LOCAL 1998
April 26, 2005
To: _____________, Director – PPT/IML
cc: _____________, Chief – Record Services
_____________, Supervisor
_____________, Supervisor
Jane Doe, File Assistant
Karen Proctor-Adams, Senior Steward – PPT/WN
Keacha Medley, Steward – PPT/WN
Mamie Minor, Acting Senior Steward – PPT/IML
NFFE Local 1998 requests that the following grievance be considered in accordance with the provisions of Article 20 of the Agreement Between Passport Services and NFFE Local 1998.
I am filing this Step 1 Formal Grievance on behalf of PPT/IML File Assistant Jane Doe. This grievance concerns the Letter of Counseling given to Ms. Doe on March 2, 2005.
I hereby incorporate by reference the Informal Grievance that I filed on April 1, 2005, in its entirety.
Union’s Reply to Management’s April 11th Response to the Informal Grievance
Letters of Counseling are Not Excluded From the Grievance Procedure
Management denied the Informal Grievance in an April 11th Memo written by ________, the Chief of Record Services at PPT/IML. The basis of the denial was the claim that the Foreign Affairs Manual (FAM) excluded memos such as the Letter of Counseling from the grievance process.
Specifically, the April 11th Memo cited 3 FAM 4513, which states:
3 FAM 4513 ORAL AND WRITTEN ADMONISHMENTS (LETTERS OF WARNING)
(TL:PER-410; 08-02-2001)
(State Only)
(Applies to Civil Service Employees)
a. An oral and written admonishment (letter of warning) may be used when an employee’s conduct is less than acceptable and it is probable that the admonishment will result in improvement. An admonishment is neither grievable nor appealable, as it is not part of a formal disciplinary procedure.
b. An admonishment may be oral or written and may be issued by the employee’s supervisor or other appropriate management official who has knowledge of or receives information relating to behavior by the employee that has a negative impact on the operation of the office.
c. If the admonishment is in writing, a copy must be provided to the employee, who may respond in writing to the issuing official. The employee’s response, if any, will be attached to the copy of the admonishment, which is retained by the issuing official. Written admonishments will not be filed in the employee’s Official Personnel Folder (OPF), but will be maintained by the issuing official under appropriate safeguards for one year and then destroyed.
Management is considering the Letter of Counseling to be akin to an admonishment, and clearly the 3 FAM states that such memos are “neither grievable nor appealable”. The question then becomes whether this regulation is controlling for members of the Passport Services bargaining unit. It is our opinion that this provision of the 3 FAM is not controlling for bargaining unit employees of Passport Services.
5 U.S. C. § 7121 is the statutory basis for negotiated grievance procedures in collective bargaining agreements. It states, in relevant part:
(a)(1) Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability. Except as provided in subsections (d), (e) and (g) of this section, the procedures shall be the exclusive administrative procedures for resolving grievances which fall within its coverage.
(2) Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement.
(emphasis added)
Based on that legal authority, the exclusive representative of Passport Services bargaining unit employees – NFFE Local 1998 – negotiated a binding grievance procedure with Management officials of Passport Services, located in Article 20 of the collective bargaining agreement.
The Agreement lists the following exclusions from the negotiated grievance procedure:
3. EXCLUSIONS: This grievance procedure does not apply to -
a. Those matters excluded by Section 7121(c) of USC; i.e., any grievance concerning:
(1) Any claimed violation of USC Chapter 73, Subchapter III, relating to prohibited political activities;
(2) Retirement, life insurance, or health insurance;
(3) A suspension or removal for reasons of national security;
(4) Any examination, certification, or appointment; or
(5) The classification of any position which does not result in the reduction of grade or pay of an employee.
b. Individual appeals to Reductions-in-Force. This does not prevent the Union from filing a grievance alleging violation of this Agreement or violation of appropriate regulation on matters affecting other than an individual case.
c. Non‑adoption of a suggestion, disapprovals of quality step increases, and performance awards or other kinds of discretionary or honorary awards. However, grievances may be filed alleging violations of Article 19.
d. The content of critical elements and performance standards. However, grievances may be filed alleging violations of Article 18.
e. The termination of temporary employees with appointments of 700 hours or less and probationary employees.
Clearly, the Parties did not agree to exclude Letters of Counseling (or the other matters covered in 3 FAM 4513) from the negotiated grievance procedure. Removing the record of a disciplinary action earlier than the contract-established time frames is also excluded from the grievance process (“Except in the case of disparate treatment”) – see Article 24, Section 3h – but that exclusion clearly relates to the duration of record keeping which would factor into possible future disciplinary actions, rather than the decision to take the disciplinary action itself (which is mentioned throughout Article 24 as being subject to a possible grievance).
The section of the FAM in question here, 3 FAM 4513, did not go into effect until August 2, 2001, almost one month after the July 3, 2001 effective date of the collective bargaining agreement. If Management had wished to propose this additional exclusion into the negotiated grievance procedure, it should have either done so during the contract negotiations. Alternatively, Management could have proposed this exclusion after the effective date of the Agreement, according to the terms of Article 12 of the Agreement (and in accordance with the provisions of Section 4).
Because Management chose not to propose this exclusion during the January 2000 – July 2001 contract negotiations, then it is not part of the Agreement. Because Management has not subsequently chosen to propose this exclusion to the Union via mid-term bargaining, then it still has no force or effect in our unit. Therefore, Letters of Counseling are not excluded from the grievance procedure and the Letter of Counseling given to Ms. Doe on March 2, 2005 may be grieved.
In short, the Agreement trumps the FAM. If there is a difference between the two documents, the Agreement is controlling for bargaining unit employees of Passport Services. This was seen in the instance of the Security Awareness Element, which had been discussed with unions that do not represent Passport Services employees, and which had been issued as an official Department of State policy memorandum. In addition, this theory of the relationship between the Agreement and the FAM was recognized on more than one occasion by former Department of State Chief Labor-Management negotiator ___________ during the contract negotiations and subsequent discussions on other related matters.
Duration of Admonishments
The April 11th Memo from Management states that the Letter of Counseling “will be maintained by IML/R for one year”. Management considers the Letter of Counseling to fall within the definition of a written admonishment.
The only mention of written admonishments in the July 3, 2001 Agreement is found in Article 24, Section 3h, where it states, “Normally admonishments will be retained for six months”. Therefore, even if the issuance of the Letter of Counseling is upheld, on the basis of the primacy of the Agreement vis-à-vis the FAM, it should not be retained for one year.
Admonishments are a Disciplinary Action
The April 11th Memo claims that, “As stated in 3 FAM 4513, these measures are not part of a formal disciplinary procedure and therefore cannot be grieved”. This is a correct interpretation of the FAM, which states in similar language “An admonishment is neither grievable nor appealable, as it is not part of a formal disciplinary procedure”.
However, admonishments are clearly defined as a disciplinary action in the collective bargaining agreement. Article 24 is titled “Disciplinary and Adverse Actions”, and it includes the aforementioned Section 3h, which covers admonishments.
The April 1, 2005 Informal Grievance was denied on technical grounds and therefore, logically, the merits of the Union’s arguments were not considered. As that is the case, the focus of this Step 1 Formal Grievance has been to respond to these technical matters. I invite Management to consider anew the merits of our arguments in the Informal Grievance and render a judgment on them. This is a case where the Deputy Assistant Secretary of State for Passport Services clearly invited employees to contact him directly with their suggestions, which he has done in person as well as via email. It is not fair to admonish this employee for taking the DAS up on his offer.
I respectfully request that the Letter of Counseling given to Ms. Doe be rescinded and removed from any and all files relating to her performance and conduct.
Thank you,
Colin Walle