Federal Labor Relations Authority

99 Summer St., Suite 1500

Boston, MA  02110-1200

Attn: David Mithen

June 18, 2004

Re: Case No. BN-CA-04-0383

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

Union’s Statement

In our Unfair Labor Practice (ULP) charge filed on May 20, 2004, we provided this description of events:

January 12, 2004: Management at the Philadelphia Passport Agency, acting on orders from the Department of State’s Passport Services Headquarter [sic] in Washington, DC, changed the pre-existing arrival times of fifteen current bargaining unit employees without providing advanced formal notice of the change to the Union and without providing the opportunity to bargain as appropriate over either the substance of the change or impact and implementation procedures.  Ten [sic] of the employees affected were on the Compressed Work Schedule.   Management stated that they had no choice in this decision, that they had to follow the dictates from Headquarters regarding supervisory coverage, were powerless to order any supervisor’s [sic] to change their arrival times in order to come into compliance with the alleged requirements, and none of the supervisors volunteered to change their arrival times.  The Union representatives were given an informal “heads up” of the change – in the context of a mandate and not as a proposal – ordered not to discuss it with any other employees, but never formally notified. 

This statement is intended to elaborate on this description and to comply with the May 21, 2004 letter from the FLRA and the subsequent telephone call discussion with FLRA Attorney <FLRA OFFICIAL>. 

Background

Relevant authorities require formal written notice in advance of a proposed change in working conditions.  The two Union representatives at the Philadelphia Passport Agency – EMPLOYEE A and EMPLOYEE B – never received a formal written notice.  Instead, during a private meeting in December 2003 the Regional Director, MANAGER A, told them that the schedules were going to be changed, and that the her superiors in Headquarters were requiring this change.  This was not a proposal by Management: it was a fiat.  The Union representatives were further instructed by the Regional Director not to discuss this with any other employees.  

I was not aware of this change in the Philadelphia work schedules mandated by Headquarters until January 13, 2004 – the day after it took effect – when three bargaining unit employees, and one non-bargaining unit staff member, contacted me to express their displeasure with the effects of the change and to ask the Union to take action. 

Here is a chart showing the pre- and post-January 12^th schedules of the employees who were affected:

The Collective Bargaining Agreement provides two mechanisms for changing work schedules – via either the Union-Management Council (a “Partnership”-style forum) or traditional bargaining.  Since no Union-Management-Council (UMC) is active in Philadelphia, then traditional bargaining should have taken place but did not. 

On January 15, 2004 and January 20, 2004, I attempted to avoid filing a ULP by suggesting that Management return to the original schedules and concurrently provide the Union with official, formal notice of the proposed change.  I added that the Union’s initial proposal was “keep the schedules as they were in existence prior to January 12, 2004”.  Headquarters Management official MANAGER B emailed on January 27, 2004 that she believed “that the union was given adequate notice” and Management refused to bargain over the change. 

Argument

We dispute Management’s contention that adequate notice was given to the Union and believe that the manner in which this was presented – informing Union Representatives that a change will take place, telling them that the decision was forced on local Management by Headquarters, and further requiring the Union Representatives to keep quiet on the change – does not constitute formal notice of a proposal.  The past practice in labor-management bargaining in Passport Services, and the traditional method throughout the federal labor sector, is for a notice of a proposed change in working conditions to be presented in writing and not informally provided in secret.  Prohibiting the Union Representatives from telling the employees of a change in working conditions that directly affects the employees and which both Management and the Union correctly predicted would be met with opposition is not how a formal bargaining notice is presented.  This potentially puts the Union Representatives in danger of choosing between either being insubordinate if they do talk to the employees or violating the Duty of Fair Representation (DFR) mandate if they do not talk to the employees – see 59 FLRA No. 40, in which a Union committed a DFR violation by not polling all bargaining unit employees regarding a proposed watch schedule. 

During the informal, secret meeting, the two Union Representatives informed the Regional Director that employees were going to be unhappy with the change, but they were told that, regrettably, nothing could be done about it.  The employees were told in a later meeting that the schedules were going to be changed, and they voiced objections to Management on this, but were told that Headquarters was requiring the change and – again – nothing could be done about it. 

Headquarters Management officials were closely involved in a similar schedule change at the Seattle Passport Agency in July 2003, done for the same reasons, and in that instance a formal written proposed change in work schedules was provided to the Union on April 22, 2003, and bargaining did take place.  Management then subsequently declared the Union’s proposals in Seattle “nonnegotiable”, and a Negotiability Appeal is still pending.  Management also unilaterally eliminated CWS schedules and changed arrival times of Seattle employees, and the Union filed a grievance that was submitted to Arbitration (written arguments have already been submitted and now a hearing will be held, perhaps in August 2004).  The Union planned on calling Philadelphia employees as witnesses to counter Management’s argument that the Seattle change in work schedules was a local issue only, and Management denied the use of official time and videoconference equipment to interview potential witnesses from Philadelphia and other offices, so the Union filed a grievance – still pending – in response to that violation. 

The fact that nine of the fifteen Philadelphia employees were on the CWS is significant because when Congress passed the Federal Employees Flexible and Compressed Work Schedule Act of 1982 it intended CWS to be fully and substantively negotiable (note: our ULP incorrectly stated “ten” instead of “nine” employees).  According to the Office of Personnel Management (OPM) guidance, titled “Negotiating Flexible and Compressed Work Schedules”, “A congressional report on the bill that became the 1982 Act (S. 2240) indicates the use of these schedules is to be fully negotiable, subject only to the provisions of the 1982 Act”.  The OPM guidance continues:

The courts have also ruled that flexible and compressed work schedules are fully negotiable. In Bureau of Land Management v. Federal Labor Relations Authority, 864 F.2d 89 (9^th Cir. 1988), (Bureau of Land Management), the court held that “[i]n order for employees to have the flexibility and choice envisioned by the [Flexible and Compressed Work Schedules] statute, both the overall contours of the employees’ choices and the manner in which an individual’s choice is exercised within those contours, must be subjects included within the terms of the collective bargaining agreement and hence negotiable.

This view is supported by 38 FLRA No. 91, in which the Authority found that, “Alternate work schedules for bargaining unit employees are fully negotiable within the limits set by the Work Schedules Act” . . . . and that , “[a]ccordingly, matters which pertain to the institution, implementation, administration and termination of alternate work schedules are negotiable.” 

The OPM guidance further distinguishes Management’s authority to make adjustments in CWS schedules from the authority to make adjustments in non-CWS schedules:

However, once a schedule is established, an agency head’s right to adjust employees’ starting and quitting times, exclude them from participating, etc., exists only to the extent it is provided for in the F&CWS law or the collective bargaining agreement. . . .  Section 6122(b) is intended to give management the authority and flexibility necessary to alter employees’ scheduling arrangements, within the confines of certain employee protections, when those arrangements interfere with the effective accomplishment of government business. . . .   The provisions of section 6122(b) do not apply to employees under a compressed work schedule.

Within the organization context of Passport Services, the “agency head” is the Deputy Assistant Secretary of State MANAGER C – not Philadelphia Passport Agency Regional Director MANAGER A.  The right to adjust “starting and quitting times … exists only to the extent it is provided for in the F&CWS law or the collective bargaining agreement ….”, so it is worth noting here that our Collective Bargaining Agreement states that “[e]ach location will maintain the status quo” unless and until changes are accomplished through either the UMC or traditional bargaining. 

In 59 FLRA No. 56, issued on October 9, 2003, the FLRA upheld a ULP charge filed by a Union over Management’s termination of a CWS without bargaining over the substance of the change.  In that case, written notice was provided to the Union but no bargaining took place and Management unilaterally terminated a CWS.  The FLRA agreed with an Administrative Law Judge’s finding that a ULP occurred, after the Judge reviewed the Parties’ Collective Bargaining Agreement and the timetables and requirements for Management’s proposals to change working conditions and the timetable and requirements for the Union’s requests to negotiate over those proposals.  The Administrative Law Judge stated that:

The issue of timeliness arises out of the language of paragraph 9B(3)(b) of the national collective bargaining agreement between the U.S. Immigration and Naturalization Service and the National Immigration and Naturalization Service Council (Jt. Ex. 1 at 21). [n2]  That language establishes a time limit of ten working days after receipt of notice of a proposed change in working conditions at the local level for the Union to submit a written demand to bargain and a request for information. Provisions of this sort are in keeping with the recognition by the Authority of the validity of contractual time limits on the exercise of rights conferred by the Statute. See Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532, 1536 (1996).

The Administrative Law Judge in 59 FLRA No. 56 found that Management did meet the contractual requirement by providing written notice by letter to the Union on February 28, 2002 and the Union responded with a written request for negotiations, as required by the contract, on March 8, 2002.  The issue of whether a ULP was committed turned on the question of whether or not the Union had met the contractual requirement for responding to written proposals, and because the Judge found that the Union had met the requirement and Management had nevertheless failed to bargain, then a ULP charge was justified.  The FLRA ruled in that case that Management’s unilaterally instituting a change in work schedules without abiding by the contractual requirements for how that change was to be instituted was an Unfair Labor Practice and the Status Quo Ante was ordered as the remedy.  In our case, the question turns on whether Management has met its obligations for providing formal written notice of a proposed change, and we believe that the evidence demonstrates that Management has not. 

Conclusion

In our case, Management did not provide advance written notice to the Union and the opportunity to negotiate over the change in working conditions that Management unilaterally initiated.  Management failed to provide advance written notice and refused to bargain over the change in working conditions, thereby committing an Unfair Labor Practice. 

Thank you for your consideration.

Sincerely,

Colin Patrick Walle

Interim Union President

IAMAW FD1 NFFE Local 1998