LOCAL 1998
Union President
IAMAW NFFE FD1 FL1998
Phone # (206) 808-5764
Grievance Between the Parties
April 20, 2004
To: Frank Moss, Deputy Assistant Secretary of State for Passport Services
cc: Ann Barrett, Managing Director – Passport Services
Florence Fultz, Director – Passport Services Office of Field Operations
Gary Roach, Director – Passport Services Office of Field Coordination
Susan Moorse – Chief, Labor-Management Relations
RE: Misclassification of employees as FLSA Exempt
In accordance with Article 20, Section 8 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 Grievance Between the Parties on behalf of the bargaining unit members of the Passport Services. This grievance concerns the classification of bargaining unit employees as “exempt” from the Fair Labor Standards Act (FLSA) in error, and seeks to correct that by classifying them as “non-exempt”, and thus entitled to true time-and-one-half overtime pay compensation as well as other considerations.
I am also including an official Information Request at the end of the Grievance Between the Parties. The Union alleges that the Agency violated the Fair Labor Standards Act, the Back Pay Act, the collective bargaining agreement and all other relevant and applicable law, rule and regulation when it:
1. Failed to properly classify bargaining unit employees as FLSA non-exempt
2. Failed to pay proper compensation for overtime worked to bargaining unit employees
3. Improperly offered bargaining unit employees compensatory time in lieu of overtime
As Relief, the Union requests the following:
1. Reclassify all improperly classified bargaining unit employees, retirees and past employees as FLSA non exempt, retroactive three (3) years from the date of filing of this Grievance, or three (3) years prior to the date when the Agency knew or should have known that these employees were improperly classified.
2. Backpay under the collective bargaining agreement and FLSA for the difference in pay for any overtime paid for overtime worked by wrongfully classified bargaining unit employees under Title 5 or other pay schedule, and the true time and one-half to which the employee(s) were entitled.
3. Liquidated damages in an amount equal to the unpaid or underpaid overtime.
4. Interest, if greater or equal to liquidated damages.
5. Payment for overtime (minus the employee’s hourly rate of pay) for any compensatory time worked since six years prior to the filing of this Grievance and the employee’s overtime rate of pay, for comp time wrongfully given in lieu of overtime.
6. Reasonable attorney fees, costs and expenses.
Request for Information Pursuant to 7114(b)
Please provide the following information prior to the Grievance meeting in this case (called for in Section 8a of Article 20), but in no case later than fifteen (15) calendar days from the date of this Grievance is filed:
1. A list of all bargaining unit employees represented by the Union, including first and last name, position title, Agency position number, job series, grade and step, FLSA exempt or non-exempt status, e-mail address, business phone number and business address (in hard copy and electronic format).
2. A copy of each employee’s position description.
3. A copy of one SF-50 for each employee since April 20, 2001.
4. A copy of all information relied upon to classify each bargaining unit employee.
5. A copy of any FLSA worksheets for each employee since April 20, 2001.
6. The name of the individual(s) who made the determination to exempt each FLSA exempt employee, the date the decision was made, and a copy of all information relied upon to make the determination.
7. A copy of any Agency FLSA consistency review since April 20, 2001.
8. A list of all overtime worked by each bargaining unit employee since April 20, 2001.
9. A list of all comp time worked by each bargaining unit employee since April 20, 2001.
The Union further requests that the above specified information be furnished within a reasonable time not to exceed fifteen (15) calendar days, and prior to the oral presentation in this matter. If this request is denied, in whole or in part, please state in writing the name, position title, and grade of the official making the decision, and the statutory, regulatory or contractual citation it is based upon.
Particularized need: The Union believes that the Agency has violated the Fair Labor Standards Act, the Collective Bargaining Agreement, and other rules, law and regulations in regards to the Grievants. The Union needs the requested information to prove the underlying facts and contentions in its Grievance. In particular, the Union needs the information to show that the Agency improperly exempted many bargaining unit employees under the FLSA, underpaid or failed to pay proper overtime to those employees, and illegally offered comp time in lieu of overtime. The position descriptions are needed to show the critical, essential and grade-controlling duties of the positions, to show that the job duties have not changed and to show that the Grievants are and were improperly exempted. The Union needs a list of the individuals who denied the overtime to call them as witnesses and a list of employees affected to call them as witnesses.
The SF-50’s will show that the Grievants are improperly exempted and the Agency’s exemption pattern may have been arbitrary, capricious and/or violative of the Agreement. Finally, the Union needs the rosters, overtime rosters and printouts of overtime worked to show damages to the Grievants. According to Article 28, Section 2 of the Agreement, “records of overtime work will be maintained by the Employer and that such records will be made available for review by representatives of the Union upon request in connection with a complain or grievance.” The requested information will further enable the Union to fulfill its representational duties to represent employees under the statute. If the Agency is unable to fulfill ay request in full, please fulfill it in any non-objectionable part, and explain any denial in detail.
Sincerely,
Colin Patrick Walle
Interim President
NFFE Local 1998
The Union hereby appoints Mr. Michael J. Snider, Esq. as co-representative for the Union on this matter.
Copies of all correspondence and responses hereto should be forwarded to his attention at:
Michael J. Snider, Esq.
G-314 WHR Building.
6401 Security Blvd.
Baltimore, MD 21235
410-812-6399 phone
410-597-0650 fax