LOCAL 1998

National Federation of Federal Employees

International Association of Machinists & Aerospace Workers, AFL-CIO


Colin Patrick Walle
Interim Union President
IAMAW NFFE FD1 FL1998
Phone # (206) 808-5764
 

Arbitrator Gordon M. Byrholdt

PO Box 1058

Anacortes, WA  98221

 

February 26, 2004

 

Re: Case # 041006-00114-7

NFFE Local 1998, Federal District 1, IAMAW, and U.S. Department of State, Passport Services

 

Union’s Opening Statement

 

This brief constitutes NFFE Local 1998, Federal District 1, IAMAW’s (hereafter “the Union”) argument in the arbitration case referenced above. 

 

Background

 

Passport Services is part of the Department of State’s Bureau of Consular Affairs and is responsible for the issuance of United States passports.  Passport Services has sixteen Passport Agencies around the country, including the Seattle Passport Agency.

 

Local 1998 of the National Federation of Federal Employees, affiliated with the International Association of Machinists and Aerospace Workers, is the exclusive representative of all of the approximately six hundred bargaining unit employees of Passport Services, including the employees at the Seattle Passport Agency. 

 

Pursuant to the Article 26, Section 3 of the July 3, 2001 nationwide collective bargaining agreement, the Union and Management at the Seattle Passport Agency agreed to update their local work schedule agreement on September 5, 2001, including the availability of various schedules and the earliest arrival time and latest departure time.  On April 22, 2003 Management proposed changes to that agreement, and the parties entered into negotiations.  Management terminated the negotiations on June 26, 2003 and, on July 28, 2003, Management unilaterally changed the work schedules of twelve bargaining unit employees, most of whom were on the Compressed Work Schedule.  The Union filed a Negotiability Appeal on July 23, 2003 with the Federal Labor Relations Authority, concerning several issues (including whether maintaining the previously-agreed-to schedules are negotiable) and that case is still pending.  Subsequent to the implementation of the work schedule changes, the Union offered to drop the grievance if Management would agree to return to the previous schedules, pending the outcome of the negotiability appeal, but Management declined. 

 

The Issues Submitted for Arbitration

 

1. Implementation prior to the completion of the negotiation process: The question of the negotiability of the Union’s proposal to maintain the previously negotiated work schedules is before the FLRA, and the Union acknowledges that Management is correct that this arbitration cannot settle the negotiability appeal.  If the FLRA rules for Management, then Management may implement the schedules changes it has proposed.  If the FLRA rules for the Union, then Management may not implement those changes without negotiating with the Union.  The question before the Arbitrator is whether Management can unilaterally change the provisions of the local work schedule agreement while the appeal is still pending before the FLRA.  It is the Union’s position that the work schedule agreement negotiated on September 5, 2001 should remain in place while the negotiability issue is being considered by the FLRA.  

 

2. Other violations of the collective bargaining agreement: In the original July 25, 2003 grievance, the Union alleged that Management committed five violations.  Now the Union is dropping the fifth allegation, that the changes are not in the public interest, and only submitting to arbitration the following issues:

 

a.       Management did not negotiate in good faith

b.      The declaration of nonnegotiability was not timely

c.       Management failed to provide a written rationale for the nonnegotiability claim

d.      The employees are receiving disparate and inequitable treatment

 

Union’s Argument

 

We hereby incorporate by reference the entire “Informal Grievance” submitted on July 25, 2003.

 

Violation #1: Implementation Prior to Completion of the Negotiation Process

 

The original grievance filed on July 25, 2003 was submitted as an “informal grievance”, which is the first of four steps in the grievance process.  The “requested relief” for that grievance included a request to rescind the plan to change the start times and honor the September 5, 2001 agreement (requested relief #1 and #2).  That grievance was filed prior to the implementation date.  Subsequent to the filing of the grievance, and both prior to and subsequent to the implementation date of the change by Management, the Union requested that same relief.  The “tense” of the request has changed – from “do not change” to “should not have changed” – but the point is the same: Management should not have implemented this change while the process was continuing. 

 

The Union acknowledges that if Management prevails in the negotiability appeal process, then Management may institute the schedule changes that it desires.  However, since the FLRA has not yet ruled on the issue, then Management is in violation of the collective bargaining agreement and the law by changing the work schedule agreement unilaterally.  Contrast Attachment D in the Union’s July 23rd negotiability appeal with Attachment LL (particularly pages 23 and 25) in the Union’s November 21st Position Statement.  All on its own, despite the protests and objections of the Union and the employees, Management has excised the words to which it had agreed on September 5, 2001 and substituted new rules on July 28, 2003.  The Compressed Work Schedules beginning at 6:30 AM and 6:45 AM have been removed – without the agreement of the Union. 

 

The relevant statutory authority is the Flexible and Compressed Work Schedule Act of 1982, which states that:

 

[Section 6122(b)] Notwithstanding any other provision of this subchapter, but subject to the terms of any written agreement referred to in section 6130(a) of this title, if the head of an agency determines that any organization within the agency which is participating in a program under subsection (a) is being substantially disrupted in carrying out its functions or is incurring additional costs because of such participation, such agency head may -

(1) restrict the employees' choice of arrival and departure time,

(2) restrict the use of credit hours, or

(3) exclude from such program any employee or group of employees

            ….

[Section 6130(a)(1)] In the case of employees in a unit represented by an exclusive representative, any flexible or compressed work schedule, and the establishment and termination of any such schedule, shall be subject to the provisions of this subchapter and the terms of a collective bargaining agreement between the agency and the exclusive representative. [emphasis added]

 

Article 26, Section 3b of the July 3, 2001 collective bargaining agreement states that:

 

Each location will maintain the status quo unless the Union/Management Council at each location sets the following:

(1) The earliest and the latest time an employee may work;

(2) The lunch period; and

(3) The core time (that time during which each employee must be present for work).

[emphasis added]

 

The September 5, 2001 Seattle work schedule agreement, negotiated by the Seattle Union/Management Council, includes this provision:

 

This local agreement is subject to change to comply with any future national agreement between Passport Services and NFFE, National Union Management Partnership agreements, or directives by Passport Services in conformity with Article 12 and 26 of the Agreement. 

 

Therefore, by unilaterally changing the schedules, Management is in violation of the local agreement, the nationwide collective bargaining agreement, and the law. 

 

Management is able to continue to honor the September 5, 2001 Seattle work schedule agreement, and there is no valid practical or legal reason why it cannot.  From April 22, 2003 until July 28, 2003 – a period of over three months – that agreement was honored while the parties engaged in the negotiation process.  If Management was able to honor that agreement for that time period, then it is able to honor it while the FLRA considers the negotiability aspects of the proposals. 

 

From the May 15, 2003 Union/Management Council meeting minutes (Attachment GG/K2):

 

Colin asked about procedure, stating that it is the unions {sic} understanding that the status quo needs to be maintained since no consensus has been reached at this time and would remain that way until all bargaining or negotiating has been resolved.

 

[The Regional Director] agreed, stating that it says that in the contract and that is what she is going by.  She did however, state that at some point she will be taking away access to the alarm from those not authorized.

 

So, not only does the law and the collective bargaining agreement require that the status quo be maintained while the bargaining process continued, but Management also made a commitment to keeping the status quo. 

 

Violation #2a: Management did not Negotiate in Good Faith

 

In the original July 25, 2003 grievance, the Union based this charge on the following six topics:

 

·        Not negotiating with the Union over the ground rules for bargaining

·        Failing to explain what objections Management had to the ground rules

·        Not empowering the negotiators at the table with the authority to make agreements

·        Being unwilling to even consider the Union’s 6:30 AM and 6:45 AM proposals

·        Not being forthcoming with the Union regarding the impetus for the proposed change

·        Failing to propose the “suggested guidelines” from the July 17, 1997 memo when negotiating the July 3, 2001 Agreement

 

Since Management failed to adequately respond to the Union’s August 8, 2003 Information Request that was submitted in connection to the original grievance, in order to further support the Union’s argument, then that violation is part of this charge as well:

 

·        Failing to provide information requested to support a grievance

 

While Management’s August 25, 2003 response mentions one part of the fifth point above, it does not actually respond to that point.   In fact, the only portion of this charge that Management addressed is the issue of the ground rules:

 

You allege that Management has not negotiated in good faith, as evidenced in part by the refusal to agree to the Union’s proposed ground rules.  You also state the Union’s belief that Management has negotiated in bad faith by “proposing changes that simply are not necessary, serve no legitimate purpose and are not offered for the reasons stated….”

 

I cannot agree with your allegation.  I can find no reason why negotiating parties require ground rules to govern negotiations during the life of a contract over a single straightforward issue – implementing procedures and appropriate arrangements for unit employees adversely affected by Management’s exercise of its reserved right to establish its internal security practices (I&I bargaining).  While I can appreciate the Union’s perspective that it does not agree with how Management has decided to exercise its reserved right, I must remind the Union that the right is reserved to Management, subject to I&I bargaining.

 

Management did offer an explanation in its response for why it did not believe that ground rules were necessary, but any explanation should have been provided during the negotiation process itself.  The statement that there is “no reason why negotiating parties require ground rules to govern negotiations during the life of a contract over a single straightforward issue” is shown wanting by the fact of the complexity and difficulty of what actually occurred during negotiations.  For example, Management continues that sentence by again bringing up Management’s “reserved right to establish its internal security practices”, and makes no mention of its eventual argument (on November 6, 2003) that the Union’s proposals are nonnegotiable because they allegedly violated the Flexible and Compressed Work Schedule Act of 1982.  So, matters were not as “straightforward” as Management claims. 

 

Management also makes this statement in its conclusion that touches on the issue of good-faith negotiations:

 

Within the parameters dictated by internal security practices over which local management has very little control, there appears to me to have been great willingness on the part of management to reach an agreement on implementing procedures and appropriate arrangements for unit employees adversely affected by management’s exercise of its retained rights with NFFE representatives, unfortunately without success. 

 

But this statement is not correct – none of Management’s proposals were implementing procedures or appropriate arrangements for those affected. 

 

The remainder of the Union’s arguments in the initial July 25th grievance are, as mentioned above, incorporated by reference into this statement, with the exception of the “anti-employee” and putting the employees “in their place” comments. 

 

Regarding the Union’s August 8, 2003 Information Request (copy attached), Management did respond on August 22, 2003 (copy attached) by providing almost none of the information requested.  One example of the impact of this violation is that the Union is not able to document for the Arbitrator the widespread use of the Duty Officer assignment and the extent and number of occasions that employees are in the office without supervisory presence – not just with the permission of Management, but rather by the orders of Management.  This impairs our ability to support part of the charge listed below as Violation 2d.  The other information requested – local work schedule agreements in other offices, past instances of malfeasance, and alarm code access policy – were needed to help support other charges listed herein.  As stated in the “Particularized Need” portion of the request: “we need this information in order to fulfill our obligation to represent the employees on this work schedule issue.  This information will aid in the Negotiability Appeal as well as the grievance, since it will help demonstrate the parameters, consistency, details, fairness, and effectiveness of current PPT internal security practices and work schedules.”  (emphasis added)

 

This constitutes a violation 5 U.S.C. 7116 as well as a violation of Article 28, Section 2 of the collective bargaining agreement: “The Employer agrees that records of overtime work will be maintained by the Employer and that such records will be made available for review by representatives of the Union upon request in connection with a complaint or grievance.”

 

Violation #2b: The Declaration of Nonnegotiability was not Timely

 

This charge is undeniable. 

 

According to Article 12, Section 8 of the Collective Bargaining Agreement:

 

If management alleges a union proposal is nonnegotiable, it will raise the issue of negotiability in a timely fashion in the early stages of the negotiations process.

 

Management made its formal proposal to the Union on April 22, 2003.  The Union responded on May 6th, and the parties met to discuss the issue on May 8th and May 15th.  Management and the Union then traded proposals during negotiation sessions on May 27th, June 2nd, June 12th, and June 13th.  Management acknowledged in writing that the Union’s proposal to maintain the status quo was a negotiable proposal in a memo dated May 27th.  The June 13th session turned out to be the last session, and this is the only time that Management raised the issue of nonnegotiability – citing the Management Rights provisions of 5 U.S.C. 7106.  Management then issued a memo on June 26th, terminating the negotiations.  The declaration of nonnegotiability was not received until July 10th.  In its November 6th Position Statement submitted to the FLRA for the negotiability appeal, Management finally recognized that Section 7106 is not a basis on which to declare the Union’s proposal nonnegotiable. 

 

The collective bargaining agreement requires that Management “raise the issue of negotiability” not at the very end of the negotiation process, but rather “in the early stages”.  Raising this issue at the very last session out of at least half a dozen meetings is certainly not raising the issue “in a timely fashion”.   The negotiation process took place from April 22nd through June 13th – a period of over seven weeks.  Raising the issue “in the early stages” and “in a timely fashion” would mean raising it sometime in April or the first half of May.  The last day of a 52-day time period cannot be considered to be “early” or “timely”. 

 

While this charge is clearly supported by the record, it bears explaining why this provision is in the collective bargaining agreement.  When this issue is raised early in the process, the Union has a clearer idea of what is Management’s view on a subject.  Much time and effort is wasted by both parties when they do not even understand the point of view of the other.  Bringing up the issue of nonnegotiability early in the process does not automatically trigger a negotiability appeal – there are steps for that already in place within the procedures set by the FLRA.  But it can help the parties understand each other’s position better, and thereby avoid misunderstandings.  Returning to the example of the Security Awareness Element mentioned in the original grievance, in that instance the issue of nonnegotiability was raised immediately, and after some positive discussions the parties were able to focus on the aspects of that proposal that were negotiable, which led to an amicable resolution of the matter.  The negotiability appeal related to this grievance is a case in point.  After the termination of negotiations, for months the Union had understood that Management believed that the Management Rights provisions of 5 U.S.C. Chapter 71 were the basis for the declaration.  This was clearly not an adequate legal justification, as evidenced by Management’s acknowledgment in its November 6th Position Statement.  However, by the time the parties got to that point, obviously they were communicating in an adversarial context.  If this issue had been brought up in the beginning, that point could have been clarified in May rather than November. 

 

Management’s August 25, 2003 response to this charge is essentially a “non-response”:

 

You also take issue with the timeliness of Management’s declaration of non-negotiability.  Again, I must disagree.  My review of the circumstances surrounding the negotiations leads me to conclude that Management made every effort to try to coax negotiable I&I proposals out of the Union in order to reach a win-win solution.  When Management concluded that its repeated efforts to sway the Union from its counterproposal of status quo, or alternatively, from the its proposed package deal that went well beyond the scope of I&I bargaining, Management was left with no alternative but to declare the Union’s proposals non-negotiable, and it did so at the earliest opportunity.

 

Of the four sentences in that paragraph, only the last actually touches on this timeliness issue.  The third sentence, while not relevant, is inaccurate – the Union had specifically told Management that this was not “I&I” bargaining, shared with Management guidance from the Office of Personnel Management in support of that interpretation, and also explained to Management that if this case went to the Federal Service Impasses Panel (FSIP) and the Union lost, then the Union believed that it would be entitled to “I&I” bargaining.  But all of that is irrelevant to this charge: the bottom line is that the “earliest opportunity” was certainly not on June 13th, the final day of negotiations. 

 

Violation #2c: Management Failed to Provide a Written Rationale for the Nonnegotiability Claim

 

In its August 25, 2003 response to the initial grievance, Management only briefly addressed this charge:

 

Your third allegation is that Management failed to provide a rationale for a claim of non-negotiability.  To the contrary, Ms. Bobotek stated the basis for the declaration of non-negotiability in her July 10th memo.  Of course, the negotiability appeal filed by the Union will decide this issue.

 

It is important to note that what is being grieved here is a violation of Article 12, Section 8 of the collective bargaining agreement, which requires that, “[u]pon written request, the Union will be provided with a written statement of the rationale for a claim of nonnegotiability”.  This is a contractual requirement.  While Management is correct that “the negotiability appeal filed by the Union will decide this issue” – the issue of the negotiability of the Union’s proposals – Management must still abide by the requirements of the collective bargaining agreement and provide the rationale in writing.  This is a separate requirement from the Negotiability Appeal process, which also required Management to submit an explanation of its position (accomplished on November 6, 2003).  The fact that Management’s written rationale was provided much later, during the Negotiability Appeal process, does not free Management from its contractual obligations. 

 

According to www.dictionary.com, “rationale” is defined as “an explanation or exposition of the principles of some opinion, action, hypothesis, phenomenon, or like; also, the principles themselves.”

 

At a bare minimum, the “written statement of the rationale for a claim of nonnegotiability” should state which of the Union’s proposals are alleged to be nonnegotiable.  This was not done.  The Union was mystified as to why Management was stating that all of the Union’s proposals (including proposals regarding lunches, annual leave, 5 minute intervals, and committing to comply with a portion of the collective bargaining agreement) were nonnegotiable.  For example, one of the Union negotiators, Bill Beardall, emailed the Regional Director on July 1, 2003 asking about this (see attached).  This matter was only clarified on October 21, 2003, during the Post-Petition Conference on the Negotiability Appeal.  If Management had clearly indicated which of the Union’s proposal it deemed nonnegotiable back on July 10, 2003, that would not only have brought Management closer into compliance with the requirements of the collective bargaining agreement, it would have helped to avoid a great deal of confusion and an increase in the tension between the parties. 

 

The record does not support Management’s claim on August 25, 2003 that the June 26th and July 10th statements “stated the basis for the declaration of nonnegotiability”.  Consider this statement in the July 10th memo: “management at the Seattle Passport Agency is hereby declaring the issue as non-negotiable”.  Also, consider the references to “internal security”, “number of employees”, “internal security practices”, and “numbers, types and grades of employees or positions assigned to any tour of duty”.  To take one example, the “issue” of “internal security practices” is not negotiable nor is it nonnegotiable.  As explained in our July 25th grievance, the terms “negotiable” and “nonnegotiable” attach to proposals relating to internal security practices.  Therfore, to say that all proposals relating to internal security practices are nonnegotiable is clearly not true (for example, see the Security Awareness Element mentioned in the grievance).  Unions have made negotiable proposals concerning internal security practices, the number of employees, the types and grades of employees, and many other matters that are “reserved rights”.  Of course, Unions have also made nonnegotiable proposals concerning those same subjects.  But it is the proposals, not the subjects, which may be declared nonnegotiable. 

 

Management’s statement that the Union’s proposals “interferes with Management’s reserved right” is also not a sufficient explanation.  A proposal by the Union may interfere with a Management right, but it may not interfere with it excessively.  That is the standard set by the FLRA. 

 

Management’s claim that “Local 1998’s continued insistence that the Seattle Passport Agency’s earliest start time remain unchanged” also reveals that this statement is not sufficient as a written rationale.  Since that statement is grossly inaccurate – the Union in fact offered two proposals that would have changed the start times (one from 6:30 AM to 6:45 AM, and the other to 7:00 AM as Management desired) – then it cannot serve as rationale. 

 

Violation #2d: The Employees are Receiving Disparate and Inequitable Treatment

 

The bargaining unit employees at the Seattle Passport Agency have received disparate and inequitable treatment vis-à-vis:

 

 

The Seattle Passport Agency is not “an island unto itself” – it is part of Passport Services, and the collective bargaining agreement applies to all of the employees of Passport Services, including Seattle.  Seattle Management repeatedly stated that Headquarters required the changes they were proposing.  They also stated that these changes were being implemented in other locations.  This was offered as evidence that their hands were tied when it came to going against that directive. 

 

Therefore, the fact that there are other offices where GS-7, 9, and 11 Passport Specialists continue to come in to the office without supervisory coverage on the weekends and after hours as Duty Officers to issue passports in emergencies means that bargaining unit employees in Passport Services are trusted to be in the office by themselves.  The twelve affected employees at the Seattle Passport Agency were only occasionally in the office by themselves prior to April 22, 2003, and in those instances there were other employees present.  Contrast that with the Duty Officer task, where an employee can be in the office for hours on end all by him/herself, with not even a coworker present.  In addition, there are other offices where virtually the entire bargaining unit has the alarm code access, allowing them entry into the office, while in Seattle that access has been taken away from the few employees in the twelve who originally had it.  Clearly the employees in Seattle are receiving disparate treatment. 

 

Management has based part of its explanation for changing the start times on the basis of the security clearances of the employees, and Management has also used this as the basis for why one employee continues to be allowed access to the office while the others are not.  The supervisors have a “Top Secret” clearance – given the designation “S3”.  The single bargaining unit employee who is allowed in the office without supervisory presence also has a Top Secret/S3 clearance – again, that has been cited by Management as a reason for this inconsistent policy.  Yet, at least four other bargaining unit employees also have the Top Secret/S3 clearance, including both of the employees who started at 6:30 AM.  In addition, there are other supervisory personnel other than the GS-12, 13, 14, and 15 supervisors and managers who also have the Top Secret/S3 clearance.  Management cannot coherently state that bargaining unit employees are not allowed access to the office without supervisors present at the same time that it allows one bargaining unit employee to have access by herself.  Management’s justification of this exception on the basis that the single employee has a Top Secret/S3 clearance is nullified by the fact that other employees have that same clearance. 

 

Supervisors and managers are allowed to change their start and end times as they desire.  One manager changed his start time from 6:30 AM to 8:30 AM for family/childcare reasons, and another manager maintains an 8:30 AM start time, also for family/childcare reasons – this despite the fact that employees have to arrive by 8:00 AM.  Management has already stated that if its supervisor or managers desire to make other changes in their schedules – for example, if they’d all like to start at 7:30 AM – then it will change all of the employees arrival times again.  If all of the supervisors and managers decide that they’d like to work from 8:00 AM to 4:30 PM, then Management has stated that it will change every single employee’s schedule to match – thereby eliminating not only the Compressed Work Schedule, but also the other scheduling options, the 45-minute lunch, and also the current “Standard Workweek” (referenced in Article 25) of 8:00 AM to 4:45 PM.  The contract requires that “[a]ll unit employees and Employer officials deserve and shall be entitled to be treated with mutual respect, dignity, common courtesy, and consideration, and will be treated equitably” (Article 6, Section 5).  The only way to square this contractual requirement with what has happened and what may happen in the future in Seattle is to adopt (from Animal Farm) the Orwellian idea that “everyone is equal, but some are more equal than others”.  The author of this statement completely understands the reasons for why the two managers start at 8:30 AM, and has commended their commitment to their children.  It should go without saying that supervisors and managers are people, and they deserve to have consideration for their lives and their families, but it should also be remembered that employees are people too, and deserve the same consideration. 

 

Requested Remedy

 

As the party invoking arbitration, we respectfully request that the Arbitrator grant the following relief:

 

1.      Issue a finding that Management violated the following sections of the Collective bargaining agreement:

a.       Article 12, Section 1: Requirement to negotiate in good faith

b.      Article 12, Section 8: Timely declarations of non-negotiability

c.       Article 12, Section 8: Providing a written statement of non-negotiability rationale

d.      Article 6, Section 5: Employees to receive equitable treatment

 

2.      Instructing the appropriate Management official to sign a “posting” acknowledging the violations, and committing to not repeating them in the future. 

 

3.      “Status quo ante”: Ordering that the negotiated September 5, 2001 work schedule agreement be honored and the previous schedules restored, pending the decision on the negotiability appeal that is before the FLRA.  If the FLRA finds for the Union, then the previous schedules and work schedule agreement shall continue to remain in affect, but if the FLRA finds for Management, then Management’s July 28, 2003 schedule change may be reinstituted. 

 

 

Thank you for your consideration.

 

 

Sincerely,

 

 

 

Colin Patrick Walle

Interim Union President

IAMAW FD1 NFFE Local 1998