Transcript Joint Contract Training

Joint Contract Training
Passport Services & NFFE Local 1998
September 25, 2009
Presenters
Colin Patrick Walle
Union President
NFFE Local 1998
Steve Polson
Chief Labor-Management
Negotiator
Department of State
Introduction
How we got here:
• Face-to-face bargaining
• Email exchanges
• Mediation
• Revision
• A lot of time, effort, hard work, and
give and take by both sides!!!!
Master Agreement
 What’s in a name?
AKA:
 Contract
 Collective Bargaining Agreement
 CBA
 Why “Master Agreement”?
 To differentiate the nationwide collective
bargaining agreement from the local
agreements (see Article 12, Section 16)
 To make it clear that the local
agreements have to conform with the
Master Agreement
Master Agreement & the law
 What is the legal foundation for
the Master Agreement?
 The Federal Service LaborManagement Relations
Statute
 AKA: “FSLMRS”
 AKA: “Title 5 of the United
States Code, Chapter 71”
 AKA: “5 U.S.C. 71”
 AKA: “The Statute” – FLRA
5 U.S.C. 71
 What does it say?
 “labor organizations and collective
bargaining in the civil service are in
the public interest”
 “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. 7114(a)(1)
 Exclusive Representative and the Duty of
Fair Representation (DFR):
 “A labor organization which has been
accorded exclusive recognition is the
exclusive representative of the employees in
the unit it represents and is entitled to act
for, and negotiate collective bargaining
agreements covering, all employees in the
unit. An exclusive representative is
responsible for representing the interests of
all employees in the unit it represents
without discrimination and without regard
to labor organization membership.”
5 U.S.C. 7114(a)(4)
 Creating the collective bargaining
agreement:
 “Any agency and any exclusive
representative in any appropriate unit in the
agency, through appropriate
representatives, shall meet and negotiate in
good faith for the purposes of arriving at a
collective bargaining agreement….”
5 U.S.C. 7106(a)
 Management Rights include the
right to:
 Determine the mission, budget,
organization, number of
employees, and internal security
practices
 Hire employees
 Assign work
 Discipline employees
 Fill positions from properly
ranked candidates for promotion
 Take necessary actions to carry
out the mission during
emergencies
5 U.S.C. 7106(b)
 Management Rights in 7106(a) are subject to
7106(b) negotiations:
 (b)(1) at the election of the agency,
bargaining over the numbers, types, and
grades of employees, or the technology
and means of performing work
 (b)(2) “procedures” by which (a) will be
exercised
 (b)(3) “appropriate arrangements” for
employees affected by the exercise of (a)
 “(b)(2)” and “(b)(3)” are known as “I&I”
bargaining (impact & implementation)
Master Agreement &
5 U.S.C. 7106(b)(2) and (b)(3)
The Master Agreement contains many (b)(2) and
(b)(3) provisions. For example:
 Article 18 provisions regarding allowing
enough time to do the job, non-measurable
time, input on job elements, etc. are procedures
and arrangements for employees relating to the
7106(a) Management right to assign work
Article 16 provisions regarding the use of
Upward Mobility are procedures relating to the
7106(a) Management right to hire
Article 6, Section 27 provisions about
employees privacy are appropriate arrangements
and procedures relating to the 7106(a)
Management right to determine internal security
practices
Master Agreement &
5 U.S.C. 7106(b)(1)
Management may elect to not bargain over
a (b)(1) issue. For example, Management
chose not to bargain over these proposals
during the contract negotiations:
 Relating to the numbers and types of
employees, the Union had proposed to
add AFPM positions
 Management wanted the selection
procedures in Article 15 to only apply to
bargaining unit positions
The past: President Clinton had ordered
managers to bargain over (b)(1) issues but
President Bush rescinded that order. Will
there be changes in the future with
President Obama?
Master Agreement
Review Outline
Today we will be addressing:
1) Exclusive recognition status of NFFE
Local 1998
2) Union/Management interaction
3) Official time/Union resources
4) Grievance procedure
5) Negotiations
6) Specific topics in the CBA
7) Q & A
Exclusive Recognition
Key concepts:
1)
2)
3)
4)
5)
6)
7)
8)
9)
Definition
Legal authority
Those excluded from the bargaining unit
Duty of Fair Representation (DFR)
Orientation of new employees
Notification
Bypass
Other labor organizations
Formal meetings
Exclusive Recognition:
Definition
• As the “exclusive” representative of
CA/PPT bargaining unit employees,
NFFE Local 1998 is the “only”
representative for those employees
• Only NFFE Local 1998 can speak on
behalf of the BUE as a unit
• No other organizations can speak
on behalf of employees in addressing
working conditions
• Managers can not speak on behalf
of employees in addressing working
conditions
Exclusive Recognition:
Legal Authority
• 5 U.S.C. 7111 provides that a labor
organization can be recognized as the
exclusive representative of BUE, and 5
U.S.C. 7112 provides that the FLRA is the
agency that determines what is an
appropriate unit
• The Union and Management do not
bargain over the scope of the unit
• The FLRA determined in 1 FLRA No. 33
that a single Passport Agency (PPT/CG)
would not constitute an appropriate unit by
itself and that the appropriate unit should
be Passport Services-wide
•See Article 1 and Article 2 of the CBA
Exclusive Recognition:
Staff excluded from the unit
According to 5 U.S.C. 7112(b), the following are excluded
from the bargaining unit:
(1) …. any management official or supervisor;
(2) a confidential employee;
(3) an employee engaged in personnel work in other than a
purely clerical capacity;
(4) an employee engaged in administering the provisions of this
chapter;
(5) both professional employees and other employees, unless a
majority of the professional employees vote for inclusion in the
unit;
(6) any employee engaged in intelligence, counterintelligence,
investigative, or security work which directly affects national
security;
(7) any employee primarily engaged in investigation or audit
functions relating to the work of individuals employed by an
agency whose duties directly affect the internal security of the
agency, but only if the functions are undertaken to ensure that
the duties are discharged honestly and with integrity.
Exclusive Recognition:
Legal Authority
• NFFE Local 1998 was granted exclusive
recognition status on October 19, 1981 and
that was clarified in 1983 and 1985 (FLRA
Case Number 3-RO-98, 3-RO-20016, & 3-UC50003)
• Management was unsuccessful in an attempt
to decertify NFFE Local 1998 back in 19891990 (35 FLRA No. 129)
• The Union filed a “clarification of unit” in
October 2008 and in February 2009,
Management recognized that the Operations
Officers in the field are part of the unit and
the Union recognized that the Regional
Training Coordinators and Systems
Administrators are not part of the unit
Exclusive Recognition: Duty of
Fair Representation (DFR)
• Because NFFE Local 1998 is the “exclusive”
representative of CA/PPT employees, then the
flip-side of that is that NFFE Local 1998 must
represent ALL employees – even those who
are not dues-paying Union members
• This is required by 5 U.S.C. 7114 and 5
U.S.C. 7116
• This only applies to matters covered by the
CBA (e.g., grievances and negotiations). It
does not apply to other matters (e.g., MSPB).
• For example, when doing a survey in 2006
to prepare for contract negotiations, the
Union surveyed all BUE nationwide, not just
those who are dues-paying members
Exclusive Recognition:
Orientation of new employees
• Management must notify new employees
that NFFE Local 1998 is their exclusive
representative
• Management is responsible for providing
the employees with a copy of the CBA (and
employees receive 4 hours of official time
to review it)
• New employees must attend an orientation
to the Union (Article 10 of the CBA)
• Normally this should happen within 10
days of the employee entering on duty
• Transferred employees will also receive an
introduction to the Union reps in the new
office
Exclusive Recognition:
Notification
• As the exclusive
representative of the BUE,
notification of changes in
working conditions that affect
employees must be provided in
writing, in advance, to the
Union
• See Article 12 of the CBA
Exclusive Recognition:
Bypass
• Because NFFE Local 1998 is the exclusive
representative, Management must bargain
with the Union
• Management cannot circumvent the Union
and bargain or deal directly with BUE – this is
called a “bypass” and is a ULP (a violation of 5
U.S.C. 71)
• Article 4, Section 9 of the CBA addresses
this in part. If there are any committees
where BUE are involved, then the Union
determines which BUE are on the committee.
This includes, but is not limited to, these
types of committees:
• Quality of life committee
• Desk sharing committee
Exclusive Recognition:
Other labor organizations
• Other labor organizations (e.g.,
AFSA, AFGE) cannot represent
PPT bargaining unit employees.
• Article 10, Section 1 of the CBA
prohibits bargaining unit
employees from receiving official
time to attend presentations by
other labor organizations without
the authorization of the Union
President.
Exclusive Recognition:
Formal Meetings
• Management must invite the Union to attend
formal meetings/discussions with employees,
as required by 5 U.S.C. 7114(a)(2)(A):
An exclusive representative of an
appropriate unit in an agency shall be
given the opportunity to be represented
at-- any formal discussion between one or
more representatives of the agency and
one or more employees in the unit or their
representatives concerning any grievance
or any personnel policy or practices or
other general condition of employment
Exclusive Recognition:
Formal Meetings
• It is also required by Article 6, Section 2 of the
CBA:
Management has the responsibility to invite
the Union to any formal discussion between
one or more representatives of the Employer
and one or more bargaining unit
employee(s) or their representatives
concerning any grievance or any personnel
policy, practice, or other general condition
of employment.
• … and by Article 7, Section 5 of the CBA:
The Union shall be provided an opportunity
to be present at any formal discussions
between Management and any bargaining
unit employee(s) concerning any grievance,
personnel policy or practices or other
general condition of employment.
Exclusive Recognition:
Formal Meetings
• This requirement includes the following types of
meetings:
• Grievance meetings addressed in Article 20
(including grievances where an individual, not
the Union, filed the grievance). See Article 20,
Section 7e and 8e.
• Formal discussions during the EEO process
(see Article 17, Section 9):
The Union will be given an opportunity to have
a representative present at any formal
discussions with bargaining unit employees
during the EEO process, including those where
possible settlements may be made. This does
not include the informal stage.
Exclusive Recognition:
Formal Meetings
According to 32 FLRA No. 69, the following criteria are
considered when determining if a meeting is “formal”:
(1) whether the individual who held the discussions is merely a
first-level supervisor or is higher in the management
hierarchy;
(2) whether any other management representatives attended;
(3) where the individual meetings took place (i.e., in the
supervisor's office, at each employee's desk, or elsewhere);
(4) how long the meetings lasted;
(5) how the meetings were called (i.e., with formal advance
written notice or more spontaneously and informally);
(6) whether a formal agenda was established for the meetings;
(7) whether each employee's attendance was mandatory; and
(8) the manner in which the meetings were conducted (i.e.,
whether the employee's identity and comments were noted
or transcribed).
•
Exclusive Recognition:
Formal Meetings
• What can the Union rep say/do at a formal
meeting?
• Ask clarifying questions
• Point out potential violations of the Master
Agreement or law
• Ask specific questions directly related to the
topic
• Gather questions ahead of time and ask
them on behalf of the employees
• The Union rep should not be disruptive
Union/Management Interaction
• NFFE Local 1998 &
Passport Services should
strive to work together
and address problems
as early as possible
• See Article 1, Sections
5 & 6 of the CBA
•See Article 4, Section 1
of the CBA
Union/Management Interaction
•Communication: Article 6, Section 7 of the CBA states:
DIGNITY AND RESPECT: All bargaining unit employees
and Management officials deserve and shall be entitled
to be treated with mutual respect, dignity, common
courtesy and consideration, and will be treated fairly and
equitably. All email correspondence sent by Employer or
Union officials will be professional, factually correct (to
the best of the sender’s knowledge), and will comply
with applicable law and regulation.
• Bulletin boards: Article 8, Section 5 of the CBA states:
The Union agrees that all material posted on union
bulletin boards will be appropriate for a professional
work place, be factually correct, and will comply with all
applicable laws.
….
Management has the right to remove any Union material
not posted in accordance with the provisions of this
Section; however, the Employer must notify the Union
that the material will be removed.
Union/Management Interaction
• Watchwords:
• Cooperative
• Partnership
• Amicable
• Professional
• Collaboration
• Consultation (vs. negotiation)
Official Time
Key concepts:
1) Legal authority
2) CBA provisions
3) Obtaining time
4) Scheduling time
5) OPM Form 71
6) Internal Union business
Official Time:
Legal Authority
5 U.S.C. 7131(d) states:
(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.
The amount of time the parties agreed
was reasonable is indicated in the CBA.
Official Time:
CBA Provisions
• Official time for Union reps is listed in
Article 7 of the Master Agreement:
• 5 hours/week for Union Steward
• 6 hours/week for Senior Steward
• 2 hours/week for Recording
Secretary
• 6 hours/week for Secretary-Treasurer
• 16 hours/week for Chief Steward
• 16 hours/week for Vice President
• 28 hours/week for Union President
This time will either be scheduled or
coordinated
Official Time:
CBA Provisions
• Union reps are allowed additional
official time in the following situations:
• UMC meetings (Art 4)
• UMC meetings minutes (Art 4)
• Negotiations (Art 12)
• Employer-initiated meetings (Art 7)
• Arbitration (Art 22)
• Annual safety inspection (Art 32)
• Those situations covered by 5
U.S.C. 7131(a) and (c): FSIP and
FLRA proceedings
Official Time:
Coordinating Time
• See Article 7, Section 6b
• The Union rep should:
• Consult with supervisor (email is
okay)
• Provide a brief description of the
reason for the time
• Examples of descriptions are
included
• The supervisor must explain the
reason for any denial
Official Time:
Scheduling Time
• See Article 7, Section 6a
• Official time may be scheduled
• For example, a Union rep may
have regularly scheduled official
time from 2:00 – 4:00 PM on
Thursdays
• The timing must be arranged with
the RD or designee
• If there are no representational
duties to perform, the Union rep
shall report back to the supervisor
Official Time:
Prohibition on using OPM Form 71
• Official time is for representational
work
• Representational work is not a
vacation
• Employees and Union reps shall
not use the OPM Form 71 to obtain
or document official time usage
• Document the time in MIS using
the “Official Union Time” category
Official Time Cannot Be Used
For Internal Union Business
• See Article 7, Section 7
• Internal Union business includes:
• Solicitation of membership
• Election of officers
• Collection of dues
• Internal Union business duties
must be performed on
personal/non-work time (e.g.,
breaks, before/after work, etc.)
Union Resources
• See Article 8 of the Master
Agreement
• Desk drawers
• Lockable cabinets
• Bulletin boards (one for every
floor)
• Allowing the use of copiers,
computers, digital sender, etc.
Grievance Procedure
Key concepts:
1) Legal authority & CBA
2) 2 Steps (or 1) instead of 4
3) Exclusions
4) Time limits/deadlines
5) Extensions
6) Flow chart
Grievance Procedure
• 5 U.S.C. 7121 requires that each
CBA have a negotiated grievance
procedure that includes binding
arbitration
• In the Master Agreement, the
grievance procedure is covered by
these three articles:
1) Article 20 “Grievance Procedure”
2) Article 21 “Alternate Dispute
Resolution” (ADR)
3) Article 22 “Arbitration"
Grievance Procedure: 2 Steps
(or 1) Instead of 4
• Under the old 2001 CBA there
were 4 steps in the grievance
procedure (including the Informal
Step)
• Now there are only 2 steps:
1) Step 1 (filed with the RD)
2) Step 2 (filed with PPT/FO)
• This will help prevent confusion
and streamline the process
• IMPORTANT: Some issues skip
Step 1 and go straight to Step 2
(see Article 20, Section 6)
Grievance Procedure: Exclusions
• See Article 20, Section 3
• These exclusions come from
the law and FLRA caselaw
• If a matter is not excluded
from the grievance procedure
then it can be grieved
• Clarification: appraisals can
be grieved, while the content of
the elements cannot
Grievance Procedure:
Time Limits/Deadlines
• The deadline to file a Step 1
Grievance is 45 days
• Increased from the old 2001 CBA
(was 30 days)
• Allows more time for resolution
of complaints before filing a
grievance
• The deadline to file a Step 2
Grievance is 30 days from receipt of
the response to the Step 1 Grievance
Grievance Procedure:
Extensions
• Deadlines for filing and responding to
grievance can be extended for a number of
reasons:
• If the deadline falls on a non-work day
(weekend, holiday, RDO, in lieu of
holiday, emergency office closure)
• If the deadline falls during the week
that Thanksgiving or Christmas are
observed
• When approval of official time is
delayed resulting in a missed deadline
(Art 7)
• Deadlines can also be extended by mutual
consent of the parties
Negotiated Grievance Procedure Flow Chart – IAMAW FD1 NFFE Local 1998 & Passport Services
For the Collective Bargaining Agreement effective July 20, 2009
Issue or event 45 days Step 1
causing
Grievance
filed with 45 days
complaint*
See Article 20
30 days
(in writing)
Submit to senior
manager (RD)
Response
to Step 1
Grievance
30 days Step 2 / Final
45 days
Step Grievance
filed within 30 days of
receiving response to
Step 1, if not
satisfactory
Submit to PPT/FO
Response to
Step 2 /
Final Step
Grievance
30 days
Arbitration invoked
by Union within 30 days
of receiving Step 2
response, if not satisfactory
See Article 22
7 days
15 days
15 days
7 days
Complaint
resolved
informally
within 45 days
Grievance meeting (if
requested in writing)
Extends time limits for
Response by 15 days (from
30 days to 45 days)
Complaint
resolved /
complaint
dropped
ADR
ADR
Time limits
suspended, but
resume if not
resolved
See Article 21
30 days
Grievance
meeting
(if requested in writing)
Complaint
resolved /
complaint
dropped
Extends time limits for
Response by 15 days
(from 45 days to 60
days)
(only if ADR not
invoked after Step 1
response)
Time limits suspended,
but resume if not
resolved
See Article 21
* If the issue or event causing the complaint is one of the following, then skip
the Step 1 process and go straight to Step 2/Final Step:
(1) Disciplinary and Adverse Action: any action taken under Article 24
a. For example:
i. Suspension
ii. Removal
b. Exception: a Letter of Reprimand or lesser action will still be
grieved at Step 1
(2) Unacceptable Performance (Article 23)
(3) Nationwide Issues: In the case of matters affecting more than one office
(4) A charge to the employee of any training cancellation fees (Article 13)
(5) The denial of the restoration of forfeited annual leave (Article 31)
5 days
The effective date of a suspension
is automatically stayed for 5 days
to allow for a grievance or other
action. If a grievance is filed
within those 5 days, then the
suspension is further stayed until
the response is received.
Negotiations
Key concepts:
1) Legal authority & CBA
2) 2 levels – HQ and local
3) Deadlines
4) Negotiability and Impasse
issues
5) Local level agreements
Negotiations:
Legal Authority & CBA
• 5 U.S.C. 71 requires that the
parties negotiate in good
faith
• Article 12 of the Master
Agreement contains the
provisions addressing
negotiations between
Passport Services & NFFE
Local 1998
Negotiations: 2 levels
Bargaining occurs at 2 levels:
1) The nationwide/HQ level
2) The local office level (e.g., PPT/MN,
PPT/NPC, etc.)
Notification:
• National level: PPT/FO & Union
President/Vice President
• Local level: RD/ARD & Senior
Steward/Union Steward
• If there is only 1 Union rep, then
notification also goes to the Union
Vice President
• If there are no Union reps, then
notification goes to the Union
President and Vice President
Negotiation Deadlines
• The deadline for a notification from
Management to the Union of a proposed
change in working condition is at least 15
days in advance and should be specified in
the notification. If it is not specified, then
it is automatically 30 days.
• There are now deadlines for the Union to
submit requests for information and to
submit the actual wording of proposals.
• Missed deadline: if the Union fails to
invoke its right to bargain by the deadline,
then Management can implement the
change (so long as it complies with the law
and the Master Agreement).
Negotiations: Negotiability and
Impasse Disputes
• See Article 12, Sections 14 and 15
• Negotiability: any disputes over whether a
proposal at the local level is negotiable
must be referred to the national level
parties. Only the national level parties can
formally declare a proposal non-negotiable
or file a negotiability appeal.
• Impasse: when the parties at the local
level reach an impasse on an issue, they
shall set the issue aside and work out the
remaining issues. Any impasses may be
referred to the FMCS for mediation by the
local parties, but the national level must be
notified. Only the national level parties
may refer an impasse to the FSIP.
Negotiations:
Local Level Agreements
• The Master Agreement is controlling.
Local agreements – either current or
future – must not conflict with the
Master Agreement.
• The parties can bargain over a number
of issues, including those listed in Article
12, Section 16.
• Upon reaching agreement, the local
parties must forward a copy of the local
agreement to the national-level parties.
The national level parties will review the
agreement to ensure compliance with
the law and the Master Agreement.
Specific Topics in the CBA
• Interviews (Article 6, Sections 2-4)
• Committees (Article 4, Section 9)
• Union/Management relationship (the meaning
and intent of Article 4)
• Dress code (Article 6, Section 9)
• Food & drink (Article 6, Section 25)
• Nameplates (Article 6, Section 10)
• Official time for BUE (Article 6, Sections 12 and
13 & Article 7, Sections 6d and 9 [survey])
• Labor-Management Relations Training & the
NFFE Local 1998 Training Coordinator (Article 11)
• Work Schedules (Articles 25, 26, and 27)
• Performance standards & evaluation (Article 18)