IAMAW NFFE FD1 FL1998
Phone # (206) 808-5764
July 25, 2003
To: Florence Fultz, Director, Field Operations
RE: Seattle Passport Agency Change to Work Schedules
In accordance with Article 20, Section 7 of the Agreement Between Passport Services and the National Federation of Federal Employees – Local 1998 (hereafter referred to as “the Agreement”), I am filing this informal grievance on behalf of the bargaining unit members of the Passport Services. This grievance concerns the Seattle Passport Agency Management's decision to unilaterally change the work schedules of bargaining unit employees in violation of the Agreement and the law, and by means that are in violation of the Agreement and the law.
We are alleging that Management has committed four violations:
1) Management Has Not Negotiated In Good Faith
2) The Declaration of Non-Negotiability Was Not Timely
3) Management Failed to Provide a Rationale for a Claim of Non-Negotiability
4) The Employees are Receiving Disparate and Inequitable Treatment
5) Changing the Start Time to 7:00 AM is Not in the Public Interest
Note: the Union has filed a Negotiability Appeal to the FLRA in response to Management’s July 10th Declaration of Non-Negotiability. This informal grievance concerns matters not covered by that action.
Violation #1: Management Has Not Negotiated In Good Faith
According to Article 12, Section 1 of the Agreement:
The Parties to this agreement have the responsibility to conduct negotiations and other dealings in good faith and in such a manner as will further the public interest.
Management failed to negotiate in good faith by:
· Not negotiating with the Union over the ground rules for bargaining
· Failing to explain what objections Management had to the ground rules
· Not empowering the negotiators at the table with the authority to make agreements
· Being unwilling to even consider the Union’s 6:30 AM and 6:45 AM proposals
· Not being forthcoming with the Union regarding the impetus for the proposed change
· Failing to propose the “suggested guidelines” from the July 17, 1997 memo when negotiating the July 3, 2001 Agreement
On May 27th, just prior to the initial negotiating session, the Union presented the Management team with a set of proposed ground rules. The Management team declined to agree to the rules, first citing a lack of time to properly review them. At the next negotiating session (June 2nd), Management again declined to sign them, stating that they were told that upper Management in DC did not like the ground rules, but could give no specifics on which rules they objected to. Management failed to provide details to explain what they wished changed in the proposed ground rules. In subsequent meetings, Management refused to discuss the ground rules. This demonstrates that Management was not bargaining in good faith.
Management did not have representatives at the bargaining table who were empowered with the authority to make decisions on behalf of Management. Based on statements by the Management representatives, I appears that the representatives were instructed by upper Management in DC to wait until the end of the last bargaining session before declaring the Union’s proposals “non-negotiable”. Purposefully delaying the spoken declaration and doing so at the behest of the behind-the-scenes negotiators from afar are egregious examples of negotiating in bad faith. This is also a violation of Article 12, Section 8 (see Violation #2 below).
Management presented no proposals that offered any start time earlier than their initial preference of 7:00 AM. Management never appears to have had any serious intent to come to an agreement with the Union negotiating team with any start time other than 7:00 AM. Management’s reasoning for proposing the 7:00 AM start time kept changing as well. First, the reason was that Seattle Management had “misunderstood” a July 17, 1997 memo that allegedly “required” “senior managers” (GS-13 and above) to be present at the start/end of the day and that we were not in compliance with that memo. This statement was based on an April 17, 2003 memo from Managing Director Ann Barrett, which misstated the contents of the July 17, 1997 memo (i.e., the April 17, 2003 memo claimed that the July 17, 1997 memo had “requirements” in it for upper managers to be present, yet the July 17, 1997 memo referred to “guidelines”, “suggested guidelines”, and “flexibility”). Next, the reason for the 7:00 AM was that Seattle had fallen out of compliance when a senior manager changed his start time from 6:30 AM to 8:30 AM.
Management continually insisted that there were therefore only five managers available who could open/close the agency, and that GS-12 supervisors could not take on this role. The Union had a hard time accepting that upper Management would not allow GS-12 supervisors to open/close the office and asked Seattle Management on May 15th to request a clarification on this issue. Seattle Management balked at this but then relented. On May 21st a fax was received in Seattle and anonymously submitted to the Union showing that on May 7th upper Management had already clarified that GS-12 supervisors were allowed to open/close the office. Yet even though this clarification was issued on May 7th and faxed to Seattle on May 21st, Management only acknowledged after being questioned by the Union on May 28th that GS-12 supervisors could open/close the Agency. The May 7th memo was only shared with the Union when it was emailed to all of the employees by Management on June 26th.
In addition, the Union believes that Management is negotiating in bad faith when it is proposing changes that simply are not necessary, serve no legitimate purpose, and are not offered for the reasons stated. This is a manufactured crisis that apparently all started when the Union made the modest proposal in a Union-Management Council meeting in December 2002 to let more employees than a current few have fixed start/end times based on 5 minute increments rather than 15 minute increments. In response, Management made assertions that employees’ were cheating on their start/end times already and couldn’t be trusted. The Union took exception with those remarks, and in the heat of the moment made one of those “The Emperor has no clothes” types of comments, pointing out that there were more than one supervisory/managerial staff members that were more guilty of Management’s charge than any of the employees. Management immediately took exception to the Union making any such statements about supervisors/managers, and also later made their anger at these comments extra clear to the Seattle Union VP. Shortly after that, one manager who had a 6:30 or earlier start time had a schedule change to 8:30 for family reasons. Then, not having heard any further clarification for months from upper Management on supervisory coverage at the beginning/end of the day, in April Management in Seattle contacted upper Management to prompt them to issue the April 17th memo that formally put this all in motion. The contrivance continued with the removal of the Seattle bargaining unit employees from the duty officer list and the rescinding of the alarm code to all but one bargaining unit employee – the latter due to orders from upper Management that could not be produced, and both actions taken in no other offices.
Unfortunately, the use of a vindictive, anti-employee, anti-union style of management has become much more prevalent in the Seattle office over the last year and the theory offered above would be but “par for the course” in the eyes of many employees. Management apparently felt that the Union’s comments were too impertinent and appears to be attempting to put the Union and the employees “in their place”. Management in Seattle isn’t even planning on applying these proposed restrictions to all bargaining unit employees and is instead making exceptions to its plan (e.g., the systems administrator staying late while contract work is being done) whenever it suits its convenience.
Finally, basing all of this on the July 17, 1997 memo means that Management negotiated in bad faith during the 2000 – 2001 negotiations that led up to the July 3, 2001 Agreement Between Passport Services and the National Federation of Federal Employees – Local 1998, Federal District 1, International Association of Machinist and Aerospace Workers, AFL-CIO. The July 17, 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. Therefore Management had ample opportunity to make proposals in the requirements section to include language requiring employees to change their schedules to conform to the whims of managers/supervisors schedule changes, but did not make any such proposal.
Essentially, Management believes that by equating the scheduling preferences and whims of individual supervisors and managers with the internal security practices of the Agency it has found an “out” from the zipper clause located in Article 12, Section 4 and can therefore abrogate Article 26 as well as the not honoring the scheduling commitments agreed to in the September 5, 2001 Seattle AWS agreement. Normal bargaining over schedules, per Article 26 and Article 12 of the Agreement, was understood and agreed by both Parties to be the context for these negotiations (e.g., the process began in the Union-Management Council then went to formal negotiations after no consensus was reached), but now Management is twisting this into bargaining over Management Rights. This is a repudiation of Article 26.
The Union is only able to grieve the above violation now since we could not reasonably have been aware that Management did not negotiate in good faith over the formulation of Article 26 until the present.
The effect of this whole process has put a great deal of stress on the employees whose schedules will be changed and had created uncertainty for those employees whose schedules have not been changed but who know of Management’s veiled threats and hints that future scheduling changes by individual managers or supervisors, for any reason whatsoever, will necessitate even more employees changing their schedules as well.
Violation #2: The Declaration of Non-Negotiability Was Not Timely
According to Article 12, Section 8 of the Agreement:
If management alleges a union proposal is nonnegotiable, it will raise the issue of negotiability in a timely fashion in the early stages of the negotiations process.
Management’s official declaration of non-negotiability came on July 10, 2003, more than eight weeks and four negotiating sessions after Management and the Union agreed to pursue the formal negotiating process (at the May 15th UMC meeting). The Agreement allows Management to raise the issue of non-negotiability only in the early stages of bargaining.
Contrast the bargaining over this scheduling issue, which Management alleges that it concerns the “internal security practices of the Employer”, with the bargaining that occurred over another issue that Management alleged concerns internal security: Management’s proposal in 2001 to institute a new Security Awareness Element. Within less than sixty seconds of being presented the Union’s proposals on the Security Awareness Element, Bill Struck – Management’s Chief Labor-Management Negotiator at the time – declared the Union’s initial proposals were non-negotiable.
Management is not given the right to declare non-negotiability as an alternative to declaring negotiations at an impasse. Clearly, if negotiations cannot continue, it is because in this case the two sides are at an impasse.
It is the Union’s view that the Parties would more appropriately be described to be at impasse or nearly at impasse in the bargaining over schedules. The Union had repeatedly requested that Management clarify whether it was asserting non-negotiability or declaring an impasse and had made it clear that an impasse declaration was the more appropriate route to take if the Parties could not reach an agreement. The steps to follow in an impasse situation are clearly spelled out in Article 12, Section 7. Thus, Management has chosen the completely improper route of trying to retroactively declare non-negotiability after the Agreement would allow for it.
The Negotiability Appeal is the appropriate forum for determining whether Management’s claim of non-negotiability is valid or not. What is being grieved here is the fact that the claim was not timely and it was made in a contrived manner contrary to the letter and spirit of the Agreement.
Violation #3: Failure to Provide a Rationale for a Claim of Non-Negotiability
According to Article 12, Section 8 of the Agreement:
Upon written request, the Union will be provided with a written statement of the rationale for a claim of nonnegotiability.
Management has so far not complied with the Agreement in providing a rationale for its claim of non-negotiability. To begin with, Management has not specified which, if any, of the Union’s proposals are non-negotiable. Management sent a memo to the Union negotiating team on June 26, 2003 stating that the earliest start time would change to 7:00 commencing July 28th, regardless of the formal negotiating recently undertaken by both sides. On June 30th, the Union requested that Management clarify whether they were declaring the issue non-negotiable, and if so, what the rationale for such a claim was. On July 10th, Management provided the declaration of non-negotiability, which contained no rationale in it, other than to refer back to the language in the June 26th memo.
The only line in the June 26th memo that would apply is “Local 1998’s continued insistence that the Seattle Passport agency’s earliest start time remain unchanged interferes with Management’s reserved right to determine the number of employees, internal security practices, and numbers, types and grades of employees or positions assigned to any tour of duty.” However, since the Union has made specific proposals that provided for start times other than the current one, this sentence clearly cannot apply to those proposals. Even Union proposals that only provide for an existing start time do not request anything that limits Management’s right to determine the number of employees; have no bearing on Management’s ability to determine the internal security practices (Management has yet to declare the change in times as an exercise of internal security procedures), and have no relation to Management’s ability to determine numbers, types or grades of employees or positions. As of this writing, Management has yet to produce an explanation providing a rationale, or even specify a non-negotiable proposal.
Subjects such as “internal security practices” are neither “negotiable” nor “non-negotiable”. Those adjectives apply to proposals that relate to “internal security practices”. Again, returning to the example of the Security Awareness Element in 2001, Management viewed the initial Union proposal as non-negotiable but other proposals were deemed negotiable (and eventually adopted).
We are especially interested in receiving this written rationale for the declaration of non-negotiability since Management recognized in writing on May 27th that the Union’s “status quo” proposal was negotiable.
Violation #4: Violation
#4: The Employees are Receiving Disparate and Inequitable Treatment
According to Article 6, Section 5 of the Agreement:
All unit employees and Employer officials deserve and shall be entitled to be treated with mutual respect, dignity, common courtesy and consideration, and will be treated equitably.
The Seattle employees are not being treated fairly because they are being subject to inequitable, disparate treatment compared to other offices and even compared to employees within the same location. The Systems Administrator will still be allowed to be present in the office after hours without a supervisor present. Hundreds and sometimes thousands of passport applications are transported by contract employees between the 9th and the 33rd floors, exposing them to the public.
Management’s actions imply that employees with decades of government service and secret security clearances cannot be trusted as well as new contract employees outside of an office without a supervisor present. In addition, the Duty Officer Program is continuing unabated all across Passport Services, except in Seattle. Bargaining unit employees are participating in this program in a voluntary and oftentimes involuntary manner, coming in to the office without supervisors present. There is absolutely no distinction between the security concerns that one might have on the weekend from those that one might have during the week. The two 6:30 AM start time employees are veteran Passport Specialists and former supervisors with secret clearances and over twenty years of service. They, and the other employees affected by this change, are as trustworthy as any employee, supervisor, manager, or non-bargaining unit staff member in the Department of State.
The effect of this change on the employees who will have to switch their start times is significant. Managers have chosen their schedules based on their own situations or preferences, sometimes involving children. One Management official remarked that she couldn’t come in earlier than 8:30 AM because she had to get her children to school. Yet, the employees are people too, with their own lives and their own children and families, and they deserve consideration as well. So, as a result of a change in one manager’s schedule, twelve employees will be forced to change their schedules (along with two non-bargaining unit staff members). Weighing the importance of the lives of twelve employees versus that of having a different supervisor start a little bit earlier in place of the manager who switched, and then deciding that the twelve employees will have to make the sacrifice – that is certainly not an equitable decision, and it is a far cry from treating the employees with mutual respect and dignity.
Violation #5: Changing the Start Time to 7:00 AM is Not in the Public Interest
Article 1 of the Agreement states that the “the Parties agree that the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them: a. safeguards the public interest.” Another commitment to the public interest is found in Article 26, where the purposes of Alternate Work Schedule Plans are spelled out. Among the stated objectives of the alternate schedules are: “Increase the hours for communication across time zones; Increase productivity; Help reduce short-term employee absences and tardiness; Improve recruiting and retention; Decrease traffic congestion and facilitate the use of alternative forms of transportation and thereby improve air quality; and Reduce commuting time (by removing trips from peak hours).”
All of the aforementioned are benefits to the general public as well as government employees. By continuing to curtail alternative schedules (Management completely eliminated the work-at-home “flexiplace” program earlier this year), Management continues to nullify systems that benefit the community as a whole. If you examine whether the average citizen is more or less well off by the earlier start times, clearly they enjoy several advantages from removing additional people from rush hour traffic, and enjoy no apparent advantage to employees changing their start time to later in the morning. Although not constituting a huge detriment to the community, this change is just one more step in the wrong direction from the general public’s point of view.
1) PPT/SE Management rescind its plan to change the start times to 7:00 AM on July 28th outlined in its June 30th memo.
2) PPT/SE Management agree to honor its agreement of September 5, 2001 and abandon its unnecessary attempts to change employees' schedules.
3) If Passport Services Management continues to insist that there is a need for a change in the start times, then our requested relief is to have PPT/SE Management return to the bargaining table to negotiate any proposed changes as required by both the Agreement and the law.
4) If Management’s claim of negotiability is upheld or not ruled upon due to a withdrawal, the Union requests that Management agree to bargain with the Union on the impact and implementation aspects of the schedule change, including appropriate arrangements for those adversely affected, as required by the Agreement and the law.
5) If Passport Services Management continues to insist that bargaining unit employees should not be in the office without a supervisor or manager present, then the Union requests that Management reasonably, logically, coherently, and fairly apply this determination by immediately removing every single bargaining unit employee from the Duty Officer Rosters nationwide (e.g., PPT/NY, PPT/HH, Duty Searchers, National Duty Officer in DC) or, alternatively, having a supervisor or manager present at all times in the office with the bargaining unit employees.
6) Management provide a written apology to the employees of the Seattle Passport Agency for conducting negotiations in the manner outlined above.
Again, this grievance concerns only matters not covered by the Negotiability Appeal filed by the Union on July 24, 2003. That appeal challenges Management’s assertion that the Union’s proposals are “non-negotiable”, while this grievance only deals with violations of Article 1, Article 8, and Article 26, as well as 5 U.S.C. Chapter 71. If in any way there is a conflict or question on which issue should be settled in which forum that would be interpreted by the FLRA as inappropriately attempting to resolve the issues raised in the Negotiability Appeal in this forum, we hereby rescind any such portion of this grievance in favor of that appeal.
Thank you for your consideration,
Colin Patrick Walle