March 11, 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 rebuttal 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 with rebuttal statements to be postmarked no later than March 11.  This submission is timely filed.  For ease of reading, I have tracked my rebuttal arguments to the Union’s February 26 submission by adopting the Union’s headings.


Before turning to the specific rebuttal arguments, Management wants to highlight the Union’s repeated acknowledgment in its February 26 submission of the ongoing negotiability appeal process, and reiterate the resultant effect of the negotiability appeal to substantially limit the arbitrator’s authority in this case.  Management holds to its contention raised with the Federal Labor Relations Authority in its November 6, 2003 submission at page 9 and repeated herein that Seattle Regional Passport Management and its local union counterparts have no authority to establish a flexitour or compressed work schedule, through consensus or traditional labor-management negotiations, that interferes with fulfillment of the essential duties and requirements of employees’ positions as required by Section 6122(a) of the Work Schedules Act.  42 F.L.R.A. 1196, 1991 WL 233217 (F.L.R.A.)


The Issues Submitted for Arbitration and Argument


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


            The Union alleges that Management implemented the proposed change prior to the completion of the negotiation process.  This is not true – the negotiation process had been completed.  Management negotiated in good faith with the Union following an attempt to reach consensus through the Union-Management Council.  When Management issued its declaration of nonnegotiability, there were no unresolved negotiable proposals that remained on the bargaining table.  Consequently, Management made its declaration of nonnegotiability, provided the basis for its declaration, and advised the Union of its planned implementation date.  At that point, the negotiation process was completed.  In its February 26 submission, Management quoted relevant statutory and contractual provisions that address the characteristics of negotiations conducted in good faith.  Neither a requirement that the sides reach agreement nor a requirement that they maintain the status quo is among those characteristics.  Moreover, it is well established that Management has the right to act on its rights reserved to it by law and as incorporated in the contract.  (See, e.g., U.S. Dept. of Justice, INS v. FLRA, 995 F.2d 46 (5th Cir. 1993).


Article 12 of the Passport Services – NFFE Local 1998 contract (Contract) addresses negotiations during the term of the agreement.  It provides, in relevant part, that “negotiation as appropriate on issues which are management rights will . . . be handled in accordance with this Article.” Article 12(2)(a).  Management complied with this provision.


The Union further argues that Article 26, Section 3b of the Contract requires “each location to maintain the status quo unless the Union/Management Council at each location sets the following: (1) The earliest and latest time an employee may work;  …”  This argument ignores the express terms of Article 26, Section 1.  The last paragraph therein states:


Where the provisions of this Article describe the procedures for Union/Management Councils to develop Flexitour and Alternate Work Schedules, it is understood that Management or the Union may also make proposals relating to tours and Alternate Work Schedules and establish policies through traditional Union-Management bargaining methods….


Management did maintain the status quo during the Union/Management Council process and the traditional labor-management negotiations.  It also maintained the status quo for the additional month prior to implementation to allow employees time to make whatever personal arrangements necessary to begin work no earlier than 7 am.  The Union believes that Management’s maintenance of the status quo for this 3-month period proves it could maintain the status quo during the pendency of the negotiability appeal.  By this argument, the fact that Seattle unit employees have been able to live with the new schedules for the past seven months means they can live with it indefinitely, despite all of the Union’s allegations that their world would come to an end if Management implemented the new work schedules.  As a matter of fact, Management covered the old schedule for those 3 months by forcibly changing one manager’s schedule and prohibiting another manager who wanted to change her schedule from doing so.


The Union makes reference to the May 15, 2003 Union/Management Council meeting minutes (Attachment GG/K2).  Actually, the correct reference is to the minutes from the May 8, 2003 Union/Management Council meeting.


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


            The Union bases this charge on six topics, including a failure to negotiate with the Union over the ground rules for bargaining.  Management has already addressed this allegation in detail in its February 26 submission.  Management adds that the Union presented its proposed ground rules less than an hour before the negotiations began, giving Seattle Management no time to review them.


The Union also claims that Management failed to explain its objections to the ground rules.  This is not true.  Assistant Regional Director Trip Atkins explained at the second negotiating session that Management objected to item #6 in the Union’s proposed ground rules, which would have prohibited either side from declaring an issue nonnegotiable until it had been discussed at least twice as restricting a management right. 


Later in its discussion of Violation #2a, the Union claims that Management’s 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 proven “wanting” by what transpired during the actual negotiations.  The Union’s proposed ground rules were silent as to complexity of issues.  Rather, they addressed housekeeping issues that in part are already covered by Article 12 or are simply unnecessary.  It is ironic that the Union included in its ground rules proposals that no declarations of nonnegotiability be made in the first two bargaining sessions when it now complains that the declaration did not come early enough in the process.  Management rejected those proposals in part because it did not want to be restricted in when it made such a declaration.  Upon learning that the Union refused to move in the first negotiating session from its counterproposal to maintain the status quo work schedules (a stance the Union continued to maintain during the second negotiating session), Management then sought to find some negotiable solution that would meet both parties’ needs.  As it turned out, the Union got what it wanted concerning the timing of a declaration of nonnegotiability, since the parties did meet more than twice before Management declared the Union’s proposals nonnegotiable.


The Union’s third basis is Management’s alleged failure to empower its negotiators with the authority to make agreements.  Again, this is false. The Regional Director explicitly delegated and empowered the Assistant Regional Director and Adjudication Manager to conduct the local negotiations on behalf of Agency management.  The Management negotiators exercised their authority as evidenced by their concessions to some of the Union’s counterproposals and agreement with other proposals during the third negotiating session when the Union finally offered counterproposals (other than the status quo).  The Management negotiators countered one of the Union’s counterproposals in an attempt to fashion a negotiable proposal out of the Union’s nonnegotiable proposal.  The Union rejected Management’s attempt.


            The Union continues with the allegation that Management was unwilling to even consider the Union’s 6:30 am and 6:45 am proposals.  This is not the whole story, because there were no Union proposals that included a 6:30 or 6:45 am start time that also addressed Management’s need for supervisory coverage.  The 6:30 am proposal was the status quo; the 6:45 am proposals changed only two employees’ schedules while adding a number of new employee benefits that were not appropriate arrangements for those two employees whose schedules would be changed.


The fifth bullet claims that Management was not forthcoming with the Union regarding the impetus for the proposed change.  The Management negotiators told the Union many times, both in writing and orally – Regional Director Bobotek’s memo of April 22, 2003 being the most detailed.  The Union refused to believe Management’s explanation.


The last bullet alleges Management failed to propose the suggested guidelines from the July 17, 1997 memorandum when negotiating the July 3, 2001 Contract.  Management asserts that the Headquarters Passport Services Guidelines were not superseded by renegotiation of the current Contract.  The error did not occur at the national level (between Headquarters Passport Services and NFFE Local 1998).  Rather, Management of the Seattle Regional Passport Office failed to adhere to the requirements set forth in July 1997 by Headquarters Passport Services, necessitating the negotiations at issue herein.


The Union has introduced a new allegation that has not previously been raised in the negotiated grievance procedure, namely that Management failed to provide information requested to support the grievance.  The Union admits that its information request was made after its July 25, 2003 grievance had already been filed with Management.  Management responded to the information request on September 17, 2003.  If the Union were dissatisfied with this response, it should have timely filed another grievance in accordance with the terms of the contract.  The Union did not grieve Management’s response, and it may not now tack this issue onto its July 25 filing in order to bring this issue before the Arbitrator.


            Before leaving the Union’s argument on Violation 2b, one final point needs to be made concerning whether Management’s counterproposals were implementing procedures or appropriate arrangements for unit employees who were adversely impacted by the change.  In fact, Management pointed out that the existing options of scheduling an early lunch or shortening the lunch period from 45 to 30 minutes would allow the affected employees to arrive at work 15 minutes later and continue to leave at their usual departure time.  These are clearly efforts to mitigate the adverse effect on several of the employees who previously arrived at 6:45 am.  It is our understanding that 4 of the 12 affected employees took advantage of one of these existing options.  Moreover, none of the Union’s counterproposals were addressed to truly ameliorate the adverse impact on employees affected by the change.  Instead, negotiations broke down when the Union insisted that all employees be able to take advantage of gliding schedules, regardless of whether their work schedules were impacted by the change under discussion.


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


            Management takes issue with the Union’s interpretation of “timely” as found in Article 12, Section 8 of the Contract.  Given that the Union argued only for the status quo in the first two negotiation sessions, Management would have been forced to issue a written declaration of nonnegotiability without any constructive discussion beyond the initial “change versus no change” posturing.  Such a result would run contrary to statutory intent and FLRA case law.  While it is unfortunate that the Union did not, by its own admission (found in its February 26 submission, page 7, last paragraph), understand the point of view of Management, we do not believe making a premature declaration of nonnegotiability would have aided to further the Union’s comprehension or acceptance of the impetus for the change.  Finally, the adversarial communications between the parties concerning this issue began well before the parties actually began to engage in traditional labor-management negotiations.  Seattle NFFE Local 1998 Vice President Rob Arnold’s demand to bargain while the parties were just beginning to seek consensus through the Union/Management Council is evidence of the Union’s unwillingness to hear Management out on the problem of inadequate supervisory coverage for work schedules starting before 7:00 am.


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


            Management has no further comment and stands by its discussion of this alleged violation provided in its February 26 submission.


Argument – Violation #2d – the Employees are Receiving Disparate and Inequitable Treatment


            Management again stands by its discussion of this alleged violation as contained in its February 26 submission.  There are two Union claims that warrant correction.  Contrary to the Union’s claim that “the twelve affected employees at the Seattle Passport Agency were only occasionally in the office by themselves prior to April 22, 2003,” the fact is that such circumstances occurred frequently and regularly.  The only supervisor scheduled to begin work before 6:45 am is out approximately ten weeks per year on annual, sick and administrative leave and also misses one compressed day per pay period (an additional 26 days per year), for a total of some 15 weeks a year out of the office.  In addition, Seattle Passport Management has not stated that “if its supervisors and 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.”




            The Union has failed to meet its burden of proof for any of the alleged violations.  We urge you to deny the arbitration case.


                                                            Respectfully submitted,




                                                            Susan E. Moorse

                                                            Agency Representative

                                                            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 rebuttal 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

Agency Representative

U.S. Department of State