In response to Mr. Billy Milton's letter, Mr. Jones writes:

NJC                National Joint Council of

                                              Food Inspection Locals

                                          American Federation of Government Employees

                                                                                             Affiliated with the AFL-CIO

                                                          February 1, 2002

William P. Milton, Jr. Director

Labor and Employee Relations Division

United States Department of Agriculture

Food Safety and Inspection Service

Washington, D.C. 20250

Dear Mr. Milton:

Your letter dated January 28, 2002, "Notice of Non-Negotiability over Permissive Subjects of Bargaining," is incorrect in characterizing the subjects it describes as permissive subjects of bargaining.

The provisions for establishing Regional Agreements and authority to bargain them, consultations at all levels throughout the Agency, and parallel levels of dealing establish structures that affect the labor-management relationship, as opposed to the designation of either party's representatives.  They are, therefore, mandatory subjects of bargaining.  In addition, the agreements previously reached pursuant to those provisions are not subject to unilateral change.

For practical reasons as well, it would be inappropriate for either party to unilaterally engage in self-help during the pendancy of an agreed-upon process to resolve the outstanding issues in the next National Basic Agreement.  The ground rules for the NBA bargaining call for interest arbitration, and, to the extent there are no outstanding questions concerning negotiability or duty to bargain over other party's proposals, those ground rules must be followed.

The NJC requests that the current NBA continue in effect until the interest arbitration and negotiability processes are complete.  In the event the FSIS chooses to rescind it's agreement to provisions of the 1984 NBA that actually are permissive and so notifies the NJC, the NJC hereby requests to bargain over the procedures and arrangements for effecting the recession where mandatory subjects of bargaining would be involved. 

As to changes resulting from recession of permissive matters, I am designating:

•  If a change affects the FSIS generally or the NJC bargaining unit as a whole, the designee is the Chairman, NJC;

• If a change affects a District, the designee is the Council President (or Council Presidents in the case of a District that overlaps more than one Council);

• If change affects two or more Districts, the designee is the Council President (or Council Presidents if two or more Council jurisdictions are involved);

• If a change affects multiple sites in a District, the designee is the Local President (or Local Presidents in the case of a change that affects more than one Local);

• If a change affects a single site or Plant, the designee id the Local President.

These designations can be redelegated at the request of the designee and modified or cancelled by the Chairman, in which case the designee is the Chairman.  Negotiating the above referenced procedures and arrangements may necessitate bargaining over ground rules to be used for each negotiation.

If I do not hear otherwise by February 6, I will conclude you will continue with the actions described in your January 28 letter.

Sincerely,

/s/

Delmer Jones, Chairman

National Joint Council

cc:  NJC Council Presidents

      Dave Rodriguez, Chief Negotiator

      Phil Kete, Supervisor, OLMR

           United States               Food Safety                  Washington, D.C.

         Department of              and Inspection              20250 

         Agriculture                    Service

                                                                                                January 28, 2002

Delmer Jones, Chairman                                         VIA FACSIMILE &

National Joint Council of Food                                FIRST CLASS MAIL

     Inspection Locals

59 Tiny Kingdom Road

Remlap, AL  35133

                                                RE:     Notice of Non-Negotiability over Permissive

Subjects of Bargaining

Dear Mr. Jones:

This letter provides notice to the National Joint Counsel of Food Inspection Locals (NJC) that the Agency has exercised its right to terminate permissive subjects of bargaining under the contract and all side agreements stemming from same.

Pursuant to Article XXXVI of the National Basic Agreement and notice from the Food Safety and Inspection Service (hereinafter “Agency”), the collective bargaining agreement between the Agency and the NJC expired on October 10, 1996.  The parties’ agreement to hold renegotiations in abeyance until completion of the Agency’s reorganization and implementation of the Hazard Analysis and Critical Control Point (HACCP) inspection program had no effect on the contract’s expired status. 

As you are aware, the Federal Labor Relations Authority has consistently held that upon the expiration of a collective bargaining agreement, either party may elect to no longer be bound by the provisions of the agreement concerning permissive subjects of bargaining.  As a result, parties may refuse to negotiate with regard to permissive subjects.  To ensure that undesired permissive subjects do not remain in effect, consider the National Joint Council (NJC) on notice that the Agency has chosen to terminate the following permissive subjects of bargaining:

1.                  Regional Agreements and the authority to bargain below the level of exclusive recognition.

2.                  Consultations at all levels throughout the Agency

3.                  Parallel Levels of Dealings

The Agency’s decision is effective February 11, 2001.  It should be noted that this decision has no bearing on mandatory subjects of bargaining as defined by the Federal Service Labor Management Relations Statute.  In addition, the Agency’s declaration of non-negotiability for permissive subjects contained in memoranda of understanding as well as Union proposals declared nonnegotiable will be specifically identified and forwarded to you during the week of February 4, 2002.

Any response to this notice should be directed to my office at the address provided above.

Your attention to this matter is appreciated.

Sincerely,

     /s/

William P. Milton, Jr., Director

Labor and Employee Relations Division

cc:       Dave Rodriguez

DISTRIBUTION:

Mark Mina, DA, OFO

Bill Smith, ADA, OFO

Don Musacchio, ADA, OM

Dr. Murli Prasad, DM, Alameda District

Louis Leny, DM, Albany District

Dr. Lewis Burgman, DM, Atlanta District

Dr. Mohamed Ibraheim, Acting DM, Beltsville District

Dr. Ronald K. Jones, DM, Boulder District

David E. Green, DM, Chicago District

Dr. Alan Knox, DM, Dallas District

Dennis Greening, DM, Des Moines District

Dr. Mariano Loret de Mola, DM, Jackson District

Dr. Ronald Kelly, Acting DM, Lawrence District

Linda Madson, Acting DM, Madison District

Dr. Nathaniel Clark, DM, Minneapolis District

Jan T. Behney, DM, Philadelphia District

Jaime Mercado, Acting DM, Pickerington District

Michaelle Fisher, DM, Raleigh District

Dr. Helmut W. Blume, DM, Salem District