Petition for Review of Negotiability Issues Proposals

 

Submitted July 23, 2003

  

Part I: Background Information

 

1.          Name and address of Petitioning Union:

 

IAMAW NFFE FD1 FL 1998

PO Box 2221

Seattle, WA  98111

 

2.     Union Representative Contact Information:

 

Name: Colin Patrick Walle

Title: Secretary-Treasurer

 

Address (if different from Question 1): same

 

Phone: (206) 808-5764                        

Fax: (206) 808-5718

 

3.     Name and address of Agency:

 

Passport Services

Department of State

2201 C Street NW, Room 6811

Washington, DC  20520

 

4.     Agency Representative Contact Information:

 

Name: Susan Moorse

Title: Chief Labor-Management Negotiator

 

Address (if different form Question 3):

2201 C Street NW, Room 6217

Washington, DC  20520

 

Phone: (202) 647-4285

Fax: (202) 647-9388

 

5.     How many proposals are in dispute?

 

There are three proposals currently on the table that are in dispute, though they can be considered one proposal with three alternatives. 

 

6.     Did you receive a written allegation of nonnegotiability from the Agency claiming that each proposal was not negotiable?

     

[X] Yes      [  ] No

 

Note: we are not completely sure that the answer is “yes”.  In response to the Union’s request, the Agency did submit a written allegation of nonnegotiability, however it is not clear if the Agency is declaring that the Union’s three proposals are nonnegotiable or whether the Agency is declaring that the entire subject is nonnegotiable. 

 

6a.     If Yes, what was the date of the allegation?

 

July 10, 2003

 

A copy of the Agency’s allegation is attached as Attachment U. 

 

6b.     If No, did you request such a written statement from the Agency? If you have, attach a copy of the request.

 

Not applicable.

 

7.     Are there or were there any related Court, FLRA, Federal Service Impasses Panel (FSIP) or other proceedings concerning the same contract language?

   

[  ] Yes      [X] No

 

Note: the proposals that have been declared non-negotiable by the Agency are mid-term bargaining proposals over work schedules.  These proposals were made by the Union in response to Management’s May 27, 2003 proposal to change the earliest start time from 6:30 to 7:00 – see Attachment M.  To date, we have not filed any other actions over this matter.      

 

7a.     If Yes, which of the following proceedings?

i.     An unfair labor practice charge

[  ] Yes      [  ] No

If Yes, explain in detail how the unfair labor practice charge is related to

  this negotiability proceeding and provide the following:

  What date was it filed?

  What is the status of the case?

  What is the case number?

ii.     A proceeding before the FSIP

[  ] Yes      [  ] No

If Yes, explain in detail how the proceeding before FSIP is related to this

  negotiability proceeding and provide the following:

  What date was it filed?

  What is the status of the case?

  What is the case number?

iii.     A related petition for review of negotiability issues

[  ] Yes      [  ] No

If Yes, explain in detail how the petition for review of negotiability issues

  is related to this negotiability proceeding and provide the following:

  What date was it filed?

  What is the status of the case?

  What is the case number? 

iv.     A related grievance

[  ] Yes      [  ] No

If Yes, explain in detail how the grievance is related to this negotiability

  proceeding and provide the following:

  What date was it filed?

  What is the case number?

  What is the status of the case?

 

Part II: Alternative Dispute Resolution (ADR)

 

The Authority offers ADR services to help parties resolve their negotiability disputes through its Collaborative and Alternative Dispute Resolution Office and Program (CADR). The CADR program provides an alternative to traditional case processing and is available on a voluntary basis. If you are interested in CADR assistance or information regarding any of its services, you may contact the CADR office at (202) 482-6503.

 

8.     Are you interested in attempting to resolve this matter with the assistance of CADR?

   

[X] Yes      [  ] No

 

Part III: The Proposals

 

9.         Set out the exact language of all of the proposals sought to be negotiated.

For each proposal answer questions 10 through 14. Provide separate answers for each proposal.

10.       Set out the exact wording of the proposal sought to be negotiated.

11.       Explain the meaning of the proposal including: any special terms or phrases, technical language, or other words that are not in common usage.

12.            Describe how the proposal is intended to work and what impact it will have. Where the proposal concerns a particular work situation, or other particular circumstances, describe the situation or circumstances that will enable the Authority to understand how each proposal is intended to apply.

13.       If the Agency has explained the basis of any allegation that the proposal is not negotiable, you may choose to attach a statement describing your legal arguments concerning the negotiability of these proposals. You may also wait and provide your arguments in response to the Agency's statement of position. If you choose to provide your legal arguments with this petition, you may explain, but not change, those arguments in later filings. For all statements, cite any law, rule, regulation, section of a collective bargaining agreement, or other authority relied on in your argument or referenced in the proposal. Attach to this petition a copy of all such material, except you do not have to provide a copy of federal statutes, government-wide regulations, or judicial and administrative decisions. If your statement is more than 25 pages long, you must include a table of contents and table of authorities.

Are copies of materials attached?

[  ] Yes      [  ] No

If Yes, list the materials attached:

14.       Do you wish to "sever" any part of the proposal? Severing a proposal into separate parts makes each part the subject of a separate negotiability determination. Severance requires that each part has independent meaning, and should be sought only where you have an interest in determining whether any of the separate parts is within the duty to bargain or is contrary to law even if the other part is not.

[  ] Yes      [  ] No

14a.     If Yes, specify which proposals you wish severed, how they are to be severed, and the independent meaning of the severed part.

 


 

Part III: The Proposals, continued (Proposal 1 of 3)

 

PROPOSAL #1

 

10.            (Proposal 1)

 

Union’s original proposal – we responded to the Agency’s May 27th proposal with the following proposal on June 2, 2003:

Maintain the status quo. 

 

11.            (Proposal 1)

 

The Union’s response to Management initial proposal was to “maintain the status quo” and keep in place the schedules agreed to by the Seattle Union/Management Council on September 5, 2001.  This includes the 6:30 AM start time for two employees, the 6:45 AM start time for eight employees, a 6:50 AM start time for one employee, and a 6:55 AM start time for another employee.  See Attachment D – the September 5, 2001 Seattle Alternate Work Schedule Agreement – to view the entire contents.  Upon information and belief, there is no Agency-wide requirement to have start times begin at 7:00 AM so that supervisors will have time to arrive.  We have filed an information request to determine the consistency of the Agency’s position on schedules in the various offices that cover our bargaining unit, but we have not yet received the information requested. 

 

12.            (Proposal 1)

 

This proposal was simply intended to keep in place the current schedules.  The Union did not feel that this proposal would have any impact since we did not feel that there was any ongoing violation of the Agency’s internal security practices.  However, if Management felt that it should have a supervisor in the agency when the employees started, then the Union felt that Management was able to meet this commitment without altering any employees’ schedules.  For example, there were two managers that started at or earlier than 6:30 AM and then one of them changed his schedule, so to ensure a manager was here on those occasions when the other manager was absent, the Agency could have another manager take the scheduling place of the manager who formerly started at 6:30.

 

13.            (Proposal 1)

 

The Agency has not really explained why this proposal is non-negotiable, though “a written statement of the rationale for a claim of nonnegotiability” is required by our contract (Article 12, Section 8) – see Attachment B.  Management has submitted a statement – see Attachment R and Attachment U – but we don’t feel that it is adequate, particularly since that statement makes the erroneous claim that the Union has refused to bargain over a 7:00 AM start time (see part 1 of Proposal 3).  We would like to wait and provide our arguments in response to the Agency’s statement of position.

 

14.            (Proposal 1)

 

No, this proposal can’t be severed. 


 

Part III: The Proposals, continued (Proposal 2 of 3)

 

PROPOSAL #2

 

 10.            (Proposal 2)

 

Union’s 6:45 start time proposal – submitted to the Agency on June 12, 2003:

1.      Make 6:45 AM the earliest start time available to bargaining unit employees.  The only bargaining unit employees affected by the change in start times are those currently starting at 6:30 AM.

2.      Accept the proposal on lunch schedules as outlined in your May 27th memo.

3.      Flexibility on the start time for CWS employees on the 8-hour day.  Must fall within the core hours of 8:00 AM to 3:30 PM.  For example, a CWS employee starting at 6:45 could work from 6:45 to 3:30 (45 min lunch) or 7:00 to 3:30 (30 min lunch).

4.      Employees whose start times will be altered by this agreement will be given the option of shortening lunches or moving break times so that they can leave at the same time they currently leave.

5.      Option for employees to start and end on 5 minute intervals rather than ¼ hour intervals.

6.      More flexibility in the administration of annual leave.

7.      Affirmation of Article 26, Section 3a(4):  “Supervisors continue to be held responsible for the time, attendance, and productivity of employees under their supervision. Employees participating in the programs are expected to maintain the productivity standards they achieved during regular hours of operation

 

11.            (Proposal 2)

 

For part 2 of Proposal 2, see Attachment M for the lunch proposal made by Management.  For Part 3 of Proposal 2 refers to the current practice in the office that has Compressed Work Schedule (CWS) employees start their 8-hour day at 7:15 or 7:30, leaving no earlier than 4:00. In part 7 of Proposal 2, the use of the word “time” has a special meaning in our 7-3-2001 Collective Bargaining Agreement.  This word replaced the word “punctuality” that was used in our 9-23-1991 Agreement, per a Management proposal.  The intent of the proposal, as explained in an anecdote told by the Manager making the proposal, was that she did not want her supervisors to stand by the door watching the clock to see if employees were a couple of minutes late – instead, the principle in place of that policy was that employees would be treated as adults, expected to “give an honest day’s work for an honest day’s labor”, without quibbling over a couple of minutes here and there. 

 

12.            (Proposal 2)

 

The impact of part 1 of Proposal 2 is that only two employees would have to change their start times (from 6:30 AM to 6:45 AM) since there is a supervisor who now starts at 6:45 AM and a manager who already started at 6:15 AM – the 6:45 AM supervisor would have the same role as that held by the manager who previously started at or before 6:30 AM but moved his start time to 8:30 AM earlier this year, prompting the current proposal by Management.  The impact of part 2 is that there would be more lunch options available to employees.  The impact of part 3 is that there would be additional employees leaving before 4:00 PM rather the current limitation on only four employees (the core hours are 8:00 AM – 3:30 PM, so they would not be affected).  The impact of part 4 applies to the two employees referenced above in part 1: those two employees would be able to shorten their lunch from 45 minutes to 30 minutes (the minimum allowed) so that their schedules would switch from 6:30 – 4:15 to 6:45 – 4:15.  Part 5 of Proposal 2 would not allow employees to start any earlier than 6:45 AM, but would allow employees to have a regular, fixed schedule that began at, for example, 7:10 AM instead of 7:15 AM, or that ended at 4:10 PM instead of 4:15 PM – the impact of this proposal would allow more flexibility with transportation options to and from work, but the schedule selected would be fixed.  The reason that part 6 was proposed was that the administration of annual leave is affected by work schedules, particularly CWS non-work days, and there have been a large number of complaints in the office about how the leave is administered (e.g., an employee requesting one week of leave six months in advance is told that he/she may have the whole week off, except for Wednesday, in the middle of the week of the planned trip).  The impact of part 7 is explained in # 11 above. 

 

13.            (Proposal 2)

 

The Agency has not really explained why this proposal is non-negotiable, though “a written statement of the rationale for a claim of nonnegotiability” is required by our contract (Article 12, Section 8) – see Attachment B.  Management has submitted a statement – see Attachment R and Attachment U – but we don’t feel that it is adequate, particularly since that statement makes the erroneous claim that the Union has refused to bargain over a 7:00 AM start time (see part 1 of Proposal 3).  We would like to wait and provide our arguments in response to the Agency’s statement of position.

 

14.            (Proposal 2)

 

Yes, we would like to sever this proposal.  We would like to have separate determinations for each of the seven parts of this proposal.


 

Part III: The Proposals, continued (Proposal 3 of 3)

 
PROPOSAL #3

 

 10.            (Proposal 3)

 

Union’s 7:00 start time proposal – submitted to the Agency on June 12, 2003:

1.      Accept the 7:00 AM start time contingent upon agreement of the following proposals.

2.      Accept the proposal on lunch schedules as outlined in your May 27th memo. 

3.      Implementation of a Flexible Work Schedule, Maxiflex Option, with Credit Hours.  Though we would prefer to move core hours from 8:00 to 3:15, we can agree to maintain the current core hours.  See OPM Handbook on Alternate Work Schedules at http://www.opm.gov/oca/aws/index.htm.

4.      Additional part-time slots.

5.      More flexibility in the administration of annual leave.

6.      Affirmation of Article 26, Section 3a(4):  “Supervisors continue to be held responsible for the time, attendance, and productivity of employees under their supervision. Employees participating in the programs are expected to maintain the productivity standards they achieved during regular hours of operation.”

 

11.            (Proposal 3)

 

For part 2 of Proposal 3, see Attachment M for the lunch proposal made by ManagementIn part 6 of Proposal 3, the use of the word “time” has a special meaning in our 7-3-2001 Collective Bargaining Agreement.  This word replaced the word “punctuality” that was used in our 9-23-1991 Agreement, per a Management proposal.  The intent of the proposal, as explained in an anecdote told by the Manager making the proposal, was that she did not want her supervisors to stand by the door watching the clock to see if employees were a couple of minutes late – instead, the principle in place of that policy was that employees would be treated as adults, expected to “give an honest day’s work for an honest day’s labor”, without quibbling over a couple of minutes here and there. 

 

12.            (Proposal 3)

 

The impact of part 1 of Proposal 3 is that 12 employees and two non-bargaining unit staff members would have to change their start times from 6:30 AM to 7:00 AM.  The impact of part 2 is that there would be more lunch options available to employees.  The impact of part 3 and part 4 would be that the Parties would spend some additional time negotiating particular arrangements determining the procedure for part time availability and the details of a Flexible Work Schedule, Maxiflex Option, with Credit Hours, including availability and restrictions on the use of credit hours.  Not all employees would have these scheduling options available, and they would not have an adverse impact on the accomplishment of the mission.  The reason that part 5 was proposed was that the administration of annual leave is affected by work schedules, particularly CWS non-work days, and there have been a large number of complaints in the office about how the leave is administered (e.g., an employee requesting one week of leave six months in advance is told that he/she may have the whole week off, except for Wednesday, in the middle of the week of the planned trip).  The impact of part 6 is explained in # 11 above. 

 

13.            (Proposal 3)

 

The Agency has not really explained why this proposal is non-negotiable, though “a written statement of the rationale for a claim of nonnegotiability” is required by our contract (Article 12, Section 8) – see Attachment B.  Management has submitted a statement – see Attachment R and Attachment U – but we don’t feel that it is adequate, particularly since that statement makes the erroneous claim that the Union has refused to bargain over a 7:00 AM start time (see part 1 of Proposal 3).  We would like to wait and provide our arguments in response to the Agency’s statement of position.

 

14.            (Proposal 3)

 

Yes, we would like to sever this proposal.  We would like to have separate determinations for each of the six parts of this proposal. 
 

Part IV: Hearing

 

15.     Do you believe that a hearing or other fact finding procedure is necessary to resolve any issues presented in this case?

   

[X] Yes      [  ] No

 

15a.     If Yes, explain what those issue are and why they require a hearing.

 

First of all, it is our understanding that the Agency is going to be implementing this change in start times on July 28th even while their right to do so is being disputed by the Union.  So, we’d need to clarify that issue to determine if they may take this action. 

 

We also like to have the Agency take another look at our proposals because we frankly don’t believe that they truly believe that all of our proposals are nonnegotiable.  We believe they might think some of our proposals are nonnegotiable, but not all of them, so we’d like to get their opinion cleared up or at least better understood by us so that we can proceed accordingly. 

 


 

List of Attachments

 

Attachment A               7/17/97 Recommended CWS Guidelines from Florence Fultz

Attachment B               7/3/01 Article 12 of the Bargaining Agreement

Attachment C               7/3/01 Article 26 of the Bargaining Agreement

Attachment D               9/5/01 Seattle Regional Union Management Council Agreement Regarding Flexitour and Compressed Work Schedules

Attachment E                12/12/02 Union Management Meeting Notes;  Issues of Work Schedules/Tardiness discussed

Attachment F                1/16/03 Union Management Meeting Notes; Work Schedules mentioned

Attachment G               4/17/03 Ann Barrett’s Memo referencing 1997 Memo

Attachment H               4/22/03 RD Teresa Bobotek’s Notice of Intent to Change Work Schedules

Attachment I                 5/6/03 Union Request to Negotiate; requests status quo

Attachment J                5/7/03 Memo from Ann Barrett to Regional Directors re: GS-12 supervisors have permission to open/close agency

Attachment K               5/8/03 UMC Meeting Notes; changes to work schedules discussed

Attachment L                5/27/03 Union’s Proposed Ground Rules for Negotiation

Attachment M              5/27/03 Management 1st Negotiations Proposal

Attachment N               6/2/03 Union response and proposal for status quo

Attachment O               6/12/03 Union 6:45 Proposal

Attachment P                6/12/03 Union 7:00 Proposal

Attachment Q               6/13/03 Management Proposal #2

Attachment R               6/26/03 Memo from RD Teresa Bobotek to Union setting 7/28 implementation date

Attachment S                6/30/03 Memo from RD Teresa Bobotek to Bargaining Unit setting implementation date of 7/28/03

Attachment T                6/30/03 Union request for clarification of non-negotiability or impasse status

Attachment U               7/10/03 UMC Meeting Notes, discuss status of bargaining

Attachment V               7/10/03 Memo from RD Teresa Bobotek declaring non-negotiability

 


 

Part V: Responsibilities of the Union

 

After filing the petition for review, the Union is responsible for participating in a conference and responding to any Authority Order. Failure to participate in a conference under section 2424.23 of the Authority's Regulations, a direction or proceeding under section 2424.31 or otherwise failure to provide timely or responsive information pursuant to an Authority Order may result in dismissal of the petition for review.  5 C.F.R. § 2424.32.

 

Part VI: Checklist with Statement of Service and Signature

 

All documents filed with the Authority must comply with the requirements set forth in part 2429 of the Authority's Regulations.

 

A complete copy (including all attachments) of a petition for review must:

 

 Be served by certified mail, first-class mail, commercial delivery, or in person on:

(1)   Principal Agency Bargaining Representative at the negotiations; and

(2) the Head of the Agency (or designee)   (5 C.F.R. §§ 2424.2(g) & 2429.27(b))

 

 Contain a signed and dated statement of service with names and addresses of parties served, date of service, nature of document served, and whether by certified mail or personal delivery. (See below)   (5 C.F.R. § 2429.27(c))

   

 Contain an original and 4 complete and legible copies of all documents  (5 C.F.R. §2429.25)

   

 Be addressed to:

Case Control Office, Federal Labor Relations Authority

607 14th Street, NW

Washington, D.C. 20424-0001

 

 

 

STATEMENT OF SERVICE

 

I certify that a complete copy of the petition for review, including all attachments, in the case of the International Association of Machinists and Aerospace Workers, National Federation of Federal Employees, Federal District 1, Federal Local 1998 (“Local 1998”) and the Department of State, Passport Services were filed with the Case Control Office, Federal Labor Relations Authority, Washington, D.C., and were sent this day to:

 

Agency Principal Bargaining Representative:

Susan Moorse                                              

Chief Labor-Management Negotiator

2201 C Street NW, Room 6217

Washington, DC  20520

(Served by mail with e-mail advance notice)

 

Agency Official who signed the Agency allegation of Non-Negotiability:

Teresa Bobotek                                             

Regional Director – Seattle Passport Agency
915 Second Avenue, Room 992

Seattle, WA  98174

(Served on Director’s secretary as she is out of the office, also sent e-mail notice)

 

Chief Agency Official Representative during negotiations:

Trip Atkins

Assistant Regional Director – Seattle Passport Agency

915 Second Avenue, Room 992

Seattle, WA  98174

(Served in person, also sent e-mail notice)

 

The Head of the Agency:

Frank Moss

Deputy Assistant Secretary of State for Passport Services, US Department of State

2201 C Street NW, Room 6811

Washington, DC  20520

(Served by mail with e-mail advance notice)

 

Date: July 23, 2003

 

Name of filing party: IAMAW NFFE FD1 FL 1998

 

 

_____________________________

Colin Patrick Walle

Secretary-Treasurer, IAMAW NFFE FD1 FL 1998