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

 

 

 March 11, 2004

 

 Re: Case # 041006-00114-7

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

 

 

Union’s Rebuttal

 

This rebuttal constitutes NFFE Local 1998, Federal District 1, IAMAW’s (hereafter “the Union”) response to the U.S. Department of State, Passport Services’ (hereafter “Management”) statement in the arbitration case referenced above. 

 

 

Response to Management’s Framing of the Issue

 

In its February 26, 2004 brief, Management framed the issue before the Arbitrator as:

 

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.

 

The Union’s response to this is that Management does have the right to require supervisors to be present when employees are present.  There is no controversy on this whatsoever, and the Union is not and has not disputed Management’s right under Article 5 and under the law to determine that supervisory presence is necessary. 

 

As explained in our original July 25, 2003 grievance and our February 26, 2004 brief, we believe that the issue is not whether Management can require supervisory presence, but whether or not Management has abided by the law, the collective bargaining agreement, and a local work schedule agreement.  We believe that Management has violated requirements of these three authorities, and that is the basis for our grievance. 

 

As Management has recognized, the Union is the “moving party” in this dispute, and we respectfully request the Arbitrator to consider the issues that we presented in our February 26, 2004 brief. 

 

Response to Management’s Burden of Proof Argument

 

In its February 26, 2004 brief, Management asserts, “the burden of proof is on the Union to prove by a preponderance of the evidence that the Employer violated this issue as framed”.  While we agree that, as the moving party, the burden is ours to make our case, we believe that the proper burden of proof is “substantial evidence” rather than “preponderance of the evidence”.  We note that Article 22 of the collective bargaining agreement is silent on this issue. 

 

Response to Management’s Footnote

 

Management included this footnote in its February 26, 2004 brief:

 

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.

 

Considering that this was only a footnote, it is hard to gauge whether a reply is called for, but we are going to err on the side of caution and offer this reply.  Our response to this footnote is that we previously discussed this issue with Management and the FLRA, and Management agreed with the Union that the grievance did not conflict with the Negotiability Appeal.  This is reflected in the following excerpt from the October 23, 2003 FLRA Post-Petition Conference Record:

 

The parties advised the Authority representative that a grievance was pending concerning the Agency’s alleged violation of the parties’ contract with respect to the implementation of a new start time in bargaining unit employees’ work schedules….  Both parties stated that the grievance did not involve the negotiability of the proposals in dispute in this appeal. 

 

Therefore, Management’s footnote is a moot point. 

 

For the record, the Union reiterates that it is not asking the Arbitrator to rule on the negotiability of the Union’s proposals.  That matter can only be determined by the FLRA.  This is precisely why we modified the requested remedy in our grievance from asking for the original schedules to be restored to asking for the original schedules to be restored pending the outcome of the negotiability appeal.  As stated in our February 26, 2004 brief, if the FLRA rules for Management in the negotiability appeal, then the 7:00 AM start time may be instituted (though the Union may be allowed to make I&I proposals at that time).  But if the ruling is for the Union, then Management may not unilaterally make this change.  The question before the arbitrator is whether Management can violate the law, the collective bargaining agreement, and the local agreement while the issue is still pending before the FLRA. 

 

Regarding Management’s reference to 5 U.S.C. 7105, the pertinent section of that statute states that the FLRA has the authority to “resolve issues relating to the duty to bargain in good faith under section 7117(c) of this title”.  That section refers to Unfair Labor Practice charges that are presented to the FLRA.  It is worth noting that 5 U.S.C. 7116(d) states that “issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures”.  It is possible that the Union could have filed an Unfair Labor Practice charge alleging violations of 5 U.S.C. 7116 and 7117.  But the Union did not take that course of action.  Instead, we are charging Management with violating Article 12 of the collective bargaining agreement. 

 

In 55 FLRA No. 157, the Authority ruled that “it is immaterial that the [local office] … may simply have followed the instructions of its national office ….” in a case where a local Memorandum of Understanding (MOU) was being violated.   The FLRA ruled in 32 FLRA No. 124 that Management must “cease and desist from … unilaterally instituting any change in the starting and quitting times of its employees without affording the [Union] … the opportunity to negotiate with respect to any proposed change”.  In 46 FLRA No. 41, the FLRA upheld a Union’s Unfair Labor Practice charge against Management when Management changed the work schedules of two employees without bargaining with the Union – and the FLRA ordered Management to return to “status quo ante” and uphold the original schedules until the bargaining was complete (even though changing the tours of duty was deemed a Management Right).

 

Considering these rulings from the FLRA, it would not be reasonable to conclude that the FLRA would find a “status quo ante” order from the Arbitrator to be in excess of his authority.  Any exception that Management would consider filing on an award by the Arbitrator would have to be based on the Arbitrator exceeding his authority or a violation of the law, and those issues do not apply to a “status quo ante” award pending the outcome of the Negotiability Appeal. 

 

Response to Management’s Argument – Violation #1 (#2a in Union’s Brief)

 

The Union charged Management with violating Article 12, Section 1 of the collective bargaining agreement by not negotiating in good faith.  Management responded in its February 26, 2004 brief with the following:

 

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.

 

The Union is in wholehearted agreement with the idea that the collective bargaining agreement calls for local negotiations on work schedule changes and empowers the local Management and Union representatives to reach an agreement.  But recall that Management also states in its February 26, 2004 brief that, “[t]he Department stands by its August 25, 2003 grievance decision and incorporates it in its entirety herein.”  Management’s February 26, 2004  response (quoted above) to the Union’s charge that the local negotiators were not empowered to reach agreement is contradicted by the explanation in Management’s August 25, 2003 grievance denial, which states that the bargaining between the parties occurred “[w]ithin the parameters dictated by internal security practices over which local management has very little control ….”  The claim above that “local Management clearly was authorized … to reach agreement with the Union” is also contradicted by:

 

 

 

 

 

 

The “shell game” that Management engaged in during the negotiation process has continued into the grievance and arbitration process.  Local Management indicated that its hands were tied and that they were forced to make these changes by Headquarters Management, then Headquarters Management explained that local Management made the determination.  This finger-pointing and refusing to identify which level of Management is “calling the shots” is in itself an example of negotiating in bad faith. 

 

Management’s February 26, 2004 brief includes the parenthetical explanation statement that “after consulting with the undersigned”, local Management decided to reject the ground rules.  On the contrary, local Management told the Union representatives that the rejection of the ground rules originated from Headquarters, as if local Management was powerless to agree or disagree with ground rules on its own. 

 

Management defends itself by stating that it did not engage in “dilatory or delay tactics”.  Consider the issue of whether only Senior Managers would have to be present when employees arrived/departed, or whether Supervisory Passport Specialists could do the job.  Management had initially claimed that only the five Senior Managers could fulfill this duty.  Considering the nature of their jobs, the 1997 memo referenced by Management specifically called for delegating down (i.e., having a GS-12 fill in for a GS-13), and the fact that the Supervisors were GS-12’s and the Customer Service Manager, Adjudication Manager, and Fraud Program Manger positions were all GS-12/13 positions, it did not make any sense to the Union why Management would have such a restrictive policy.  Headquarters Management issued a clarification on this issue on May 7, 2003, but this was not shared with the Union.  The parties met on May 8, 2003 for a Union/Management Council meeting to discuss the proposed changes by Management.  Management explained that of the five senior managers, two had to start at 8:30 AM for childcare reasons, one already arrived at 6:15 AM, and the other two could not start earlier since they needed to be present at the end of the day.  The parties met a second time on May 15, 2003, and the Union asked if the GS-12’s “could be considered acting [GS-]13’s” (Attachment GG/K2), and Management referred to the memo from Headquarters.  Only after the Union essentially pleaded with Management to check with Headquarters did Management reluctantly agree to do so.  On May 21, 2003, a bargaining unit employee anonymously handed the Union a copy of the May 7, 2003 memo that was found on the fax machine.  During the May 27, 2003 bargaining session, Management only vaguely acknowledged that GS-12’s may open/close the agency, and did not provide the May 7, 2003 answer to the Union.  That May 7, 2003 memo was finally given to the Union on June 26, 2003, when it was included in an email from the Regional Director to the entire office.  The Union had a legitimate question, and the answer would have relieved the pressure on the issue to some extent by raising the number of Management officials who could satisfy Management’s policy from five to nine.  But the Union was not given the answer to this important question in a timely fashion.  

 

Management attempts to argue that it did bargain in good faith on the basis that it did agree to Union proposals that constituted “appropriate arrangements”.  But, as will be argued below, Management tied up all of the Union’s proposals in the web of nonnegotiability when it failed to provide a clear rationale.  The lunch schedule proposal by Management did not “mitigate the adverse effects” of the proposed change, nor did any of the other proposals offered by Management.  Essentially, Management only offered things to benefit employees not affected by its proposed change.

 

Response to Management’s Argument – Violation #2 (#2b in Union’s Brief)

 

The Union charged Management with violating Article 12, Section 8 of the collective bargaining agreement by not raising the issue of negotiability in the early stages of bargaining.  Management responded in its February 26, 2004 brief with “[t]his allegation is simply not true”.  

 

Management raised the issue of negotiability on the last day of negotiations and then refused to return to the bargaining table.  It is unfathomable that the last day of negotiations could be construed to be “the early stages”.  If the last day was in the early stages, then when were the middle and late stages?

 

In fact, not only did Management fail to bring this issue up in the early or even the middle stages, but during the middle to late stages Management even stated the contrary by recognizing on May 27, 2003 that the Union’s proposal to maintain the status quo was negotiable.  Returning again to Management’s August 25, 2003 denial of the grievance, Management stated that:

 

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.

 

But if Management had felt all along that the Union’s proposals were nonnegotiable, then it would have been improper to have told the Union otherwise in that May 27, 2003 memo.  Please refer to the following calendar:

 

 

 

 April 22

23

24

25

28

29

30

 May 1

2

5

6

7

8

9

12

13

14

15

16

19

20

21

22

23

26

27

28

29

30

02-Jun

3

4

5

6

9

10

11

12

13

 

 

It can be clearly seen that Management’s May 27, 2003 written acknowledgment of the negotiability of the Union’s proposal to maintain the status quo occurred two-thirds of the way through the negotiations.  If Management has recognized through two-thirds of the process that the Union’s proposals were negotiable, then that proves that Management did not bring up the idea that the Union’s proposals might not be negotiable on a timely basis and in the early stages. 

Management’s February 26, 2004 brief confuses the statutory procedures for negotiability appeals with the requirements in the collective bargaining agreement.  First of all, the parties cannot negotiate over the procedures for negotiability appeals – those procedures are set by the FLRA.  Management attempts to excuse its violation of Article 12, Section 8 by stating that:

 

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….  To do otherwise clogs the Authority’s negotiability appeal mechanism with disputes that are premature.

 

Yet, as explained in our February 26, 2004 brief, the contractual requirement to “raise the issue of negotiability in a timely fashion in the early stages of the negotiations process” does not automatically trigger an appeal that will clog the negotiability appeal mechanism.  The FLRA’s website - http://www.flra.gov/reports/ng_guide.html - includes the following guidance:

 

When the union must file a petition for review about a proposal

 

When a union puts forward a contract proposal for bargaining, and the agency says it's non-negotiable, the union can start the appeal process by filing a petition for review with the FLRA's Case Control Office.

 

There are several things that the parties should know about what can prompt the proper filing of a negotiability appeal:

 

  • if the union writes to the agency and asks for what's called an "allegation of non-negotiability," and the agency responds with the allegation in writing, the union has 15 days from the date of service of the allegation to file the petition at the FLRA headquarters in Washington, D.C.;
  • if the union writes to the agency and asks for an allegation of non-negotiability, and the agency does not respond within ten days of receipt of the union's request, the union may do one of two things:

(1)     ignore the agency's silence and not file a petition, or

(2)         file the petition at any time after the agency's written response should have been given;

  • if the agency states that something is non-negotiable, without being asked for its opinion by the union in writing, the union may file its petition, but it does not have to - it may keep on negotiating, since it did not ask for an allegation of non-negotiability;

if the agency only says the proposal is non-negotiable orally, and not in writing, the union does not have to file its petition - it may keep on negotiating, since the allegation of non-negotiability must be in writing before a petition can be filed.

 

So, if Management had abided by the requirements of the collective bargaining agreement and stated in the early stages that it believed that the Union’s proposals were non-negotiable, then as far as the FLRA’s negotiability appeal process is concerned the Union would not be required to file the appeal – instead, the Union could “keep on negotiating”: “if the agency states that something is non-negotiable, without being asked for its opinion by the union in writing, the union may file its petition, but it does not have to”.  Management’s contractual requirement to raise the negotiability issue in the early stages is not the same as Management’s statutory obligation to respond in writing to the Union’s written request for an “allegation of non-negotiability”.  The “Declaration of Non-negotiability” was not issued until July 10, 2003 – and that is what triggered the appeals process – so the idea that merely raising the issue in the early stages would have automatically triggered an appeal to the FLRA is clearly fallacious.  The bottom line is that Management was required to bring this issue up in the early stages, and that if Management met this obligation it would not have “prompt[ed] the proper filing of a negotiability appeal”.  

 

It is worth noting that the contract states that “[i]f the Union alleges a management proposal is nonnegotiable, it will advise management immediately”.  So, the contractual requirements on both Management and the Union are separate and apart from the FLRA requirements.  They do not replace those requirements – again, they cannot replace them.  So, Management’s reliance on the procedures of the FLRA’s negotiability appeal process as a defense against the charge that Management violated the collective bargaining agreement is misplaced.  Management is not being charged with violating the negotiability appeals process or procedures. 

 

Management’s worry that raising this issue early in the process will clog the negotiability appeals mechanism is not borne out by the history of negotiations between the parties.  By bringing up the issue early on, one side has a better idea of the context in which the other side is viewing an issue.  As previously stated, this very case demonstrates the opposite effect takes place when the issue is not brought up in a timely basis.  The Union never had any intention of needlessly or prematurely filing a Negotiability Appeal.  This is borne out by the Union’s proposed ground rules (Attachment L), and by other statements by the Union that the Union did not even believe that a Negotiability Appeal was the appropriate forum to resolve the issue (see the memo from Union VP Rob Arnold on June 30, 2003 – Attachment T – and the July 1, 2003 memo from Bill Beardall attached to the Union’s February 26, 2004  Arbitration Brief). 

 

Response to Management’s Argument – Violation #3 (#2c in Union’s Brief)

 

The Union charged Management with violating Article 12, Section 8 of the collective bargaining agreement by refusing to provide a written rational for its claim of nonnegotiabilty.  Management quotes from 40 FLRA 33, 36 (1991) in support of its defense to this charge:

 

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.

 

The case that Management cites refers to the statute, and therefore is not relevant to this grievance.  The Union acknowledges that the July 10, 2003 Declaration of Nonnegotiability was sufficient for the purposes of triggering the Negotiability Appeal, but this grievance does not concern that declaration – it concerns the written rationale.  Management states that, “there is no statutory or contractual requirement for Management to go beyond” what was stated in Management’s June 25, 2003 memo (Attachment R to the Negotiability Appeal).  The Union agrees that there is no “statutory … requirement” to go beyond what was offered, but we do assert that there is a “contractual requirement”.  The Union is not grieving whether Management violated the FLRA’s negotiability appeals rules, but rather the contractual requirements that were negotiated by the parties and incorporated into the July 3, 2001 collective bargaining agreement.  The intent of this contractual requirement is for each party to understand the position of the other, and clearly (referring again to June 30, 2003 and July 1, 2003 Union memos) the Union did not receive a sufficient explanation. 

 

In Management’s February 26, 2004 brief, Management repeats its previous claim that this June 26, 2003 statement by Management was sufficient as the rationale:

 

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 is perplexed that a patently erroneous explanation can be considered sufficient for meeting this contractual requirement.  The statement refers to “Local 1998’s continued insistence that the … start time [of 6:30 AM] remain unchanged”, yet Management knew full well and had received in writing proposals from the Union that had different start times.  One of these June 12, 2003 proposals had a start time of 6:45 AM, and the other had a start time of 7:00 AM – exactly the time that Management was proposing. 

 

We assert that for Management to have met this contractual requirement, it must have (again, at the minimum) declared which of these proposals, or which parts of these proposals, were nonnegotiable:

 

1)      6:30 AM start time (status quo)

2)      6:45 AM start time, more lunch schedules, flexibility on 8-hour day, shortening lunches, 5-minute intervals, flexibility on annual leave, and affirmation of Article 26, Section 3a(4)

3)      7:00 AM start time, more lunch schedules, additional part-time slots, flexible work schedule – maxiflex option – with credit hours, flexibility on annual leave, and affirmation of Article 26, Section 3a(4)

 

Clearly, a statement that claims that the Union’s proposals are nonnegotiable because the Union had allegedly insisted on the 6:30 AM start time cannot be sufficient since it ignores the fact that the Union had made other proposals.  For the written statement of the rationale to be sufficient it must address proposals 2 and 3, not just pretending that the only existing proposal was proposal 1.  The Union did not receive any “explanation or exposition of the principles”, referring again to the definition of “rationale” at www.dictionary.com, underlining why proposals 2 and 3 would be considered nonnegotiable. 

 

Management attempts to void this violation by arguing that, via the negotiability appeals process, the Union much later found out the rationale for Management’s view that some of the Union’s proposals were nonnegotiable:

 

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.

 

This statement by Management essentially proves the Union’s case.  By conceding that the Union did later receive the rationale for Management’s claim of nonnegotiability – a rationale that revealed that Management did not believe that all of the Union’s proposals were nonnegotiable – Management admits that it did not furnish this explanation when repeatedly asked by the Union in June and early July, 2003.  Again, it bears repeating that what is being grieved here is a contractual requirement, and the fact that Management did later comply with the FLRA’s requirements for negotiability appeals does not excuse Management’s violation of its contractual requirements. 

 

The problem with violating the collective bargaining agreement by waiting five months to explain its position to the Union is that it held up negotiations on other subjects, including additional lunch options, annual leave arrangements, and other matters that were caught up in this dispute.  Since Management has brought up the October 21, 2003 conference in its defense, then it bears mentioning that the issues which Management agreed to put back on the negotiating table on that date – lunch options, more slots for employees wishing to have departure times prior to 4:00 PM, and schedules based on 5-minute rather than 15-minute increments – Management subsequently refused to engage in bargaining after October 21, 2003.

 

Since Management has not acknowledged that it violated the collective bargaining agreement by failing to provide the rationale for the claim of nonnegotiability and has not committed to complying with it in the future, this violation can hardly be deemed “moot”.  Finding this issue to be moot would render this provision of the collective bargaining agreement meaningless, and would force the Union to file negotiability appeals in every future dispute in order to discover the basis for Management’s nonnegotiability claims.  This would have a harmful effect on the relationship between the parties.  These words were placed in the collective bargaining agreement for a reason and they should be interpreted in a meaningful way rather than as if they were simply taking up space.  Management’s interpretation of this clause essentially strikes the words “the Union will be provided with a written statement of the rationale for a claim of nonnegotiability” from the collective bargaining agreement. 

 

The bottom line is that for the written statement to be a considered a sufficient rationale for Management’s claim of nonnegotiabilty, at the bare minimum it must identify which of the Union’s proposals Management actually believes are nonnegotiable.  There was no explanation or exposition of the principles involved in Management’s view.  If Management had offered such an explanation, then the other issues that were tied up in the appeals process would have been eligible for continued bargaining. 

 

Response to Management’s Argument – Violation #4 (#2d in Union’s Brief)

 

The Union charged Management with violating Article 6, Section 5 of the collective bargaining agreement because the employees received disparate and inequitable treatment vis-à-vis supervisory personnel, employees in Seattle, and employees in other offices.  Management responded in its February 26, 2004 brief by stating, in part, that:

 

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.

 

In addition to being contradicted by Management’s August 23, 2003 grievance denial, this statement is also contradicted by Management’s own explanation in the May 15, 2003 Union-Management Council meeting that “local management is obligated to follow mandates from D.C. …  [the Regional Director] said that changes were occurring at other passport agencies, such as San Francisco, due to [the Headquarter’s Managing Director’s] memo”.  Management deemed it relevant to explain that this was a Passport Services-wide change that originated at Headquarter in Washington, DC, and which impacted other offices as well.  Therefore, the earliest start times for other offices are most certainly relevant to this case.  While not the subject of this arbitration, it should be noted that fourteen bargaining unit employees at the Philadelphia Passport Agency were forced in January 2004 to change their arrival times since supervisors were starting their workday after the employees (the Union is considering other action to contest this separate violation), and the reason cited was directives from Headquarters Management. 

 

The case of the San Francisco Passport Agency is also relevant in that, because events unfolded there differently than how Management explained, it further demonstrates the disparate treatment received by the employees.  None of the bargaining unit employees at the San Francisco Passport Agency had their arrival or departure times changed as a result of the memo from Headquarters.  On the contrary, apparently the only person whose schedule was changed as a result of this memo was a Management official, who changed her start time in order to be present when the employees arrived. 

 

The Duty Officer program is also relevant to this case.  The employees at the Seattle Passport Agency were trusted for years to participate in this program, and Management has never claimed that the employees are no longer trusted in that regard.  The only explanation for why the employees at the Seattle Passport Agency were removed from the Duty Officer program was simply that there were so few cases – only one or two per year.  This is not the case in Los Angeles, where every other week there is an emergency and New York where there is always an emergency.  The constant switching of keys, combinations, cell phones, pagers, etc. that was required was deemed too much trouble in Seattle, and simply restricting the number of people involved was the best solution.  In some offices – such as Honolulu, Chicago, and Miami – the Management officials rarely participate in the program, and instead only bargaining unit employees fulfill this function.  The overwhelming majority of cases – which take place in New York, Washington DC, and Los Angeles – are handled by bargaining unit employees. 

 

Management and the Union are both in agreement that the two former 6:30 AM start time employees and the Systems Administrator are all honest, trustworthy, hardworking, and valuable employees.  Management’s new explanation for why the Systems Administrator is allowed in the office without supervisory presence is still missing the mark.  Management claims that it has instituted a policy where supervisors must be present when employees are in the office, but if it had really done that then Management would have a supervisor stay late with the Systems Administrator.  If the 6:30 AM start time was allowed to continue, and one of those trustworthy employees changed jobs or retired and was replaced by a newly hired malfeasant employee, the damage that the employee could do would be significant – but it would be no greater from 6:30 AM to 6:45 AM or 7:00 AM than it would be at 10:00 AM or noon.  The instances of malfeasance that have occurred in Passport Services in the past have – as far as can be determined – occurred during the day, while supervisors were present.  Now, consider what would happen if a trustworthy Systems Administrator was replaced some day in the future with a newly hired malfeasant employee.  The extent of the havoc such a person could wreak cannot be overstated. 

 

Again, the author of this statement personally knows the people mentioned here and has the utmost trust and faith in their loyalty and commitment, so this is not personal.  The point being made here is that Management is not applying its own policy in an equitable manner, and is in fact applying it in a way that is completely opposite from its stated intent.  This inconsistent execution results in the disparate treatment of the employees.  If Management wanted to have supervisors present when employees were present, then it would have supervisors on site during the times that employees were in the offices as Systems Administrators or as Duty Officers.  If Management does not believe that it is really necessary to have supervisors present when employees are present – which is evidenced by the current practices both around the country at other Passport Services locations as well as in Seattle – then there is no reason to change the start times of the employees at the Seattle Passport Agency. 

 

Response to Management’s Argument – Violation #5

 

Management recognized in its February 26, 2004 brief that “[t]he Union is the moving party in this arbitration case.”  As stated in the Union’s February 26, 2004 brief, the Union has dropped violation #5 from the grievance and has not presented it to the Arbitrator for a ruling.  Therefore, this issue is moot.  We had thought that both parties understood this prior to the filings being submitted, but there has been a small misunderstanding on this issue that the undersigned has already resolved with the Management representative, and this declaration should clear up the matter. 

 

While we are not presenting the charge to the Arbitrator, we would like to state for the record that we stand by this part of our original grievance.  These schedule changes have had a serious impact on the employees.  Departing for home 15 minutes later than their original schedules means that some employees arrive at home 45 minutes later than they did previously.  This has had a negative effect on the family lives of the employees, including child care and educational opportunities – and the FLRA has stated that these are more than “de minimis” considerations (46 FLRA No. 41).  Also, most employees use “Park and Rides”, where they drive to and park their cars and then take mass transit, so to say that there is no impact on the general public by putting those cars into traffic at peak hours is not true.  Since the Seattle Federal Building has no on-site parking, and Management recently eliminated the work-at-home flexiplace program, mass transit is the only realistic option for most employees.  We bring these issues up not in order to make our case on this point, since it is not part of this grievance, but rather to make it clear to the arbitrator that this change does have a significant, negative impact on people’s lives. 

 

As far as September 11th and the integrity of the passport issuance process are concerned, we have addressed those issues in our November 21, 2003 negotiability appeal position statement (pages 3-4, and 56-58).  The only thing that we will add to that is to point out that in the twenty-three year history of NFFE Local 1998, the only time that we have gone to Congress with an issue particular to our local was from December 2003 to February 2004, and that issue is our concern with the integrity of the passport issuance process.

 

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