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 provides that a labor organization can be recognized as the exclusive representative of BUE, and 5 U.S.C 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 (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 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 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 ( 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 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 Services For the Collective Bargaining Agreement effective July 20, 2009
Issue or event causing complaint*
See Article 20
45 days
Step 1 Grievance filed with 45 days (in writing) Submit to senior manager (RD)
30 days
Response to Step 1 Grievance
30 days
Step 2 / Final Step Grievance filed within 30 days of receiving response to Step 1, if not satisfactory Submit to PPT/FO
45 days
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
Complaint resolved / complaint dropped
ADR
Time limits suspended, but resume if not resolved See Article 21
ADR
(only if ADR not invoked after Step 1 response)
Time limits suspended, but resume if not resolved See 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:
. Suspension ii. 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

51. 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).

52. 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.

53. 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.

54. 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)