IAMAW NFFE FD1 FL1998
Phone # (206) 808-5764
Federal Labor Relations Authority
1400 K Street, NW
Washington, DC 20424-0001
Re: Case # 0-NG-2735 NFFE Local 1998, Federal District 1, IAMAW, and U.S.
Department of State, Passport Services
Union’s Statement of Position
This brief constitutes NFFE Local 1998, Federal District 1, IAMAW’s (hereafter “the Union”) response to the U.S. Department of State, Passport Services’ (hereafter “Management”) November 6, 2003 Statement of Position.
On September 5, 2001, Management and Union representatives at the Seattle Passport Agency completed a work schedule agreement, pursuant to the provisions of Article 26 of the July 3, 2001 national collective bargaining agreement (CBA) between Passport Services and the Union. This local agreement provided for eight different 5/4-9 compressed work schedules (CWS).
On April 22, 2003, Seattle Management proposed eliminating three of those eight CWS – those schedules with arrival times prior to 7:00 AM. After bargaining over the substance of this proposal during “partnership”-style and traditional negotiation sessions, Management abruptly terminated the negotiations on June 26, 2003 and announced its plan to unilaterally eliminate on July 28, 2003 all CWS starting before 7:00 AM, because of internal security directives. Management made a written “Declaration of Non-Negotiability” on July 10, 2003.
Though Management previously only referenced the Management Rights provisions of 5 U.S.C. 7106 (specifically “internal security”) as the basis for its declaration, in its November 6th Statement of Position Management now acknowledges that the negotiability of the Union’s proposals depends entirely on whether or not they are consistent with the Federal Employees Flexible and Compressed Work Schedule Act of 1982 (F&CWS Act).
Therefore, the question here is whether this case is properly before the Authority. Because the Union’s proposals to maintain the CWS with the 6:30 AM and 6:45 AM start times are consistent with the F&CWS Act, then Management should be making its arguments to the Federal Service Impasses Panel rather than the Authority.
After addressing the references to September 11th made in Management’s Position Statement, we will offer a brief synopsis of our position. Following that we will provide a background and chronology of all events related to this negotiability appeal. This will include corrections to erroneous claims and inaccurate descriptions of events made in Management’s Position Statement. Next, we will offer our argument for why we believe that our proposals regarding the CWS with the 6:30 AM and 6:45 AM start times are negotiable (Union’s Proposal 1 and Proposal 2), as well the credit hours and part time proposals (Union’s Proposal 3). Our response to Management’s arguments will follow. Finally, we attach an addendum that addresses the integrity of the passport issuance process issues raised by Management.
This Statement of Position submitted by the Union follows this outline:
Management writes in its Position Statement that, “the consular world was changed on September 11, 2001” (page 2). Of course, more than just the "consular" world was changed on that day. The whole world was changed. All of us have been affected by that terrible moment.
But the issue before the Authority has nothing to do with the changes that we experienced on September 11, 2001. Citing the events of September 11th as a justification for Management’s termination of the compressed work schedules that started at 6:30 AM and 6:45 AM is worse than a “red herring” intended to distract the Authority. We ask the Authority to look past this inappropriate ploy by Management and see this case for what it really is all about.
The change that we are dealing with here occurred in early 2003, when a single management official at the Seattle Passport Agency decided, for “family reasons”, to drop the compressed work schedule and change his start time from 6:30 AM to 8:30 AM.
This is an uncontroverted fact (see page 5 of Management’s Position Statement). Were it not for that change in early 2003, you would not be reading this today. The issue before the Authority has nothing to do with September 11th at all. The issue before the Authority is whether Management may unilaterally eliminate compressed work schedules and move the starting times of employees in violation of a locally negotiated agreement, a collective bargaining agreement, the Federal Service Labor-Management Relations Statute, and the Flexible and Compressed Work Schedule Law.
What is the bottom line in this case? The bottom line is:
Management’s references to September 11th, internal security, combating passport fraud, and the integrity of the passport issuance process in this context are all the more galling because it has been the Union, not Management, that has been consistently pushing these concerns, especially after the September 11th attacks.
Properly expressing our view of their invocation of September 11th in this context is difficult as Management’s comments fall within that gray zone where irony intersects with hypocrisy.
The majority of the September 11th hijackers were issued visas by the Department of States’ Bureau of Consular Affairs. Passport Services is part of that bureau. Yet, most of the Union’s and the bargaining unit employees’ contributions, proposals, input, and pleas to increase the integrity of the passport issuance process and combat passport fraud have fallen on deaf ears. In fact, Management has recently proposed to take steps that will further imperil the integrity of the passport issuance process and seriously weaken efforts to combat, prevent, and detect passport fraud and identity theft.
None of this has anything to do with the negotiability of the compressed work schedules starting at 6:30 AM and 6:45 AM, but since Management has chosen to bring this up in this context, we are forced to respond.
Since, again, none of this is relevant to the case before you, we will attach the remainder of our comments on the integrity of the passport issuance process, including the correct wording of the “mission” of Passport Services and the story of how the word “integrity” became associated with it, at the very end of this Union Statement of Position.
This case is not properly before the Authority. If Management believes that certain compressed work schedules should be eliminated, it should present its case to the Federal Service Impasses Panel.
Contrary to the claims made by Management in its Position Statement, this case before the Authority has nothing to do with September 11th, passport fraud, malfeasance, the integrity of the passport issuance process, and Management’s right to determine the internal security practices. In fact, during the numerous sessions conducted between the Parties for two months, Management only referred to internal security practices as the reason for its position – never making mention of the other reasons.
Rather, the Authority is being asked in this case to decide whether a single Management’s official’s scheduling preference trumps the authority of the F&CWS Act, the Federal Service Labor Relations Statute, a collective bargaining agreement, and a locally negotiated work schedule agreement.
Our position is that these legal authorities, as well as precedent set by the Authority in previous rulings (e.g., 23 FLRA No. 107 and 43 FLRA No. 9), establishes that Congress intended that Compressed Work Schedules (CWS) to be fully negotiable, which includes the requirement to negotiate over the elimination of a CWS and the elimination of arrival time options. Management proposed to eliminate the CWS starting at 6:30 AM and 6:45 AM – and set 7:00 AM as the earliest time that employees could arrive. Our position is that these proposals are subject to substantive negotiations, and that therefore the Authority should rule that our proposals are negotiable.
The effect of ruling that the Union’s proposals are negotiable: the F&CWS Act, the FSLMRS, the CBA, and the local work schedule would be upheld. Employees could return to working their established schedules. Management could either A) abandon its proposals, B) return to the bargaining table, or C) declare an impasse and proceed to the FSIP.
The effect of ruling that the Union’s proposals are nonnegotiable: Management could eliminate or alter CWS at any time. CBA and locally negotiated scheduling agreements would be meaningless, since Management could abrogate them at any time. The scheduling preferences of individual Management officials would override the F&CWS Act, the FSLMRS, CBA’s, and locally negotiated agreements.
This is no exaggeration. Management representatives – including the author of Management’s Position Statement – have twice enunciated their belief that they have the power to completely eliminate all CWS within Passport Services, simply by having all Management officials change their schedules to 8:00 AM to 4:45 PM – for any reason. That is the context of this issue.
Contrary to Management’s Position Statement, the Parties did in fact engage in substantive, rather than adverse impact and appropriate arrangement, bargaining over this issue. This bargaining context was vocalized by the Union on more than one occasion and never denied by Management until it abruptly ended the negotiations with its declaration of non-negotiability. Management recognized the fact that the Parties were engaged in substantive bargaining in its May 27th memo: “the negotiable proposal by the Union was that the status quo be maintained for employee schedules”.
The few legal arguments that Management does offer are deficient. One of the cases cited by Management – 42 FLRA 1196 (42 FLRA No. 84) – deals with Flexible schedules, not CWS, and if it has any relevance here would actually support the Union’s position. Another case cited by Management – 33 FLRA No. 73 – does not apply to F&CWS, as explained in that ruling and further supported by 38 FLRA No. 91. After six months of only referencing the Management Rights provisions of the Statute, Management finally recognizes in its Position Statement that the negotiability issue is determined by the F&CWS Act. But, since they know they do not have an argument there, they try – unsuccessfully – to tangentially bring in 5 U.S.C. 7106. Management’s strategy is to argue that policies allegedly derived from 5 U.S.C. 7106 are part of the duties and requirement’s of employees’ positions referenced in 5 U.S.C. 6122(a). We argue that Congress knew fully well that there may be occasions when those two laws came into conflict, which is why Congress specifically excepted the F&CWS Act from the Management Rights portions of the Statute.
Management’s entire argument is based on supposed violations of 5 U.S.C. 7106. Though we will argue that our proposals are negotiable because they are not in conflict with the F&CWS Act, we also address the Management Rights arguments as a precaution. First, their argument mostly focuses on the merit of their proposals – but arguments over the merits of CWS, rather than the legality of the proposals, belong before the Federal Service Impasses Panel (FSIP), not the Authority.
Second, Management’s “Internal Security Policy” argument falters on the basis that there is no internal security policy being invoked in this case. Management relies on a 1997 memo regarding CWS as the basis for its position that supervisors must be present when employees are in the office. Yet, this memo was superceded by the CWS article in the 2001 CBA, is not being interpreted correctly, and even if it still had any meaning it would only apply to Management officials – essentially requiring them to ensure that they were present when employees arrived and departed. In fact, Management at the San Francisco Passport Agency recently complied with this directive by requiring a Management official to change to an earlier arrival time so that she would be present when employees started. Furthermore, bargaining unit employees in Seattle and other Passport Offices continue – to this very day – to be required to work in the office without Management officials present.
Third, their “Budget and Numbers” argument relies on a series of claims that are not factual. For example: 1) the manager in question did not switch his arrival time from 6:30 AM to 7:00 AM – he dropped the CWS and switched it from 6:30 AM to 8:30 AM; 2) Management officials are not bound by the core hours of 8:00 AM to 3:30 PM – in fact, two start at 8:30 AM; 3) there is no 45 minute lunch requirement – bargaining unit employees can take 30 minute lunches and the Parties may negotiate 60 minute or even longer lunches, and again Management officials are not bound by that. Management uses these non-facts as the basis for its argument that the Union’s proposal would require Management to force supervisors onto the CWS, or hire more supervisors, or mandate overtime for supervisors. These arguments collapse when the non-facts supporting them are removed.
Fourth, Management’s “Tours of Duty” argument attempts to re-write the Union’s proposals as if they applied to Management officials. The Union proposals only deal with bargaining unit employees, as seen by the plain language of the proposals. The Union has never bargained and has never intended to bargain over the tours of duties of supervisors and managers and the Union has made that clear to Management. Management’s only references a single case to support its argument – 33 FLRA No. 73 – and that case actually supports the Union’s position.
Fifth, Management’s Position Statement attempts to argue that the Seattle Management and Union representatives were not empowered to negotiate over these issues, despite the wording in the CBA that specifically assigns to the local Union-Management Councils (“partnerships”) the job of deciding arrival/departure times, core hours, and lunch options. Management especially applies this argument – a bargaining obligation dispute – to the Union’s Credit Hours and Part Time proposals, but we respond that just as CWS began in 1997 in Seattle (prior to the 1997 CWS national memo) during the life of the 1991 CBA, there is nothing prohibiting Credit Hours in Seattle from being a seed that spreads to other offices and become adopted nationally in 2003. Management also makes other arguments regarding these proposals. Management’s argument that the Union allegedly missed its opportunity to bargain over Credit Hours is refuted by our response that the announcement by Management that non-participation in Credit Hours would continue did not trigger the opportunity for mid-term bargaining, as there was nothing “new” and no “change” in working conditions. Management cites previous rulings on Part Time proposals that are not relevant to this case.
Our proposals are negotiable because they are consistent with the F&CWS Act and they do not interfere with the Management Rights Provisions of the Statute.
All of our arguments lead to the fact that these issues do not belong in the negotiability appeal forum. Instead, if Management opposes the continuation of the CWS, it should make its argument to the FSIP.
Background: All of the events listed below took place while Passport Services employed a Duty Officer Program. This program involves “assisting U.S. citizens with urgent passport problems which arise outside of the normal working hours of Passport Services” (Article 27 of the CBA). Bargaining unit employees are required to work in the office, without supervisory presence, on the weekends, on holidays, or after hours, when a passport applicant has an emergency and cannot wait until the office opens. This program is more fully addressed later in this Statement.
July 23rd NA = The Negotiability Appeal filed by the Union on July 23, 2003
Nov. 6th Management PS = The Position Statement Management filed on November 6, 2003.
1) October 19, 1981: NFFE Local 1998 is certified as the exclusive Union representative for the bargaining unit employees of Passport Services (FLRA Case No. 3-RO-98). (Attachment W)
2) 1982: The Federal Employees Flexible and Compressed Work Schedules Act of 1982 (F&CWS Act) goes into effect. However, neither compressed work schedules, credit hours, nor any other flexible schedules would be offered to Passport employees at that time. It would not be until fourteen to fifteen years later that any of these options would be instituted in Passport Services.
3) June 8, 1983: The first CBA between Passport Services and NFFE Local 1998 goes into effect. This CBA does not include CWS, nor does it preclude bargaining over CWS at either the local or national levels. The parties bargained over work schedules for bargaining unit employees only – the agreement did not pertain to the schedules of supervisors, nor was it intended to do so. (Attachment X and Attachment Y)
4) September 10, 1985: NFFE Local 1998 is certified as the exclusive Union representative for the bargaining unit employees of Passport Services (FLRA Case No. 3-UC-50003). (Attachment BB)
5) June 4, 1986: A previous version of the CBA goes into effect. Article 25 and Article 26 pertain to schedules – the standard workweek and flexitour (allowing employees a range of fixed arrival/departure times). This CBA does not include CWS, nor does it preclude bargaining over CWS at either the local or national levels. The parties bargained over work schedules for bargaining unit employees only – the agreement did not pertain to the schedules of supervisors, nor was it intended to do so. (Attachment Z and Attachment AA)
6) September 23, 1991: The prior CBA – the edition that the current CBA replaces – went into effect. Article 25 and Article 26 pertain to schedules – the standard workweek and flexitour (allowing employees a range of fixed arrival/departure times). This CBA does not include CWS, nor does it preclude bargaining over CWS at either the local or national levels. The parties bargained over work schedules for bargaining unit employees only – the agreement did not pertain to the schedules of supervisors, nor was it intended to do so. (Attachment CC and Attachment DD)
7) April 16, 1997: The first local CWS agreement at the Seattle Passport Agency goes into effect. This agreement was not in violation of the 1991 CBA since it was not prohibited by that CBA. (Attachment EE)
8) July 17, 1997: Passport Services Management in Washington, DC issues guidelines for CWS to be used by local offices, referencing the existing Seattle agreement. The heading for the guidelines section, in letters of bold and underlined print, reads “SUGGESTED GUIDELINES”. Clearly, there is a lot of latitude implied in the phrase. Not only is the flexible term “guidelines” used rather than “procedures”, but even these guidelines are only “suggestions”. (Attachment A – July 23rd NA)
9) January 21, 1999: The Seattle CWS agreement is revised. These revisions are not due to anything related to supervisors changing their schedules. (Attachment EE)
10) September 16, 1999: Seattle Union and Management representatives revise their local schedule agreement to require earliest start time of 6:30 AM, but “grandfathers in” those two bargaining unit employees that previously arrived at 6:15 AM and allows them to continue that schedule. These revisions are not due to anything related to supervisors changing their schedules. (Attachment FF)
11) January 2000 – July 2001: Passport Services and NFFE Local 1998 negotiate a new CBA. The parties meet for four sessions in Washington, DC, totaling seven weeks of face-to-face negotiations. The parties also engage in numerous email and telephone bargaining sessions.
12) June 2000: Bargaining over AWS guidelines is almost entirely concluded. The parties agree to release a memo that establishes the procedures and guidelines to be used. This memo contains much the same information as is eventually incorporated into Article 26 of the CBA. Management did not make any proposals relating to supervisory coverage or adjusting schedules in relation to that issue.
13) July 3, 2001: The current CBA goes into effect. Article 25 addresses the standard workweek. Article 26 addresses Alternate Work Schedules (AWS), including CWS. This CBA does not include Flexible schedules, including Credit Hours, nor does it preclude bargaining over those subjects at either the local or national levels. Flexible schedules and Credit Hours were never the “subject of negotiations”, were never proposed by either party, and were never discussed by either party. The parties bargained over work schedules for bargaining unit employees only – the agreement did not pertain to the schedules of supervisors, nor was it intended to do so. (Attachment C – July 23rd NA)
This CBA included negotiated language that superceded the “suggested guidelines” in the 1997 memo, including the provisions on who was present in the agency. Management’s reference on page 9 of their Position Statement that refers to the “managers present” paragraph of the 1997 memo as the “existing guidelines” is incorrect. The existing guidelines are clearly found in Article 26 of the 2001 CBA that Management negotiated. In the event of discrepancies between the two, there is no basis to choose the 1997 memo over the bargaining agreement as the controlling document. Article 26, Section 3a (limitations/requirements of local work schedules) does not mention anything regarding requiring employees to conform their schedules to the scheduling preferences of supervisors, although Management had every opportunity to propose that language.
14) August – October, 2001: The Houston Passport Agency undergoes acrimonious negotiations to establish CWS.
15) September 5, 2001: Management and Union representatives at the Seattle Passport Agency completed a work schedule agreement, pursuant to the provisions of Article 26 of the July 3, 2001 CBA. This September 5, 2001 local agreement provided for eight different 5/4-9 compressed work schedules (CWS). The parties decided to eliminate the CWS with the 6:15 AM start time – they bargained over the substance of the decision – there was no mention of any F&CWS violations, non-negotiability, Management rights, or internal security. (Attachment D – July 23rd NA)
16) Fall 2001: Management in Seattle decided to have only supervisors and managers as duty officers, since there were rarely any cases in Seattle, and there had been complaints by employees that not enough keys were distributed.
17) March 2002: The card key policy – for entering the building - was revised.
18) December 12, 2002: At the Seattle Union/Management Council Meeting, the Union proposes expanding the use of schedules with arrival/departure times in 5-minute increments, and the Union and Management vigorously disagree. The Union also proposes other scheduling topics, but those are postponed until a later meeting. (Attachment E – July 23rd NA)
19) December 2002: Miami Passport Agency still has no CWS due to objections from Miami Management.
20) January 9, 2003: At the Union/Management Council Meeting, the Union requested three more slots for ending times as early as 3:30 PM. Regional Director Bobotek stated that work schedules would be further discussed in future meetings with the Union. (Attachment E – July 23rd NA)
21) January 16, 2003: Management declined to discuss the proposed earlier start schedules, pending a decision from Washington DC on possible changes to work schedules. (Attachment E – July 23rd NA)
22) January 2003: On page 5 of their Position Statement, Management stated that, “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”. In fact, he changed it to 8:30 AM. Management implies that this took place before the December 2002 meeting on schedules, when in fact it took place after that meeting. See the Union’s July 25, 2003 grievance for a possible explanation. (Grievance served on the parties by the FLRA after the October 21, 2003 Post-Petition Conference call)
23) April 2003: Seattle Assistant Regional Director Trip Atkins contacts Washington, DC to prompt them to issue a memo detailing alarm code and supervisory coverage directives.
24) April 17, 2003: Passport Services Managing Director Ann Barrett issues a memo stating that the 1997 CWS memo required “one senior manager” to be present at all times. This is not accurate, as will be discussed later. (Attachment G – July 23rd NA)
25) April 22, 2003: Seattle Management notified the Union that it wanted to eliminate three of the eight CWS. Those schedules are 1) the 6:45 AM – 4:30 AM CWS, 2) the 6:45 AM – 4:15 PM CWS, and 3) the 6:30 AM – 4:00/4:15 PM schedule that was “grandfathered” in for two employees. (Attachment H – July 23rd NA)
26) May 6, 2003: Following the requirements of the collective bargaining agreement, the parties first met in two “partnership”-style Union/Management Council meetings to discuss the proposal. Since no consensus was reached, Management invoked formal negotiations. The parties negotiated over the substance of whether or not to eliminate those schedules in subsequent bargaining sessions. The Union offered three proposals: Proposal 1 would maintain the status quo, Proposal 2 would remove the CWS with the 6:30 AM start time in exchange for other options, and Proposal 3 would remove the CWS with the 6:30 AM and the 6:45 AM start times in exchange for other options (including credit hours and part time proposals). (Attachment I – July 23rd NA)
27) May 7, 2003: Managing Director Ann Barrett issues a memo to “clarify” that GS-12 supervisors may also open/close the office. (Attachment J – July 23rd NA)
28) May 8, 2003: Pursuant to the Parties collective bargaining agreement (CBA), Seattle Management and the Seattle Union representatives met to discuss this proposal during a “partnership”-style Union-Management Council (UMC) meeting. Management made an erroneous claim on page 7 of its Position Statement that, “[d]uring the May 8 meeting, PPT/SE Management indicated its flexibility to negotiate appropriate arrangements for employees adversely affected by the change”. This was not “I&I” bargaining – the Parties were negotiating over the substance of whether or not to eliminate the CWS with 6:30 AM and 6:45 AM start times. The Union pointed this out to Management in the May 8th UMC meeting and on other occasions, and Management did not contradict it. Management insists that GS-12’s cannot open/close the office. The Union asks if Management can clarify this with Washington, DC Management, and they grudgingly agree (the May 7th memo had not been introduced). (Attachment K – July 23rd NA)
29) May 15, 2003: On page 7 of its Statement, Management makes this erroneous claim: “[i]n 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”. This is false. According to the meeting minutes for the May 15th Union-Management Council meeting, “She [RD Bobotek] said that John Cornaby will be changing his hours temporarily to 6:45 to 3:30 for the month of June”. (Attachment GG/“K2”)
30) May 21, 2003: The Union is provided with a copy of the May 7th clarification by an anonymous employee who found it on the fax machine.
31) May 27, 2003: Management makes a counter-proposal to the Union in a memo in which Assistant Regional Director (ARD) Trip Atkins recognized “the negotiable proposal by the Union was that the status quo be maintained for employee schedules”. Clearly, the Parties were negotiating over the substance of Management’s proposal – whether or not to eliminate the CWS starting at 6:30 AM and 6:45 AM – and not simply engaging in “I&I” adverse impact and appropriate arrangement negotiations. (Attachment M – July 23rd NA)
32) June 2, 2003: The Union responds that it still would like to maintain the status quo – this is Union’s Proposal 1. (Attachment N – July 23rd NA)
33) June 12, 2003: The Union offers additional proposals, alternatives to the “status quo” – These are Union’s Proposal 2 and Proposal 3. (Attachment O, Attachment P – July 23rd NA)
34) June 13, 2003: Management disagrees with the counter-proposal, and offers its own. (Attachment Q – July 23rd NA)
35) June 15, 2003: Seattle Management announced that soon only managers and supervisors would have access to the alarm code (the alarm must be deactivated before anyone can enter the agency). The Union was informed that all bargaining unit members who had alarm access would have it taken away. The Union and Management agreed to negotiate changes to start and end times at a later date.
36) June 2003: The San Francisco Passport Agency ARD has to move her arrival time to an earlier time in order to be present when employees CWS schedules begin.
37) June 26, 2003: Management abruptly terminated the negotiations on June 26, 2003 and announced its plan to unilaterally implement on July 28, 2003 the elimination of all CWS starting before 7:00 AM, referencing internal security directives. The memo is dated June 25, 2003. Management’s claim that the Union was stubbornly refusing to consider anything but the “status quo” is belied by the fact that the Union had submitted Proposal 2 and Proposal 3. (Attachment R – July 23rd NA)
38) June 30, 2003: Management issues a memo to all bargaining unit employees in Seattle informing them of the July 28th implementation date. Only now does Management release the May 7th memo. (Attachment S – July 23rd NA)
39) June 30, 2003: The Union felt that the parties were at impasse, and asked Management to clarify whether it was declaring an impasse or non-negotiability. (Attachment T – July 23rd NA)
40) July 10, 2003: An additional Union/Management meeting is held, and the parties discuss the work schedule situation. (Attachment U – July 23rd NA)
41) July 10, 2003: Management provided the Union with a written declaration of non-negotiability, referencing the June 26th memo. By “internal security directives”, the Union understood from Management that it was invoking the Management Rights provisions of the Federal Service Labor-Management Relations Statute (hereafter “the Statute”), specifically 5 U.S.C. 7106(a)(1). In subsequent discussions on this issue, Management only referenced this and other provisions of 5 U.S.C. 7106 as the basis for its declaration. (Attachment V – July 23rd NA)
42) July 23, 2003: The Union files a Negotiability Appeal with the Federal Labor Relations Authority.
43) July 24-25, 2003: The Union attempts, via email and telephone, to convince Management to hold off on its plan to implement on July 28th the elimination of the CWS with the 6:30 AM and 6:45 AM start times. Management denies this request.
44) July 25, 2003: The Union files a grievance, alleging violations of the CBA. The grievance does not touch on matters concerning the negotiability appeal, and makes that clear three times. The Union is only alleging violation of the CBA and is not using the grievance process to argue the negotiability of the proposals.
45) July 28 – 31, 2003: The parties discuss using Alternate Dispute Resolution (ADR).
46) August 1, 2003: Management requests extension on the grievance – requests that it be put into abeyance until ADR is completed.
47) August 6, 2003: The Union grants Management an extension on the grievance reply.
48) August 6, 2003: The FLRA’s Case Control Office puts the case into abeyance pending the outcome of the Alternate Dispute Resolution through the FLRA’s Collaborative and Alternate Dispute Resolution Office (CADRO).
49) August 25, 2003: Management responds to the Union’s grievance, denying requested relief. (Attachment to Management’s November 6th Statement)
50) September 22, 2003: The CADRO office assists the parties in ADR. Unfortunately, no resolution is reached.
51) September 23, 2003: The Union invokes Arbitration over the denial of the grievance.
52) October 2003: The New York Passport Agency still does not have CWS.
53) October 21, 2003: The Post-Petition Conference between the parties is held via teleconference. Management acknowledges and agrees that the Union’s grievance, and pending arbitration, over how the negotiations were handled does not affect or attempt to intrude into the negotiability appeals process. One correction on those notes: there are two, not one, employees whose CWS started at 6:30 AM. Management unilaterally moved the arrival times of twelve, not eleven, employees on July 28, 2003.
54) November 6, 2003: Management submits its Position Statement, which acknowledges that the negotiability of the CWS with the 6:30 AM and the CWS with the 6:45 AM start times depends entirely on whether or not the proposals to maintain them are consistent with the Federal Employees Flexible and Compressed Work Schedule Act of 1982 (hereafter “the F&CWS Act”).
Congress intended that Compressed Work Schedules (CWS) be fully negotiable when it passed the Federal Employees Flexible and Compressed Work Schedule Act of 1982. According to the Office of Personnel Management 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 (9th 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 collective bargaining agreement between Passport Services and the Union went into effect on July 3, 2001. On September 5, 2001, pursuant to Article 26, Section 3 of the CBA, the Seattle Management and Union representatives negotiated a local work schedule agreement. This agreement, which made changes from previous agreements negotiated prior to the new CBA’s effective date, established a number of compressed work schedules. These schedules included a 6:45 AM – 4:15 AM CWS (30 minute lunch), a 6:45 AM – 4:30 PM CWS (45 minute lunch), and – for two employees only who were “grandfathered in” – a 6:30 AM – 4:00 PM or 6:30 AM – 4:15 PM CWS.
These local schedules were negotiated on September 5, 2001 pursuant to the July 3, 2001 CBA and they conformed to the requirements listed in the CBA. The CBA conformed to the all of the requirements of the F&CWS Act, including Section 6122.
Article 26, Section 3 of the CBA includes the requirements with which all local CWS agreements must comply:
3. REQUIREMENTS OF THE PLANS:
a. The following requirements represent the limitations within which the individual Passport Agencies and other Passport Services offices will establish their Flexitour and other Alternate Work Schedule Plans. These requirements apply to all bargaining unit employees:
(1) A lunch period (minimum of 30 minutes) must be incorporated into the workday. This lunch period may not be taken at the beginning or the end of the core time;
(2) Each employee is allowed a 15 minute break during every 4 hours worked. Employees may schedule break periods with lunch/dinner periods with the approval of the first line supervisor;
(3) A full time employee must account for 80 hours per pay period including actual hours worked, leave taken, and paid holidays;
(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.
(5) Those employees who are not authorized, or elect not to work a Flexitour or other Alternate Work Schedule, shall continue to work their present hours.
b. Each location will maintain the status quo unless the Union/Management Council at each location sets the following:
(1) The earliest and the latest time an employee may work;
(2) The lunch period; and
(3) The core time (that time during which each employee must be present for work).
Article 26, Section 5 of the CBA includes the reasons which the parties may base any modifications or restrictions on the use of Alternate Work Schedules, including CWS:
5. CRITERIA FOR MODIFICATION OR RESTRICTION OF FLEXITOUR AND OTHER ALTERNATE WORK SCHEDULES:
a. Modifications or restrictions of the use of Flexitour or other Alternate Work Schedules by employees shall be based on one or more of the following:
(1) Operational consideration, including emergencies, related to the work situation only;
(2) Abuse of Flexitour or other Alternate Work Schedules, meaning misconduct of a serious nature during the scheduled work day that would be alleviated by the presence of a supervisor;
(3) Temporary suspension of the employee's participation in the Flexitour or other Alternate Work Schedules program for formal training;
(4) Requirement for close supervision for the initial training required to understand and perform the duties of the position;
(5) Requirement for close supervision of employees with serious deficiencies in the performance of their primary tasks over a period of at least one month, to the extent that the level of their performance would constitute grounds for an unsatisfactory performance rating. The intent here is that employees operating at this level would have the attention, to the extent practicable, of their regular or acting supervisors during times that the supervisors would not be available if the employees were participating in a Flexitour or other Alternate Work Schedule Plan.
b. Justifications for modifications or restrictions may be reviewed upon a change in conditions.
Therefore, changes to these schedules are subject to substantive negotiations at the local level – bargaining over whether or not to eliminate or change the CWS – rather than impact and implementation bargaining, such as adverse impact for those affected and appropriate arrangements.
This is supported by the OPM guidance:
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.
When the Seattle Management and Union representatives met on September 5, 2001 and agreed on the local work schedule, they chose only the 5/4-9 CWS – they specifically chose not to include the 4/10 CWS, even though it is provided for in the Article 26, Section 4b(1)(a) of the CBA. But the parties could have chosen otherwise – Management never said the 4/10 CWS was nonnegotiable, only that they did not believe it was beneficial – and the Union could still propose changes to the local agreement to include the 4/10 CWS, separate and independent from these proceedings.
To demonstrate that our proposals to maintain the 5/4-9 CWS with the 6:30 AM and 6:45 AM start times are negotiable proposals, it is helpful to consider what would happen if the Union representatives in Seattle proposed a 4/10 CWS. If the Union proposed to have the 4/10 CWS in Seattle, and Management declared that proposal nonnegotiable, we believe that based on previous decisions the Authority would declare such a proposal negotiable, without commenting on the merits of the proposal. For example, in 23 FLRA No. 107, the Authority ruled that a 4/10 CWS proposal was negotiable in 1984 even though a similar 4/10 CWS proposal by that same Union was disallowed, based on the merits, by the FSIP in 1982. A 4/10 CWS in Seattle might involve a schedule starting at 6:00 AM and ending at 4:30 PM (with a 30 minute lunch). If a 4/10 CWS schedule with a 6:00 AM start time would be found by the Authority to be negotiable – again, without ruling on the merits – then so would a 5/4-9 CWS with a 6:30 AM start time.
The past practice of negotiations between Passport Services and NFFE Local 1998, especially at the local level, is rather informal.
The Union’s proposal to Management on Credit Hours was to implement “Flexible Work Schedules, Maxiflex Option, with Credit Hours . . . . See OPM Handbook on Alternate Work Schedules at http://www.opm.gov/oca/aws/index/htm”. The intent of the Union’s proposal was to hash out the details with Management after Management agreed to the concept, which is consistent with method of making proposals that Management and the Union have made at the local and national level in the past.
Credit Hours are negotiable work schedules as provided for in Section 6126 of the F&CWS Act. While these schedules were “eligible”, so to speak, to be proposed by the Union at any time, they would also constitute “appropriate arrangements” for bargaining unit employees whose scheduling options would be limited by the implementation of Management’s proposal.
Again, the past practice of negotiations between Passport Services and NFFE Local 1998, especially at the local level, is rather informal.
The only positive language on part-time schedules in the CBA is found in Article 26, Section 4e, which simply states:
Part Time and Job Sharing: 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.
The intent of this language was simply to inform employees that part time and job sharing do actually exist, as there had been – and continues to be – a great deal of misinformation on this. Many Passport Services bargaining unit employees have been told that these options are not available at all, and that no one within the bargaining unit works part time – which is not true.
For example, the Union did inform Management during one of the “partnership”-type meetings prior to formal negotiations on Management’s proposal that we had a decision by the Authority with a negotiable part-time proposal which we were considering proposing to Management. That case was 31 FLRA No. 22, and it included this proposal by the National Treasury Employees Union:
An employee returning from maternity leave may request to work part time or to participate in a job-sharing program on a temporary or permanent basis. The request will be made in writing at least 45 days in advance of the employee's return. The employer will consider such requests and make a determination based on the employer's need for the employee's services, suitability of the position for conversion to part time, availability of resources and or impact on the efficiency of the Service. After consideration of these factors, unless to do so would have an adverse effect upon the efficiency of the service, such requests will be granted. The employer will provide the employee with a written decision within 30 days from the date of the request. Thereafter, a grievance may be initiated at the Step 3 level as set forth in Article 31 Grievance Procedure. (note: this references provisions in NTEU’s CBA)
The Authority decision in that case established that the proposal above is a negotiable proposal:
We find, therefore, that the proposal does not interfere with management's right to determine the numbers, types, and grades of employees or positions under section 7106(b)(1), and is within the duty to bargain.
The CBA allows for part-time schedules but does not touch on the issue of the procedures by which an employee may request that schedule, and the procedures on which Management bases the decision. There are currently two employees in Seattle who work part-time schedules, and there are two other employees who would like to do the same – the Union’s proposal is negotiable because it does not infringe on Management’s Rights under 5 U.S.C. 7106. While these schedules were, like the Credit Hours proposal, “eligible”, so to speak, to be proposed by the Union at any time, they would also constitute “appropriate arrangements” for bargaining unit employees whose scheduling options would be limited by the implementation of Management’s proposal.
Union’s Response to Management’s Arguments
Management recognized in its November 6th Position Statement that for the Union’s proposals to be ruled nonnegotiable Management must prove that the Union’s proposals “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” (page 11).
This is supported by 23 FLRA No. 107, in which the Authority determined that the negotiability appeal procedures of 5 U.S.C. 7117 can only be used “where a proposal is alleged to be inconsistent with the 1982 Act itself or with other laws superseding the 1982 Act”.
The CWS with the 6:30 AM and 6:45 AM start times were “legal” and “negotiable” proposals at the time they were agreed to by Seattle Management in 1997, 1999, 2000, and 2001. The latest agreement – on September 5, 2001 – was issued pursuant to the July 3, 2001 CBA and it conforms to the requirements listed in the CBA and the F&CWS Act. There is no dispute over this. It would be illogical and contradictory if proposals to maintain negotiable proposals were nonnegotiable.
In fact, the CWS with the 6:15 AM start time that was in place from 1997 until September 5, 2001 was also “legal” and “negotiable”. The negotiations to eliminate the 6:15 AM start time were substantive negotiations – the parties bargained over whether or not to eliminate that CWS – and there were no claims of nonnegotiability by Management on September 5, 2001.
Management’s argument boils down to the following:
Management is arguing that the Customer Service Manager’s change in start times from 6:30 AM to 8:30 AM in January 2003 changed the legal status of the CWS with 6:30 AM and 6:45 AM start times from “negotiable” to “nonnegotiable”. This is a fallacious argument. A single Management official’s scheduling preference does not affect the legality of those schedules. They were negotiable before the Management official’s change, and they are negotiable now.
Management is misconstruing this portion of Section 6122(a):
An election by an employee referred to in paragraph (2) shall be subject to limitations generally prescribed to ensure that the duties and requirements of the employee’s position are fulfilled.
Management’s argument is that the employees cannot fulfill the requirements of Section 6122(a) because the individual Management official changed his start time. Management is equating the job responsibilities of the employee’s position with the internal security policy issued by Management.
Yet, Management could have either denied the Management official’s change in arrival time request, or had another official move his/her arrival time to 6:30 AM if Management felt that it should have officials present when employees are present. Management’s argument that this interferes with 5 U.S.C. 7106 are addressed later in our Statement (including our Response to Management’s “Internal Security Practices”, where we show that there is in fact no violation of any internal security practice in this case – Management has not actually required its officials to be present when employees are present, and in fact often requires employees to be present when there are no supervisors present). The point to be made here is that if Management would like to have its officials present when employees are present it can do so, but when it proposes to change employees’ CWS then it must negotiate over the substance of that change as that is a negotiable topic.
The Union’s proposals only apply to bargaining unit employees. They do not mention non-unit staff, such as supervisors and managers, nor are these proposals intended to address supervisors or managers schedules. The Union has not made any proposals regarding the schedules or tours of duties of supervisors or managers. The Union has not proposed to have Management officials present when bargaining unit employees are present. Management chose to change a single manager’s arrival time and thus manufacture an alleged violation of its supposed internal security policy – that should not affect the legality and negotiability of the EXISTING schedules.
It is not the employee’s job to have a supervisor present. That is not part of “the duties and requirements of the employee’s position”. Having a Management official present when employees are present could be an internal security policy that Management chooses to implement. But it is not a duty nor is it a requirement of the employee – it would be a duty and a requirement for the Management officials. The “duties and requirements” of the employees in question are outlined in their Position Descriptions and Critical Elements (See Attachments HH, II, JJ, and KK). To sum them up, their jobs are to adjudicate passport applications. Management is interpreting Section 6122(a) as if it read:
. . . shall be subject to
generally prescribed to ensure that the duties and
requirements of a Management official’s position the employee’s
position are fulfilled”
or as if it read:
. . . shall be subject to
generally prescribed to ensure complete compliance with
policies promulgated under 5 U.S.C. 7106(a)(1) that the duties and requirements of the employee’s position are
or even as if it read:
. . . shall be subject to the
whims of individual Management official’s scheduling preferences
generally prescribed to ensure that the duties and requirements of the
employee’s position are fulfilled”.
Of course, that is not how Section 6122(a) reads.
That Management equates “supervisory coverage” with the requirements of Section 6122(a) is seen on page 7 of Management’s Statement, when it writes that “supervisory coverage” was necessary to “ensure the fulfillment of the essential responsibilities and duties of employees’ positions”. Management continues this argument on page 12 of its Statement:
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 passport can be issued) and potential fraudulent applications.
This reference to “lookouts” by Management would make more sense if the sun rose in the West rather than the East. When the employees in Seattle, Washington on the CWS with the 6:30 AM start time arrive at work, it is already 9:30 AM on the East coast, including Washington, DC, where the Department of State and Passport Services are headquartered. Eliminating their schedules and forcing them to arrive 30 minutes later means that they will have 30 minutes less time to contact, work with, and solve problems with their counterparts in Washington, DC who deal with Lookouts and the Namecheck system. This benefit is one of the reasons for instituting the CWS in the first place, as evidenced by Section 1b of Article 26 of the CBA, which states that one of the purposes is to “[i]ncrease the hours for communication across time zones”. Management’s argument and our response are more appropriately made to the FSIP, rather than to the Authority, as we will argue below.
Regarding the “guidance on . . . potential fraudulent applications” (page 12) statement by Management, it should be noted that the Fraud Program Manager is the Management official who starts at 6:15 AM, and also that the Assistant Fraud Program Manager starts at 7:15 AM. There are a number of steps and a number of resources that the employees are required to use when referring fraudulent applications, and while these cases should be handled quickly, that time constraint is within the context of having them referred within a day or within hours, not minutes or seconds.
In addition, Section 6122(a) does use the word “generally”, which means “normally” or “usually”. When the employees on the CWS with the 6:30 AM and 6:45 AM start times arrived, there normally was a supervisor present.
The employees whose CWS started at 6:30 AM and 6:45 AM were able to fulfill the duties and the requirements of their positions. They adjudicated passport applications, read Management directives, handled lookout cases, scrutinized applications for fraud indicators, and also opened the cabinets prior to the bulk of the work force arriving. In fact, now that these employees open the cabinets at 7:00 AM instead of 6:30 AM, the productivity of the majority of the passport specialists has been negatively impacted, as they cannot immediately start working upon arrival. We would like to emphasize to the Authority that for 99% of the employees’ time, they are not being watched by Management officials. Supervisors do not stand over the employees’ shoulders as they adjudicate. Rather, supervisors are sought out if and when there is a question that cannot be readily addressed by the guidelines, memorandum, or by the “senior passport specialists” – GS-11’s – who act as mentors and who are assigned by Management with the job of providing guidance to fellow employees.
5 U.S.C. 7106 is Not a Subsection of the F&CWS Act
Management has put the proverbial “cart before the horse”. Management is arguing that the CWS with the 6:30 AM and 6:45 AM start times are non-negotiable because they violate the F&CWS Act. How do they violate the F&CWS Act? Management replies that they violate the F&CWS Act by interfering with the Management Rights provision of Chapter 71 of the Statute.
Management is arguing that because the Union’s proposals violate 5 U.S.C. 7106, they violate the F&CWS Act. Management bases its claim that the Union’s proposals violate 5 U.S.C. 6122(a) on the basis that the employees cannot comply with an internal security practice allegedly promulgated under 5 U.S.C. 7106(a), and that therefore that opens the door to Management’s arguments under 5 U.S.C. 7106(a) and (b). Management is attempting to incorporate 5 U.S.C. 7106(a)(1) into the meaning of 5 U.S.C. 6122(a). Yet, 5 U.S.C. 7106 is not a subpart of 5 U.S.C. 6122.
Even if Management’s interpretation of Section 6122(a) is adopted, Management neglects to mention that the options available to Management when dealing with the alleged violations of Section 6122(a) are outlined in Section 6122(b):
Notwithstanding any other provision of this subchapter, but subject to the terms of any written agreement referred to in section 6130(a) of this title, if the head of an agency determines that any organization within the agency which is participating in a program under subsection (a) is being substantially disrupted in carrying out its functions or is incurring additional costs because of such participation, such agency head may -
(1) restrict the employees' choice of arrival and departure time,
(2) restrict the use of credit hours, or
(3) exclude from such program any employee or group of employees
The relevant portion of Section 6130(a) reads:
(1) In the case of employees in a unit represented by an exclusive representative, any flexible or compressed work schedule, and the establishment and termination of any such schedule, shall be subject to the provisions of this subchapter and the terms of a collective bargaining agreement between the agency and the exclusive representative.
Section 6122(b) explicitly states that Management may only “restrict the employees’ choice of arrival and departure time” if there is a violation of Section 6122(a), but only “subject to the terms of any written agreement referred to in section 6130(a) . . . .” In other words, Management may only restrict the choice or arrival and departure times under 6122(a) “subject to the terms of” the CBA. Yet the CBA says that “[e]ach location will maintain the status quo unless the Union/Management Council at each location sets the . . . earliest and latest time an employee may work” (Article 26, Section 3b of the CBA).
Therefore, the “limitations generally prescribed” requirements that are referenced in Section 6122(a) are found in Article 26 of the CBA, which superceded and supplanted the July 17, 1997 CWS guidelines (for more on this see our Response to Management’s “Internal Security Practices” Argument below).
Management’s argument that maintaining the CWS with the 6:30 AM and 6:45 AM start times will prevent the employees from fulfilling their duties and the requirements of their positions is an argument that the Union’s proposals will have an adverse agency impact. In other words, Management is arguing that maintaining the current schedules will reduce the productivity and increase the cost of operations, which are both “adverse impact” arguments. We dispute that there is an adverse impact – see the “lookout” and opening cabinets examples above. But an “adverse impact” argument belongs before the FSIP, not the Authority, according to these relevant portions of Section 6131:
(a) Notwithstanding the preceding provisions of this subchapter or any collective bargaining agreement and subject to subsection (c) of this section, if the head of an agency finds that a particular flexible or compressed schedule under this subchapter has had or would have an adverse agency impact, the agency shall promptly determine not to - . . .
(2) continue such schedule, if the schedule has already been established.
(b) For purposes of this section, ''adverse agency impact'' means -
(1) a reduction of the productivity of the agency;
(2) a diminished level of services furnished to the public by the agency; or
(3) an increase in the cost of agency operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed schedule).
(1) This subsection shall apply in the case of any schedule covering employees in a unit represented by an exclusive representative.
. . .
(A) If an agency and an exclusive representative have entered into a collective bargaining agreement providing for use of a flexible or compressed schedule under this subchapter and the head of the agency determines under subsection (a)(2) to terminate a flexible or compressed schedule, the agency may reopen the agreement to seek termination of the schedule involved.
(B) If the agency and exclusive representative reach an impasse in collective bargaining with respect to terminating such schedule, the impasse shall be presented to the Panel. (emphasis added)
(C) The Panel shall promptly consider any case presented under subparagraph (B), and shall rule on such impasse not later than 60 days after the date the Panel is presented the impasse. The Panel shall take final action in favor of the agency's determination to terminate a schedule if the finding on which the determination is based is supported by evidence that the schedule has caused an adverse agency impact.
(D) Any such schedule may not be terminated until -
. . .
(ii) the date of the Panel's final decision, if an impasse arose in the reopening of the agreement
To summarize, “if the head of an agency finds that a particular flexible or compressed schedule under this subchapter has had or would have an adverse agency impact, the agency shall promptly determine not to - . . . . continue such schedule, if the schedule has already been established.” Since the “agency and an exclusive representative . . . entered into a collective bargaining agreement providing for use of . . . compressed schedule under this subchapter and the head of the agency determines under subsection (a)(2) to terminate a . . . compressed schedule, the agency may reopen the agreement to seek termination of the schedule involved.” But if “the agency and exclusive representative reach an impasse in collective bargaining with respect to terminating such schedule, the impasse shall be presented to the Panel”, not to the Authority.
This interpretation is supported by 23 FLRA No. 107, in which the Authority stated, “(i)f the parties need third-party assistance to resolve a dispute concerning the alleged adverse agency impact, they must present their dispute to the Federal Services Impasses Panel . . . .” (emphasis added)
In 28 FLRA No. 79, the Authority made this statement regarding the relations of the F&CWS Act with the Statute:
Alternate work schedules are fully negotiable, within the limits set by the Act, therefore there are no issues pertaining to the negotiability of those schedules under section 7117 of the Statute which relate to asserted conflicts with provisions of the Statute. Consequently, the Agency's contentions in this case as to section 7106 of the Statute and Government-wide Regulations are not properly before us.
Management’s interpretation of Section 6122 and incorporation of 5 U.S.C. 7106 into that section is also rejected by 43 FLRA No. 9, in which the Authority determined that "the establishment or termination of alternate work schedules is negotiable without regard to management's rights under section 7106 of the Statute". The Authority adds:
. . . even assuming that management's rights under section 7106(a)(2)(A) and (C) were involved in the Agency's decision to terminate the . . . alternate work schedule, the award would not be deficient. Because, as we noted above, under the Act the termination of the . . . compressed work schedule is negotiable without regard to the exercise of management's rights under section 7106 of the Statute . . . . (emphasis added)
In this case, the parties negotiated a collective bargaining agreement provision and an MOA providing for unit employees' participation in alternate work schedules. Under 5 U.S.C. § 6130(a)(1), the termination of alternate work schedules for employees covered by a collective bargaining agreement providing for the use of such work schedules must be in accordance with 5 U.S.C. § 6131. Because the provisions of 5 U.S.C. § 6122 are expressly limited by the provisions of 5 U.S.C. § 6130, the Agency's reliance on 5 U.S.C. § 6122(b)(3) is misplaced. (emphasis added)
Further, under 5 U.S.C. § 6131(a), if an agency head finds that a particular alternate work schedule will have an adverse impact on the agency, the agency head shall determine not . . . to continue that alternate work schedule. See Appendix to this decision for the text of 5 U.S.C. § 6131. However, under 5 U.S.C. § 6131(c)(3)(A), if the agency seeks to terminate an alternate work schedule established under a collective bargaining agreement, the agency may reopen the agreement and bargain with the union concerning the decision to terminate the alternate work schedule. If bargaining between the parties over termination of the schedule reaches an impasse, the parties shall present the impasse to the Federal Service Impasses Panel (the Panel) in accordance with 5 U.S.C. § 6131(c)(3)(B) and Part 2472 of the Panel's Regulations. In short, an agency must bargain to impasse over its decision to terminate an alternate work schedule and, under 5 U.S.C. § 6131(c)(3)(D), may not terminate that schedule unless the collective bargaining agreement expires or final action is taken by the Panel. (emphasis added)
Management’s Reliance on 42 FLRA No. 84 is Misplaced
Management’s reliance on 42 FLRA No. 84 (the same as 42 FLRA 1196) is also misplaced, as explained in 43 FLRA No. 9:
We note that our recent decisions in Air Force Accounting and Finance Center, Denver, Colorado, 42 FLRA No. 84, slip op. at 10 (1991) (AFAFC I) and Air Force Accounting and Finance Center, Lowry Air Force Base, Denver, Colorado, 42 FLRA No. 85, slip op. at 13 (1991) (AFAFC II) are distinguishable. In those cases, we determined that, under section 6122(a) of the Act, an agency has the right to make adjustments in the arrival and departure times of employees who work on flexible schedules in order to provide coverage during the hours that its offices are open. Consequently, we concluded that the agency did not have a duty to bargain over the substance of its decision to require such adjustments in arrival and departure times. This case, unlike AFAFC I and AFAFC II, concerns the termination of an alternate work schedule, not the adjustment of arrival and departure times in a flexible schedule to ensure office coverage. (emphasis added)
While 42 FLRA No. 84 dealt with “flexible” work schedules with bands of arrival times that Management proposed moving to ensure office coverage, our case deals with fixed arrival times for eight compressed work schedules and Management’s proposal to eliminate three of them. Flexible schedules and compressed schedules are not the same thing, and even have different lunch period rules (see the aforementioned OPM guidance).
Our case is also distinguished from 42 FLRA No. 84 because in that case Management wanted to change employees’ schedules to ensure office coverage, while in our case all employees are present during the core hours of 8:00 AM to 3:30 PM to ensure office coverage. The Authority explains in 42 FLRA No. 84 that the case "does not involve a change in the flexible hours during which an employee may elect to start or end the workday . . . . Rather, this case concerns . . . (Management's Right) to adjust employee arrival and departure times within the flexible hours of the AWS to ensure office coverage during the hours that the office was open".
IF the Seattle Passport Agency had a flexible schedule, with variable rather than fixed arrival and departure times, that allowed employees to arrive between 7:00 AM and 9:00 AM, and depart between 3:30 PM and 6:00 PM, but not enough employees were arriving in time to open up the counter or answer the phones at 8:00 AM, then the meaning of 42 FLRA No. 84 is that Management can propose to change some of those employees’ schedules within those bands to ensure office coverage when the core hours begin at 8:00 AM. That does not apply to our situation. We do not have flexible schedules here – with flexible arrival and departure times – we have fixed compressed work schedules.
Changing Arrival Times or Eliminating CWS?
This case is about the elimination of three of the eight CWS schedules previously negotiated by the Seattle Passport Agency. Management has not proposed to move those eight schedules to a later start time – it has proposed subtracting three from the eight, leaving only five. Even if Management was proposing to move the arrival/departure times for the eight CWS back by 30 minutes each, that would still be a matter subject to substantive negotiations and proposals to maintain them in place would still be legal and negotiable.
For example, in 56 FLRA No. 184, the Authority ruled on a case where Management was proposing to move the start times of employees, who were NOT on a CWS, from 7:15 AM to 8:00 AM in order to achieve the mission by having the employees on duty as late as 4:30 PM. The Union proposed exploring the use of Alternate Work Schedules, which could have allowed employees to retain their original arrival times and also be on duty at 4:30 PM. The Authority ruled that the Union’s proposal, even though it was vaguely worded, was negotiable:
By its terms, the Union's second proposal requires only that the Agency explore the use of AWS to alleviate patient care issues but does not obligate the Agency to negotiate over such schedules. Nevertheless, as discussed above, with few limitations, AWS schedules are fully negotiable under Authority precedent. The Agency's contrary argument is limited to a claimed violation of the management rights provision of the Statute and, therefore, provides no basis for finding that the proposal is contrary to law. E.g., NTEU, 39 FLRA at 34; NFFE, Local 642, 27 FLRA 862, 867 (1987), enforced sub nom. Bureau of Land Management v. FLRA , 864 F.2d 89, 91-92 (9th Cir. 1988) (rejecting agency's arguments that the establishment of alternative work schedules conflicts with management rights under the [ v56 p1046 ] Statute). As such, we find that the Union's second proposal is within the duty to bargain.
Simply looking at the Seattle Passport Agency’s September 5, 2001 work schedule agreement as it looked before and after July 28, 2003 clearly illustrates that this case is about eliminating CWS.
Prior to July 28th, the agreement had these CWS listed:
1) 6:30 AM – 4:00 PM or 4:15 PM (for two employees only)
2) 6:45 AM – 4:30 PM (45 minute lunch)
3) 6:45 AM – 4:15 PM (30 minute lunch)
4) 7:00 AM – 4:30 PM (30 minute lunch)
5) 7:00 AM – 4:45 PM (45 minute lunch)
6) 7:15 AM – 4:45 PM (30 minute lunch)
7) 7:15 AM – 5:00 PM (45 minute lunch)
8) 7:30 AM – 5:00 PM (30 minute lunch)
On July 28th Management unilaterally changed the agreement, without the consent of the Union. The (dis)agreement currently reads:
1) 7:00 AM – 4:30 PM (30 minute lunch)
2) 7:00 AM – 4:45 PM (45 minute lunch)
3) 7:15 AM – 4:45 PM (30 minute lunch)
4) 7:15 AM – 5:00 PM (45 minute lunch)
5) 7:30 AM – 5:00 PM (30 minute lunch)
It can clearly be seen that this is bargaining over the elimination of the CWS starting at 6:30 AM and 6:45 AM. The purpose of the CWS, as outlined in Article 26, Section 1 of the CBA, is to: provide the public with expanded hours of service; increase the hours for communication across time zones; increase productivity; help reduce short-term employee absences and tardiness; improve employee morale by permitting employees to adjust their work hours to meet the needs of their personal lives; improve recruiting and retention; decrease traffic congestion and facilitate the use of alternative forms of transportation and thereby improve air quality; reduce commuting time (by removing trips from peak hours); and increase child care and ridesharing options.
Eliminating the CWS with the 6:30 AM and the 6:45 AM start times – especially in a city such as Seattle with the third-worst traffic in the nation, and in a workforce that is more than 95% reliant on public transportation – has had a negative impact on the lives of those affected. Moving the arrival time of those employees by 15 to 30 minutes has caused those employees to have to spend more time getting to work and much more time getting home to their families. Leaving 15 minutes later can mean arriving home up to 60 minutes later.
We have twice posed the following question to Management officials (including the official who authored Management’s Position Statement): If you believe that you can eliminate the CWS with the 6:30 AM and 6:45 AM start times because a single manager changed his arrival time, then doesn’t it logically follow that if you had all of your officials change their schedules to 8:00 AM to 4:30 PM for any reasons whatsoever – even a malicious, vindictive reason – you could completely eliminate all CWS within our bargaining unit, not just in Seattle? Management’s reply (on both occasions): “yes”. Management does truly believe that the principle they are espousing here is that all CWS schedules are tied to the presence of Management officials, and that those officials can change their schedules any time they want for literally whatever reasons they want, even if it voids the CBA and the local agreements.
So, to be more accurate, Management is not simply declaring the CWS with the 6:30 AM and the 6:45 AM start times nonnegotiable – Management is declaring all CWS to be nonnegotiable. Seattle managers have stated that the only reason they are currently agreeing to keep the CWS with the 7:00 AM start time is that current managers and supervisors prefer to arrive at that time. If those preferences change, or those officials change, and managers and supervisors wish to arrive at later times, then Management openly and freely acknowledges that it will change employees’ arrival times to follow suit. Management officials have made reference to this on other occasions, including a statement by one Seattle manager that he recommended that Management should have eliminated all CWS prior to 7:30 AM – which would include the 7:00 AM and 7:15 AM start times. Other Seattle managers have stated that the CWS with the 6:30 AM arrival time is untenable because the manager who arrives at 6:15 AM travels by ferry, and the ferry schedule may change someday in the future. They have also referenced that manager’s retirement, which would probably be in more than a decade, as reasons for future changes they may be imposing. Passport Services Management has fought the use of CWS in Houston and New Orleans in the past, and is currently resisting efforts to offer that schedule in Miami and New York – this case is the vehicle by which they seek the authority to eliminate all CWS in our bargaining unit.
The main point here is that by agreeing to have CWS, Management has agreed to staff its supervisors accordingly so that the CWS may continue. The fact that they agreed to have CWS means that, if they desired to have supervisors present, then they agreed to staff their supervisors so that they would be present for the schedules to which they agreed.
Tours of Duty
Management cites 33 FLRA No. 73 as precedent that Management “may elect, but is not obliged to negotiate with the Union over a change in a tour of duty” (page 14 of Management’s Statement). We will address that citation further in the Response to the “Tours of Duty” Argument portion of our statement below. At this point we will only point out that 33 FLRA No. 73 included a footnote which stated that, “[i]n some instances, bargaining over flexible work schedules has been specifically authorized by statute . . . .”, and specifically refers to 23 FLRA 872 (the same as 23 FLRA No. 107), adding that “[t]hose instances are not affected by our decision in this case.” In 38 FLRA No. 91, the Authority ruled that Management had to negotiate over the substance of its proposed changed to the arrival/departure times (i.e., whether or not to change them), and not just engage in impact and implementation bargaining. The Authority noted in 38 FLRA No. 91 that while 33 FLRA No. 73 established that “generally, a change in employees' starting and quitting times is a change in their tours of duty within the meaning of section 7106(b)(1) of the Statute and an agency may decline to bargain on the decision to make the change . . . .”, yet “. . . some instances, including bargaining over flexible work schedules which are authorized by statute, are not affected by that decision.”
* * *
Both parties agree that the negotiability test to be applied in this case is whether the Union’s proposals are consistent with the F&CWS Act. For the reasons offered above, we assert that we have established the negotiability of our proposals as measured by that test. We believe that if Management wants to eliminate the CWS with the 6:30 AM and 6:45 AM arrival times, it should proceed to the FSIP.
Therefore, Management’s subsequent arguments concerning alleged conflicts with internal security practices, budget and number of employees, numbers/types/grades/etc., and the level of recognition/bargaining obligation are all irrelevant to this case because these arguments are based on the Management Rights provision of 5 U.S.C. 7106. Nevertheless, we will address them here in the event that the Authority does not agree with our conclusion that the Union’s proposals are consistent with the F&CWS Act. We will also address Management’s arguments regarding the Union’s Credit hours and Part Time proposals.
For the reasons offered above, we assert that Management’s arguments that the Union’s proposals violate the “internal security practices” clause of 5 U.S.C. 7106(a)(1) are irrelevant since the negotiability of the Union’s proposals is determined by whether they are consisted with the F&CWS Act. Again, we believe that this matter would be more appropriately addressed to the FSIP. Nonetheless, we will address Management’s argument here in the event that the Authority does not agree with our conclusions above.
We dispute that:
and even if it does,
Management argues in its Position Statement that the Union’s proposals to retain the CWS with the 6:30 AM and 6:45 AM arrival times interferes with Management’s right to “determine the . . . internal security practices of the agency” authorized by 5 U.S.C. 7106(a)(1). For example, Management states on page 12:
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 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.
Our response is that if Management is able to live up to:
1) The requirements of the F&CWS law,
2) The requirements of the Statute to negotiate in good faith – 5 U.S.C. 7116(a)(5),
3) The requirements of the CBA to negotiate in good faith (Article 12),
4) The provisions in the CBA regarding alternate work schedules (Article 26), and
5) The 9-5-2001 Seattle Work Schedule Agreement
6) Implementing its internal security policy pursuant to 5 U.S.C. 7106(a),
then Management should do so.
In other words, if Management can find a way to satisfy all of these authorities without violating one or contradicting them, then that would be the appropriate solution. There is no conflict between the current schedules and Management’s alleged internal security policy.
For example, at the San Francisco Passport Agency, whose employees are also in this bargaining unit and represented by this Union, the response by Management in that office to the April 17, 2003 directive from Passport Services Headquarters was to have the Assistant Regional Director change her arrival time so that she would be present when the employees started work. In other words, faced with the choice of violating work schedule agreements for many bargaining unit employees or changing one Management official’s schedules, the San Francisco office decided to do the latter. The Seattle Passport Agency decided to change 12 employees’ (and 2 non-bargaining unit non-supervisors’) schedules instead of changing one Management official’s schedule.
We dispute that there is even an internal security policy in existence or being implemented that affects this case. Throughout the negotiations and proceedings that have taken place regarding the issue at hand, Management refers to a July 17, 1997 memo titled “Guidelines for Compress Work Schedule” as the internal security policy in question, and we will address that status of that memo below.
We insist that reason, common sense, logic, and fair play all dictate that for Management to invoke its right to determine the “internal security policy” it must actually have a policy that it is invoking.
There are no Agency internal security practices that are being violated by maintaining the status quo. There is no widely understood or followed policy in writing that requires supervisors to be present at the same time that employees are present, and nothing that prohibits employees from performing work while supervisors are absent.
In fact, one bargaining unit employee in Seattle is still be allowed to work in the office without “supervisory coverage”, and is actually being required to do so on occasion (see page 25 of Seattle’s August 4, 2003 Employee Handbook – Attachment LL). Management comments that this employee – the systems administrator – has a higher clearance than the average employee (page 2). But that employee’s clearance – “Top Secret” – is exactly the same clearance level as the two CWS employees who started at 6:30 AM (they are former supervisors).
Management’s reference to keeping “the personal identifying information and citizenship documentation . . . of a passport applicant . . . secured and guarded” (page 12) is not a valid point. Currently passport applications in Seattle are transported from the 9th floor to the 4th floor and up to 33rd floor, sometimes directly from the 9th to the 33rd, via elevators which expose them to other federal employees who do not work for Passport Services as well as members of the public.
Previously, Passport Services utilized a “Flexiplace Program” – allowing passport applications to be adjudicated at home – which is referenced in Management’s Position Statement. The reason given to the Union for its elimination was that it potentially exposed the information to people (e.g., family and friends) who did not work for Passport Services. The issue of safeguarding this information from the employees themselves was not a factor in that decision. For example, during the December 3-4, 2002 annual Union/Management Council meeting in Washington, DC, (see pages 2-4 in Attachment MM) Management explained:
One of the main problems with Flexiplace is that it potentially exposes the information on the passport application to people who do not work for Passport Services. A completely trustworthy employee is still responsible for the applications even if houseguests or relatives of the employee take information or the applications themselves.
Employees Are Currently Required to Work Without Supervisory Presence
The concept of having Management officials present when Passport Services employees are working might seem to some of the members of the Authority, at first glance, like an understandable policy.
Yet, in what may seem strange to you, on many occasions employees are expected and required to perform work in the office while supervisors are not present (through the Duty Officer Program). See the “Senior Specialist Duties” in the GS-11 job elements and the Passport Specialist Position Description attached (Attachment HH and Attachment JJ). Bargaining unit employees were working in the office the weekend before you read this and will be there again next weekend, all without supervisors present. The author of this Union response has been required to work in the office without supervisor coverage by himself on 17 occasions, and on 2 other occasions he assisted other bargaining unit employees in those duties (again, without supervisor presence). We are not doing this in violation of any policy – in fact, we are being required to do this, as part of our jobs.
Management may try to argue in its response that there are some sorts of internal controls or protections that somehow square this arrangement with their claim that supervisors must be present when employees are working. We hesitate to address the specifics of these anticipated claims as any details that we provide to you on the “holes” in our system might themselves be violations of internal security policies and subject the author to disciplinary action. The weekend duty officer does have access to blank books, which he/she does not normally have, but they are controlled. There are no protections in place to prevent the weekend duty officer from committing the types of malfeasance that have happened in the past – during the middle of the workday while numerous Management officials were present – at the Los Angeles Passport Agency, the New York Passport Agency, and the Miami Passport Agency, to name a few. In fact, the percentage of these acts of malfeasance committed by supervisors and managers is a much higher proportion than those acts committed by bargaining unit employees.
The Union requests that the Authority either completely disregard any claims made by Management in this area, or alternatively require that Management specifically authorize the Union in writing to fully explain to the Authority why there are no added protections for weekend duty officer cases, with a promise from Management to not pursue any disciplinary action. Suffice it to say that an employee who is trusted for hours and hours on end by him/herself during the weekend, with zero expectation that any other employees or any supervisors will be entering the office while he/she is there, is just as trustworthy during the normal workweek while among other employees for the 15 to 30 minutes before supervisors arrived on those few occasions when the 6:15 AM starting time manager was absent. There is nothing magical, no “stagecoach turning back into a pumpkin” effect, about Monday – Friday that renders untrustworthy an employee who is trusted on Saturday and Sunday.
Focusing for a moment just on the Seattle office, Management in that office did remove all bargaining unit employees from the Duty Officer list in the Fall of 2001. That decision has nothing to do with internal security but rather with the fact that there are at most only one or two duty officer cases each year in Seattle, and the rotation of door keys and card keys became a headache for the employees and the supervisors (e.g., employees were sometimes on call for an entire month but did not have a key since there were not enough). Contrast this with the Honolulu Passport Agency and other offices, where Management officials are loathe to participate in the duty officer program, and employees must fill out the rotation.
Looking at all of this in a negative light, there is literally nothing that a malfeasant employee could do for those 30 or 15 minutes prior to a supervisor arriving that he/she could not do after the supervisor was present. None of the past acts of malfeasance within Passport Services were committed in the office before supervisors arrived. They were either committed by employees during the day while supervisors were present, or they were committed by supervisors and managers themselves.
Management’s reference to “working with passport books” (page 12) – referring to blank passport books, which are stringently controlled – is not relevant since those books are not made available to processing employees until 8:00 AM, and the employees whose CWS started at 6:30 AM and 6:45 AM are almost all passport specialists. Those processing employees who do work with books have numerous other duties that they perform prior to 8:00 AM.
If there somehow is an internal security policy that applies to this case, it isn’t coherent or consistent or logical enough to be valid.
There is nothing in writing and no widely understood or followed policy that requires the alarm access to be restricted to supervisors only. In fact, there are some Passport offices where each and every bargaining unit employee has access to the alarm code. Again, in Seattle there is one bargaining unit employee who still has alarm access as well. In other offices, some employees, but not all, have alarm code access. For example, some offices have those employees who are assigned as duty officers open the office when supervisors are late or absent. In addition, other offices allow non-bargaining unit staffers – such as the office secretary or processing supervisors (normally GS-7 to GS-9’s – they are not the GS-12 supervisors referenced earlier) – to have alarm code access to open the office.
Throughout the partnership meetings, discussions, negotiations, and other proceedings of this case Seattle Management insisted that they were being forced to restrict the access to the alarm code on order from Passport Services Headquarters. For example, in the Seattle Regional Director’s April 22nd memo to the Union (Attachment H – July 23rd NA), the Director states, “I have been informed by Passport Services Headquarters that only supervisors may have alarm access to open and close the agency”. Now in its November 6th Position Statement, Management contradicts this and states that the decision was made at the local level: “regional directors were given the discretion to decide which supervisors or essential personnel would be authorized access” (page 6).
This smacks of a “shell game”; with each level of Management saying the decision was made by the other. We choose to accept both versions of this story. If the national level points at the local level and vice-versa, the sum of these finger-pointing exercises is that there actually is no good reason or justification for the restrictive alarm code policy that has been implement in Seattle. In other words, since Seattle Management was only deleting access for most bargaining unit employees because Passport Services Headquarters made them do it and for no other reason, and now Headquarters says that the decision is up to Seattle Management, then the original and sole impetus for the restrictive policy has been removed.
The July 17, 1997 CWS Memorandum (hereafter referred to as “the 1997 memo” – Attachment A to the July 23rd NA) cited in Passport Services Managing Director Ann Barrett’s April 17, 2003 Memorandum was superceded by the July 3, 2001 CBA. The CBA involved extensive and thorough negotiations on this subject. Other points:
1) The 1997 memo lists “suggested guidelines” (emphasis added – this was stated twice near the beginning).
2) The 1997 memo called for “greater flexibility in scheduling”.
3) The 1997 memo was not in compliance with OPM regulations at the time (see Section 4: “Holidays”, for example).
4) The 1997 memo was issued after the Seattle Passport Agency had already instituted its own CWS Program, and the 1997 memo took note of that in the Section titled “Background”.
5) The 1997 memo states that future CWS Program requests from other offices not already participating must submit a plan to the Managing Director – and PPT/SE had already done so, as it was the Seattle agreement that was the impetus for the 1997 memo.
6) The 1997 memo references CWS schedules beginning at 7:15 AM and ending at 6:00 PM, so a 6:15 AM to 5:00 PM range of schedules is consistent with that (especially since the memo was promulgated during the life of the 1991 CBA, which dictated 7:15 AM as the earliest start time – that restriction was removed in 2001).
Management’s claim that it had misunderstood the 1997 memo is belied by the fact that the 1997 memo itself referred to the already existing Seattle CWS that was the basis for that memo. Furthermore, the 1997 memo included only “suggested guidelines” and in fact the practice in most of the offices, including Seattle, still grants access to the office to bargaining unit employees without supervisory presence.
However, the question on the exact meaning and applicability of the 1997 memo is irrelevant since it was superceded by the 2001 contract, which under Article 26, Section 3a lists the “Requirements of the Plans”. This article was negotiated extensively and thoroughly and Management officials from the passport agencies across the country and DC Management experts on work schedules all had (and took) the opportunity to make comments and have input on this article before it was completed and reviewed by the Legal Advisor and then signed by the Under Secretary of State for Management on July 3, 2001. Therefore Management had ample opportunity to make proposals in the requirements section so that CWS would conform to the changes in Management officials’ schedules, but they elected not to make that proposal.
For example, the 1997 memo:
All of these topics were negotiated during January 2000 – July 2001 and changed. Article 26 of the CBA, effective July 3, 2001, states that the start times will be decided locally, does not limit the start time to 7:15 AM any longer, calls for local agreements to decide the methods and the frequency of scheduling rotations, fixes the holiday references in the 1997 memo which were in violation of the law, and provides for a specific and narrow process for suspending the CWS (not at any time). Clearly, the 1997 memo has been superceded by the 2001 CBA.
Therefore, the 1997 memo is no longer controlling as it pertains to the Compressed Work Schedules of bargaining unit employees. If there is any vestige of meaning or authority left in the 1997 memo, it only applies to non-bargaining unit members. That is, it would be an internal instruction from Management at the Headquarters level to Management in the field to have managers and supervisors present when employees are working: “Regional Directors need to ensure that there is adequate supervision during these periods, particularly during the opening and close of business”: the onus is on Management (page 3 of the 1997 CWS memo). Management’s April 17, 2003 memo does not require Seattle Management to change any bargaining unit employees’ work schedules or to abrogate the September 5, 2001 Seattle Agreement. Management may comply with both of these memos by simply having a Management official present at the start and end of the day as the memo states, rather than disrupting the lives of 14 people (12 bargaining unit employees and 2 non-bargaining unit staffers).
That 1997 memo called for the scheduling policies to be “flexible”, mentioning “creative scheduling”. Considering the continuing context of the duty officer program, it was a reasonable interpretation – and would continue to be a reasonable interpretation – to have duty officers open the office for a few minutes before employees arrived on those rare occasions when a supervisor was not present. In other words, even if that 1997 memo was still controlling as it pertains to bargaining unit employees, Seattle was never in violation of these suggested guidelines – guidelines established with the duty officer program in mind, and guidelines meant to be “flexible”. Management could comply with the 1997 memo by restoring the alarm code access to the two employees on the CWS with the 6:30 AM start times, especially considering they have the same “Top Secret” clearance as the current, lone Seattle bargaining unit employee who has access, and especially considering that participation in the weekend duty officer program is in their job descriptions. Allowing these GS-11 Senior Passport Specialists, working in that capacity, alarm access would not be contrary to the 1997 memo or the current alarm access policy. If they felt if was necessary, Management could even detail one or both of these employees as temporary supervisors for 15 – 30 minutes on those few occasions when the manager with the 6:15 AM start time was not present (which would also be consistent with the “acting responsibilities” guidelines listed on page 2 of the 1997 CWS memo).
Note: Management states on page 9 of its Positions Statement that the 1997 memo was “accepted by NFFE Local 1998 at the time of their issuance”. This is not accurate. The 1997 memo was received by the Union after it was already developed by Management and issues as a “done deal”. This was not negotiated with the Union. Receiving a copy of a completed policy is not “advanced notification” as required by the law and the CBA. Also, contrary to Management’s statement on page 5 that Management “expanded the definition of senior manager to include the [GS-12] Supervisory Passport Specialist”; in fact Management “clarified” this issue, consistent with the intent of the 1997 memo (see Attachment J to the July 23rd NA).
We assert that our proposals only pertain to bargaining unit employees, but if the Authority finds otherwise, then we would argue that our proposals amount to requesting “appropriate arrangements” and implementing procedures for the employees who would be adversely affected by Management’s decision. Specifically, if the Authority determines that our proposals do relate to the internal security policy and if that is a relevant factor, we argue that while this may interfere with the exercise of a Management Right, it does not “excessively interfere” with that exercise – and that is the standard against which our proposal would be judged. Requiring one supervisor to adjust his/her arrival time by 30 minutes – or even 15 minutes – is not excessively interfering with Management Rights.
We would like to again insist that our proposals have no such intent, but given that this is our only chance to make our argument, it would be irresponsible to not anticipate this contingency.
For the reasons offered above, we assert that Management’s arguments that the Union’s proposals violate the “budget . . . [and] number of employees” clause of 5 U.S.C. 7106(a)(1) are irrelevant since the negotiability of the Union’s proposals is determined by whether they are consisted with the F&CWS Act. Again, we believe that this matter would be more appropriately addressed to the FSIP. Nonetheless, we will address Management’s argument here in the event that the Authority does not agree with our conclusions above.
Management argues that the Union’s proposals interfere with 5 U.S.C. 7106(a)(1), which spells out Management’s right “to determine the mission, budget, organization, number of employees, and internal security practices of the agency” (emphasis added).
The plain wording and the intent of the Union’s proposals are to negotiate over bargaining unit employees’ schedules only, as allowed by the F&CWS Act. We do not make any proposals that relate to the budget and the number of employees. The Union’s proposals do not interfere with the “budget” and “number of employees” and this is proven by the fact that the Union’s proposals are to maintain previously existing schedules. The unilateral elimination of these schedules did not save Management any money (“budget”) and did not affect the need for the same number of employees and supervisors (“number of employees”). Putting these schedules back into place will not cost any more money or require any new staff to be added.
According to 5 U.S.C. 6122(b)(1), the Agency head can restrict the employees’ choices of start and stop times if the agency "is being substantially disrupted in carrying out its functions or is incurring additional costs because of such participation" but only subject to the provisions of a CBA referred to in 5 U.S.C. 6130(a). If Management then tries to cite 5 U.S.C. 6131, that provision of the law requires them to take the issue to the FSIP, not to declare our proposals "nonnegotiable". In other words, an argument about effects on the “budget” – “additional costs” – belongs before the FSIP, not the Authority. While this is our main point, we will also clarify that the “budget” and “numbers” arguments made by Management are based on non-facts, so they should be dismissed on that basis as well.
FSIP, not FLRA
The overwhelming majority of the “Budget and Number of Employees” argument made by Management in its November 6th Statement of Position is based on practicality, utility, and merit. This is true of much of their other arguments as well. Their statement dwells on why they believe that barring all start times prior to 7:00 AM better accomplishes the mission than allowing the CWS schedules with the 6:30 AM and 6:45 AM start times to remain in place. Management is arguing that continuing the currents schedules adversely impacts the accomplishment of the mission. These are not legal arguments – they do not touch the legality of keeping in place CWS with 6:30 AM and 6:45 AM start times.
Arguments over the merits of a proposal, rather than the legality of a proposal, belong before the Federal Service Impasse Panel (FSIP), rather than the Authority. According to 23 FLRA No. 107, the Negotiability procedures of 5 U.S.C. 7117 should only be used in conjunction with a CWS “where a proposal is alleged to be inconsistent with the 1982 Act itself or with other laws superseding the 1982 Act”. Otherwise, “(i)f the parties need third-party assistance to resolve a dispute concerning the alleged adverse agency impact, they must present their dispute to the Federal Services Impasse Panel . . . .”
Management’s argument is that the CWS schedules with the 6:30 AM and 6:45 AM start times are having an “adverse agency impact” – specifically “an increase in the cost of agency operations”. By basing so much of their argument on the merit of its proposals, Management is essentially conceding that the Union’s proposals are negotiable and that the proper course of action would have been for Management to have declared an impasse and to have then proceeded to the FSIP, not the FLRA, as required by 5 U.S.C. 6131.
While it is not relevant to this negotiability appeal, we assert that their “adverse agency impact” claim is not true and we are confident that if this case is eventually presented to the FSIP we will be vindicated. In fact, the CWS with the 6:30 AM and 6:45 AM start times serve to enhance the productive and efficient accomplishment of the mission. Even though most of Management’s argument deals with the merits rather than the negotiability of schedules, we will address them here.
Management’s November 6th Statement of Position includes a number of inaccuracies that are used to support its arguments (all page numbers and quotes come from Management’s November 6th Statement):
A) Management erroneous claim: “all PPT/SE personnel including supervisors and unit members are bound by the established 8:00 AM to 3:30 PM core hours” (page 10).
This is simply not true. Management officials in many of the passport offices and at the headquarters and regional levels have all repeatedly espoused over the years that “the contract does not apply to me”. This includes Management officials at PPT/SE.
In fact, two of the PPT/SE Management officials references in Management’s November 6th Statement – Regional Director Teresa Bobotek and the Customer Service Manager – both have official start times that begin at 8:30 AM, 30 minutes after the core hours begin. The explanation given by PPT/SE for why this is allowed is that Management officials are not bound by the core hours.
B) Management erroneous claim: “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” (page 5).
The senior manager referenced here is the Customer Service Manager. As noted earlier, his start time is now 8:30 AM. He switched his start time from 6:30 AM to 8:30 AM – it was never 7:00 AM. This was more than an “adjustment” of arrival times – he dropped the CWS entirely. This did not happen “at some point” – it happened in early 2003 (approximately January) (see Union’s grievance served on the parties by the FLRA in the Post-Petition Conference Notes).
C) Management’s erroneous claim: “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”.
Management seems to be implying that the employees and Management officials are limited to a 45 minute lunch. This erroneous claim has been made by a Management representative before, but we thought that they had already received clarification on this matter. According to the OPM’s Guidance “Negotiating Flexible and Compressed Work Schedules”, “[l]unch periods are not prescribed by law. They are provided for by internal agency practices and procedures, and by negotiated agreements between agencies and unions.” For the record, the only restriction on the lunches of bargaining unit employees that may be negotiated locally is that they be a minimum of 30 minutes. So, an employee could take a 30 or 45 minute lunch, or, if the parties chose to adopt it, a 60 minute (or even longer) lunch. Again, these restrictions do not apply to management officials - the Seattle Regional Director mentioned in this case has stated before that on occasion she has had to forego lunch entirely and work from 8:30 - 4:30.
The non-facts listed above are the foundation for the following “budget” and “number of employees” arguments by Management:
The “hire more supervisors” argument (pages 12-13): The “resource allocation process . . . . 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 . . . .”
The “overtime” argument (page 13): the Union’s proposals “would require PPT/SE to incur additional costs in overtime pay. . . . Requiring supervisors to work overtime to allow unit employees to maintain a start time earlier than 7:00 AM does not meet this [JF-56 Authorization of Premium Compensation] mandate.”
The “placing the entire supervisory staff on a CWS” argument (pages 13-14): “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.”
These three arguments are all based on the mistaken assumption that a supervisor could only work a 6:45 AM – 3:30 PM schedule, and therefore could not be present at 6:30 AM, in place of the Customer Service Manager who previously was on a CWS and arrived at 6:30 AM. Management is arguing that they would either have to hire more supervisors to cover that time period, pay overtime to cover those 15 minutes, or force a supervisor onto a 6:30 AM starting CWS (the schedule that the Customer Service Manager previously had).
However, the fact is that Management can cover that time period by simply having a Management official work from 6:30 AM to 3:30 PM, with a 60 minute lunch. Management could also cover that time period by having a Management official work from 6:30 AM to 3:15 PM, with a 45 minute lunch, since they are not bound by the core hours, and the other eight officials have departure times at 4:00 PM or later (so the employee departure times are already covered). No overtime would have to be paid, no additional supervisors would have to be hired, and no Management official would be forced into a CWS. Those arguments collapse when the non-facts supporting them are removed.
In fact, for the month of June 2003, Management directed a Management official to change his schedule to work from 6:45 AM to 3:30 PM. Management states that, “the press of business and workload requirements required him to invariably stay to 4:00 PM”. While we dispute the veracity of the reasons why the manager had to stay until 4:00 PM, that is not relevant (e.g., if there was some sort of end-of-the-day need to stay, he could take a one hour and fifteen minute lunch). This statement by Management alone is an admission that the Union’s proposal to keep the CWS with the 6:45 AM start time is a negotiable proposal. Management’s argument addressed the merits of that schedule and alleged adverse impact on the agency. The CWS with the 6:45 AM start time is a legal schedule, and its proposals requesting its continuance are negotiable.
Therefore, the Union’s proposals do not relate to the budget and would have zero budgetary impact. The Union’s proposals also do not relate to the number of employees, since no additional supervisors would need to be hired. Again, we are not proposing that any managers or supervisors change their schedules or lunches, we are just pointing out that Management has options.
Though it is completely immaterial to this case, for the record we are not conceding that a supervisor cannot be forced to work a CWS. We believe that Management may have the authority to require Management officials to work a CWS. The portions of the F&CWS law that mention employees refer to employees in the sense of “bargaining unit employees” that are covered by collective bargaining agreements negotiated by Unions. Specifically, “employee” for the purposes of the F&CWS law is defined in 5 U.S.C. 2105 as, among other provisions, “subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties in his position.” Also, “collective bargaining” in the F&CWS law has the same meaning as given in 5 U.S.C. Chapter 71.
A supervisor who would like to work a CWS cannot request that the Union make proposals on his/her behalf, since he/she is not part of the bargaining unit. A supervisor who was forced to work a CWS or forced to return to a non-CWS schedule would not have any appeal rights that would ever come within the jurisdiction of the Authority. The supervisor would not be able to file a grievance via the negotiated grievance procedure in the CBA. The supervisor would not be able to use the arbitration process. The supervisor would not be able to file an Unfair Labor Practice charge.
The supervisor would apparently also not have any right to appeal this before the Merit Systems Protection Board (MSPB). A telephone inquiry was made to the Seattle MSPB office on November 12th on this subject, asking if a supervisor who was forced to go on or to leave a CWS would have appeal rights before that authority. The reply was that “generally” and “usually” the MSPB would only handle cases where there was something along the lines of a reduction of pay – they did not believe that they had jurisdiction, but advised searching their website. A search for “compressed work schedule” returned only two results, both dealing with whistleblower retaliation where the supervisor complainant was alleging that – among numerous other acts – she was denied a CWS as a form of retaliation. See Darlene C. Heining v. General Services Administration and Office of Personnel Management, AT-1221-92-0191-R-1 and Neelam Sood v. Department of Veteran Affairs, SF-1221-99-0497-W-2.
If a supervisor cannot legally be forced to work a CWS, then what are his/her options for getting such a decision overturned when that does happen? If Management's statement is true, doesn't it logically follow that there must exist a body that would prevent such an action from being forced on a supervisor?
The Union is able to negotiate agreements that force employees to work a CWS, even a 4/10 schedule. For example, see the arbitration decision in Department of the Army, Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, Kentucky, and American Federation of Government Employees, Local 2022, LAIRS No. 18279 (January 15, 1988). In this case, an employee was attempting to argue that she should not be required to participate in the 4/10 schedule, citing the “personal hardship” provision of 5 U.S.C. 6127(b)(2). The arbitrator ruled that the employee’s reasons were not sufficient. If an employee can be forced into a CWS by a negotiated agreement proposed by a Union, it is difficult to conceive that Management does not have the power to order a supervisor into a CWS. How is it possible that the Union could have more potential influence over the schedules of bargaining unit employees than Management could have over the schedules of supervisors?
So, it may very well be the case that Management does have the right to order Management officials to go on a CWS or to leave a CWS. A Management official forced into a CWS would not have access to any of the following avenues of appeal: grievance, arbitration, ULP, FLRA, or MSPB. The F&CWS law does not grant supervisors any such protection. Given the broad authority of Management when setting policies dealing with its supervisors, unconstrained by collective bargaining rights, it is hard to imagine that Management is powerless to order a supervisor to go on a CWS. Many Management officials are required to sign “mobility agreements”, whereby they consent to being relocated from one city to another. How strange it would be if Management had the power to force a supervisor to move from Seattle to Miami, but could not force that supervisor to work a CWS!
For more on this issue, see below in our Response to Management’s “Tour of Duty” Argument.
Management tries to equate “supervisor” with “employee” when it offers a paraphrase of 5 U.S.C. 7106(a)(1) on page 15 of its Position Statement: “the [Union’s] proposal seeks to violate management’s right to determine the ‘… budget, organization, number of supervisors, and internal security practices of the agency’” (italics in Management’s Statement). Management is arguing that by allegedly violating this paraphrasing of the Statute then the Union’s proposals violate the Statute itself.
While we have argued above that the Union’s proposals are negotiable for a host of other reasons, it should also be pointed out that this argument by Management is deficient based on the grounds that the paraphrasing of the Statute is not the Statute. The Statute does not say “supervisors”, it says “employees”. The Statute takes great pains in Section 7103 to differentiate the definition of “employee” from the definition of “supervisor”. The word “employees” is explicitly defined to not include “supervisors”.
Therefore, there is literally no bar – no prohibition – in the Statute to bargaining over the “numbers of supervisors”. We are not asserting that the Union does indeed have the right, the ability, or the authorization to bargain over the “numbers of supervisors”. We are simply making the point that if there is such a prohibition, it is not found in 5 U.S.C. 7106(a)(1). If Congress had intended to include such a provision in 5 U.S.C. 7106(a)(1), it would have written that Section to read “numbers of employees and supervisors”.
Union’s Response to “Tour of Duty” Argument
For the reasons offered above, we assert that Management’s arguments that the Union’s proposals violate the provisions of 5 U.S.C. 7106(b)(1) are irrelevant since the negotiability of the Union’s proposals is determined by whether they are consisted with the F&CWS Act. Again, we believe that this matter would be more appropriately addressed to the FSIP. Nonetheless, we will address Management’s argument here in the event that the Authority does not agree with our conclusions above.
Management argues that the Union’s proposals are within the purview of 5 U.S.C. 7106(b)(1), which are subjects negotiable only at the election of Management, and Management has not much such an election – “PPT/SE management declined to negotiate with its union counterparts on these issues” (page 14 of Management’s Statement). The relevant portion of the Statute reads:
(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, or on the technology, methods, and means of performing work;
Management statement on page 10 that the Union’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” is also part of this argument.
Management relies on 33 FLRA No. 73 as precedent for its position, but upon close inspection that case actually supports the Union’s – not Management’s – position.
The Authority held in 33 FLRA No. 73 that:
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. For example, when an agency changes 10 employees' tours of duty by moving the employees from a day shift to a night shift, that change affects the numbers of employees assigned to both tours of duty--it decreases by 10 the number of employees assigned to the day tour of duty and increases by 10 the number of employees assigned to the night tour of duty. Therefore, an agency's decision to make these types of changes is negotiable only at its election under section 7106(b)(1) of the Statute. To the extent that previous decisions of the Authority are to the contrary, they will no longer be followed.(*)
However, in that case the Authority also included the following footnote, which Management chose to ignore:
1*/ In some instances, bargaining over flexible work schedules has been specifically authorized by statute. See, for example, American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA 872 (1986). Those instances are not affected by our decision in this case. (emphasis added)
The Authority’s decision in 38 FLRA No. 91, in which Management committed an Unfair Labor Practice by “unilaterally changing the earliest times employees . . . could start work . . . . without providing the Union an opportunity to bargain over the change and its impact and implementation” is relevant to the case being decided here (emphasis added). In that case, the Authority ruled that Management “was required to bargain over the substance and the impact and implementation of its decision to restrict the available flexitime schedules for employees . . . .” (emphasis added). The Authority added that “[a]lternate work schedules for bargaining unit employees are fully negotiable within the limits set by the Work Schedules Act.” The Authority took note of the Footnote in 33 FLRA No. 73 (the same as 33 FLRA 532) and explained that it does not apply to F&CWS:
In Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532, 542-43 (1988), the Authority stated that, generally, a change in employees' starting and quitting times is a change in their tours of duty within the meaning of section 7106(b)(1) of the Statute and an agency may decline to bargain on the decision to make the change. However, the Authority noted that some instances, including bargaining over flexible work schedules which are authorized by statute, are not affected by that decision. Id. at 543 n*.
Alternate work schedules are negotiated under the Federal Employees Flexible and Compressed Work Schedules Act. The Work Schedules Act provides that an exclusive representative can negotiate with an agency for the establishment of flexible and compressed work schedules for bargaining unit employees. 5 U.S.C. § 6130(a)(1). Alternate work schedules for bargaining unit employees are fully negotiable within the limits set by the Work Schedules Act. American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA 872 (1986) (Lowry AFB). In that case, the Authority held that an alleged conflict between an alternate work schedule and the Statute does not create a negotiability dispute which the Authority will consider under section 7117 of the Statute. However, proposals that are alleged to be inconsistent with the Work Schedules Act itself or with other laws superseding the 1982 Act are subject to the negotiability appeal procedures of section 7117 of the Statute. Id. at 874. See also National Treasury Employees Union, Atlanta, Georgia and U.S. Department of the Treasury, Internal Revenue Service, 32 FLRA 879, 881-83 (1988) (Internal Revenue Service).
Accordingly, matters which pertain to the institution, implementation, administration and termination of alternate work schedules are negotiable. In the case before us, the Respondent sought to make changes in the administration of the flexitime for employees in the Management and Systems Branch. Consistent with our holdings in Lowry AFB and Internal Revenue Service, those changes are negotiable matters.
Based on the foregoing, we conclude that management proposed and implemented a change in the flexitime schedules available to employees in the Management and Systems Branch. That change limited employees' choice of early starting and quitting times. The effect of the change was to preclude employees from commencing their workday earlier and to extend the hours that employees in the Branch had to be present during the afternoon from 1500 to 1600 hours.
Therefore, the Union’s proposals are negotiable because they concern compressed work schedules, which are specifically excepted from the precedent Management is citing.
The Union’s Proposals Only Concern Bargaining Unit Members
We believe that the controlling precedents for this issue are 28 FLRA No. 79 and 27 FLRA No. 47. In 28 FLRA No. 79 the Authority, referring to 27 FLRA No. 47, decided that:
to the extent that a proposed . . . compressed work schedule was intended to apply to nonbargaining unit employees it was inconsistent with the Work Schedules Act and therefore nonnegotiable. In reaching this conclusion, we found that the terms "collective bargaining," "collective bargaining agreement," and "exclusive representative" had the same meaning under the Work Schedules Act as under the Statute and were intended to define an agency's duty to bargain as extending only to the conditions of employment of bargaining unit employees. We also noted this conclusion was supported by the fact that the Work Schedules Act provides separately in 5 U.S.C. 6127(b)(1) for nonunit employees to choose to participate in an alternate work schedule.
The Authority noted in 28 FLRA No. 79 that:
Since the Union in this case specified that Proposal 2 was intended to include bargaining and nonbargaining unit employees, it is, based on reasons more fully explained in Office of the Adjutant General, State of California, inconsistent with the Work Schedules Act itself and therefore, nonnegotiable. However, if the Union were to revise the proposal to specifically pertain only to bargaining unit employees, it would be negotiable because it relates to the institution and implementation of alternative work schedules. Similarly, Proposal 3 concerns administration of the program, and is not properly before us under section 7117 of the Statute. (emphasis added)
The applicable test enunciated by the Authority is whether the proposal pertains to nonbargaining unit employees or whether it pertains only to bargaining unit members. We distinguish our Proposal 1 and Proposal 2 from the proposals considered in 28 FLRA No. 79: we do not intend at all to include nonbargaining unit employees in our proposal. Our proposals only address bargaining unit members. The plain wording of our proposals as well as our repeated declarations of intent evidences that this is a fact. Therefore, our proposals are negotiable.
It is important to recall that, as we have mentioned elsewhere, if Management desires to have its supervisors work tours of duties so that they are present when employees are present, it certainly may do so. Again, the Union’s Proposal 1 and Proposal 2 do not require that any Management official change his/her work hours. Management negotiated those schedules in good faith and they were “legal” and “negotiable” at that time. If Management wants to have supervisors present when employees are present, it may do so. If Management wants to change its supervisors’ tours of duties to fulfill this self-imposed obligation, it may do so. But that would be a requirement made by Management, not a proposal offered by the Union. Recall that Management at the San Francisco Passport Agency chose to change a Management official’s tour of duty so that there would be “supervisory coverage” – that was not proposed by the Union, it was required by Management.
Management tries to equate “supervisor” with “employee” when it offers a paraphrase of 5 U.S.C. 7106(b)(1) on page 15 of its Position Statement: “[i]t also interferes with the right to elect not to negotiate on the numbers, types, and grades of supervisors assigned to any . . . tour of duty” (italics in Management’s Statement). Management is arguing that by allegedly violating this paraphrasing of the Statute then the Union’s proposals violate the Statute itself.
While we have argued above that the Union’s proposals are negotiable for a host of other reasons, it should also be pointed out that this argument by Management is deficient based on the grounds that the paraphrasing of the Statute is not the Statute. The Statute does not say “supervisors”, it says “employees”. The Statute takes great pains in Section 7103 to differentiate the definition of “employee” from the definition of “supervisor”. The word “employees” is explicitly defined to not include “supervisors”.
Therefore, there is literally no bar – no prohibition – in the Statute to bargaining over the “numbers, types and grades of supervisors”. We are not asserting that the Union does indeed have the right, the ability, or the authorization to bargain over the “numbers, types, and grades of supervisors”. We are simply making the point that if there is such a prohibition, it is not found in 5 U.S.C. 7106(b)(1). If Congress had intended to include such a provision in 5 U.S.C. 7106(b)(1), it would have written that Section to read “numbers, types, and grades of employees and supervisors”.
Furthermore, it is worth noting that supervisors and managers are neither bargaining unit employees nor are they “nonbargaining unit employees”. By a plain reading of the law, a “supervisor” is not an “employee”. According to 5 U.S.C. 7103(a)(2):
"employee" means an individual--
(A) employed in an agency; . . .
but does not include--
. . .
(iii) a supervisor or a management official;
According to 5 U.S.C. 7103(a)(16), the term
“exclusive representative” means any labor organization which
(A) is certified as the exclusive representative of employees in an appropriate unit pursuant to section 7111 of this title; or
(B) was recognized by an agency immediately before the effective date of this chapter as the exclusive representative of employees in an appropriate unit--
(i) on the basis of an election; or
(ii) on any basis other than an election, and continues to be so recognized in accordance with the provisions of this chapter
Supervisors and managers are not in a unit that has not yet been accorded exclusive recognition – not only are they not in “an appropriate unit”, they are not in any unit at all. Based on the conclusion in 28 FLRA No. 79 and 27 FLRA No. 47 that the terms “collective bargaining”, “collective bargaining agreement”, and “exclusive representative” in the F&CWS Act are synonymous with the definitions in the Statute, we assert that 5 U.S.C. 6127(b)(1) applies to unorganized units – units without exclusive representative Unions – and not to supervisors and managers. 5 U.S.C. 6127(b)(1) states that:
An employee in a unit with respect to which an organization of Government employees has not been accorded exclusive recognition shall not be required to participate in any program under subsection (a) unless a majority of the employees in such unit who, but for this paragraph, would be included in such program have voted to be so included.
Supervisors and managers are not in a unit that is waiting for a Union to invite them to join, later to apply for exclusive representation – they are simply not in unit. This interpretation is further borne out by the fact that Section 6127(b)(1) calls for an election “of the majority of the employees”. An election among supervisors would be administered and monitored by whom? Other managers? Elections administered in a stringently hierarchical group of people by those at the pinnacle of that hierarchy are by their very nature subject to potential influences opposed to democratic principles (see 5 U.S.C. 7111). This clearly would not meet the democratic ideals required by the Statute.
We assert that our proposals only pertain to bargaining unit employees, but if the Authority finds otherwise, then we would argue that our proposals amount to requesting “appropriate arrangements” and implementing procedures for the employees who would be adversely affected by Management’s decision. Specifically, if the Authority determines that our proposals do apply to the tours of duty of supervisors and if that is a relevant factor, we argue that while this may interfere with the exercise of a Management Right, it does not “excessively interfere” with that exercise – and that is the standard against which our proposal would be judged. If the Authority finds that are proposals mean (contrary to our intent) that we are requiring one supervisor to adjust his/her arrival time by 30 minutes – or even 15 minutes – that is not excessively interfering with “Management Rights”.
We would like to again insist that our proposals have no
such intent, but given that this is our only chance to make our argument, it
would be irresponsible to not anticipate this contingency.
Note: we will address the “Level of Recognition” and any bargaining obligation disputes that pertain to Credit Hours and Part Time slots in the section that follows.
Management does apply the “Level of Recognition” argument to the Union’s first two proposals – the proposals to maintain the CWS with the 6:30 AM and 6:45 AM start times. Management argues that “[t]he CWS guidelines were established by the parties at the level of recognition . . . . PPT/SE has no authority to negotiate [changes to the CWS guidelines] . . . . (page 10)”
Management’s “Level of Recognition” argument is a bargaining obligation dispute:
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. (page 10)
There is nothing in the outdated 1991 CBA or the current 2001 CBA that bars the parties from negotiating at the local level on work schedules. This is supported by the history of CWS within this nationwide bargaining unit. Recall that CWS started in Seattle during the life of the 1991 CBA and prior to 1997 CWS Guidelines. The CWS in Seattle was the genesis for the nationwide 1997 CWS Guidelines.
In fact, just the opposite is true – not only does the 2001 CBA not bar local schedule negotiations, it in fact requires them. Management’s argument is clearly contradicted by the CBA, which specifically mandates local negotiations on the contours of alternate work schedules in Article 26, Section 3b:
Each location will maintain the status quo unless the Union/Management Council at each location sets the following:
(1) The earliest and the latest time an employee may work;
(2) The lunch period; and
(3) The core time (that time during which each employee must be present for work).
In fact, during the January 2000 – July 2001 bargaining over the CBA, Management rebuffed the Union’s proposal to continue – from the 1991 CBA – the practice of having a nation-wide set of core hours. Management preferred to have this issue decided locally, and the Union eventually agreed. So, negotiating over whether to use the 5/4-9 and/or the 4/10 CWS, the arrival and departure times, the lunches, the core time, etc. – all of these issues were negotiable at the local level on September 5, 2001, and they are still negotiable today.
Furthermore, this entire “national” vs. “local” issue is moot considering that then Union President Alex Allen specifically appointed Union Vice President Rob Arnold and Union member (and Mr. Allen’s predecessor as President) Bill Beardall as the Union negotiators. That, combined with the fact that the local officials were constantly in contact with Management officials in Washington, DC, including the author of Management’s November 6th Position Statement, establishes that these issues can be considered to be negotiated at the national level. Since, for example, Management in San Francisco did not abrogate the local schedule agreement as happened in Seattle, you are only hearing about declarations of nonnegotiability arising from the Seattle office. The Negotiability Appeal filed by the Union on August 23, 2003, and this Union Position Statement are both authored by a national Union officer, who coincidentally works in Seattle, on behalf of the entire bargaining unit. As can be seen from issues raised throughout this statement, the effects of this case will be felt throughout Passport Services.
Union’s Response to Management’s Credit Hours and Part Time Arguments
The parties – Passport Services and NFFE FL 1998 – did not negotiate provisions for CWS into the 1986, 1988, and 1991 CBA’s, even though the F&CWS Act went into effect in 1982. Yet that did not preclude the PPT/SE and local Union representatives from establishing a CWS in Seattle in early 1997 (prior to the national 1997 CWS memo). The reason for this is that the 1991 CBA did not prohibit – either expressly or by intent – local negotiations to address issues and arrangements in each individual office.
Management recognizes this on page 3 and page 4 of their Position Statement when they write, “[i]n part due to PPT/SE’s request, in July 1997, CA/PPT agreed to allow compressed work schedules established within specific guidelines”. So, we would simply be trying to follow the same path with credit hours that CWS took.
The 2001 CBA – which replaced the 1991 CBA – did not include any provision that prohibited individual offices from negotiating other schedules.
The Seattle CWS was legal and negotiable when it was instituted in 1997, during the life of the 1991 CBA, even though it was implemented prior to the 1997 CWS memo, because there is no valid “bargaining obligation dispute” or “level of recognition” provision that prevented the Seattle office from negotiating that schedule. Therefore, Credit Hours are legal and negotiable subjects in Seattle in 2003, during the life of the 2001 CBA, even though it has not been implemented on a national basis yet.
Management argues that the Union’s Proposal 3 – which includes Credit Hours and Part Time slots – 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.”
This argument fails on the basis that it is false.
The parties never considered the “Flexible Work Schedule, Maxiflex option, with credit hours” at any time during the four face-to-face negotiation sessions that lasted a cumulative seven weeks between January 2000 and July 2001, nor during any of the numerous email and phone call exchanges. In fact, the Union bargaining team members considered this option during internal discussions but purposefully chose not to propose it and consciously and willfully never brought up the subject, knowing full well that if they did it may be later ruled nonnegotiable because of the “covered by” concept and the “zipper clause” found in Article 12, Section 4 of the CBA.
Article 12, Section 4 addresses mid-term negotiations:
Either party may submit a proposal during the life of this contract provided it has not previously been the subject of negotiations of this contract. The other party must respond within 20 days, agreeing to the proposal or negotiations, or claiming non-negotiability. Negotiations will be scheduled within 30 days unless extended by mutual agreement.
Given the history and the context of work schedule negotiations at the national and local level in the past, a local office – Seattle – proposing a new schedule not found in the CBA is not only the norm, it is the accepted practice. The Seattle Passport Agency CWS agreement in early 1997 was the genesis of CWS being established nationally – the proposals on Credit Hours made in that same office in 2003 could have the same role.
Management has made the bizarre claim that Credit Hours are not negotiable because the Union missed the opportunity to request negotiations on that scheduling option when Management notified the Union that Management was not planning on making credit hours available in the Passport Services bargaining unit. We respond that a common sense interpretation of the law and the CBA require that Management notify the Union of any “new” working conditions or any “change” in working conditions. Simply put, the bargaining unit employees did not have credit hours in the past, they don’t have them currently, and Management notified the Union that that would not have them in the future. There was nothing “new”. There was no “change”. Ergo, no missed opportunity for negotiations by the Union.
On June 10, 2002, Frank Moss, then the Executive Director for the Bureau of Consular Affairs and now the Deputy Assistant Secretary of State for Passport Services, notified the entire bureau (which includes our bargaining unit) that the Department of State would be implementing Credit Hours but that Passport Services would not be participating in that newly available scheduling option:
As you may have seen in the Department Notice dated May 9, 2002, the Department of State has adopted a new flexible work schedule plan called Credit Hours. As stated in the Notice, Bureaus may choose whether to participate in this new plan. After careful consideration of the new work schedule plan and the Bureau's mission, it was determined that the Bureau of Consular Affairs will not adopt this new plan. If you have any questions or concerns, please contact your Human Resources Specialist.
Management’s comment that “NFFE did not protest that election at that time” (page 16 of Management’s Position Statement), echoes previous statements by Management that this somehow voided any future Credit Hours proposals by the Union during the term of the CBA.
The relevant portion of the CBA is Article 12, Section 2a:
The Employer agrees to give reasonable advance written notice to the Union and the opportunity to negotiate any new or change in personnel policy or practice affecting working conditions of unit employees, which is proposed during the life of the Agreement. Negotiation as appropriate on issues which are Management rights will also be handled in accordance with this Article.
There was no “advance written notice to the Union” on this. There was no “opportunity to negotiate”. But there was no obligation on Management’s part to do either since this was not a “new or change in personnel policy or practice affecting working conditions of unit employees”. Telling the employees that they won’t be participating in something that they never participated in before does not trigger any timeframe or deadline which the Union must meet to make proposals.
Article 12, Section 3a of the CBA spells out the Union’s obligations when notified of a “new or change in personnel policy or practice affecting working conditions”:
When the Union desires to negotiate with respect to a change proposed by the Employer, the Union shall notify the management official from whom the notification was received. Such notification will be in writing, and within the specified time, if any, or within the standard time period.
Management would like to interpret Article 12, Section 3a as
if it said “. . . with respect to
a no change mentioned proposed
by the Employer . . .” to justify ignoring any future Union proposals on a
subject that had remained static.
Credit Hours were never “the subject of negotiations” of the CBA at any time. Therefore, they were “eligible” to be proposed by the Union at any time during the term of the agreement. Note that in Management’s response to the Union’s proposal to have Credit Hours as an appropriate arrangement for the removal of Flexiplace (telecommuting) that Management did not declare the proposal to be nonnegotiable. Management simply replied on January 14, 2003 that “[p]lease be advised that . . . the Bureau of Consular Affairs made the decision that the bureau would not be participating in the credit hours program” (page 17 of Management’s Statement). The only mention of non-negotiability was the Union’s proposal to have “greater and better defined opportunities to take advantage of CWS”. This declaration was obviously invalid on its face, as the Union was only proposing something that already existed, but it is worth noting because it shows that on January 14, 2003 Management declared some of the Union’s Flexiplace proposals as nonnegotiable but did NOT declare Credit Hours proposals nonnegotiable.
Even if Management is correct in its arguments on the bargaining obligation dispute, the “covered by” arguments, etc., credit hours remain a valid and appropriate “I&I” proposal. Bargaining obligation disputes and “covered by” arguments do not apply to “I&I” proposals. The proposals were not originally intended in that context, but they would serve that purpose. For example, employees who are forced by Management’s unilateral implementation of the change could use credit hours to work later on some days (and thus hopefully go home after the “rush hour” traffic”), and then store up the credit so that on some other days they could leave at their original, desired time, in order to take care of their children, pursue educational opportunities, be with family, and have more enriching and fulfilling lives.
Management states that the Union’s Part Time proposal is “nonnegotiable because . . . [it was] considered by the parties to the collective bargaining agreement . . . and either adopted or rejected . . . . [and so] [i]t 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” (page 15 – 16).
Management also argues that the Union’s Part Time proposal “is addressed in the current union contract” (page 18).
These two arguments are contradictory – Management is arguing that Part Time was considered and rejected at the national level, and also that Part Time was adopted at the national level.
The “covered by” argument that Management makes on pages 15-16 is revealed by an examination of the CBA to be invalid. The only positive language in the CBA concerning Part Time is found in Article 26, Section 4e:
Part Time and Job Sharing: 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.
As stated previously, the intent of this provision was simply to inform bargaining unit members that Part Time work did actually exist in Passport Services. The reason this language was needed was that many employees – and many Management officials – had misunderstood or had been misinformed on this subject, and erroneously believed that they were barred from considering Part Time as an option.
The CBA only constraint on Part Time work is that it says Part Time is “limited” – that means that not everyone can work part time. If the Union proposed that every employee work part time, then the “covered by” principle would be applicable. But since the Union was proposing only “more” Part Time – in fact we are referring to two individuals only – then the “covered by” argument fails.
Clearly, the language in the CBA means that there is no prohibition against any employee from working part time, but also that not everyone may work part time. That is all that is says, and that is all that it means.
The Union was simply proposing something that is authorized by the contract and therefore the Union’s proposal is negotiable. Again, as with the CWS in 1997 and the Credit Hours in 2003, there is nothing in the CBA that bars local offices from proposing procedures addressing Part Time work and that is in fact the context of negotiations with this bargaining unit in the past.
The Union’s proposals to maintain previously recognized negotiable CWS are themselves negotiable. Any objections by Management to these proposals does not belong before the Authority – they should be made to the Federal Service Impasses Panel.
The Union’s proposals regarding Credit Hours and Part Time are negotiable because they do not conflict with the F&CWS Act, with the Statute, and with the provisions of the CBA. These are precisely the types of issues that have been adopted at the national level only after having being tried at the local level in the past.
If the Authority rules against the Union on this appeal, it will have dire consequences for federal employees on compressed and other alternate work schedules everywhere. There is no limit to the extent that such a ruling would have on the existence and the continuance of alternate work schedules in the federal workforce. To rule that the Union’s proposals to maintain negotiable proposals are nonnegotiable would render all of the CWS in every federal agency subject to complete elimination by Management officials. Management would simply have its supervisors all change their schedules to the same arrival and departure times and thereby force all employees to change their schedules to match. This is not what was intended when the Federal Employees Flexible and Compressed Work Schedule Act was passed in 1982.
Article 26, Section 1 of the CBA includes the goals of the compressed work schedules:
a. Provide the public with expanded hours of
b. Increase the hours for communication across time zones;
c. Increase productivity;
d. Help reduce short-term employee absences and tardiness;
e. Improve employee morale by permitting employees to adjust their work hours to meet the needs of their personal lives;
f. Improve recruiting and retention;
g. Decrease traffic congestion and facilitate the use of alternative forms of transportation and thereby improve air quality;
h. Reduce commuting time (by removing trips from peak hours); and
i. Increase child care and ridesharing options.
Ruling that the Union’s proposals are negotiable will help to achieve these laudable goals. We believe that we have established that our proposals to maintain previously recognized negotiable proposals are negotiable as they are consistent with the Federal Employees’ Flexible and Compressed Work Schedule Act of 1982. We believe that we have proven that there is no conflict between our proposals and the Management Rights provision of the Federal Service Labor-Management Relations Statute. We ask the Authority to preserve the clear intent of these laws and declare our proposals negotiable.
Colin Patrick Walle
Interim Union President
IAMAW FD1 NFFE FL 1998
The Union and the bargaining unit employees have made the following efforts to maintain and enhance the integrity of the passport and the passport issuance process:
See the “Integrity” Attachments that follow for a sampling of our efforts in these areas.
“Integrity” is Not Part of Our Mission
Management’s position statement erred when it stated the mission of Passport Services. Management stated that the mission “is to issue passports to U.S. citizens and nationals, protect the integrity of the passport, and provide services to citizens who travel abroad” (page 2 and page 12 of MS). This is not correct. Literally, “integrity” is not part of our mission.
The mission of Passport Services is to “adjudicate a passport applicant’s citizenship and nationality status and to issue U.S. passports to U.S. citizens and nationals” (Article 1 of CBA). The word “integrity” is not included, though the Union wishes it were and had in fact made an unsuccessful proposal to include it.
1) September 23, 1991: Article 1 of the collective bargaining agreement includes the following statement describing the mission:
The mission of the Employer is to serve and protect the public interest through the issuance of passports in accordance with applicable laws, regulations and policies, and to perform other duties with respect to the entry and exit of persons into and from the United States of America.
2) January 3, 2000: the Union proposes updating this to reflect what we believed was the current mission:
The mission of the Employer is to serve U.S. citizens intending international travel and to protect the integrity of the U.S. passport.
3) January 20, 2000 (approximately): Management’s response:
Mission Statement: Disagree. Management proposes deletion of the mission statement from the contract.
4) January 28, 2000: The Union explains that it is proposing to “[u]pdate [the] mission statement” for these reasons:
The mission statement should be changed to reflect the current mission statement. We made the following change based on the mission statement found in the Passport Agent’s Reference Guide. We believe that the mission statement should be consistent through all Passport Services literature. If there is a more recent version, we believe it should be utilized.
The Union (re-)proposes:
The mission of the Employer is to serve U.S. citizens intending international travel and to protect the integrity of the U.S. passport.
5) January 28, 2000: Management responds with:
At the time of the negotiation of this agreement, the Employer had determined the mission statement to be: to issue passports to U.S. citizens. Should the Employer change the statement during the term of this agreement, the statement will be distributed as an amendment to the agreement.
6) January 28 – 31, 2000: The parties discuss their conflicting proposals. The Union responds that it cannot agree to an automatic amendment. A Management official states that she has never before seen the wording that the Union is proposing. Another Management official states that this issue may be nonnegotiable. The Union explains that its proposal was not intending to infringe on Management Rights, the Union was simply trying to use the mission statement from the Passport Agent’s Reference Guide (PARG) – from page “i” of the December 1, 1997 version. The Union adds that this document has been distributed to supervisors and passport specialists around the county (over 500 copies), as well as to all Passport Acceptance Agents, such as postal employees and clerk of courts (over 5000 copies). The Union representatives state that they have never seen Management’s version before. Management explains that its version comes from a Department of State report. The Union states that it believes that integrity should be emphasized, and that Management’s version does not include this key concept.
7) January 31, 2000 (evening): During a meeting of the Union negotiation team members, the team decided that they could not in good conscience agree to Management’s wording of the mission. If that wording was going to be used, the team members decided that Management was going to have to force its way – the Union would not be compliant. The team members believed that the bargaining unit employees would be outraged if their negotiators agreed to this.
During a “brainstorming” session, the team members devised an alternative – agreeing to Management’s version (with a correction to include “nationals” along with “citizens”), but adding additional language to emphasize “integrity” and quality.
8) February 1, 2000: the Union proposes accepting Management’s version of the mission (Union’s corrections in italics):
The Employer has determined that the mission of the Agency is to issue U.S. passports to U.S. citizens and nationals.
But only if an additional sentence, describing HOW the mission will be accomplished, is added:
The Parties agree to fulfill the mission by maintaining and enhancing the integrity of the U.S. passport and the passport issuance process, and by providing prompt, efficient, and courteous service to our customers.
11) February 3, 2000: Management agrees to the Union’s proposal.
12) May 25, 2001: Management’s 30 day review response is sent to the Union. Stating that “[w]e understand that mission statement’s are not negotiable”, Management proposes changing the mission statement yet again to change “Agency” to “Employer” and to insert “adjudicate a passport applicant’s citizenship and nationality status and to” between “to” and “issue”. Ths Union agrees to this final change, and the mission now reads:
The Employer has determined that the mission of the Employer is to adjudicate a passport applicant’s citizenship and nationality status and to issue U.S. passports to U.S. citizens and nationals.