Grievance Between the Parties

March 30, 2007

To:       Ann Barrett, Deputy Assistant Secretary of State for Passport Services
cc:        MANAGER B, Passport Operations Director
            MANAGER C, Director – Passport Services Office of Field Coordination
            MANAGER D, Operations Officer
            MANAGER E – Chief, Labor-Management Relations - Department of State
            Steve Flory – Business Representative, National Federation of Federal Employees
            Susan Grundmann – General Counsel, National Federation of Federal Employees
            All Passport Specialists

RE:      Unfair/unreasonable measurement of adjudication on overtime

NFFE Local 1998 requests that the following Grievance Between the Parties be considered in accordance with the provisions of Article 20, Section 8 of the Agreement between Passport Services and NFFE Local 1998.  We are alleging that Management has violated the Agreement and the law by not measuring Passport Specialist’s performance on overtime in a fair and reasonable manner.  According to Section 8, the Union and the Employer’s representative are to confer within 15 days of the filing of this grievance to discuss the issues contained herein and attempt to resolve this grievance, if the requested relief cannot or will not be granted prior to that date.  That date is Saturday, April 15^th.  The Employer’s response would then be due within 10 days of the discussion. 

Relevant Portions of the Agreement

Article 1:

The Parties agree to fulfill the mission by maintaining and enhancing the integrity of the U.S. passport and the passport issuance process …. 

Article 18, Section 1:

Performance of any duty will only be measured during periods when employees are assigned to those duties….

Article 18, Section 2:

The performance appraisal system and the parts that make up the system as applied to bargaining unit employees will permit, to the maximum extent feasible, the accurate evaluation of job performance on the basis of objective criteria, and will be fair, reasonable, equitable and job-related…. 

Article 18, Section 3:

The Employer is responsible for keeping time and attendance records and for measuring the quantity and quality of work performed by the employees using the most accurate methods available and with the goal of being as fair and objective as possible….

Explanation of Adjudication Measuring System

The job of a Passport Specialist is to adjudicate passport applications – to determine if the applicant is a U.S. citizen or national, is who he/she claims to be, has properly submitted the application, and to perform other checks to verify entitlement to a U.S. passport.  Passport Specialists’ production in this task is measured by the second of five job elements: Element 2, “Production and Technical Skill”.  In that element, Passport Specialists at the GS-9 and GS-11 grade are expected to adjudicate 24 applications per hour on average.  The measurement of this performance is recorded in the Management Information System (MIS).  In MIS, the employee selects from a drop-down list of categories the duty that he/she performed that day as well as the hours spent performing that duty.  There are about twenty duties to select from.  Two of those options are “Desk – All Applications” and “Overtime Desk – All Applications”. 

Passport Specialists performing desk adjudication are required, by HQ, to select the “Overtime Desk – All Applications” MIS category when recording their production.  This differs from the “Desk – All Applications” MIS category used for regular, non-overtime, adjudication because the overtime category does not include a 1 hour of non-productive time.  The 1 hour of non-productive time covers work assignments such as logging into to the computer, locking up, obtaining batches of work, etc. – things that normally take place in the course of adjudication and other work assignments that are not actually part of adjudication.  The “Desk – All Applications” MIS category takes the number of hours worked in the day and multiplies that by 0.8125 to arrive at the number of measurable hours.  0.8125 is the ratio of 6.5 hours divided by 8.0 hours.  6.5 hours is considered the number of measurable hours in a standard 8.0 hour day because 1 hour is allotted to the non-productive tasks and there are two 15-minute breaks. 

Background

On Thursday, March 8^th, I received advance notice from HQ personnel that mandatory overtime was going to be instituted nationwide.  Later that day notice went out to all offices to that effect.  In 15 years with Passport Services, this marks the first time I have heard of nationwide mandatory OT.  In the months leading up to the decision to institute mandatory overtime, most offices were offering voluntary overtime, but HQ reported that only a small number of employees were volunteering on a continual basis.  After receiving numerous inquiries, complaints, and a great deal of feedback and input within the span of only 24 hours, I emailed HQ on Friday, March 9^th with preliminary input/reactions from the Union.  The second of seven points was a request to apply the 1 hour of non-productive time (the 0.8125 factor) to the measurement of adjudication on overtime.  I emailed again about this request on numerous other dates and also talked on a couple of occasions with HQ personnel.   On March 30^th,  HQ Management denied this request. 

Union’s Arguments

It is not fair, reasonable, or equitable to measure employee’s performance differently on overtime than on regular work time.  It is not fair to expect them to produce more on overtime.  It is not reasonable to require them to perform non-productive tasks on overtime but make no allowance for that. 

As the table above clearly demonstrates, employees on regular work time and on overtime perform the same duties, but are measured differently.  Employees on overtime have all of the same non-productive tasks and Element 5 duties as employees on regular time, but the Element 2 overtime work is not measured fairly because the time for the non-productive tasks and Element 5 duties are not accounted for in MIS.  

Article 18, Section 1 of the Agreement states that performance should only be measured during periods when employees are assigned to those duties.  The numerical performance standards are requirements found in Element 2 (Production and Technical Skill) of the Passport Specialists elements and standards, while locking and unlocking applications, jurat, and access to the computer are duties found in Element 5 (Security Awareness).  When an employee is in on overtime from 7:00 AM to 3:00 PM, he/she typically will perform these Security Awareness duties throughout the day at various times, but also between 7:00 AM to approximately 7:10 AM or 7:15 AM, and from 2:45 PM or 2:50 PM until 3:00 PM.  However, during these periods when Security Awareness duties are being performed on overtime, Management is measuring the employee against the Production standards.  The employee is producing exactly zero applications towards the production standard (Element 2) requirements while he/she is fulfilling the Security Awareness (Element 5) duties, yet the clock for the production standard (Element 2) expectations is still running when overtime work is being measured.  This is obviously and blatantly unfair, unreasonable, and inequitable.  

So, when an employee is working on regular time and performs the non-productive tasks, that is accounted for in the MIS measuring system, but when he/she is working on overtime and performs precisely the exact same non-productive tasks, that is not accounted for in MIS.  

It is not fair to expect Passport Specialists to be producing applications when it is impossible for them to be doing so – employees cannot both log in to the computer and adjudicate at the same time, they cannot lock up cabinets and move batches and adjudicate at the same time.  An employee simply cannot adjudicate without applications and without TDIS access – that is an impossibility – and yet that is exactly what is expected by Management when an employee is spending time on overtime obtaining batches, unlocking cabinets, logging into the computer and TDIS and other programs.  The employee cannot be in two places at once – both at the bookprint cart and at his/her desk adjudicating, both at the shredder and at his/her desk adjudicating.  The time spent performing these non-productive tasks is in most cases covered by the 1-hour of non-productive time for regular work, but is not covered at all for overtime work.  

Message to the Congress and the GAO 

Passport Services informed the Congress and the Government Accountability Office (GAO) that it adjusted the standards in 2004 in response to the employees’ and the Union’s concerns.  Initially, the nationwide 2004 adjudication numerical performance standards required that, on average, a GS-9/11 Passport Specialist adjudicated 168 applications/day (24/hour times 7 measurable hours).  In October 2003, in response to the August 2003 notice of the planned 2004 elements and standards, the Union had proposed that work be measured by 6.5 hours in an 8.0 hour day.  In December 2003, Management notified the Union that it would not agree to this change.  The Union filed an Unfair Labor Practice charge over this and other issues, which was denied by the Federal Labor Relations Authority.  The mid-2004 change by Management essentially adopted the Union’s October 2003 proposal to count 1 hour in a typical 8-hour day as non-productive rather than the ½ hour initially implemented by Management.  

For overtime work performed in 2004 and 2005, adjudication production was measured utilizing the 0.8125 factor, just as Passport Services had informed the Union, the employees, the Congress, and the GAO that it would do.  That is, for every 8 hours of overtime work, employees were measured for 6.5 hours.  However, with the implementation of MIS in 2006, overtime work was no longer measured according to the 0.8125 factor.  The Union pointed this out to HQ at the time and attempted repeatedly to have this corrected.  

Now that – for the first time that we are aware of – nationwide mandatory overtime has been ordered by HQ, this issue has taken on a further sense of urgency.  While previously employees could perform voluntary overtime, and therefore choose not to be measured unfairly, now employees no longer have that option.  As of March 9, 2007, Management is requiring all employees to perform 16 hours of mandatory overtime during a 30-day period and is forcing all of the Passport Specialists who are desk adjudicating to be measured unfairly.  

Morale, retention, and workplace injuries 

Currently, Passport Services is experiencing a record-setting backlog.  Part of the reason for that is not enough staffing, and not enough voluntary overtime opportunities, but another part is that some employees did not wish to perform overtime because of the unfair measuring system and some were even discouraged by supervisors from performing overtime due to the faster pace required.  

When a GS-9/11 Passport Specialist does 8 hours of overtime, he she must produce 180 applications, on average, to meet the Fully Successful standard.  Only the two 15 minute breaks are subtracted from the 8 hours, so 7.5 hours times 24 applications/hour equals 180 applications.  In fairness, the employee who produces that 180 applications should be considered to have met the Excellent standard.  That 180 applications should be divided by 6.5 hours, for an average of 27.7 per hour.  The numerical requirement for Excellent is 28/hour, but numbers are rounded up, so that 180 applications is Excellent-level performance.  

So, with the order to do mandatory overtime, Management is not only ordering employees to do more hours of work, but is actually ordering employees to speed up the pace of their work from 24/hour to 28/hour.  This is blatantly unfair and unreasonable.  

Part of the reason for ordering mandatory overtime was that “in many cases the same core group of employees is working the bulk of the OT week after week”, and there were concerns those employees would be end up being fatigued or even ill.[3]  Requiring employees who were not doing overtime to not only do 16 hours but also work at a faster pace during overtime only exacerbates these issues.  If HQ is concerned about fatigue, illness, and burnout experienced by Passport Specialists, then measuring them fairly on overtime work by applying the 0.8125 is a prerequisite towards addressing those issues.  

The unprecedented order for nationwide mandatory overtime has met with widespread cries of frustration, worry, and outrage by Passport Services employees.  I am not aware – in almost 9 years as a nationwide Union representative – of another issue that has caused so much damage to morale.  As you know, there is an intricate connection between morale and retention.  I have already heard employees – both new and experienced – say this decision is driving them to consider leaving Passport Services and finding other employment.  The decision to measure employees unfairly on overtime only adds insult to injury to these workers.  For this reason alone, Management should be persuaded to measure employee production on overtime fairly by applying the 0.8125 factor.  Congratulatory and encouraging messages from HQ officials are appreciated, but nothing beats treating workers fairly when it comes to raising morale.  

Back in the February 8, 2005 National Union Management Council meeting, Management stated that in anticipation of the Western Hemisphere Travel Initiative they had already sent out a request for an additional 468 FTE’s (full time employees) in order to meet the anticipated demand.  While some of these staff additions would be managerial positions, the bulk were expected to be workers – potentially raising the number of bargaining unit employees from the 654 at that time to potentially more than 900.  Contrary to press reports[4] that Passport Services has hired 250 adjudicators since late 2005, there has only been an increase of 160.[5]  Simply put, over 2 months after WHTI went into effect for air travel, and we still have massive shortages in staffing.  As one employee emailed me, “failing to plan is planning to fail”, and it is not fair to increase the burden on the workers – who are doing their best to solve a problem that was not of their creation – by measuring them unfairly and causing them to increase the likelihood of fatigue and repetitive motion injuries.  

Example of how the current system is unfair 

Here is a scenario explaining how the current measuring system is unfair to workers on overtime: 

Joe adjudicates for the regular 8 hours on Friday, and is measured for 6.5 hours.  He produces 156 applications, which meets the 24/hour standard.  Sally adjudicates for the exact same 8 hours on that exact same Friday, though she is in the office on her CWS regular day off (zero hour day) so is doing 8 hours of OT.  Sally is measured for 7.5 hours instead of the 6.5 hours, per HQ policy.  Sally produces the exact same 156 applications, yet finds that her production average for the day is only 20.8/hour – far below the required 24/hour.  In order to meet the standard, Sally would have had to produce 180 applications – 24 more than Joe, on the same day and at the same time as Joe.  This is not fair or reasonable. 

The issue now takes on a much greater sense of urgency as employees are now being forced to work 16 hours in the next 30 days, and therefore forced to be measured unfairly and unreasonably for 16 hours.  In the example above, both Joe and Sally had to unlock and lock cabinets and desks, both had to obtain batches and move batches along, both had to unlock and lock their computer workstations, both had to read emails, etc. – these are all of the issues covered by the 1-hour of non-productive time.  

Joe works OT for 8 hours – from 7am to 3pm, with two 15 minute breaks.  He performs 15 minutes of non-productive tasks from 7:00 to 7:15 – unlocking cabinets, unlocking his desk, obtaining batches, maybe obtaining envelopes and pens, logging into the computer, and logging into TDIS, email, and shared folders and/or online resources (e.g., Passport Services Intranet, local shared adjudication folder).  During the day, he has to perform other non-productive tasks, such as obtaining batches, moving batches to the Bookprint cart, turning letters into the review box, making copies of documents for a <OMITTED> referral, reading work-related emails or finding work-related email guidance or guidance from online or printed references.  Joe may also be interrupted by other non-productive issues, such as phone calls, needing to make phone calls, or have employees ask questions (guidance) or looking for applications (e.g., NPIC message).  When getting up and leaving the workstation to go on the breaks (or to the bathroom), or to get materials or applications, the computer must be locked.  Upon return, Joe must log in again.  At the end of the day, Joe must complete the MIS report (he has to go through 4 screens before he can input data, and it takes a while to refresh) and must turn in batches, turn off the programs, lock up the stamp and desk, and log out of the computer.  He must also shred certain items as directed by the Security Awareness Element – Management has not issued any blanket amnesty for Security Awareness violations done on overtime.  Typically 10 or 15 minutes prior to the end of the OT period, shelves must begin being closed as the agency prepares to shut down for the day.  

Fair Labor Standards Act of 1938

The Fair Labor Standards Act of 1938 is one of the hallmark achievements of the labor movement.  

Some managers and supervisors have implied or stated that because workers are paid at 1.5 times the normal rate of pay for overtime work, then more should be expected of them.  To paraphrase, “we are paying you time and a half, so you should do more”.  That mindset is diametrically opposite of the intent of the FLSA.  Prior to April 2004, Passport Specialists were not paid overtime wages in accordance with the FLSA.  The Union filed a grievance to have that status corrected and now all employees are covered by the FLSA and paid true time-and-one-half for overtime work.  

It was not the purpose of the FLSA to give workers 1.5 times regular pay if they produced at 1.5 times their normal rate, when working beyond 40 hours in the workweek.  Rather, the purpose of the FLSA was to enshrine the 40-hour workweek as the standard scheduled for all workers.  This is why some automobiles sport the bumper sticker reading, “UNIONS: the people that brought you the weekend”.  Employers can ask, and in some situations compel, employees to work more than the 40 hours per week or 8 hours per day, but the price for that additional labor is wages paid at 1.5 times the normal rate.  

The intent of the FLSA was for workers who are doing overtime to be paid at 1.5 times the normal rate of pay for the same exact work done during the normal work hours.  On a normal 8-hour workday, the Passport Specialist is required to produce an average of 156 applications and be paid “straight time” (normal) wages.  During 8 hours of overtime, the Passport Specialist should be required to produce an average of 156 applications – not 180 – and be paid premium pay of 1.5 times normal wages.  

29 U.S.C. 215 prohibits retaliation for filing claims or grievances regarding an employee’s FLSA status.  There were many managers who were not pleased with the FLSA grievance.  The Union has already filed other grievances alleging retaliation for the FLSA grievance (including a January 20, 2005 Grievance Between the Parties regarding administrative leave that was resolved in March 2006).  We have also heard anecdotally of complaints from supervisors about this grievance, including the complaint that they do not receive true time-and-one-half for overtime work and that some GS-11’s, as a result of the change in status, sometimes make more in a year than the GS-12’s.  Recently we had to request an email correction from HQ regarding a message claiming there was a ceiling on OT pay be corrected.  The FLSA grievance was settled in early 2005 and employees were paid in mid-2005, and then MIS was introduced in the Fall of 2005 with the measurement calculation for overtime work being changed to an unfair standard.  Whether a manager or supervisor agrees with it or not, the FLSA law requires that employees be paid time-and-a-half for overtime work – for the same work done during regular work time, not for producing work at a faster rate.  

To the extent that Management may be expecting employees to perform the non-productive tasks (e.g., logging in or shredding) on non-work time, that suffered and permitted overtime work without compensation is a violation of the Agreement, the FLSA, and the Settlement Agreement that was signed to resolve the Union’s 2004 FLSA Grievance Between the Parties.  

Conclusion  

We urge you to abide by the Agreement and measure Passport Specialists fairly when assigned to overtime desk adjudication.  This will not only help in the short term with addressing the workload situation as more employees will be willing to volunteer for more hours if they are measured fairly, but also long term as this would mitigate the negative impact that mandatory overtime will take on the employees mentally and physically (and obviously help with retention).  

Simply put, during 8 hours of overtime employees are currently measured for 7.5 hours, yet they ARE NOT ADJUDICATING for 7.5 hours because they cannot adjudicate for 7.5 hours.  They must perform other non-adjudicative tasks.  Therefore, it is not fair or reasonable to measure them for that full 7.5 hours.  

Requested Relief 

I respectfully request that Management abide by the contract and the law and make the employees whole.  I respectfully request that Management measure Passport Specialists’ performance on overtime in a fair, reasonable, and equitable manner, including applying the 1-hour of non-productive time (the 0.8125 factor) to overtime work.  I respectfully request that the MIS category of “Overtime Desk – All Applications” be eliminated and that employees select the “Desk – All Applications” (or other appropriate category that includes the 0.8125 factor) when doing overtime adjudication.   

Thank you, 

Colin Patrick Walle 

Note: Nothing in this grievance should be interpreted to mean any endorsement by the Union for the 24/hour standard or the 6.5 hour measuring system.  The Union has consistently and repeatedly requested HQ to lower the production standards so that Passport Specialists have more time to diligently adjudicate passport applications, detect fraud and catch errors, in order to fulfill the intent of our Agreement, the Mission of the Agency, and the WHTI.  The Union has sent by FedEx this same day a petition to the DAS in furtherance of this goal.  In the ongoing contract negotiations, the Union has also proposed additional non-productive time or other accounting category for handing fraud referrals and complex cases (15 minutes each).  

Information Request 

Article 28, Section 2 of the Agreement states, in relevant part: 

The Employer agrees that 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 complaint or grievance. 

We are requesting the records of overtime from all offices for all Passport Specialists in 2006 and 2007 (to date).  Specifically we are requesting the payroll or other records showing the amount of hours worked each day for each individual assigned to desk adjudication on overtime, and also the MIS reports for those days showing what their daily production average was, and which MIS category was selected, and whether or not it was marked as measurable.