LOCAL 1998
Union President
IAMAW NFFE FD1 FL1998
Phone # (206) 808-5764
May 13, 2004
To: Florence Fultz, Director – Passport Services Office of Field Operations
cc: Gary Roach, Director – Passport Services Office of Field Coordination
Susan Moorse – Chief, Labor-Management Relations
RE: Official Time
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 Step 1 Formal Grievance on behalf of the bargaining unit members of the Passport Services. This grievance concerns the use of official time and procedures for obtaining official time.
We are alleging that Management has violated the Agreement and the law by interfering with and restricting the use of official time by Union Officers and bargaining unit employees.
Background
May 24, 1989: Passport Services Management undertook an effort to decertify NFFE Local 1998 as the exclusive representative of the bargaining unit. Management’s argument to the Federal Labor Relations Authority (FLRA) was that the Union was not effectively representing the employees because the Union had failed to prosecute many grievances, had not invoked arbitration in a number of years, and had not made proposals in response to Management initiatives. In other words, Management’s argument was that the Union should be decertified because it was not disputing virtually any of the actions taken by Management officials.
October 1998 – Present: Management expresses concerns that some of the needs of the bargaining unit employees are going unrepresented, while the Union expresses concerns over the limitations and difficulties of employees and representatives to use official time.
July 3, 2001: The current Agreement went into effect. One of the topics that the parties spent a great deal of time negotiating was official time, including the use, amount, and procedures for obtaining time.
September 25, 2001: During the National Union-Management Council meeting, the Union explains that the intent of the addition of the 2 hour block of official time was for “Union representatives to have a block of time every week to study the contract/laws/regulations/training materials, to do research or preparations for a grievance, and to be available for employee questions at a set time every week”. Citing a case where a Regional Director told a Union representative that ignorance of the contract and regulation is no excuse, the Union stated that “there is nothing more representational than becoming familiar with the rules under which we operate”. The Union reports instances where senior managers “grilled” representatives on the reasons for using official time. In a discussion on partnership time, Management recognizes that there is “nothing to preclude [the] Union President or other officers from making a request for additional official time as allowed under the contract in order to prepare for partnership meetings”.
June 17, 2002 and June 21, 2002: OPM Director Kay Coles James issued two “Memorandum[s] for Heads of Departments and Agencies” regarding official time and labor-management relations. That report showed that official time usage by Union representatives at the Department of State, which includes NFFE Local 1998, was 0.69 hours per bargaining unit employee for FY 2002. That was by far the lowest of all of the Departments/Agencies and significantly lower than the average of 4.21 hour. Here are the figures for the other Departments/Agencies: Agriculture (2.92), Commerce (2.62), Defense (2.72), Education (4.98), Energy (2.46), HHS (1.91), HUD (2.77), Interior (1.54), Justice (3.11), Labor (8.16), Transportation (13.86), Treasury (7.21), VA (4.66), EEOC (5.90), EPA (4.37), FDIC (3.14), GPO (5.42), GSA (5.05), NASA (1.28), NRC (2.62), OPM (5.59), SSA (8.37), and “All Others” (2.42). Please take note of the fact that the next lowest Department (Interior) used more than twice as much official time as the Department of State.
December 3-4, 2002: During the National Union-Management Council meeting, Management agrees to “re-emphasize to all levels of Management that the goal is to have the immediate supervisors handle the request for official time” and that only a “brief explanation” is required. The Union explained again that by not allowing Union representatives “official time to use to study the contract” then the representatives “will not be able to adequately fulfill their roles”.
October 7, 2003: While serving as Secretary-Treasurer, I request an additional eight hours of official time in accordance with the provisions of Article 7, Section 5b, to the Regional Director (as required by that section) and on the following day three hours are approved in addition to the two hours normally allotted.
November 6, 2003: While serving as Secretary-Treasurer, I request an additional thirty hours of official time in accordance with the provisions of Article 7, Section 5b, to the Regional Director (as required by that section) and twenty-two hours are approved in addition to the two hours normally allotted.
November 25, 2003: While serving as Interim Union President, I request an additional three hours of official time in accordance with the provisions of Article 7, Section 5b, to the Regional Director (as required by that section) and that request is approved.
Relevant Portions of the Agreement
Article 6, Section 11:
Employees are entitled to a reasonable amount of official time whenever discussing, preparing, or filing complaints, and when meeting with Union representatives or management representatives concerning any complaint or working condition of the Employer.
(emphasis added)
Article 7, Section 1a:
The Employer agrees to respect the rights of the Union.
Article 7, Section 1b:
The Union has the right to present its views, ideas or recommendations to any level of management, or other officials of the executive branch of the Government, the Congress, or other appropriate authorities regarding personnel policies, practices or conditions of employment.
Article 7, Section 5:
Official time will be granted in accordance with 5 U.S.C. 7131.
….
(b) Reasonable time for representational and contract administration functions must necessarily depend on the facts and circumstances of each case, e.g., number and nature of allegations, number and complexity of supporting specifics, the volume of supporting evidence, availability of documents and witnesses and similar considerations. To that end, except for the Union President, reasonable time is presumed to be up to 15% of duty time during any week as requested and approved. Any additional time as needed will be approved on a case by case basis by the Regional or office Director. The decision to approve additional time will depend on the facts and circumstances of each case. Any Union official may request a two hour block of time per week for representational purposes. The two hour block will count against the alloted amount for the week. All requests for representational time will be made in advance.
(c) The Union President will be granted 60% duty time for representational functions including, but not limited to, handling complaints, contract administration, assisting representatives with representational issues, and appropriate legislative functions.
….
Article 7, Section 6:
The representative will provide the approximate amount of official time that will be needed … a general description of the duties (e.g. employee complaints, ULP investigations)…. Normally a representative will be released unless work conditions require his/her presence on the job. When release cannot be accomplished immediately, the representative will be release as soon as possible and the representative will be notified by the supervisor of approximately when that time will occur…. Bargaining unit members who are conferring with recognized Union officials will be granted official time on the same basis that the Union official has requested official time.
Article 7, Section 8:
There shall be no restraint, coercion or discrimination against any Union official because of the performance of duties in consonance with this Agreement and the Civil Service Reform Act of 1978, or against any employee for filing a complaint or acting as a witness under this Agreement, the aforementioned Act, or applicable regulations.
Recent and Ongoing Violations
A) On April 19, 2004, NFFE Local 1998 Vice President Michael Garofano of NPC was denied three hours of official time to “investigate facts for representational response to Congressional letter”. In subsequent conversations with the NPC Adjudication Managers, Mr. Garofano explained that he was attempting to respond to letters from two United States Senators in regards to the concern by NPC employees over the integrity of the passport issuance process. Mr. Garofano advised that NFFE Local 1998 President Colin Walle was approved for official time for the same purpose, including an actual visit to a United States Representative’s office, but the response from Management was that Susan Moorse disapproved the official time.
B) On May 3, 2004, NFFE Local 1998 Vice President Michael Garofano was denied three and one-half hours of official time for contract familiarization. Mr. Garofano was interviewed three times by the Adjudication Manager and was told that he could not use the official time because of workload concerns. Mr. Garofano explained that he needed to use the time to look into the special tasks assignment since there had not been a fair distribution, contrary to what Management stated it would do, and prepare a memo for the UMC meeting that was to take place the next day. Mr. Garofano must forced to arrive early on May 4, 2004 to prepare the memo from 12:00 PM to 2:15 PM. Mr. Garofano was informed by the Management official that no time would be approved since it was a non-issue, though Mr. Garofano needed the time to dispute the decisions and policies of the very same Management official who was denying the official time, and subsequent research done on his own time reflected that there was a disparity.
C) On May 4, 2004, NFFE Local 1998 President Colin Walle was denied additional official time in order to perform other representational functions, including filing a response to the FLRA’s denial of the Union’s ULP charge, preparing the Union’s response to the December 2003 meeting minutes, and assisting representatives with a number of issues affecting employees in various locations.
D) On May 5-6, 2004, NFFE Local 1998 President Colin Walle was denied the use of the 60% official time in order to meet with potential arbitration witnesses at the Seattle Passport Agency (15 – 30 minutes each), the Philadelphia Passport Agency, the Chicago Passport Agency, the Miami Passport Agency, the San Francisco Passport Agency, the Los Angeles Passport Agency, and the New York Passport Agency. The Union President was denied the use of videoconference equipment to talk to those outside of Seattle, even though he stated that there were additional matters that were going to be discussed besides the matter in dispute. The Union therefore had to list 23 employees as potential witnesses, since we were unable to narrow them down, and Management then used that as a basis for complaining to the Arbitrator that the Union’s witness list was unreasonably long, despite the fact that the Union had made repeated requests for time to talk to the witnesses and had explained that there was a need to talk to the witnesses in order to formulate the list. Management arranged the conference call with the arbitrator to be held on Thursday at 10:30 AM, and thus there was only time to meet with one of the two witnesses (Bill Beardall) who had been approved after the teleconference.
E) On May 5-6, 2004, bargaining unit employees were denied official time to meet in person or via teleconference with NFFE Business Representative Steve Flory. Mr. Flory had driven six hours from Coeur d’Alene, Idaho, to Seattle, Washington, for the express purpose of helping to prepare the arbitration case and meet with witnesses. Management was informed of this visit and its purpose on April 26, 2004.
F) On May 5, 2004, NFFE Local 1998 Vice President (Seattle) Rob Arnold was forced to use his normal two of his normal six hours of official time to be interviewed as a witness. The Agreement allows up to 15% duty time (six hours) for Mr. Arnold to represent the employees. Representing the employees mean interviewing, investigating, advocating, grieving, researching, and taking other actions on their behalf. As a witness in an arbitration case, Mr. Arnold’s status is the same as that of Bill Beardall, who is not a Union officer but who was allowed two hours to be interviewed as a potential witness. In other words, the intent of the representational time in the Agreement was for representatives to actively make efforts on behalf of others, while an interview is simply a fact-finding period where he is being questioned. Mr. Arnold had the same status as Mr. Beardall in this context: that of a witness being interviewed.
G) Some NFFE Local 1998 representatives are currently being required to submit leave slips, including NPC, New Orleans, New York, and Houston.
H) Some NFFE Local 1998 representatives are being asked to “jump through hoops” to obtain the use of official time, and the use of time to educate themselves about the contract, laws, regulations, and to use Union representational training materials is still being denied.
Union’s Argument
Official time is needed by Union representatives in order to carry out their duties and adequately represent the employees and their interests. Official is the foundation of all of the Union’s activities and responsibilities. Without official time, grievances cannot be filed, complaints cannot be investigated, precedents and authorities cannot be researched, and the result is that the needs of the employees cannot be met or even addressed by the Union. Considering that the FSLMRS states that labor organizations are in the public interest, that interest is undermined when the ability of the Union to represent the employees is thwarted.
Management previously stated in the September 25, 2001 and the December 3-4, 2002 National Union-Management Council meetings that leave slips would not be required, yet that policy continues. The problem with this is that official time needs are treated as leave requests. Earning leave is a right, but the leave is granted subject to the needs of the Employer. The same is not true of official time, as established by the law and by precedent. Official time is “carved out” as an exception to the Management Rights provisions of the FSLRMS. The use of the leave slip confuses official time with leave, and this also diminishes the importance of the time needed for representing employees. As any current or former Union representative can attest, handling grievances or investigating complaints is not akin to a vacation.
Fair Play
The Union agreed to Management’s August 7, 2003 request for an extension to the July 25, 2003 grievance over work schedules. We attended the alternate dispute resolution conducted by the FLRA with a sincere effort to compromise, offered a middle-ground proposal that would make some of our employees very unhappy, and put forth a number of “outside-the-box” ideas and innovative solutions, while Management simply stuck to its original position. I promptly emailed copies of our grievance/appeal to Management officials who did not have their copies readily available in order to help them with their response/participation in the various proceedings/stages. We went along with the delay in the arbitration hearing from January to February. We went along with the idea of using written submissions and extending the process into March. Management then used part of these delays against us in its March 11, 2004 rebuttal (arguing that the employees had already gone this long under the schedule change). The Union is now going along with further delays and extensions on the arbitration hearing. The Union repeatedly brought up how the contract and the July 17, 1997 memo and April 17, 2003 memo were implemented and interpreted in the other offices, and the Union gave advance notice of Mr. Flory’s trip to Seattle and its purpose. Management was informed that there was a need to interview witnesses over a week in advance, and the only reply was the concern about workload. The Union agreed to Management’s desire to hold the conference call with the Arbitrator on Thursday instead of Wednesday. The Union was not informed of Management’s decision to deny access to all employees (except for Rob Arnold and Bill Beardall) until Tuesday (May 4th) at 11:50 AM, after Mr. Flory had already left for the six-hour journey to Seattle, Washington from his home in Coeur d’Alene, Idaho.
The Union has the right to meet with employees at the Seattle Passport Agency regarding the change in working conditions that occurred when schedules were changed. The Union has the right to meet with employees at other Passport Agencies concerning their schedule changes and other issues and concerns (e.g., employee on a PIP, grievances over promotions, etc.). Expecting that the Union would only make the arguments that Management permitted and only call witnesses that Management deemed relevant is a preposterous expectation, tantamount to expecting the Union to forego much of its arbitration case. The denial of official time for the purposes of discussing changes in working conditions, potential testimony for the arbitration, and other unrelated issues of concern to the employees blatantly interfered with the responsibility of the Union to represent the employees, with the right of the employees to express their concerns about work schedule changes and other matters, and with the ability of the Union to prepare it case for the arbitration hearing. The Union and the employees have the right to meet on the schedule change issue even if there was not a pending arbitration case, but considering that the hearing was to be May 19, 2004, that Management knew Mr. Flory was only going to be in Seattle for two days, that the conference call with the arbitrator was to be half-way through that second day, then the need to speak to those affected was all the more pressing and Management’s interference with that all the more egregious.
Clearly, the parties are involved in a serious disagreement over the work schedule issues. Despite that disagreement, it is incumbent on Management to respect the right and the responsibility of the Union to not just disagree but to effectively disagree. Recalling the 1989 effort to decertify the Union, it is not enough for the Union to voice opposition to this or to that, the Union is expected by its own principles, by the employees, by the public, and even by Management to take action in opposition to Management initiatives. Management did not “play fair” in how it dealt with the Union’s need for official time.
Every year the Department of State issues an award to the Foreign Service Officer who contributes the most to the improvement of labor-rights, including the right to participate in a Union, in the country where he/she is stationed. Contrast this with the Department of State’s shockingly low usage of official time and the numerous problems that NFFE Local 1998 officers have gone through over the years to obtain official time to represent the employees. The Department needs to recognize and respect that the employees within its own organizations and subunits are entitled to adequate representation.
Requested Relief
1) Distribute an email to all Passport Services supervisors and managers, with a cc to the Local President and Secretary-Treasurer, informing them that:
a. Federal labor organizations are in the public interest.
b. Representing the bargaining unit employees is the responsibility of the Union, and while both Management and the Union desire to resolve conflicts amicably, it is expected that the Union may need to file grievances or use other means to dispute actions taken by Management. Toward that end, a competent, educated, and trained corps of Union officials is a prerequisite for adequate and proper representation of the employees.
c. The use of official time for representation purposes is allowed by the contract and by the law.
d. Interfering with the use of official time is a violation of the contract and the law.
e. Official time is not leave, and therefore the practice of using leave slips is hereby discontinued.
f. There is no 2 hour limit on the use of official time. Union VP’s and Stewards are normally allowed up to 15% of duty time (6 hours/week) for representational purposes, so potentially all 6 hours could be used consecutively. The 2 hour block of time is to make scheduling easier, but representatives may coordinate with supervisors to schedule more time.
g. The limits on official time in the contract are not written in stone – additional time may be requested, and other matters – such as meetings with Management and participating in proceedings before the FLRA, are not counted against that limit. Additional time for handling complaints will be approved on a case by case basis, depending on the facts and circumstances of each case.
h. Union representatives need a reasonable amount of official time to study the contract, laws, self-study guides, and read other representational training material in order to be able to represent employees who come to them with concerns, and to be able to respond to Management initiatives. Newer Union reps will need even more time.
i. The FLRA has repeatedly ruled that the use of official time, which originates in 5 U.S.C. 7131, is “carved-out” as an exception to the Management Rights provisions of 5 U.S.C. 7106. This means that scheduling and workload issues do not automatically trump the use of official time.
j. Internal Union Business is solicitation of membership, election of Union officials, and collection of dues, and these must be done on personal time. Meeting with employees about their concern relating to the workplace, preparing for meetings with Management, and investigating complaints, for example, are not internal union business and therefore cannot be denied on that basis.
2) Cease and desist from interrogating, intimidating, hassling, and interfering with attempts by Union representatives to use official time to represent the bargaining unit employees.
3) Discontinue the use of leave request forms for official time use.
4) Discontinue the practice of requiring Union officials to make their case for official time through a number of managerial levels.
5) Inform regional Management that the use of official time for reading the Agreement and relevant regulations and laws pertaining to working conditions is allowed, and that a reasonable amount of official time on a continuous basis for reading/studying/research is allowed so that Union reps will be able to properly and adequately represent the employees.
6) Approve the requested 3 hours of official time for Michael Garofano to respond to letters from Congress.
7) Grant an additional 4 hours of official time to Colin Walle in order to prepare the Union’s response to the draft of the December 2003 National Union-Management Council minutes.
8) Allow designated Union officials a reasonable amount of official time and unimpeded access to potential witness in the upcoming arbitration case, including witnesses at the various Passport Agencies.
9) Grant 30 minutes of compensatory time to Denise Sleister and Colin Walle, who had to conduct an interview during lunch time, and 2 hours and 15 minutes of compensatory time to Michael Garofano.
10) Pay for one of the two night’s lodging and reasonable per diem for one of the two days for NFFE Business Representative Steve Flory.
Thank you for your consideration.
Sincerely,
Colin Patrick Walle