February 26, 2004
Gordon M. Byrholdt
P.O. Box 1058
Anacortes, WA 98221
Re: Arbitration Case FMCS Case No. 041021-00114-7
NFFE Local 1998 v. U.S. Department of State, Passport Services, Seattle Regional Passport Office
Dear Mr. Byrholdt:
This filing is management’s submission in the above-referenced arbitration case. You were advised by a joint letter dated February 18 from the parties to this arbitration case that it would be presented by written submissions to be postmarked no later than February 26. This submission is timely filed. For your convenience, a copy of the Passport Services- NFFE Local 1998 contract (Contract) is included at Tab A. Article 22 is entitled Arbitration. The other relevant articles are referenced in the parties’ various negotiability appeal submissions to the Federal Labor Relations Authority (FLRA or Authority) provided to you as a joint exhibit.
The Department stands by its August 25, 2003 grievance decision and incorporates it in its entirety herein. It is attached at Tab B.
You received the negotiability appeal case file as a joint exhibit enclosed with the joint February 18 letter. The case file includes the following:
Ø July 31, 2003 Union Petition for Review of Negotiability Issues Proposals with attachments A – V
Ø July 31, 2003 FLRA Notice and Order
Ø August 6, 2003 FLRA Order
Ø October 7, 2003 FLRA Order
Ø October 23, 2003 FLRA Record of Post-Petition Conference
Ø November 6, 2003 Agency statement of position with attachments 1-12
Ø November 21, 2003 Union response to Agency statement of position with attachments W – MM and Addendum - The Integrity of the Passport Issuance Process
Ø December 10, 2003 Agency response to Union’s brief
Ø December 10, 2003 FLRA Order
Ø December 15, 2003 Union Corrected Statement of Service
The overriding issue to be decided is whether Management retains the right under Article 5 of the Contract to determine that there is a necessity for supervisory presence and oversight during the hours in which employees may be present at work.
Burden of Proof
The Union is the moving party in this arbitration case. Therefore, the burden of proof is on the Union to prove by a preponderance of the evidence that the Employer violated the issue as framed.
The facts of this case are not in dispute and are extensively set forth in the negotiability appeal case file sent to you as an enclosure to the February 18th joint letter.
The Union alleges that Management of the Seattle Passport Regional Office did not negotiate in good faith. 5 USC 7114 (b) addresses the characteristics of negotiations conducted in good faith. It provides:
The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation –
(1) to approach the negotiations with a sincere resolve to reach a collective bargaining agreement;
(2) to be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment;
(3) to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays;
(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and to the extent not prohibited by law, data –
(A) which is normally maintained by the agency in the regular course of business;
(B) which is reasonably available and necessary for the full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining; and
(5) if agreement is reached, to execute on the request of any party to the negotiations a written document embodying the agreed terms, and to take such steps as are necessary to implement such agreement.
The parties to the Contract adopted an abbreviated version of the above statutory language. In Article 3 of the Contract, the parties agreed to the following definition:
6. NEGOTIATION: The performance of the mutual obligation of the Employer and the Union representatives to meet at reasonable times and to bargain in a good faith effort to reach an agreement with respect to the conditions of employment affecting employees and to execute, if requested by either party, a written document incorporating any agreement reached.
The Union has not carried its burden of proof concerning this alleged violation. There is no evidence that Management did not come to the negotiating table with a sincere resolve to reach an agreement or that Management engaged in dilatory or delay tactics. To the contrary, on April 22, 2003 Management advised the Union of the need to change the earliest start time and promptly convened Union/Management Council meetings on May 8 and May 15, 2003 to discuss this need in an attempt to reach consensus on a solution to this issue (an option expressly provided for in Articles 4 and 26 of the contract). After two lengthy Council meetings made clear to all involved that no consensus was possible, the parties then met four times (May 27, June 2, June 12 and June 13) in traditional labor-management negotiations with a sincere resolve to reach an agreement. During the negotiations, management offered several alternatives for schedules within the 7 am start time and 5 pm end time. The sincerity of Management’s resolve is evidenced by the parties’ agreement on several of the Union’s counterproposals that Management believed to be within the scope of the proposed change (i.e., the proposals constituted appropriate arrangements for employees adversely affected by the later start time. In order to constitute an appropriate arrangement, the proposal must seek to mitigate the adverse effects of this change and must be narrowly tailored to benefit only those employees who are or will be suffering from those adverse effects) and in accordance with Management’s rights as reserved to it by 5 USC 7106 (incorporated in the contract at Article 5 Management Rights).
Moreover, with respect to the assertion that Management negotiators were not empowered to reach agreement with the Union, local Management clearly was authorized by the express terms of Article 26 of the labor-management agreement to reach agreement with the Union. Historically, local Management has been comfortable with this authority, having negotiated or reached consensus on local Compressed Work Schedule (CWS) Agreements in 1997, January 1999, September 1999, and July 2000. Since the current labor-management agreement was negotiated, Management and Union representatives in Seattle again renegotiated the CWS agreement in July 2001.
Local Management’s rejection of the Union’s proposed ground rules was perfectly appropriate, given its conclusion (after consulting with the undersigned) that ground rules are unnecessary for midterm negotiations over a single issue and would only serve to delay negotiations. Contrary to the Union’s assertion, Management is not obliged to offer a lengthy explanation for why it rejected a proposal. It should also be noted that the record reflects the Union negotiators accepted (perhaps begrudgingly) Management’s rejection of their proposed ground rules agreement and continued to negotiate its substantive proposals with Management without returning to that topic.
Argument -- Violation #2
The Union argues that Management violated Article 12, Section 8 of the contract by not raising the issue of negotiability in a timely fashion in the early stages of the negotiations process. This allegation is simply not true. Management did raise the issue of negotiability as soon as it was convinced that its efforts to persuade the Union representatives at the bargaining table to modify its nonnegotiable proposals into otherwise negotiable proposals were fruitless. The Federal Labor Relations Authority has held it is incumbent on the parties to discuss and fully explore proposals that would, at first blush, appear to be in violation of the rights reserved to them, in an effort to ensure that there actually is a dispute over the negotiability of the proposal and to afford the parties an opportunity to explore alternatives. See, e.g., AFGE Local 1513 and U.S. Dept. of the Navy, Naval Air Station, Whidbey Island Oak Harbor, 36 FLRA 82, 83 (1990); AFGE Local 1867 and U.S. Dept. of the Air Force, United States Air Force Academy, 46 FLRA 199, 201-202 (1992). To do otherwise clogs the Authority’s negotiability appeal mechanism with disputes that are premature.
The Union has not met its burden of proof concerning this allegation.
Argument – Violation #3
The Union alleges that it was not provided a rationale for Management’s declaration of nonnegotiability. Again, this is not true. Teresa Bobotek, the Director of the Seattle Regional Passport Office, stated the basis for the declaration of nonnegotiability in her June 25, 2003 memo (Union Appeal at Atch R), and referenced that memo in her July 10, 2003 memo (Union Appeal at Atch V). Ms Bobotek wrote that,
Local 1998’s continued insistence that the Seattle Passport Agency’s earliest start time remain unchanged interferes with Management’s reserved right to determine the number of employees, internal security practices, and numbers, types, and grades of employees or positions assigned to any tour of duty.
The Union acknowledges this explanation but has remained dissatisfied with it, for it apparently does not provide the level of detail desired by the Union. However, there is no statutory or contractual requirement for Management to go beyond the above statement. (See, e.g., NAGE and the Dept. of Defense, Nat’l Guard Bureau, Connecticut Army and Air Nat’l Guard, 40 FLRA 33, 36 (1991) (“There is no requirement . . . that a declaration of nonnegotiability must be made with any particular degree of specificity. . . . The only requirement that an agency support its allegation of nonnegotiability with specificity and rationale occurs after the agency has been served with a petition for review at which time the agency has 30 days within which to file a statement of position, specifying its reasons for the allegation.”)) Additionally, the Union has received through the negotiability appeal process an expansive explanation from Management as to why it believes the Union’s proposals are nonnegotiable. That process included the Union’s participation in a 2-hour long post-petition conference call with the FLRA and Management on October 21, 2003. During this conference call the parties discussed each of the Union’s open proposals. This discussion included Management’s explanation as to why the Union’s proposed package deals were outside of the scope of bargaining. The October 21, 2003 discussion was followed by Management’s November 6 statement of position filed with the FLRA. In short, the Union is fully aware of the rationale for Management’s declaration of nonnegotiability. This issue is moot and the Union has failed to carry its burden.
Argument – Violation #4
The Union argues that “Seattle employees are not being treated fairly because they are being subject to inequitable, disparate treatment compared with other offices and even compared to employees within the same location.” The earliest start time is a local matter, expressly reserved to local negotiators by the parties to the collective bargaining agreement in Article 26. Accordingly, the earliest start times established for other offices in Passport Services are irrelevant.
The Union has sought to undercut Managements position on this matter by pointing toward the exception created for the Systems Administrator in Seattle. The Union is well aware, however, of the legitimate mission-related reasons for why she is allowed to work without supervisory presence – namely that she makes systems changes outside of normal duty hours so as to not bring the computer system down, resulting in the operations of the Seattle Passport Regional Office coming to an abrupt halt. The change instituted here by Management is reasonable, well within its rights, and balances competing Management obligations in a responsible manner.
The Union has not met its burden of proof concerning this issue.
Argument – Violation #5
The Union’s final allegation is that Management’s decision to change the earliest start time to 7:00 am is not in the public interest. This allegation is specious. In a post-September 11, 2001 world, the public interest clearly is enhanced by insuring that the integrity of the passport issuance system is properly supervised. Moreover, the later start time has absolutely no effect on the commutes of the Seattle general public. Everyone in the Seattle Passport Regional Office uses mass transit. The State Department subsidizes its employees’ monthly commuting costs incurred through the use of mass transit. Every employee in the Seattle Regional Passport Office takes advantage of these government-provided transit subsidies and commutes to and from work on mass transit. No employee has been forced by the later start time to abandon mass transit, and no employee has relinquished the monthly $100 subsidy.
The Union has certainly not met its burden of proof concerning this allegation.
The Union has failed to meet its burden of proof for any of the 5 alleged violations. We urge you to deny the arbitration case.
Susan E. Moorse
U.S. Department of State
Certificate of Service
FMCS Case No. 041021-00114-7
I hereby certify that a complete copy of the Agency’s brief, including all attachments thereto, was served on the addressees listed below:
Gordon M. Byrholdt
P.O. Box 1058
Anacortes, WA 98221
By First Class Certified Mail
Mr. Colin P. Walle
Secretary-Treasurer, IAMAW, NFFE FD1 FL 1998
P.O. Box 2221
Seattle, WA 98111-2221
By First Class Certified Mail
Susan E. Moorse
U.S. Department of State
 At the outset, it is worth noting the Union’s decision to go forward with this arbitration proceeding, despite the pendency of the negotiability appeal, represents a clear attempt to perform an end-around on an issue that already rests before the FLRA. 5 USC 7105 empowers the Authority to decide issues relating to the duty to bargain in good faith. This arbitration proceeding must be respectful of the Authority’s power as it serves to greatly restrict the arbitrator’s authority in the present case.