LOCAL 1998
April 21, 2005
To: Manager OFO, Director – Passport Services Office of Field Operations
cc: Manager DFO, Director – Passport Services Office of Field Coordination
Manager CFO, Operations Officer – Office of Field Coordination
Manager BPT, Regional Director – ___________ Passport Agency
Manager MJM, Chief – Labor-Management Relations
Michael Garofano, Vice President – NFFE Local 1998
Employee JJM, Senior Steward – NFFE Local 1998
Jim Davis, Business Representative – National Federation of Federal Employees
RE: Official Time
In accordance with Article 20, Section 6 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 employees at the ___________ Passport Agency, ___________ Senior Steward Employee JJM, and NFFE Business Representative Jim Davis. This grievance concerns the violation of relevant authorities (including the Agreement and the law) regarding the use of official time, the abrogation of agreements relating to the mechanisms for obtaining official time (including the use of leave slips), an act of reprisal taken against a Union representative (by means of violating the negotiated procedures for implementing the Security Awareness element), and rude and discourteous treatment shown to a duly accredited representative of the NFFE National Office (in violation of the Agreement).
Background
5 U.S.C. § 7102 states, in part:
Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right….
5 U.S.C. § 7116 states, in part:
(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency—
(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;
(2) to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment;
….
(4) to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information or testimony under this chapter;
5 U.S.C. § 7131 states, in part:
(a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes.
(b) Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a nonduty status.
….
(d) Except as provided in the preceding subsections of this section--
(1) any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative,
shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.
Article 6, Section 1c of the Agreement states:
c. The Employer shall not discipline or otherwise discriminate against any employee because he or she has filed a complaint or given testimony under the Civil Service Reform Act, this grievance procedure, or any other available procedure for redressing wrongs to an employee.
Article 7, Section 1f of the Agreement states:
The Employer agrees to recognize duly accredited representatives of the NFFE National Office. The Union shall provide notice in accordance with section 6 to the Employer of visit [sic] to be made by representatives of the National Office.
Article 7, Section 6 of the Agreement states, in part:
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 released as soon as possible and the representative will be notified by the supervisor of approximately when that time will occur. (emphasis added)
Article 7, Section 8 of the Agreement states:
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.
The September 25, 2001 National Union-Management Council Meeting minutes state, in part:
Union: Intent of this new addition to the contract 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. Rumors have been circulating that there is a memo from Management that states that Union representatives cannot use the two-hour block for these purposes. The Union feels that if ignorance of the contract and the regulations is not an excuse on the part of a Union rep, then there is nothing more representational than becoming familiar with the rules under which we operate. Without this knowledge, the representative cannot responsibly perform his/her duties. Another problem is that some Union representatives have been told that they must complete a leave slip before official time will be approved, which is not a requirement found in the contract. Additionally, some Union representatives have been told by their supervisors that they have to request the use of official time from the Adjudication Manager or even the Assistant Regional Director, and have been “grilled” on the reasons for the request.
Management: Management not aware of rumored memo. Two hours in a block per week can be requested and approved, but needs to be justified in advance to give management sufficient details on planned activities. Time to study the contract is okay within limits, but not on an ongoing basis. When justified, more than two hours official time per week total is allowed. Leave slip not required in advance to obtain official time, but procedures set forth in contract (Article 7) should be adhered to.
The December 3-4, 2002 National Union-Management Council Meeting minutes states, in part:
Action: Management to re-emphasize to all levels of Management that the goal is to have the immediate supervisors handle the request for official time. Parties agree to reiterate the 9/25/01 Meeting Minutes on this subject (see below). Union to remind its representatives of the need to request official time and to document it. Union representatives to proceed as outlined in the contract and request official time as needed with a brief explanation (e.g., “I need to use 3 hours of official time to research and prepare a grievance on a promotion” – with the employee in question not named). If the request is denied, the local representative will attempt to quickly and informally resolve the problem. If that effort is not successful, then the local representative should communicate this problem to Union President Alex Allen, who will then in turn contact HQ Management. If local Management is not abiding by the contract on official time, the Union will file a grievance.
The October 19, 2001 Memo from Managing Director XXX MNM, “Implementation of Security Awareness Elements” states, in part:
The following list has been established to identify responsibilities that fall under this element:
….
2. In accordance with written local procedures, ensure that unauthorized individuals are not allowed to enter a controlled area without escort. For example, cleaning crews should not be allowed unescorted access into Bookprint or Cashier Sections; employees not assigned to the Bookprint or Cashier Sections must also be escorted.
….
An employee will be advised as soon as possible if an action or non-action on the part of the employee is considered to be an infraction of the rules above. If an infraction is alleged to have occurred, the employee can file a grievance disputing that allegation.
March 3, 2005: ___________ Passport Agency Union Senior Steward Employee JJM requests 45 minutes of official time to meet with NFFE Business Representative Jim Davis on March 24, 2005 using a leave slip submitted to Supervisory Passport Specialist XXX LPL. Ms. JJM inadvertently states that she wants to discuss dental benefits with Mr. Davis, though that was to be the subject of their lunchtime meeting.
March 16, 2005: Ms. LPL denies Ms. JJM’s request.
March 16, 2005: Ms. JJM resubmits the official time request for 45 minutes of official time to meet with Mr. Davis on March 24, 2005, explaining on the leave slip and in person that she is intending to use the official time for representational purposes, including discussing the FLSA grievance, a pending grievance at ___________ regarding an employee’s evaluation, and that she will be discussing the dental benefits with Mr. Davis during lunchtime.
March 16, 2005 – March 22, 2005 (approximately): Ms. JJM verbally checks on the status of her request, but Ms. LPL does not have an answer. Ms. LPL tells her that she is waiting on the decision from Regional Director XXX BPT, since all official time requests have to be approved by him but he is not in the office.
March 22, 2005: Ms. JJM took the initiative to email Ms. LPL again checking on the status of her official time request, since she still did not have a response and the visit was only two days away.
March 24, 2005: Mr. Davis arrived at the ___________ Passport Agency. Ms. JJM was in the Will Call room (open to the public) and could see Mr. Davis through the glass doors. Mr. Davis waited on the public benches for Ms. JJM to finish her shift. They then walked to the cafeteria where they discussed dental benefits and the pending grievance over an employee’s evaluation. Ms. JJM explained to Mr. Davis that she was denied official time to meet with him but was welcome to take her own annual leave. He suggested that supervisor XXX LPL must have misunderstood, since they were discussing representational matters and official time was authorized for those purposes. Mr. Davis suggested speaking with Regional Director BPT to clarify this, since the official time that was requested and denied was to have taken place immediately after Ms. JJM’s lunch. Ms. JJM and Mr. Davis went to the front entrance that leads to the reception area (still on Ms. JJM’s lunchtime). Ms. JJM suggested that Mr. Davis take a seat while she checked if MR. BPT would see him. As she walked to the Regional Director’s office, MR. BPT stepped out of the FPM office which fronts onto the reception area. Ms. JJM attempted to introduce them, but MR. BPT asked what he wanted. Mr. Davis tried to talk to him about Ms. JJM being told to use leave for representational purposes but MR. BPT interrupted him. MR. BPT told Mr. Davis, “I don’t have to talk to you.” When he was asked “why”, MR. BPT replied, “this is between the Steward and myself.” Mr. Davis tried to explain that using official time to discuss the pending grievance, the FLSA grievance, and the AFPM elimination/rotations was covered in the contract and that MR. BPT should be familiar with what he was citing, but MR. BPT became irritated and asked how dare Mr. Davis tell him what he was supposed to do or know. As Mr. Davis was trying to show MR. BPT the relevant portion of the Agreement, MR. BPT said, “Don’t tell me what to do!” Mr. Davis told MR. BPT that he would be contacting the Department of State Labor-Management Relations Chief and then he left. Mr. Davis was never alone in the office – he was in the presence of ___________ Passport Agency staff during the entire short duration of his visit. Mr. Davis then contacted Department of State LMR Chief Manager MJM by email and telephone, explaining that the law requires that official time (not annual leave or lunchtime) be authorized for representational purposes. Mr. Davis also calls and leaves a message at the Passport Services office of Field Coordination, but does not receive a reply.
March 24, 2005: Ms. SSF responds to the email and phone call from Mr. Davis:
-----Original Message-----
From: SSF
Sent: Thursday, March 24, 2005 12:30 PM
To: 'JAMESDAVISNFFIAM@aol.com';
Cc: 'WalleCP@state.gov';
Subject: RE: Phone Discussion
Thank you for this e-mail. Question -- was ___________ PPT management aware that you would be visiting their facility? One point that you probably aren't aware of, is that at the request of union (one that we agree with), we have been preaching to the management chain to empower the stewards' first-level supervisors to handle official time requests. Perhaps that contributed to MR. BPT's disinclination to get involved. SSF
SSF,
Chief, Labor Management Relations,
DGHR/PC/LM Room 6217 HST Building
(202) 647-4285 phone (202) 647-9388 fax
March 24, 2005: Mr. Davis replies to Ms. SSF’s email, assuring her that the ___________ Passport Agency was aware in advance of his visit.
March 25, 2005: MR. BPT gives Ms. MJM a “Memo of Conversation”, which states in part:
On Thursday, March 24, 2005 you brought a visitor into the office without clearing it first with a supervisor or member of the management team.
You are reminded that this is a closed office and all visitors must be cleared in advance with a supervisor or member of the management team. If you intended to enter the office space with a visitor you should have asked the visitor to wait outside the office and then checked with your supervisor or a member of the management team first before admitting him.
April 15, 2005 (approximately): Ms. LPL meets with Ms. JJM to discuss her interim evaluation. She is told that she has been dropped from “Outstanding” to “Excellent” in the Security Awareness Element because of Mr. Davis’ visit. Ms. JJM responds that the way his visit was handled was routine and she asks that the evaluation be restored to “Outstanding”. Ms. JJM also asks that other achievements she had in the Customer Service Element be considered in her evaluation, which she felt would elevate her rating.
April 15, 2005: After I email Ms. JJM and tell her that HQ Management agreed that leave slips are not required for official time and that she should use email instead, Ms. JJM emails a request to use three hours of official time to help prepare this very grievance:
-----Original Message-----
From: MJM
Sent: Friday, April 15, 2005 4:47 PM
To: LPL
Cc: Garofano, Michael; NFFE1998
Subject: Official time needed to prepare grievance
I am seeking to use 3 hours of official time to research and preparee a grievance regarding the use of official time on March 24th. I would like to use that time from 8AM to 11AM Tuesday, April 19th.. Please email me back and let me know if that works for you. Thanks
April 15, 2005: Ms. JJM also submits a leave slip, with a copy of the NFFE Local 1998 Official Time Form attached, requesting 45 minutes of official time to meet with both Local 1998 VP Mike Garofano and NFFE Business Representative Jim Davis on April 27, 2005.
April 19, 2005: Ms. JJM’s email request for 3 hours of official time to work on this grievance is denied in an email sent by Supervisor XXX LPL, who tells her that she must submit a leave slip:
-----Original Message-----
From: LPL
Sent: Tuesday, April 19, 2005 10:21 AM
To: MJM
Subject: RE: Official time needed to prepare grievance
Hi MJM,
I was out yesterday and just read this e-mail this morning. As with any other request for leave, please submit a leave slip giving the time requested and information as to why the time is required.
Thanks,
LPL
April 19, 2005: Ms. JJM’s written request (using the leave slip and Official Time Form) for 45 minutes of official time on April 27, 2005 is denied by Ms. LPL.
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.
Leave Slips
This subject has repeatedly been addressed at the national level, and the Union and Management have agreed that leave slips should not be used to request, document, or record official time. In the interest of brevity, I hereby incorporate by reference all of the previously discussions, minutes, and agreements that we have had on this subject. Clearly, this practice should be discontinued and since HQ is already in agreement with that, there is no point in spending any more time on this particular matter.
Who makes the decision to approve/deny official time?
This subject has also been addressed at the national level on a number of occasions. Ms. SSF correctly stated in her March 24, 2005 email reply to Mr. Davis, “at the request of union (one that we agree with), we have been preaching to the management chain to empower the stewards' first-level supervisors to handle official time requests.” The fact is that at the ___________ Passport Agency the first-level supervisors are NOT empowered to make decisions regarding official time. That authority has been reserved to the Regional Director, which is why the supervisor was not able to make the decision during his absence. Ms. SSF was misinformed about what had transpired when she commented about “MR. BPT's disinclination to get involved” with the official time decision. Again, in order to avoid beating a dead horse, I will incorporate by reference all of our previous discussions, minutes, and agreements on this subject. Clearly, the supervisor should have been able to approve/deny the March 3, 2005 request much earlier than March 16, 2005, and the supervisor should have been able to approve/deny the resubmitted request on March 16, 2005 (that clarified the representational nature of the visit) at that time, instead of at the last minute.
Official Time & NFFE Officer Visits
This grievance is being filed over a meager and modest 45 minutes of official time.
Admittedly, there was some confusion at the very beginning regarding the purpose of the official time. Ms. JJM had planned on meeting with Mr. Davis at lunch and on official time. The subject of the dental benefits was to be discussed during lunchtime, and not on representational time. The confusion over this matter was clarified by March 16, 2005, shortly after the March 3, 2005 request was denied and still well in advance of the visit.
Discussing the FLSA grievance, a pending grievance regarding an employee’s evaluation, and the AFPM elimination/rotation are all representational matters and the time requested should have been approved. Denying the time requested to work on these matters was a violation of the law and the Agreement.
___________ Management had clear, justifiable notice of a legitimate need for 45 minutes of official time eight days in advance NFFE Business Representative Jim Davis’ visit to the office. The Agreement states that these visits must be arranged in accordance with Section 6 of Article 7, which references “immediate” release, so eight days was well in excess of the requirements imposed by the Agreement on Ms. JJM. Considering that Management had ample notice of his visit, Mr. Davis should have been recognized and welcomed into the office.
That Agreement requires that Management will recognize NFFE Officers who visit the Passport Agencies. They are not in the same status as any other visitor. These Officers represent the bargaining unit employees of Passport Services. Mr. Davis has been politely and professionally welcomed in a number of the northeastern-area Passport Agencies, and other NFFE Officers have also been politely and professionally welcomed into both Passport Services HQ as well as at the other regional Passport Agencies. This good natured, cordial, polite, and professional past practice was broken on March 24, 2005 at the ___________ Passport Agency.
Reprisal for Union Activity
Mr. Davis was not in the office unescorted. The ___________ Passport Agency had three weeks notice that he was visiting. Therefore, Ms. JJM complied with the Security Awareness Element memo of October 19, 2001.
That 2001 memo also requires that employees be notified as soon as possible that an event, action, or inaction on their part constitutes a violation, so that the employee may grieve that judgment. However, Ms. JJM was not aware that the events of March 24, 2005 were considered a violation until her interim evaluation a few weeks later.
Ms. JJM’s interim evaluation for the Security Awareness Element was downgraded from Outstanding to Excellent in violation of the October 19, 2001 memo. Doing this in connection with her Union activity constitutes reprisal for that activity, and serves to discourage membership and restrain future representational activity. Ms. JJM’s interim evaluation also did not include a number of contributions and achievements she has had this year in the Customer Service Element.
The Union and Management can disagree over whether the official time should or should not have been approved, and that disagreement can be processed via a grievance, as is being done here. It is improper for that disagreement to spill over into the individual performance evaluation for an employee, Ms. JJM, who has volunteered to be a Union Steward.
1) Ms. JJM should receive straight-time pay for 1.5 hours of representational duties performed in non-duty time (overtime pay is prohibited for representational work, but straight-time pay is allowed), plus interest, relating to the March 24, 2005 visit and for the preparation of this grievance. In the alternative, Ms. JJM should be granted 1.5 hours of administrative time.
2) Ms. JJM’s official time for April 27, 2005 should be approved.
3) Ms. JJM’s interim rating for the Security Awareness Element should be adjusted from Excellent to Outstanding and her interim evaluation should be redone in order to take into account all of her achievements in the Customer Service Element.
4) The practice of using leave slips to request and record official time at the ___________ Passport Agency should be immediately discontinued, as previously agreed to by HQ.
5) The practice of having the Regional Director make the decision on every official time request should cease, as previously agreed to by HQ.
6) All official time requests for representational purposes at the ___________ Passport Agency should be approved in the future, as required by the law and the Agreement. If the requested time is considered too much, then Management will approve a smaller amount of time and the Union may contest the difference via the grievance process. If the requested time period is not acceptable to Management, then Management will approve a different time period within a reasonable proximity in time to the original period, and the Union may contest that rescheduling via the grievance process.
7) Pending agreement at the national level on a revised Official Time Form, official time at the ___________ Passport Agency should be coordinated in the manner already agreed to by HQ: via email, with a specific but brief explanation, and without the need to cite an aggrieved employee’s name.
8) Inform ___________ Passport Agency 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. Ms. JJM should be granted official time in order to study the very issue of “official time” as referenced in the law, the Agreement, National Union-Management meeting minutes, and FLRA cases.
9) Management should issue a written apology to Mr. Davis for the manner in which he was treated during his visit to the ___________ Passport Agency on March 24, 2005.
After the successful resolution of the May 13, 2004 Official Time Grievance via the ADR process on February 9-10, 2005, it is disappointing to be revisiting this subject so soon. The violations alleged in this grievance are very similar to the instances that were grieved last year. Ms. JJM was bending over backwards to request as little official time for Mr. Davis’ visit as humanly possible – only 45 minutes – when she could have reasonably justified a number of hours. Hopefully this dispute can be resolved soon, so that both parties can cease spending official time disputing official time and focus on other matters of concern.
Perhaps it is helpful to consider what should have happened instead of what did happen. Ms. JJM should have been allowed to email her request on March 3, 2005. The first line supervisor should have been empowered to respond quickly, lets say on March 4, 2005. Ms. JJM could then have clarified by March 7, 2005 what was intended by the visit. The request should then have been approved (March 8, 2005), and Mr. Davis should have been allowed to visit without incident on March 24, 2005.
We all need to get on the same page on this issue.
Thank you,
Colin Patrick Walle