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