
MCBA that were modified in the unratified tentative agreementwill revert to their

wording in the 2007 Agreement. (Id.)

Becausethe Partieswere unableto resolvethe instant grievance,the matter was

submitted to final and binding arbitration before the Undersigned Arbitrator in

accordancewith Articles 38 and 39 of the MCBA. As stated,the matter initially was

bifurcatedfor the UndersignedArbitator to first resolveissuespresentedin a Motion To

Dismiss filed by the Agency. The UndersignedArbitator resolvedthose issuesin the

earlier Interim Award, clearing the way for the grievanceto proceedto be heard and

decidedon its merits. A hearing on the merits was held on July 19, 2016, following

which the Partiesfiled simultaneouspost-hearingbriefs on or about August 29,2017, at

which time the recordwas in this matterwas closed.

POSITIONOF THE,LngON

The Union arguesthat it complied with the clear contractuallanguageof Section

8.2 of the Ground Rules when, on February23,2016, it wrote the Agency stating that

ratification of the tentative agreementhad failed and indicating that the Union wishedto

return to the bargaining table. That notification, according to the Union, made it

incumbenton the Agency under the Ground Rulesto resumenegotiationson the articles

of the MCBA that had beenaddressedin the tentativeagreement.

According to the Union, the clause of Section 8.2 of the Ground Rules stating

that, upon notice of non-ratification by the Uniorq "the parties shall reopen any or all

articlesfor negotiation," obligatesthe Agency to renegotiateover whateverarticlesof the

10
MCBA might need to be re-addressedto overcomethe reasonswhy ratification failed.

Section8.2 doesnot mandate,accordingto the Union, that the notice of non-ratification

mustincludea list of the specific articlesthe Union seeksto reopen.

In additiorUit is the position of the Union that, even if the reopenednegotiations

areconfinedto the Telework article asthe Agency contends,nothing in Section8.2 of the

GroundRules statesthat the Union hasrelinquishedits right to subjectall the termsof a

new MCBA to ratification. According to the Unio& either the Union retains the right

under Section 8.2 to resume negotiationson all the articles addressedin the eadier

tentativeagreemen!or all those articles (apart from the Telework article) must remain

the samein the new MCBA asthey were in the expiredMCBA.

Finally, the Union argues that the UndersignedArbitrator should disregard

evidence,submittedby the Agency after the hearing,concerningrecent actions by the

FLRA on the ULP chargesof the Parties. It is the position of the Union tlrat suchactions

by the FLRA are irrelevantto the merits of the instantgrievance.

POSITION OF THE AGENCY

It is the position of the Agency that, to give effect to all the words of Section8.2

of the Ground Rules, that Sectionmust be interpretedas having required the Union to

speciff in writing the articles of the tentative agreementit sought to reopenduring the

fifteen days following its notice to the Agency that ttre tentative agreementwas not

ratified. The failure of the Union to do so, the Agency argues,precludesthe Union from

demandingbargainingover any articles of the MCBA, despitethe failure of ratification.

lt
According to the Agency, any other readingof Section8.2 would renderthe "any or all

articles" clauseof Section 8.2 meaningless.That would violate the principle of contact

constructionrequiring tha! if possible,"all provisionsof a contact be readtogetherso as

to give meaningto every provision," the Agency argues,citing American Federationof

Local 1923and SocialSecurityAdministration,lll LRP 46062'

Employees,
Government

7 (SeanJ. Rogers,Sept.3, 2007).

In addition" it is the position of the Agency ttrat, only by concluding that the

Union waived its right to reopenor ratiff any MCBA articles when it failed to identiff

specific articles within the fifteen-day period can the Arbitator be faitltful to the

objectives of the MCBA and the Federal Labor Relations Act to foster timely and

efficient negotiationsand Governmentoperations.

OPIMON

The instant grievance involves the issue whether, under Section 8.2 of the

negotiationGround Rules of the Parties,the Union effectively reopenedany articles of

the MCBA after ratification failed of the tentative agreementthe Parties reachedin

January2016. Specifically, the issuespresentedby the Partiesfor determinationby the

UndersignedArbihator are:

(1) DoesArticle 8.2 of the Parties' 2013memorandumof understanding

ground rules for negotiationsrequire the Parties to identiff specific
articlesfor reopeningwithin 15 daysof the datethe Union advisedthe
Agencythat the MCBA was not ratified?
(2) It sooand if the Union did not identiff specific articles for reopening
within 15 days of the date the Union advised the Agency that the

12
 MCBA was not ratified, hasthe Union waived its right to subjectthose
articlesto ratification?

The Arbitrator has carefully consideredthe complete record in this matter,

including all of the evidenceand argumentsof the Parties. The UndersignedArbitrator

concludesthat Section8.2 of the GroundRules did not require the Union to speciff the

specific articlesof the MCBA on which the Union soughtto resumenegotiationswithin

fifteen days after noti$ing the Agency that the Locals had not ratified the tentative

agreement. Accordingly the Arbitrator must concludethat the Agency misinterpreted

Section 8.2 by taking that position, and declining to npgotiateover articles other than

Teleworlgas allegedin the instant grievance.The UndersigredArbitator also concludes

that the Union did not waive its right to demandnegotiationson the articles that the

Partieshad addressedin the tentativeagreement.The Arbifrator further concludesthat the

Union did not waive its right to submit those articles to ratification. AccordinglY, the

instantgrievancemust be sustained.

The reasoningof the Arbitrator leading to these conclusionsis discussedmore

tully below.

Article 41, Section2 of the 2007 MCBA, quotedat the outsetof this Award

providedthat if either Party desiredto renegotiatethe MCBA upon its expiration in 2010,

ratherthan allowing it to *roll over" for anotheryear, that Party had to so notiff the other

Partybetweensixty and ninety daysbeforethe contractexpiration date. (Agency Exhibit

No. 1, p. 74). The Union obviously satisfiedthat requirementwith its May 3,2010

demandto bargain.(AgencyExhibitNo, 6, p. l).

13
 Thereafter, the Parties negotiated Ground Rules for negotiating a successor

MCBA, which were agreedto in April 2013. (Agency Exhibit No. 4). ThoseGround

Rules,as modified in an Addendumfour monthslater (Agency Exhibit No. 5), identified

the five specificarticlesof the MCBA which the Partieswould renegotiate.

The Ground Rules also provided, in Section 8.1, that the Union could chooseto

submitany tentativeagreementfor a new MCBA to a ratification vote, in which casethe

Union would advise the Agency of the results of the ratification within thirty days.

Further,in Section8.2 the GroundRulesstated(AgencyExhibit 4,atp-7):

8.2 If the Union advisesthe Agency that the MCBA was not ratified, the parties
shall reopenany or all articles for negotiationby providing written notice to the
other party no later than fifteen (15) days of the date the Union advised the
Agencythat the MCBA wasnot ratified.

On February 23, 2016, about a month after the Parties (i.e. negotiation team)

reachedtentative agreementfor a new MCBA, the Union conducteda ratification vote

and immediatelynotified the Agency that the tentative agreementhad failed ratification.

Specifically,that notice from the Union stated:

"The membershipof AFGE C238 hasrejectedthe negotiatedMCBA agreement.We are

putting togethera new team of negotiatorsand wilt notiff you of the membersonceit has

beenfinalized".(AgencyExhibit No. I I,p.224).

The next day the Agency acknowledgedreceipt of the notice from the Union, and

acknowledgedits understandingthat the Union wished to resume negotiations. The

acknowledgementfrom the Agency stated:"Pleaselet us know when you have a chief

negotiatorand negotiatingteam so we canmeetto discussnext steps." (AgencyExhibit

did not ask the Union which articles of the

No. 11, p. 235). The acknowledgement

MCBA the Union wishedto addressin resumednegotiations.

t4
 On March g, 20!6, exactly fifteen (15) days after the of non-ratification of the

Union, the Agency informed the Union that the Agency would reopen Article 22 on

Telework in the resumed negotiations. (Agency Exhibit No. lt, p. 226). In that

communication,the Agency did not ask about which specific articles of the MCBA the

Union soughtto renegotiate.

Only on April l,2ll6,about five weeksafter the failed ratificationvote, did the

Agency inform the Union that the Agency consideredthe Telework article to be the

"sole" or only MCBA provision open for resumednegotiationsunder the GroundRules.

(See,Agency Exhibit No. 11, p.236). Upon receivingthat communicationfrom the

Agency,the Union immediatelyresponded,indicating that ttre Union did not agreewith

that position of the Agency. The responseby the Union also statedthat the Union wished

to reopenjust the MCBA articles ttrat the Partieshad agreedto modiff in the tentative

that would be ratified. (|d,p.239.)

agreemen!to 6"yto reachan agreement

Later that day, the Agency acknowledgedreceipt of the communicationof the

UniorU and proposed a date and time for the Parties to commence the reopened

negotiations. The Agency did not at tl:urt time further address the scope of the

. (See,Agency Exhibit No. I l, p. 243.) However,later in April 2016, the

negotiations

Parties exchangedcorrespondencein which the Agency repeatedits interpretationof

Section 8.2 of the Ground Rules, and the Union argued that the Agency was

misconstruingthe Ground Rules in a way that would inevitably lead to anotherfailed

ratification. (See,AgencyExhibit No. I 1,pp. 247- 257).

It is the opinion of the Arbitator that the Ageucy is correct that contracts

normallyshouldbe construed,if possible,to give effect to all clausesand wordsusedin

15
the contract. See,e.g., Elkouri & Elkouri, How Arbitration lTorks (8tr ed. 2016),at p. 9'

36. The Agency urguesthat following this principle requires that Section 8.2 of the

GroundRules be construedto meanthat ttre failure of the Union, within fifteen days of

its notice that ratification had faile4 to identiff the specific articles it desiredto reopen

for negotiationsprecludedthe Union from demandingrenegotiationof any article and

waived the right of the Union to condition finatization of any articles on Union

ratification.

In the opinion of the UndersignedArbitrator, the languageof the MCBA and the

GroundRulesdo not supportthe interpretationassertedby the Agency. In the first place,

Section8.2 of the GroundRules doesnot actually statethat, to bring about a resumption

of negotiationsafter a failure of ratification, a Party must /isf the specific articles it

wishesto renegotiatewithin fifteen days. (Emphasisadded).This Sectionprovidesthat,

"if the Union advisesthe Agency that [a tentativeagreement]was not ratified," then"the

parties shall reopenany or all articlesfor renegotiation" if either party simply notifies

the otherparty within fifteen daysthat itwants to reopennegotiations.@mphasisadded).

ReadingSection 8.2 in this mannerdoes not, in the opinion of the Undersigned

Arbitator, a reading of the "any or all articles" phraseout of the contract,or rendersit

meaningless. The Ground Rules were agreed to by the Parties to govern their

negotiationsof a successoragreementto the expiring 2007 MCBA.

It is typical in successorconhact negotiationsthat only some provisions of the

expiringcontracJmay be addressed.Many provisionsmay deliberatelybe left aloneso

as to continueunchangedin the new contact. Thus, the wording of Section8.2, stating

"the parties shall reopenany or all articles for renegotiation,"may have simply reflected

16
recognitionthat the Partieswould reopenonly thosearticlesthat were addressedinitially

and that might have causedthe failure of ratification. Consequently,readingSection8.2

as requiring the Parties to reopen "any or all" contract provisions that may need

reopening,to remedy whatever preventedratification, gives effect to wording without

demandingthat the specific articlesbe identified within fifteen (15) daysafter ratification

failed.

Moreover,in the instant case,other provisionsof the GroundRules specifiedthat

only a few, listed articles of the MCBA would be discussedin the successorcontact

negotiations. In their addendumto the Ground Rules, the Partieshad already specified

the articlesthat they would addressto reacha successoragreement.

The notice of non-ratification that the Union sent the Agency on February23,

2016 nradeclear the desireof the Union to resumenegotiations,by statingthat the Union

would form a new negotiating team for that purpose. When the Agency receivedthat

notice,it clearly recognizedthe desireof the Union to resumenegotiations,asthe Agency

respondedby asking the Union to *let us knora/'when the negotiatingteam of the Union

"so we canmeetto discussnext steps." 6ee, AgencyExhibit No. 11,pp.

wasassembled,

225 -226). Thus, in the opinion of the Arbitator the Union madethe Agency awareof

the desireof the Union to reopennegotiationsby its notice of the failure of ratification

itself. This matter obviously came within the fifteen-day period required under Section

8.2;it occurredon day one of that period.

Not only did the literal wording of Section8.2 not requirethat the Union provide

the Agency a list of the specific articles be reopenedin or within fifteen days after that

noticeothere further is no evidencethat the Agency was prejudicedby the failure of the

T7
Union to do so. As state4 the Partieshad agreedin the addendumto the GroundRulesto

negotiateover only five articles to concludea new MCBA. When the ratification effort

failed, the Agency obviously knew not only the few articles in question but also the

proposedchangesto those articles over which they had bargained. The Agency did not

haveto wonderwhich of numerouscontractprovisionsmight haveto be addressedto try

to reachan agreementthat might be ratified. Indeed,the Agency did not ask the Union

which specificarticles it wantedto reopenwhen the Agency acknowledgedthe notice of

the Union.

Also, as soon as the Agency expressedthe view that the reopenednegotiations

night be confinedto *re Telework article, the Union promptly madeclear to the Agency

that it did not acceptthe view of the Agency, and that it wantedto reopenthe articlesthat

had been modified in the tentative agreementthat the locals failed to ratiS. (Agency

Exhibit No. I l, p.239). That occurredaboutfive weeksafter the ratification vote failed.

If the Union had taken all the time allowed by Section 8.2, it could have waited thirly

daysafter the ratification vote to inform the Agency ttrat ratification had failed, and then

anotherfifteen days after that to demandthat negotiationsbe resumed,for a total of 45

days or more than six weeks. In other words, the Agency appearsto have had the

information from the Union that it contendswas requiredby Section8.2 in lessthan the

total lengthof time that is allowableunderSection8.2.

Whenthe Union informed the Agencythat it would seekto reopenall five articles

that the Partieshad bargainedover initially, the Union also explainedto the Agency why

the Union regardedthe position taken by the Agency as short sighted. As the Union

explained,if the Partiesdid not attemptto renegotiatethe provisionsthat seemedto have

l8
cansedthe failure of ratification" ratification was likely to fail again,requiring still more

negotiationsand yet anotherratification attempt. (See,Agency Exhibit No. I l, pp. 247,

2s7).
In the opinion of the UndersignedArbinator that representsanotherreasonand

basis for interpreting Section 8.2 as not preventing the Union from reopening

negotiationson the articles negotiatedpreviously,just becauseit did not speci$ those

articlesat the very outset.

Under all the circumstances,therefore,it is the conclusion of the Undersigned

Arbitrator that the Union complied with Section 8.2. The Union timely and properly

notified the Agency that ttre tentativeagreementhad failed ratification and that the Union

wantedto reopennegotiations. The absenceof that notice from the Union to list specific

articlesto be reopeneddid not, in the opinion of the Arbitrator, precludethe Union from

reopeningnegotiations on "any or all" of the articles that had been addressedin the

tentativeagreementthat wasnot ratified.

ConstruingSection8.2 in this way doesnot impair the objectivesof the MCBA or

the FLRA to foster efficient governmentand labor negotiations. As stated,the Union

assuredthe Agency within a few weeksafter the failed ratification vote that it soughtto

reopenjust the few articles that the Partieshad agreedto renegotiateinitially, These

actions by the Union did not make efficient government impossible or preclude the

Partiesfrom carrying out timely and effective negotiations.

Accordingly, it is the conclusion of the UndersignedArbitrator that the Agency

misinterpretedSection 8.2 of the Ground Rules in taking the position that it need not

reopenany article other than the Telework article following the vote of the Localsnot to

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ratiry the tentative agreementof the Parties.The instant grievancemust thereforebe

sustainedand the Partiesmust retum to the bargainingtable to addressany or all those

articles, as either party may reques! to seeka new agreement. Consistentwith these

detemrinations,the Arbitrator also finds that the Union is not precludedfrom submitting

a newtentativeagreementto ratification on all articlesaddressedin the new agreement.

In this connection,the Arbitator doesnot acceptthe suggestionof the Union that,

as part of the remedy in the instant grievance,the articles of the MCBA other than

Teleworkthat were modified in the earliertentativeagreementmust be includedin a new

MCBA in unmodified form, as they appearedin the 2007 MCBA. It is the conclusionof

the Undersigned Arbitrator that negotiations for a successorMCBA were properly

reopenedunder Section8.2 of the GroundRules,and that under that SectiorUthe Parties

norv must negotiateover any and all articles that were addressedin the initial tentative

agreementthat either party demandsto renegotiate.If thosenegotiationsresult in a new

tentativeagreemen! it may be submittedto a new ratification vote by the Union, in the

discretionof the Union.

20
 AWARD

Basedupon all of the above facts, findings and reasoning,the Arbifrator must

concludethat the Agency misconstruedthe MCBA and Section8.2 of the GroundRules

in taking the position that the Union failed to properly reopennegotiationson any or all

articlesof the MCBA that were coveredin the tentativeagreementthat failed ratification

by the membersof the Union. Accordingly, the instant grievanceis SUSTAINED, and

the partiesare directedto resumenegotiationsover any and all such articles in an effort

to reachan agreementthat can be ratified.

E. Stallwortb Ph.D.

{n &K,of
Signed September,2017

City of Chicago
Countyof Cook
Stateof Illinois

Swomto and subscribedbeforeme this dayof September,20lT

LES/cglcs

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