November 6, 2003
Federal Labor Relations Authority
1400 K Street, NW
Washington, DC 20424-0001
Dear Sir/Madam:
Re: O-NG-2735 NFFE Local 1998,
IAMAW, Federal District 1 and U.S.
Department of State, Passport
Services, Seattle, Washington
This letter provides the Agency's statement of position in the referenced
negotiability appeal. The appeal arose from a decision of Teresa Bobotek,
Regional Director (RD), Seattle Passport Regional Office (PPT/SE) to change the
earliest time employees may begin work from 6:30 am to 7:00 am. RD Bobotek took
this action so that the essential duties and requirements of bargaining unit
positions could be fulfilled as required by section 6122(a) of the Work
Schedules Act (5 U.S.C. § 6122(a)). Supervision of bargaining unit work and
appropriate security concerns restricting access to the perimeter alarm system
to a limited number of personnel are essential components necessary to fulfill
the duties and requirements of bargaining unit positions. Further, all the
proposals of Local 1998 would have infringed upon inviolate management-rights
concerning management's rights regarding non-bargaining unit supervisory
personnel whose statutory rights under the Federal Employees Flexible and
Compressed Work Schedules Act (Work Schedules Act of The Act) must also be
respected by management.
Moreover, RD Bobotek's action brought PPT/SE back into compliance with existing
Passport Services' Guidelines on Compressed Work Schedules (CWS) and the Seattle
Regional Union/Management Council Agreement Regarding Flexitour and Compressed
Work Schedules.
Background
Organizational Structure
As noted above, Passport Services is a part of the U.S. Department of State and
falls within the organizational responsibility of the Bureau of Consular Affairs
(CA). Passport Services is indicated by the organizational symbol "CA/PPT" or "PPT."
The mission and the public interest of passport agencies is to issue passports
to U.S. citizens and nationals, protect the integrity of the passport, and
provide services to citizens who travel abroad. The mission is accomplished by
Passport offices and agencies located in 15 major metropolitan areas across the
United States, including Seattle, Washington (PPT/SE).
The U.S. Passport is the official document issued by the government of the
United States to allow its citizens and nationals to enter foreign countries and
to re-enter the United States. Given its purpose, the U.S. passport is a very
valuable document. Accordingly, acceptance of passport applications (and
associated application fees), adjudication, and issuance of U.S. passports are
subjected to strict internal controls established by statute and by Department
regulation. Passport books and money collected from applicants are strictly
accounted for at the beginning and end of every workday. Passport books are kept
locked in a vault that can only be accessed by the Regional or Assistant
Regional Director and two GS-12 supervisors. Application receipts are strictly
controlled by the Adjudication Manager and the GS-12 supervisors.
The consular world was changed on September 11, 2001, and the State Department
leadership is determined to do all that it can to ensure the security of our
nation's borders and the security of the U.S passport process. To this end, CA/PPT
continues to scrutinize all aspects of the U.S. passport process. CA/PPT is
currently requiring its previously uncleared Passport examiners and adjudicators
to get public trust clearances. (In contrast, CA/PPT's Information Systems
administrators have historically been required to have a Top Secret clearance).
As mentioned above and described more fully below, CA/PPT has restricted
perimeter alarm system access, and it has reminded its regional and office
directors of the requirement to comply with the long-standing CWS Guidelines
concerning supervisory presence.
Union Level of Recognition
Passport Services bargaining unit employees are represented by NFFE Local 1998
as part of a nationwide bargaining unit. The labor relationship is between
Passport Services and NFFE Local 1998. NFFE Local 1998 was certified as the
exclusive representative in September 1985. The current labor agreement went
into effect in July 2001.
While the contract is nationwide, the parties to the contract have agreed that
some issues are best handled at the local level. Delegation of these issues
(examples include dress code guidelines and some aspects of flexitour and other
alternate work schedules) is addressed in the contract.
Relevant Contract Provisions
Article 4, Union/Management Cooperation Agreement is included at Tab 1. Article
5 sets forth Management Rights; it is attached at Tab 2. Article 6 covers
"Employee Rights & Responsibilities" (Tab 3). Article 12 is entitled
"Negotiations during the Term of the Agreement;" it can be found in the Union
Appeal at B. Article 20 sets forth the negotiated "Grievance Procedure" (Tab 4).
Article 25 addresses "Standard Workweek and Hours of Work" (Tab 5). Article 26,
"Flexitour and Other Alternate Work Schedules," was included in the Union's
Appeal at C.
Chronology of Events
In response to requests from employees and its local union representatives, RD
Bobotek contacted CA/PPT in 1997 and asked for permission to establish alternate
work schedules. CA/PPT told RD Bobotek that if the parties could reach consensus
on an AWS program and reduce it to writing, CA/PPT would consider RD Bobotek's
request. PPT/SE management and union representatives developed such a program
dated April 16, 1997, and sent it forward to CA/PPT. The parties agreed therein:
"This agreement is subject to change to comply with national guidelines from
Passport Services or by a Union-Management Partnership consensus." At that time,
no bargaining unit employees worked without supervisory coverage (two senior
managers began work before 7:00 am -- the Fraud Program Manager at 6:15 am and
the Customer Service Manager at 6:30 am).
In part due to PPT/SE's request, in July 1997, CA/PPT agreed to allow compressed
work schedules established within specific guidelines. CA/PPT recorded the CWS
guidelines in writing and sent them via a July 17, 1997 memorandum to all CA/PPT
regional and office directors and to Leah Anderson, the Acting NFFE Local 1998
President at that time (Union Appeal at A). Paragraph C is entitled Supervision.
It reads as follows:
The CWS is made up of eight 9 1-4 hour days and one 8 3/4 hour day. With a large number of employees participating, an agency could conceivably have several employees on duty at 7:15 a.m. and working until 6:00 p.m. Regional Directors need to ensure that there is adequate supervision during these periods, particularly during the opening and close of business.
Guideline: That at least one senior manager be present in the agency while employees are performing their duties under the CWS. Senior managers include the Regional Director, the Assistant Regional Director, the Customer Service Manager, the Adjudication Manager and the Fraud Program Manager. (emphasis added)
NFFE Local 1998 accepted CA/PPT's CWS guidelines. PPT/SE management and union
representatives revised their Partnership agreement on January 21, 1999,
September 9, 1999, and July 6, 2000. All of the subsequent versions of this
agreement retained the acknowledgement that the agreement is subject to change
to comply with national guidelines from Passport Services or by a
Union-Management Partnership consensus.
Most recently, following renegotiation of the contract in July 2001, PPT/SE
acted upon the authority delegated to them by Article 26 and agreed on September
5, 2001 to the Seattle Regional Union Management Council Agreement Regarding
Flexitour and Compressed Work Schedules (Union Appeal at D). This agreement
continues the established PPT/SE core hours of 8:00 AM until 3:30 PM. As with
the earlier versions, the current agreement states that "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." At some point, one of the two senior managers who arrived early had
to adjust his arrival time to 7:00 am for family reasons. The Fraud Program
Manager continued to arrive at at work at 6:15 am. However, on the days that the
Fraud Program Manager was on leave, in training, or away from the office on
official travel, there was no supervisory coverage before 7:00 am.
While "Start/End Times" continued to be discussed in the Seattle Union
Management Council meetings, as evidenced by Seattle NFFE Vice President Rob
Arnold's 12/13/02 e-mail subject "12/12/02 Union Council Meeting - The Novel"
pages 2-3 and his 1/30/03 e-mail, subject "Partnership Meeting Minutes - Final
Version" (Union Appeal at E and F), there was apparently no discussion of the
"'spotty" compliance with the 1997 CWS Guidelines requiring supervisory
coverage.
In April 2003 RD Bobotek initiated the change to the earliest time employees may
begin work to bring PPT/SE back into compliance with July 1997 CWS Guidelines'
requirement of supervisory presence. RD Bobotek took this action following
receipt of an April 17, 2003 memo (Union Appeal at G), in which Ann M. Barrett,
Managing Director, Passport Services reminded
(the] Regional Directors of supervision guidelines sent out in July 1997 when Passport Services implemented the Compressed Work Schedule (CWS), at Passport Agencies. One senior manager must be present in the agency while employees are performing their duties under the CWS. Senior managers include the Regional Director, the Assistant Regional Director, the Customer Service Manager, the Adjudication Manager and the Fraud Prevention Manager.
Any agency not currently in compliance must make adjustments accordingly.
CA/PPT expanded the definition of senior manager to include the Supervisory
Passport Specialist by CA/PPT memo dated May 7, 2003 (Union Appeal at J). (The
GS-12 Supervisory Passport Specialist positions were newly created positions
established right around the time that the CWS Guidelines were issued). CA/PPT
expanded the definition in order to provide more flexibility to PPT regional
offices and agencies. By increasing the number of eligible supervisors who can
fulfill the supervisory coverage requirement, the PPT regional offices and
agencies have more flexibility in establishing their flexitour and CWS.
Additionally, CA/PPT directed this year that knowledge of and access to Passport
Offices' perimeter alarm system combinations be restricted. The restricted
access to alarm system combinations was taken to further internal controls and
security across CA/PPT. CA/PPT regional directors were given the discretion to
decide which supervisors or essential personnel would be authorized access. RD
Bobotek made the decision to request that the office responsible for the alarm
system (Office of Diplomatic Security (DS)) limit alarm system access to PPT/SE
managers, supervisors, the information systems administrator and the DS guard
supervisor. This decision meant that PPT/SE employees who did not have alarm
system access could not enter the office until a manager, supervisor,
information system administrator or DS guard supervisor let them in. This
development was first raised in PPT/SE during the 1/16/03 partnership meeting
following a phone call from Seattle's Assistant Regional Director (ARD) Trip
Atkins, (who learned of CA/PPT's decision to restrict alarm system access when
he was in Washington DC on temporary duty) (Union Appeal F at page 2).
RD Bobotek did not lightly reach the conclusion that the earliest start time
needed to be changed, but the overriding need to fulfill the essential
requirements and duties of the PPT/SE bargaining unit positions dictated that
conclusion. RD Bobotek consulted with her subordinate supervisory staff and
worked closely with them to develop a work schedule that provides for
sustainable supervisory coverage. In so doing, she took into consideration the
number of supervisors assigned to PPT/SE; each individual supervisor's desire to
work either a standard or a compressed work schedule (5 USC 6132 prohibits
coercion to participate or not participate in a CWS); their leave accrual rate
and anticipated leave usage; and their historical and anticipated temporary duty
away from PPT/SE. PPT/SE's Fraud Program Manager, for example, has a heavy TDY
schedule requiring her absence from the office. This process led RD Bobotek to
decide that 7:00 am was the earliest start time that could be routinely
maintained and ensure that the essential duties and requirements of the unit
positions are fulfilled.
RD Bobotek then raised at Seattle Regional Union Management Council the need to
adjust the earliest start time to ensure the essential requirements and duties
of bargaining unit positions were being fulfilled and to bring PPT/SE back into
compliance with the existing CWS guidelines concerning supervisory presence. Her
memorandum dated April 22, 2003 (Union Appeal at H) to Mr. Arnold and Carol
Aguilar, PPT/SE Union Steward refers to both Section 7 of Article 4,
Union/Management Cooperation Agreement (Tab 2) and Section 3 of Article 6,
"Employee Rights & Responsibilities" (Tab 3). Both sections speak to the
Employer sharing information, with the Union during Union/Management Council
meetings and also with unit employees.
In order to provide the required supervisory coverage while this issue was being
discussed, RD Bobotek directed Adjudication Manager John Cornaby to work from
6:45 am to 3:30 pm starting in May. Mr. Cornaby adjusted his tour of duty as
directed, but found that the press of business and workload requirements
required him to invariably stay to 4:00 pm, a half-hour beyond his 3:30 pm
quitting time. His experience reinforced RD Bobotek's conclusion that 7:00 am
was the earliest start time that could regularly ensure supervisory coverage and
thus, ensure the fulfillment of the essential responsibilities and duties of
employees' positions.
By May 6 memorandum (Union Appeal at I), Mr. Arnold requested to negotiate the
change. Two days later, PPT/SE union and management representatives discussed
the issue during the Union Management Council meeting (Union Appeal at K).
During the May 8 meeting PPT/SE Management indicated its flexibility to
negotiate appropriate arrangements for employees adversely affected by the
change.
The Union Management Council met again on May 15 th RD Bobotek and ARD Atkins
stated that there could be a variety of schedules between the 7:00 am start time
and the 5:00 pm end time. Their union counterparts were opposed and there was no
consensus. Since consensus was not reached, the Council members agreed that the
first traditional negotiating session would be May 27th.
About an hour before the May 27th negotiating session, the Union proposed that
ground rules be negotiated (Union Appeal at L). Management rejected ground rules
as unnecessary for single issue mid-term negotiations, and viewed the union's
proposal as a stall tactic designed to delay the target June 1 implementation
date.
Management offered a counterproposal by May 27 memorandum (Union Appeal at M) on
other aspects of the work schedule to help mitigate the adverse impact of the
change on unit employees. Mr. Arnold rejected Management's counterproposals as
insufficient on June 2 (Union Appeal at N), but later wrote in an undated memo
(Union Appeal at 0) that some aspects were acceptable if Management would make
the earliest start time 6:45 am instead of 7:00 am. Again by undated memo
presumably written on June 12th (Union Appeal at P), Mr. Arnold offered another
package deal. ARD Atkins responded in writing on June 13th and addressed some
but not all aspects of the package deal (Union Appeal at Q).
By June 25 , it was apparent to RD Bobotek that despite 4 negotiating sessions
on May 27th, June 2nd , June 12th and June 13th, the parties were unable to
reach agreement on implementing procedures and appropriate arrangements for unit
employees adversely affected by her decision. She notified Mr. Arnold and NFFE
negotiator Bill Beardall that "Local 1998's insistence that the Seattle Passport
Agency's earliest start time remain unchanged interferes with Management's
reserved right to determine its internal security practices, and numbers, types
and grades of employees or positions assigned to any tour of duty." Further, she
informed NFFE that the changed start time would be implemented on July 2 8th, to
afford affected employees "adequate advance notice while bringing the Seattle
Passport Office into compliance with internal security practices" (Union Appeal
at R).
RD Bobotek followed up her June 25th memo on June 30th reiterating the earliest
start and latest stop times, and describing the variations of the flexitour
8-hour day and the CWS 9-hour day (Union Appeal at S). By memo also dated June
30th , Mr. Arnold sought clarification from RD Bobotek as to whether she had
declared nonnegotiable their proposals (maintain the status quo, implement a
6:45 am start time, or a 7:00 am start time package deal), or rather, if the
parties were at impasse over the merits (Union Appeal at T). RD Bobotek again
declared the Union's proposals nonnegotiable by memo dated July 10, 2003 (Union
Appeal at V).
Colin P. Walle, Secretary-Treasurer of NFFE Local 1998 and an employee at the
Seattle Passport Regional Office filed a grievance between the parties under the
provisions of Article 20, Section 8 of the union contract (Tab 4) on July 25th .
Mr. Walle raised 5 allegations concerning the
change of the earliest start time. The grievance is included in the Record of
Post-Petition Conference. The grievance was denied by CA/PPT on August 25,
2003(Tab 6). NFFE Local 1998 invoked arbitration by letter dated September 23,
2003 (Tab 7).
As stated by RD Bobotek, the 7:00 am earliest start time was implemented on July
28th.
Argument
Management contends that PPT/SE and its local union representatives have no
authority to establish a flexitour or CWS, through consensus or traditional
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.))
Moreover, PPT/SE found itself in violation of its Seattle Regional Union
Management Council Agreement Regarding Flexible and Compressed Work Schedules by
virtue of not being in compliance with the existing CWS Guidelines established
in 1997. The CWS guidelines were established by the parties at the level of
recognition and accepted by NFFE Local 1998 at the time of their issuance. CA/PPT
did not agree, and would not have agreed, to any CWS program that did not ensure
fulfillment of the essential duties and responsibilities of employees' positions
through supervisory coverage.
PPT/SE management and union representatives are obligated by the terms of their
own Union Management Council Agreement Regarding Flexible and Compressed Work
Schedules to bring their flexitour and CWS program back into compliance with the
existing CWS Guidelines established at the level of recognition between the
parties to the labor-management relationship. Their authority to engage in a
labor-management relationship at the local level is drawn solely from the
nationwide agreements reached between CA/PPT and NFFE Local 1998. In short, PPT/SE
has no authority to negotiate any personnel policy, practice, or general
condition of employment that is contrary to or inconsistent with, the existing
CWS Guidelines established by CA/PPT and accepted by NFFE Local 1998. Further,
NFFE Local 1998's proposals all would impinge upon management's inviolate rights
concerning direction of non-unit supervisory personnel and would require
management to direct those non-unit supervisory personnel to adjust their work
hours in violation of their statutory rights under the Work Schedules Act.
Significantly, as all PPT/SE personnel including supervisors and unit members
are bound by the established 8:00 AM to 3:30 pm core hours no employee could
start an eight-hour day (with the 45 minute lunch break) before 6:45 and remain
in compliance with the established core hours. It is clear that PPT/SE has no
obligation to negotiate with its local union over the decision to bring PPT/SE
back into compliance with the CWS Guidelines by moving the earliest start time
back one-half hour for 2 employees and 15 minutes for those employees who
started work at 6:45 am.
Proposal 1
Alternatively, even if PPT/SE were obliged to negotiate this decision with its
local union representatives, the union's proposal 1 is nonnegotiable.
Proposal 1 simply reads "maintain the status quo" (i.e., the 6:30 am start time
for 2 unit employees grandfathered at that time and 6:45 am for the remaining
unit employees). As stated above, this proposal violates the existing CWS
guidelines. By asking PPT/SE to maintain the status quo
this proposal would require PPT/SE to violate the requirement that at least one
senior manager be present when employees are performing their duties. At PPT/SE
the supervisors provide a pivotal function in ensuring that the duties and
requirements of the employees positions will be
fulfilled. Without supervisory presence not only will the secure facility not be
opened to allow the employees to work, but the materials required to do much of
the work will not be available and the resource of supervision to
resolve issues in a timely manner is not available. While it is recognized that Congress intended that alternative work schedules to be negotiable, when those negotiations seek to go beyond the strictures of the Work Schedules Act, and seek to negotiate schedules that preclude employees from meeting the requirements of that very Act, then those schedules are nonnegotiable. This principle was upheld by the Authority in Air Force Accounting and Finance Center Denver and AFGE Local 2040, 7-CA-90220, 42 FLRA 1196 (1991).
We conclude, therefore, in agreement with the Judge, that management had the right under Section 6122(a) to require sime adjustment in employee arrival and departure times to ensure office coverage during the hours the office was open. Consequently, we also agree with the Judge that because management was privileged by section 6122(a) to require the adjustment of arrival and departure times, the Agency had no duty to bargain on the substance of that requirement. Id. at 1205.
Once the negotiability protections of the Act are exceeded by seeking to negotiate matters proscribed by the Act those matters logically also become nonnegotiable because negotiation of those matters then do interfere with Management's rights reserved to it by 5 USC 7106 (a)(1) and (b)(1). It is equally significant that this proposal will require management to violate those rights with regard to non-bargaining unit supervisory personnel. 5 USC 7106(a)(1) and (b)(1) provide:
(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency -
(1) to determine the mission, budget, organization, number of employees and internal security practices of the agency; ...
(b) Nothing in this section shall preclude any agency and any labor organization from negotiating
(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project or tour of duty, ...
Internal Security Practices
Given the purpose and intrinsic value of the U.S. passport and the likely impact
on national security should U.S. passports be issued inappropriately or
fraudulently, CA/PPT management is not only obliged but compelled to ensure
proper supervisory presence and oversight when its employees are adjudicating
passport applications and working with passport books. When adjudicating,
employees are analyzing citizenship and identification documents, and
authorizing approval for the issuance or denial of a passport. Supervisory
coverage is required to provide guidance on sensitive cases involving lookouts
(lookouts are watch lists for people whose applications need additional review
before a U.S. passport can be issued) and potential fraudulent applications. CA/PPT's
mission and the public interest of passport agencies is to issue passports to
U.S. citizens and nationals, protect the integrity of the passport, and provide
services to citizens who travel abroad.
Additionally, the personal identifying information and citizenship documentation
required of a passport applicant needs to be secured and safeguarded to avoid
any possibility of identity theft. The American public has a vital national
security interest in the proper supervision of the passport application,
adjudication and issuance functions. 5 USC 7106 (a) prohibits Management from
negotiating with the exclusive representative on its internal security
practices.
Budget and Number of Employees
PPT/SE has a current authorization of positions allocated to it. This number
includes its supervisory positions. Once the Department has a budget that is
passed by Congress and signed by the President, the Department's resource
management processes allocate resources to its bureaus. The bureaus, in turn,
distribute its available resources to its subordinate offices, and so on. The
resource allocation process includes prioritization of competing workload and
budgetary considerations. It does not include creating additional CA/PPT
supervisory slots that are not justified by workload, but are only needed simply
to extend the times available that subordinate employees may desire to report to
work. The union's proposal would require CA/PPT to hire more supervisors, which
would directly impact its budget and the number of employees.
Supervisory employees are covered by the same laws concerning hours of work and
compensation as are unit employees. Full-time employees are expected to work 80
hours in a pay period. Those who work standard tours of duty and work weeks are
required to work 8 hours per day unless otherwise in an approved leave status.
One could assert that CA/PPT need not hire more supervisors, merely require them
to work overtime.
This proposal is outside of the scope of bargaining, as it affects supervisory
positions. Moreover, it would require PPT/SE to incur additional costs in
overtime pay. The intent of 5 CFR 610.121(b)(2) and (3) is to convey that if the
head of agency or his/her designee knows in advance of the workweek that hours
outside the normal tour of duty are to be required, then those hours must be
scheduled and thus must be compensated in overtime pay. The agency cannot
contend that the need was not known prior to the beginning of the administrative
workweek and then try to provide compensation in the form of compensatory time
off.
The general instructions for form JF-56 (Authorization of Premium Compensation),
which is supposed to be filled out whenever an employee works regular or
irregular overtime, mandate a supervisory certification that the "Overtime work
requested must be essential and used only when the work cannot be accomplished
with existing staff during regularly scheduled working hours" (Tab 8). Requiring
supervisors to work overtime to allow unit employees to maintain a start time
earlier than 7:00 am does not meet this mandate.
Alternatively, one could argue that placing the entire supervisory staff on a
CWS could provide the extended supervisory coverage needed to allow unit
employees to retain either a 6:30 or a 6:45 am start time. This proposition
fails as well for the same reasons. It is true that those PPT/SE supervisors who
request and are approved to work a compressed work schedule (CWS) may work 9
hours a day for 8 days of a pay period, with one 8-hour day and one day off.
However, the decision to pursue a CWS is strictly voluntary on the part of the
employee; supervisors cannot be forced or directed to work a CWS in order to
provide an additional hour of supervisory coverage.
Numbers, Types and Grades of Employees assigned to Any Organizational
Subdivision, Work Project or Tour of Duty
The PPT/SE union negotiators' proposal to maintain the status quo 6:30 am start
time also impacts on the numbers, types, and grades of employees assigned to a
tour of duty. PPT/SE management declined to negotiate with its union
counterparts on these issues.
The Federal Labor Relations Authority has held in Department of the Air Force,
Scott Air Force Base, Illinois and National Association of Government Employees
Local R7- 33 FLRA No. 73, October 28, 1988, that management may elect, but is
not obliged to negotiate with the union over a change in a tour of duty. The
Authority held that,
... [A]n employee's daily tour of duty consists of the hours that an employee works: that is, from the time when the employee starts work until he or she ends work. A decision as to what will constitute an employee's tour of duty is a decision by management as to when and where an employee's services can best be used. When an agency changes an employee's hours, that change, under applicable statutory and regulatory provisions, results in a new tour of duty for the employee. The degree of the change - whether it is a 1-hour change or an 8-hour change - does not alter the fact that the change results in a new tour of duty. A change in employees' starting and quitting times is a change in their tour of duty.
Changes in employees' tours of duty affect the "numbers, types and grades of employees ... assigned to ... [a] tour of duty" within the meaning of section 7106(b)(1) of the Statute....
Proposal 2
Proposal 2 Part 1 reads "Make 6:45 am the earliest start time available to
bargaining unit employees. The only bargaining unit employees affected by the
change in the earliest start time are those currently starting at 6:30 am." This
proposal is nonnegotiable for the same reasons as the Union's Proposal 1. For
the reasons discussed above, 7:00 am is the earliest time that PPT/SE can
reliably assure that supervisors will be present to permit the employees to
fulfill the duties and requirements of their positions. Note with regard to the
supervisory employees not in the bargaining unit, managements" rights reserved
under 5 USC 7106 are inviolate. To paraphrase the proposal seeks to violate
management's right to determine the "... budget, organization, number of
supervisors, and internal security practices of the agency." It also interferes
with the right to elect not to negotiate on the numbers, types, and grades of
supervisors or positions assigned to any organizational subdivision, work
project, or tour of duty.
Proposal 3
Proposal 3 consists of either Part 1 and Part 3, or Part 1 and Part 4. Parts 1,
3, and 4 read as follows:
1. Accept the 7:00 AM start time contingent upon agreement of the
following proposals:
3. Implementation of a Flexible Work Schedule, Maxiflex option, with credit
hours. Though we would prefer to move core hours from 8:00 am to 3:15, we can
agree to maintain the current core hours. See OPM Handbook on Alternate Work
Schedules at http://www.opm.jzov/oca/aws/index.htm.
4. Additional part-time slots.
Part 1 of Proposal 1 agrees with PPT/SE management's decision, so Part 1 is not
at issue.
Parts 3 and 4 are nonnegotiable because they have been considered by the parties
to the collective bargaining agreement (NFFE Local 1998 and CA/PPT) and either
adopted or rejected. In other words, they have been considered at the level of
recognition. It is inappropriate for a subordinate organizational level of NFFE
Local 1998 to attempt to negotiate proposals that have been raised and rejected
between the parties to the labor-management relationship.
Turning first to Part 3, alternate work schedules are addressed by the 1997 CWS
guidelines, the union contract, and by Department regulation. The CWS Guidelines
and Article 26 of the contract -- Flexitour and Other Alternate Work Schedules
-- provides the full range of Alternate Work Schedules and constraints thereon
agreed to by the Parties. A Flexible Work Schedule, Maxiflex option, with credit
hours, was not one of the options the negotiating parties agreed to.
Moreover, the chapter on alternate work schedules contained in the Foreign
Affairs Handbook at 3 FAH-1, H2330 reserved to the Department Bureau Executive
Directors the discretion to implement an alternate work schedule with credit
hours within their bureaus (Tab 9). Frank E. Moss, then the Bureau of Consular
Affairs' Executive Director elected not to make an alternate work schedule with
credit hours available to CA employees. Consular Affairs employees were notified
of that decision by e-mail dated June 10, 2002 (Tab 10). NFFE Local 1998 did not
protest that election at that time.
NFFE Local 1998 did pursue credit hours following CA/PPT's decision to eliminate
flexi-place. Alex Allen, President, NFFE Local 1998 requested via January 3,
2003 email to CA/PPT/FO/FC and the undersigned,
to negotiate the impact of canceling Flexi-Place on bargaining unit employees. Although FlexiPlace had not been instituted in each agency, many other Union Representatives were attempting to work with management to institute the program. Therefore, we feel that Bargaining Unit Members in all agencies were affected. We would like to negotiate several provisions of Article 26. Under paragraph 4b we would like greater and better defined opportunities for employees to take advantage of compressed work schedule. This included but not limited to making the Four Day Workweeks and the 5/4-9 Plan available and at all agencies. Under paragraph 4e we would like greater and better defined opportunities for Part Time and Job Sharing. We would like to add provisions for Flexi-Time and Credit Hours into Article 26. We feel these provisions will serve to lessen the impact of discontinuing FlexiPlace. Local 1998 would like to work out the "greater and better defined opportunities" during negotiations (emphasis added).
A copy of this e-mail is attached at Tab 11.
Management responded to Mr. Allen's proposal on January 14, 2003, again via e-mail. In relevant part, the undersigned stated
The specific proposals you have requested to negotiate relate to several provisions of Article 26 and include "greater and better defined opportunities to take advantage of CWS" and greater and better defined opportunities for part-time and job sharing." In our view, these proposals to not constitute appropriate arrangements for employees adversely affected by the discontinuance of flexiplace. In order to constitute an appropriate arrangement, the proposal must seek to mitigate the adverse effects of the discontinuance of flexiplace and must be narrowly tailored to benefit only those employees who are or will be suffering from those adverse effects. Since your proposals do not meet these requirements we consider them to be non-negotiable.
That said, I encourage employees and local Union/Management Councils to avail themselves of existing contract provisions that address CWS and part-time employment if they are interested in pursuing those alternatives.
You also requested to negotiate provisions for flexi-time and credit hours. Please be advised that in accordance with the FAM, the Bureau of Consular Affairs made the decision that the bureau would not be participating in the credit hours program. As for flexi-time, I consider that to be similar to CWS. While I do not believe it constitutes an appropriate arrangement for employees adversely affect by the discontinuance of flexiplace, I would suggest that employees and local Union/Management Councils address this issue.
In summary, as I understand your proposals, I view them as not constituting appropriate arrangements related to the termination of flexiplace. Should you have questions or concerns, please do not hesitate to contact me via unclassified e-mail or by telephone at extension 7-4285 (emphasis added).
A copy of Management's e-mail response is included at Tab 12. Mr. Allen did
not take any further action after receiving this response.
Part 4 (additional part-time slots) is addressed in the current union contract.
Article 26, paragraph 4e is entitled "'Part-Time and Job Sharing." It reads,
Part time work and Job Sharing are part of the State Department Alternate Work Schedules. The Parties recognize that due to funding and resource limitations, the availability of these alternate work plans is limited. The Employer agrees to notify the Union if and when resources will allow more employees to participate in these plans. (Union Appeal at C)
It is inappropriate for PPT/SE union negotiators to attempt to modify through local mid-term negotiations a provision of the existing nationwide union contract. PPT/SE management properly concluded that this proposal was nonnegotiable. PPT/SE management had no authority to negotiate in this area and that lack of authority was recognized at the nationwide union contract level.
Conclusion
The Union's Proposal 1, 2, and 3 are nonnegotiable because they violate section
6122(a) of the Work Schedules Act (5 U.S.C. § 6122(a)). The proposals seek to
infringe upon management's inviolate statutory rights concerning unit employees
and non-unit supervisory employees. The proposals also seek to violate the
existing CA/PPT - NFFE Local 1998 contract. We respectfully request that the
union's negotiability appeal be denied.
Respectfully Submitted:
Susan E. Moorse
Agency Representative
U.S. Department of State
Attachments:
Tab 1 - Article 4, Union/Management Cooperation Agreement
Tab 2 - Article 5, Management Rights
Tab 3 - Article 6, Employee Rights and Obligations
Tab 4 - Article 20, Grievance Procedure
Tab 5 - Article 25, Standard Workweek and Hours of Work
Tab 6 - Grievance Decision
Tab 7 - Arbitration Request
Tab 8 - JF-56, Authorization of Premium Compensation
Tab 9 - 3 FAH-1, H-2330
Tab 10 - 6-10-02 Frank Moss E-Mail
Tab 11 - l-3-03 Alex Allen E-Mail
Tab 12 - 1-14-03 Susan Moorse E-Mail