Joint Contract Training

1. Joint Contract Training Passport Services & NFFE Local 1998 September 25, 2009

2. Presenters • Colin Patrick Walle • Union President • NFFE Local 1998 • Steve Polson • Chief Labor-Management Negotiator • Department of State

3. 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!!!!

4. 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

5. Master Agreement & the law • What is the legal foundation for the Master Agreement? • The Federal Service Labor-Management Relations Statute • AKA: “FSLMRS” • AKA: “Title 5 of the United States Code, Chapter 71” • AKA: “5 U.S.C. 71” • AKA: “The Statute” – FLRA

6. 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.”

7. 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.”

8. 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….”

9. 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

10. 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)

11. 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

12. 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?

13. Master Agreement Review Outline • Today we will be addressing: • Exclusive recognition status of NFFE Local 1998 • Union/Management interaction • Official time/Union resources • Grievance procedure • Negotiations • Specific topics in the CBA • Q & A

14. Exclusive Recognition • Key concepts: • 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

15. 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

16. 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

17. 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.

18. 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-UC-50003) • Management was unsuccessful in an attempt to decertify NFFE Local 1998 back in 1989-1990 (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

19. 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

20. 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

21. 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

22. 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

23. 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.

24. 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

25. 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.

26. 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.

27. Exclusive Recognition: Formal Meetings • According to 32 FLRA No. 69, the following criteria are considered when determining if a meeting is “formal”: • whether the individual who held the discussions is merely a first-level supervisor or is higher in the management hierarchy; • whether any other management representatives attended; • where the individual meetings took place (i.e., in the supervisor's office, at each employee's desk, or elsewhere); • how long the meetings lasted; • how the meetings were called (i.e., with formal advance written notice or more spontaneously and informally); • whether a formal agenda was established for the meetings; • whether each employee's attendance was mandatory; and • the manner in which the meetings were conducted (i.e., whether the employee's identity and comments were noted or transcribed).

28. 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

29. 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

30. 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.

31. Union/Management Interaction • Watchwords: • Cooperative • Partnership • Amicable • Professional • Collaboration • Consultation (vs. negotiation)

32. Official Time • Key concepts: • Legal authority • CBA provisions • Obtaining time • Scheduling time • OPM Form 71 • Internal Union business

33. 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.

34. 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

35. 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

36. 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

37. 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

38. 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

39. 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.)

40. 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.

41. Grievance Procedure • Key concepts: • Legal authority & CBA • 2 Steps (or 1) instead of 4 • Exclusions • Time limits/deadlines • Extensions • Flow chart

42. 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: • Article 20 “Grievance Procedure” • Article 21 “Alternate Dispute Resolution” (ADR) • Article 22 “Arbitration"

43. 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: • Step 1 (filed with the RD) • 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)

44. 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

45. 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

46. 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

47. Negotiated Grievance Procedure Flow Chart – IAMAW FD1 NFFE Local 1998 & Passport ServicesFor the Collective Bargaining Agreement effective July 20, 2009 45 days 30 days 30 days 45 days 30 days Issue or event causing complaint* See Article 20 Step 1 Grievance filed with 45 days(in writing)Submit to senior manager (RD) Response to Step 1 Grievance Step 2 / Final Step Grievance filed within 30 days of receiving response to Step 1, if not satisfactorySubmit to PPT/FO Response to Step 2 / Final Step Grievance 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 Complaint resolved / complaint dropped ADR Time limits suspended, but resume if not resolvedSee Article 21 ADR (only if ADR not invoked after Step 1 response) Time limits suspended, but resume if not resolvedSee Article 21 Grievance meeting (if requested in writing) Extends time limits for Response by 15 days (from 45 days to 60 days) Complaint resolved / complaint dropped Grievance meeting (if requested in writing) Extends time limits for Response by 15 days (from 30 days to 45 days) 30 days * 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 • . For example: • . Suspensionii. Removal • . 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) 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. 5 days

48. Negotiations • Key concepts: • Legal authority & CBA • 2 levels – HQ and local • Deadlines • Negotiability and Impasse issues • Local level agreements

49. 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

50. Negotiations: 2 levels • Bargaining occurs at 2 levels: • The nationwide/HQ level • 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