AFGE Stewards Manual
The Local AFGE Steward is the key person in AFGE. While many members may not personally know AFGE's National Officers, or even their Local officers, chances are that most know their Stewards (especially if they've needed help) and see them on the job daily.
Because of the Steward's high visibility, the example he or she sets will, by and large, determine what the Local's members think of AFGE as a union. If the Steward does a good job of protecting members' rights, then the Local's members will feel secure with AFGE.
A Local may have competent officers, but with incompetent Stewards the Local's program will be useless and its members will not be adequately protected. A Local may have the best negotiated agreement that's ever been written, but without an informed Steward to enforce it, the Local's contract will be worth little more than the paper it's written on.
It is the Steward, then, who is the union to AFGE's members in the shop or office, and to the agency supervisor. It is with the Steward that good labor-man¬agement relations stand or fall.
The Steward's Function
Because Stewards are the most important link between the Local and its members, they must have a good personal¬ity, be articulate, and know the Local's contract. In addition to being the Local's front line representative, the Steward is an organizer whose personal goal should be the achievement of 100 percent member¬ship in the Local AFGE bargaining unit..
Not unlike the job of a police officer, the function of the Steward is to enforce the "Law of the Local," or it's contract with the agency. The Steward's "beat" is the office or shop within the Local's bargaining unit. And like a police officer, the Steward must be constantly on the lookout for violations of the Local contract.
When the contract is violated, the negotiated grievance procedure serves as the Local's judicial system -- where employees can redress their grievances against management violations of the Local's or an employee's rights. While arbitration -- the settlement of a dispute by an independent judge -- is the last step in the Local's negotiated grievance procedure. The fairness of both the Local's and the private citizen's system of justice, however, depends ultimately upon those whose responsibility it is to enforce the law -- the police officer and the Local Steward.
In order to be effective, the Steward must perform specific duties. These are to:
Organize and recruit new members;
Maintain a constructive relationship between the Local (and National) union and management. at the agency or installation;
Serve as the front-line represent¬ative of the Local (and National) union at the agency or installation;
Protect conditions of employment as well as the dignity and security of the jobs of all AFGE members, in addition to non-members in the bargaining unit;
Act and talk trade unionism;
Regularly attend meetings of the Local and motivate others to attend;
Increase members' understanding of the Local's contract with management;
Police the Local's agreement by handling grievances and by enforcing the contract by watching for violations and taking them up with management immediately.
What the Steward Must Know
¬To carry out their duties effectively, Stewards must have a good understanding of the following points.
Contract & agency regulations
Stewards must know what the Local contract says and what the agency's policies and regulations are. Stewards must understand how the contract and agency regulations have been interpreted by past grievances and arbitration rulings.
The department & office
Stewards must understand the nature of the department, shop, or office which they represent. How many employees, the number of jobs and their classification, the workers' wages, the type of work they perform, are all facts Stewards should be acquainted with.
In handling grievances, Stewards must be aware of personality differences that exist between the member and supervisor. The Steward must get to know the Local's members and the supervisors in the shop and take into account the personality and attitude differences that are likely to exist.
AFGE policies & programs
Stewards represent AFGE in their particular office or shop. They cannot explain AFGE programs to Local members, or carry out union policies with management if they do not know them. The Steward must be well informed about AFGE and Local union policies.
Federal Personnel Manual
Stewards should also be familiar with the discontinued Federal Personnel Manual (FPM) and its numbering system which listed, by subject, Office of Personnel Management rules and regulations applied to federal employees. Currently the FPM has been reduced to certain appendixes, books, bulletins, letters, and supplements to cover personnel matters.
What follows are just some of the subject headings and what parts are retained from the FPM.
Absence and Leave Book 630
Federal wage system Supplement 532-1
Job grading (WG) Supplement 532
Labor management relations Subchapter / letter
Overtime Letter, appendix, subchapter
Performance appraisal Bulletin
Personnel records and files Subchapter / letter
Position classification Subchapter / letter
Reduction-in-force (Provisionally Retained) 351
Wage-in-grade increases Bulletin, Letter, Supplement
Within-grade increases Letter
Grievances are initiated by employees in response to adverse actions which are initiated by the employer or agency. Employees first take the grievance up with their first line supervisor and the union representative or Steward. If they do not receive what they feel is a satisfactory resolution, the grievance enters the formal process in accordance with the negotiated grievance procedure and may go ¬to a hearing or arbitration.
What is an adverse action.?
Most grievances are taken up by employees as a result of management's having taken an adverse action against them for an alleged violation of an agency rule or regulation. As defined by law, those actions management can take are:
suspension for more than 14 days;
reduction in grade or pay;
furloughs of less than 30 days.
The following management actions are not adverse actions:
suspension and removal for national security reasons;
reductions in force;
reductions in grade of supervisors or managers during special probationary periods;
reductions in grade or removal based upon unacceptable performance; and,
actions initiated by the Special Counsel of the Merit Systems Protection Board, or actions against administrative law judges.
Following the proposed notice of adverse action, employees can reply in writing, or personally. The response should answer all the charges both orally and in writing. The Steward should assist employees in preparing the written answer and should make the oral presentation. If management persists in following through with its intended action, the aggrieved should appeal the agency's decision through either the negotiated grievance procedure or to the Merit Systems Protection Board.
What is the purpose of the grievance and appeals procedure?
Stewards should acquaint themselves with these four important points. The purpose of the procedure is to:
enforce the negotiated agreement and agency regulations, and to establish channels through which settlements can be reached;
provide a procedure for settling disputes in an orderly, reasonable manner, and to protect employee rights;
put the united strength and skill of AFGE behind every member who has a legitimate grievance; and,
give federal employees a voice in determining their conditions of employment and a method to fight management injustices against them.
In handling the grievance, the Steward must know the factors that make for good grievance handling. Here are some hints:
Settle grievances on the basis of merit only.
If the Steward and the first line supervisor who know the situation first hand can settle grievances fairly, it saves time, reduces irritation and builds members' confidence in the union.
Avoid delays. Delays worry the worker and result in a loss of confidence.
Define authority and responsibility clearly.
Avoid favoritism. Endorse the contract and settle grievances fairly.
In order to win a grievance, the Steward should first know the proper way to handle the grievance. Five good tips on how to best handle the grievance are spelled out below.
1 Listen to the problem presented by the unit member and ask questions to make sure that the unit member presents the facts and circumstances accurately, so that you understand the situation clearly.
2 Make sure the complaint is in fact a grievance -- not just a gripe. Test the complaint against the Local contract and agency rules and regulations to see if there is a violation involved. The Steward should know the kind of complaints or problems that unit members bring to their union. Some are problems arising within the office or shop. Others are problems arising outside. You must be able to distinguish between:
problems arising under the Local contract and agency rules and regulations;
outside shop and office problems;
complaints or misunderstandings about the Local;
problems or arguments between employees and members.
3 Before writing the grievance, investigate. Double check the facts surrounding the complaint with whatever records are available with the people who may be involved. Check as thoroughly as you can, but remember, don't delay filing the grievance.
4 Write a simple statement of the situation and conclude with the specific relief sought.
5 Present the grievance to the supervisor in a firm but polite manner. Determine what management's position is. Argue the grievance, explaining the facts of the case. If unable to win at this point, appeal to a higher step of the grievance procedure without delay.
If you win the grievance, obtain settlement in writing and obtain copies for the Local's files. They will be useful in handling other grievances.
If you lose the grievance, appeal without delay and keep the member of the unit informed of the progress of the case.
What is a grievance?
A grievance is generally defined as any dispute between labor and management in an area over which management exercises some responsibility. This means that all disputes that arise are handled through the same grievance procedure regardless of whether they deal with promotions, layoffs, discharges, or conditions of employment. While a grievance is defined to include "any matter relating to the employment of an employee with the agency, and any claimed violation, misapplication of any law, or regulation affecting conditions of employment," grievances do not cover certain matters.
1. any claimed violation relating to prohibited political activities (those activities forbidden under the Hatch Act);
2. matters involving retirement, life or health insurance;
3. suspensions or removal for national security reasons;
4. any examination, certification, or appointment relating to initial employment; and
5. the classification of any position that does not result in a reduction in the pay or grade of an employee.
It is important that a steward be able to distinguish between a complaint and a bonafide grievance. This can be done by following the same procedure a good auto mechanic follows in attempting to discover why a car won't run. The mechanic approaches the problem on a systematic basis by running through a checklist. Among other things he or she looks for are:
1. Is the battery dead?
2. Is the gas tank empty?
3. Is the starter switch broken?
4. Are the plugs fouled? etc.
A steward should have a similar checklist to determine whether a grievance exists. The following points should be checked:
1 Is there a violation of the contract?
2 Is there a violation of a law?
3 Does it involve an area in which management can be held responsible?
4 Is there a violation of agency regulations?
5 Is there a Violation of Past Practice?
6 Has the employee been treated fairly?
Because most of the rules governing the relations of a worker to his or her job are contained in the contract, this is the first place the steward should look to see if the employee's complaint is a legitimate grievance. Some grievances are clear cut violations of the contract and are easy to prove. Grievances concerning the interpretation of a contract are not as easy to determine. For example: Suppose the contract reads, "union members shall be granted leave without pay for union business." The local union receives an invitation to attend a conference on health and safety legislation. It designates three of its officers to attend, but management turns down their request for leave on the grounds that the conference is not sponsored by a labor organization. In this situation a legitimate difference of opinion exists regarding the interpretation of the phrase "union business."
Violation of a law
For example, present legislation provides all civil service employees under GS 10, and higher graded non administrative or non executive personnel, are entitled to time and a half overtime pay unless the individual personally chooses compensatory time off in its place. Merely because the agency says it is short of funds does not give it the right to force an employee to accept compensatory time off in lieu of overtime pay during the week in which overtime is worked.
Grievances charging a violation in areas in which management can be held responsible occur most often over problems involving working conditions and health and safety issues. For example: There is nothing in the union contract stating that the workplace must be illuminated by a specified number of watts of electricity, or that the room temperature must be keep at a particular level. Yet the union will argue that management's responsibility includes the maintenance of proper heat, light, ventilation, etc. Likewise management is expected to maintain equipment and machinery in proper condition, as well as to provide safe vehicles to drive.
Violation of agency regulations
Even where management has established regulations on its own initiative, it cannot legitimately violate them. For example: A grievance would exist if an employee were told to produce a medical certificate after two days sick leave when the regulations specified none was needed unless the leave was for more than three days.
Violation of past practices
Grievances based on the past practice argument require careful investigation and presentation since the burden of proof is on the union to show that the practice exists. A practice can be defined as a reasonably uniform response to recurring situation over a substantial period of time which has been recognized either explicitly (orally or in writing) or implicitly ( management knew the practice was occurring, but raised no objections). The practice argument can be made best in those cases where the contract is silent or unclear. It is often used in respect to grievances over working conditions, sub contracting and in defining jobs that may affect layoffs. For example: It is customary to drink coffee on the job for as long as anyone can remember. A new supervisor appears on the scene and announces that drinking coffee from now on can take place only during official break periods. In such a case the union would argue that past practice exists and management has no right to change such a condition.
When a complaint becomes a grievance
Not all complaints are legitimate grievances. The steward must investigate the worker's story. He or she must check the facts to see whether they are accurate. Then the steward must determine if the worker's rights were violated and must look for the source of the violation. In short, the steward must check the six points listed earlier. If the steward's investigation indicates that the worker's complaint may be justified, the worker has a legitimate grievance. But if after investigation the steward finds that the worker misunderstood the contract or misrepresented the facts or the complaint cannot be regarded as a labor management dispute, the worker's complaint is not a legitimate grievance. Sometimes the steward, even after the investigation, will not know if the worker's complaint is a legitimate grievance or not. Such a case is a borderline grievance.
Sometimes a borderline case will arise where even the best steward will not know if a legitimate grievance exists. For example: A worker draws tools from the tool room during working hours because they are needed to perform the assigned job. The contract provides that the worker can do this only "when necessary." The worker is reprimanded because the supervisor maintains that the tools are not necessary for completing the job. It is up to the supervisor to decide what is necessary. Is the worker right to obtain the tools or should permission be obtained first from the supervisor? There is no clear answer in the contract to the problem. Therefore, the steward should give the benefit of the doubt to the employee and process the complaint as a grievance. The role of the steward is to act as the "defense attorney" for the people represented rather than as an "impartial judge." If in doubt about a given case, the steward should check with the chief steward or grievance committee, but even they may have no clear cut answers. If legitimate doubt still remains, the grievance should be filed with the expectation that the case may become clearer as more information is made available in the higher steps of the grievance procedure.
Care must be exercised in taking up all grievances. The Local can lose face with its unit members if gripes which turn out to be just gripes are continuously filed. The Local will lose strength in its position with management and its members by filing grievances which are bound to lose.
Unjustified complaint not a grievance
There will also be times when the steward is approached by the employees who have no legitimate grounds for complaint. For example: Federal law reads that an employee is entitled to 20 days annual leave after three years of employment. The employee argues that although he or she has been on the payroll only 32 months he or she is entitled to 20 days because of a considerable amount of overtime which makes up for the time the employee is short.
It is important that the steward carefully explain why the employee has no grievance, in order that the complaint be voluntarily withdrawn if possible. If the employee is dissatisfied with the explanation, the steward should point out where, within the union, the complaint can be taken for a higher decision. In some unions the dissatisfied employee will be referred to the chief steward , in some unions to the grievance committee, in others to the executive board, and in some cases to the local union meeting. It is important that the steward be protected from charges of arbitrary action.
There is a basic danger involved in processing unjustified complaints. Management may lose respect for the steward if it feels that the steward does not have the knowledge or authority to distinguish between a legitimate and a nonexistent complaint. The result may be that management stiffens resistance on a legitimate grievance under the theory that the steward is "too dumb" to know when there is a good case, or management may seek to settle grievances directly with their employees bypassing the steward. The employees, too may lose respect for the steward if they think the steward will process everything. The steward may be snowed under with unjustified complaints. It will become doubly hard to say "no" at this stage of the game. A steward with a long list of lost grievances to his or her credit will not have the confidence of the employees represented. The net result of the steward's taking up poor grievances can only be to reduce his or her effectiveness as a union representative.
Because the Civil Service Reform Act requires that a union holding exclusive recognition must handle grievances for all members of the bargaining unit, every problem brought to them must be processed. The steward has every right to exercise his or her own judgement as to whether a bonafide grievance exists. If the steward feels that the employee has no justified grievance, the steward is under no legal requirement to process it. Likewise, no local union can be forced to take a case to arbitration, since it involves the expenditure of funds that the membership may feel is not justified by the nature of the grievance. Sometimes, the employees have justifiable complaints that are not grievances because they occur in areas where management does not exercise responsibility. For example: A member who has been injured goes to Federal Employees Compensation Office to check on a claim regarding work related injury. The clerk tells the worker to go home and come back tomorrow, since the clerk is quitting early to go fishing. The employee obviously has a complaint, but not against the supervisor, since the claim is handled by a different agency.
In other kinds of situations, employees may be dissatisfied because the steward does not handle their complaints or handle them to their satisfaction. Again, this is an area for which management is not responsible, whether these be justified or unjustified complaints. If the steward is doing a poor job, this is a problem for the union to settle internally.
Disputes between union members
Another complaint which is not a grievance often results from disputes between employees. For example: The typewriters of two employees are close to a window. They are constantly arguing over whether it is too hot or cold and are always opening and closing the window. Management states that it is willing to adopt any policy on which the combatants agree. Obviously management cannot satisfy both individuals. It may be necessary for the steward to intervene, pointing out that if the argument is not settled, one or both of the employees may be disciplined and it will be difficult for the union to reverse the action.
In investigating and presenting grievances, it should be clearly understood by all shop stewards and union officials that in disciplinary actions and grievances the issues and facts are clearest at the initial step of the action. The hidden factor in grievance actions and particularly in disciplinary actions, above Step 1, is the human factor. Representatives at levels above Step 1, are not familiar with the supervisor or the employees, so consequently in appealing to Step 2 or 3, they are forced to present the case based only on hard cold facts submitted to them by the representatives at Step 1. By the time your grievance or disciplinary action reaches the arbitration stage, it has become far removed from the level where the problem occurred. For this reason an arbitrator will often turn to issues, facts, and requested remedies that are presented at Step 1 of the procedures, to make a decision. When an arbitrator looks at a disciplinary case he or she must make two determinations: 1. Was the action taken by management for just cause? 2. Does the punishment fit the offense? A hearing officer or arbitrator does have the right to modify penalties that have been imposed either based on the facts presented or mitigation. Arbitrators assume the position that they have the responsibility to safe guard the employer's right to discipline, and also a further responsibility to assure that the penalties imposed are fair and not out of line with the offense.
Things to consider
Some things that must be considered when initially investigating a grievance can be summed up in seven specific questions that must be answered in an arbitrator's mind to establish that a disciplinary action such as a suspension was for "just cause." A positive "no" answer to one or more of the questions would indicate that "just cause" did not exist.
1 Did the agency give the employee forewarning or knowledge of the possible or probable disciplinary consequences of the employee's conduct?
2 Was the rule or managerial order reasonably related to the orderly, efficient, and safe operation of the agency's business?
3 Did the agency, before administering discipline to an employee, make an effort to discover whether the employee did, in fact, violate or disobey a rule or order?
4 Did the agency conduct the investigation fairly and objectively?
5 At the investigation was there substantial evidence that the employee was guilty as charged?
6 Has the agency applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?
7 Was the degree of discipline administered by the agency in a particular case reasonably related to:
(A) the seriousness of the employee's proven offense and
(B) the record of the employee in his or her service to the agency?
Investigating the facts
Investigating by definition means: A systematic inquiry. To conduct a proper investigation, you must look at cause and effect. Defining cause: Cause is anything bringing about effect. Defining effect: Effect is anything brought about by cause. Obviously, the effect shows that conduct creates an issue before the effect was felt. Now that that's clear. What do you as a steward, have to investigate? Naturally the first thing you must investigate is "did the conduct alleged by management actually occur?" If it didn't, your case is cut and dry. If it did, read on.
Check motives for conduct.
You must look for motives or reasons for the employee's conduct. Normally if the union sees some justification for discipline (based on agency position as to facts) it will attempt to develop mitigating circumstances to temper or soften the discipline. Each decision to seek such a remedy must necessarily hang on differences in facts, situations, contracts, or past practices.
Check for progressive discipline.
It is usually a prerequisite to future disciplinary actions. It is intended to be corrective and not punitive in nature. An employee who is counseled should be made aware of that fact by the supervisor. Counseling should do two things: (1) It should attempt to identify the alleged problem, and ( 2) If the problem exists, an effort should be made to correct it. Arbitrators pay particular attention to progressive discipline which, normally, includes counseling and a letter of warning. A key part of your investigation should include discussion with the aggrieved employee on any counseling or letters of warning he or she may have received. Ask the employee specifically: (1) Have you ever been counseled for the alleged offense? (2) Did you grieve the counseling? If so, what was the result? (3) Do you have any of your records or correspondence dealing with the issue of counseling and/or letters of warning? (If the answer is yes, Have the employees make them available to you.)
Check the facts.
Once you are clear on the employee's facts, get permission to investigate the employee's record and attempt systematically attempt to challenge the facts as presented by management. If management fails to provide or denies you access to information, note the date, place, time, and the individual who refuses. Make that a part of your file. After you have interviewed the employee, you must check the facts dealing with the issue. Remember, management has obligations to the employee. One important obligation is that the action must be reviewed and looked into by the installation head or a designee. This does not mean the agency head rubber stamps the first level supervisor who initiated the action. The agency head is responsible for reviewing and, if necessary, investigating the proposed disciplinary action. Make sure this has been done. It is important to remember that a defense to disciplinary action usually developed by evidence of this kind:
1 Management failed to prove guilt of the employee beyond a reasonable doubt.
2 Management failed to produce pertinent evidence.
3 Length of service can be an important defense.
4 Past good record of employee.
5 Age of the employee and opportunity to find work.
6 Family obligations.
7 Challenges to the reasonableness of the discipline.
When collecting information for handling grievances, a steward must constantly ask the question: Is this information useful for this particular grievance? Training and practice with specific grievances will help stewards answer that question but some general guidelines might help. Two elements make information useful in grievances. They are:
1 Can this information be measured accurately?
2 Is the meaning of the information clear or must further investigation determine the meaning?
There are many ways of measuring information. Distance can be measured in inches, feet, yards, or miles. Time is measured in seconds, minutes, hours, days, or years. These measures are used in many grievances. Others include:
Information: Method of measure
Years of service: Years months and days
Medical records: Number of reported injuries in past period, hours lost from work, kinds of injuries
Absenteeism: Number of days lost
Tardiness: Number of days tardy, number of hours lost from work
Production: Amount produced
Other jobs held: Job titles, period of time on each job
Education and Training: Years in school, training, programs attended, courses taken
Written reprimands: Number, kind of violation
Quality of work: Accuracy and quality
In each type of information, the investigator, can produce a number of measurements that can be compared with other cases. For example, a worker who has been absent five days in the past year has fewer absences than someone with seven absences. Every reasonable person who looks at that record will agree that five absences is less than seven absences in a one year period. The same can be said for each kind of information shown. Although a large number of absences may appear on record, no reasons are given. A worker with seven absences may have better reasons than someone with five absences. With each kind of information listed, you have to know the reasons for each case. You have to know the meaning of most kinds of information.
Clarifying the information
While people can measure the information listed, a skilled steward will ask the question: Why did it happen? or "Does the information apply to this particular grievance?" A worker has had production problems on his record which look pretty bad. A steward may find that the supervisor ordered him to do non productive work during his regular operation. Additional investigation must take place to determine the importance of this information. A frequently used piece of information is years of education. Some questions that might be raised include: How good was the education or training? Does this education help a worker to do a better a job? Will any subject taken in school help a worker to do the job that is now open? After answering these kinds of questions, a steward can then determine the value of education in a union member's record. Years of education do not help very much. The same can be said for absenteeism, tardiness, and medical records. A steward must find out how long ago they happened, reasons for the occurrences, whether the reasons apply to present situations, whether the record looks poor in comparison to records of other workers.
This type of information is very important in many grievances and will be used by stewards frequently. Stewards only have to be certain that management understands the meaning. Much of grievance negotiations concern the difference between the steward and the supervisor about the meaning of measurable information.
Years of service
Years of service are a type information that is clearly measurable and has quite clear meaning. While years of service do not show that one worker is superior to another, it tells the number of years that the employee has given satisfactory service to the employer. Presumably an efficient management discharges unsatisfactory employees and this happens regularly with companies, government agencies, and other types of employers. Union representatives defend their members. They insist on the right to defense, clear proof of misconduct and appropriate punishment. When the proper procedures are followed and guilt proven, workers are discharged for cause. On the other hand, a worker who stayed with the employer for a number of years has contributed physical effort, intelligence, and production to the employer's success. While some workers do better than others, little clearly measurable and meaningful information has been developed to prove how much, how often, and for what reasons. Consequently, unions advocate years of service as a basis for claiming advantages such as promotion and protection from disadvantages such as arbitrary reassignment.
Some words, frequently used to describe a person or behavior has little or no use in processing grievances. They include the following: ability, attitude, personality, character, dependability "Ability" can be defined in terms of production, quality of work, and possibly attendance and medical records. But, the word "ability" alone has very little meaning. Supervisors have said "I can tell that one worker has more ability than another." If it cannot be measured and had no clear meaning, this statement is nothing more than the supervisor's opinion maybe accurate, maybe inaccurate. In handling a grievance, the skilled steward must require proof for the statement, proof that is measurable and has clear meaning. "Attitude," "personality," "character," "dependability" these words have never been defined in a way that produces agreement. One person's opinion about another person's attitude may be very different from other opinions. There is no way to compare people's personalities and character. How do we know that one worker is more pleasant or more honest than another? And even if we did, what does this have to do with a worker's ability to produce for the employer? Should people be punished because they didn't smile as frequently as another or disagrees with the supervisor? A steward must know the circumstances surrounding the sour disposition or disagreement and insist on measurable information that has clear meaning. Essential questions are: why do you say that the worker has a bad attitude? What happened? What did the supervisor do that contributed to the unpleasant situation? Did this interfere with production? The emphasis on proof, during the grievance procedure, helps cut through the main accusations made against workers that are accepted without challenge. One of the greatest contributions that a union makes on a worker's life is comparative freedom from punishment based on a supervisor's unproven opinion.
Sources of information.
People: 1 The grievant
2 Co workers
3 Witnesses to the grievance
4 Union stewards and officers who can supply ideas about similar grievances in the past
5 Foreman and other supervisors.
It is usually best to speak to management about a grievance before you actually fight the case. Get their views so you will have a clear idea of the agency's reasoning. You also get a clear idea of the facts after talking with both the worker and the supervisor.
Agency records: 1 Retention records
2 Production records
3 Absentee records
4 Medical records
5 Agency regulations
Union records: 1 Union contract
2 Past grievance files
Primarily, one should look at evidence from an arbitrator's point of view. It is important to emphasize that the issue and facts surrounding any grievance are clearest at the local level. It is imperative that all available data at Step 1 of the grievance procedure be made available at Step 2, 3, and 4. Grievances are most often initiated by individuals through their union, and except in discipline cases, the party filing the grievance assumes the burden of proof of whatever allegations it makes. It does not suffice to make an allegation without being able to support it with evidence either documents or testimony. Opinion and hearsay is taken by most arbitrators for what it is worth. Opinions of experts in a particular field are given weight based on the relevancy of their specialty. The weight it carries may also depend on the other facts in the case.
The following will address itself to proof or evidence as it applies to grievance handling: What is evidence? That which tends to prove or disprove something. For our purposes, it is data in the form of testimony of witnesses and documents or other objects such as photographs, etc., identified by witnesses and offered as support of proof of the facts in the issue.
Types of evidence
There are basically three types of evidence. There is "best evidence" or direct evidence which deals directly with either documents, or direct testimony with the issues at hand. In addition there is "secondary evidence" evidence which could include reproduction of document, hearsay, o pinion, etc., and lastly there is "circumstantial evidence" evidence that would indicate that a sequence of actions or circumstances could, in fact be substantive evidence that such a situation or fact existed.
The best evidence rule requires that the best that is possible to produce be presented as proof of the disputed facts. Usually, best evidence of anything in writing is the writing itself. This would include original documents of any kind as well as original data which is available. If the evidence used is a substitution for best evidence, note should be made of the reasons for the substitution .
Testimony is considered "best evidence" when the individual testifying has a direct knowledge with the issue. For example, a doctor testifying on the issue of sick leave would have more impact than a physician's certificate.
If secondary evidence must be used by the union and the best evidence is in the hands of the opponent, due note should be made of that fact. For example, the union has a copy of a memo proposing a RIF, and the agency has the original. Informal records kept by the union may be given significant consideration if the agency has not kept formal records of the activity in question.
While it is admissible, it is still required that there must be clear and convincing proof to establish that the offense was committed or the allegation made was justified. New evidence in arbitration cases is largely mitigated or eliminated by the fact that most arbitrators who accept newly submitted evidence will take all reasonable steps necessary to insure the opposite party adequate opportunity to respond, regardless of whether the evidence has been withheld in good or bad faith. The arbitrator, if he or she deems it necessary, has the flexibility to return the case to the parties in the light of new evidence or may recess the hearing for whatever time necessary to prepare or revise its defense. Ordinarily, each party has the right to decide in which form it will present its evidence.
Arbitrators have the right to request information or data if they have a reasonable basis to believe that it will be germane to the case. While in some instances the arbitrator may request that such evidence be produced, in others, he or she may request the evidence be produced on the motion of the party who otherwise does not have access to the evidence in question. It is the general view of most arbitrators that withholding evidence intentionally and with calculation is the most severe breakdown of good faith bargaining. This applies in terms of grievance processing as well as negotiating contracts.
Sound collective bargaining requires the frank and candid disclosure at the earliest opportunity of all facts known to each party, There will undoubtably be times when facts are discovered and therefore not revealed until a grievance has been partially processed. However, there is no justification for withholding information by either party after the time it is discovered. If either party withholds information or refuses to produce an important witness, it is not unusual for an arbitrator to accept what the other party claims would be true if the information or witness was made available.
Some arbitrators consider the delay in presenting evidence "mitigates its relative importance."
Moreover, some have refused to accept evidence offered by a party for the first time at the arbitration stage where the evidence was known to the party at the grievance stage.
The general theory is that as long as evidence fits and is relevant to the case the unusual nature of the evidence should not bar it from admission and consideration.
The information demanded must be relevant to the issue between the employer and the union. The duty to furnish the union with relevant information does not end with the signing of the collective bargaining agreement. This duty continues through the life of the agreement so far as it is necessary to enable the parties to administer the contract and resolve grievances or disputes.
This policy is the result of a Supreme Court ruling in a case of the National Labor Relations Board versus Truit Manufacturing Company. The principle applies to federal labor relations as well. In an Unfair Labor Practice case decided on June 23, 1980, an Administrative Law Judge found that management had the obligation to provide the union information that was "relevant and necessary" to the performance of its representational functions including the conduct of negotiations and the administration of the collective bargaining agreement between the parties, and the existence of this duty depends on the circumstances of each case.
He further stated that the burden of proof as to relevance of information shifted depending on the circumstances under which it was requested. If the information which was requested was in connection with negotiations, including preparation for negotiations, such information is considered "presumptively relevant" and the employer must prove that it is not relevant. However, in other matters, such as grievances, the burden is on the union to demonstrate the relevance of requested information. Moreover, the union must specify the function for which the information is requested. (Director of administration, headquarters, U.S.Air Force and AFGE GAIU Council, Headquarters, USAF Locals, AFL CIO, 3CA94)
Shifting the burden of proof
Normally, in a disciplinary action, the burden of proving the allegation rests with management however it is possible for the burden to shift. For example, an employee is disciplined for constantly making an unusual number of errors on a keypunch machine. To establish guilt, the burden of proof lies with the employer. However, if after the employer states its case based on the "facts," the union contends that the errors are due to a faulty machine, the burden of proof is then transferred to the union. If strong evidence supporting the union's contention is shown, the burden of proof, again, appears to be on the employer to substantiate its charges.
Precedents: use and value
The use of prior awards issued by other arbitrators does have some impact in similar cases. Arbitrations at different locations under a national contract carry more weight than those on a similar issue under different contracts. However, it is possible that precedents will bear no weight at all or only in varying degrees. It is important to point out that precedents do not necessarily determine the outcome of a similar case. You must remember that the effect or impact of precedents is determined by the individual arbitrator. Arbitrators are normally alert to distinction between cases even though they may be swayed by cited awards. Circumstances surrounding the issue might differ considerably, and in the final analysis it is the arbitrator who makes the distinction. In some awards, arbitrators may even state that the award is not intended to be a precedent for future cases. Therefore it is important to note that the use of "precedents" in grievance handling and ultimately in arbitration, the relevancy to the issue is of prime importance. And the more closely associated the issue is to the prior award, the more weight it may carry regarding your position on the current issue.
The Federal Labor Relations Authority stated in an Unfair Labor Practice case that it is well established that parties may establish time and conditions of employment by practice or other informal agreement and that such terms and conditions may not be altered by either party in the absence of agreement or impasse following good faith bargaining. (Dept. of Navy, Naval Underwater Systems Center, Newport Naval Base and NAGE R 1 1144, FLRA 64) It is difficult to identify any standards by which arbitrators determine if a practice exists and how much weight it should be given in considering their decision and award. It often depends on the strength of contract clauses regarding past practices, management rights, and the obligation to bargain during the term of the contract.
However, there are some definite ingredients that appear to be evident when the question of past practice appears before an arbitrator.
Unequivocal - The past practice has been granted or applied consistently, uniformly, regularly, and without break.
Clearly enunciated - This means the practice has been agreed to by both parties and is operating without protest or objection from one party or the other.
Duration - The practice has existed and been followed over a long period of time. In this regard, a bridge effect may be significant to some arbitrators. The bridge effect results from the practice commencing under one agreement and continuing unchanged and unprotested into a renewed agreement. As a result, it bridges one collective bargaining agreement with another between the two parties without having been changed or discontinued.
Jointly accepted and acted upon - Both parties, through their representatives, have operated as though the practice, in fact, existed and was a guiding rule. This may signify to some arbitrators a "mutuality aspect" which then makes the practice the result of bilateral action rather than unilateral action.
One important factor that should be noted is that the frequency of the practice may not be as consequential as the consistency of its application. For example, a practice which occurs only three times a year and which, on each occasion, the practice is consistently executed may have more weight on an arbitrator's decision than another practice which occurs 15 times a year, but is inconsistently administered each time.
Past practices as well as contract violations require documentation and evidence. It is essential that when a practice exists and is grieved that all possible documentation and facts be submitted along with the allegation of a violation of the past practice principle.
There are three basic types of testimony: Direct, indirect, and incidental.
Direct testimony associates itself with an event or occurrence which falls or has fallen directly and immediately under the observation of one of the basic senses: Sight, sound, smell, hearing, and touch. Using direct testimony should alert you to two factors to be given serious consideration in using this method of proof.
* Knowledge: The individual offering the testimony should be able to obtain and reserve facts reliably. The facts in question should be important enough to be noticeable.
* Character: The character of the individual should be such that his or her testimony cannot be impugned by the opposing party
Indirect testimony is submitted in lieu of direct testimony. This could be such things as sign ed and/or notarized statements and affidavits.
Incidental testimony is also indirect testimony and may be of special value and carry considerable weight. This form of testimony could include such things as diaries, private correspondence, informal notes, etc. No matter what type of testimony is utilized, relevance to the issue is necessary for it to be acceptable. Testimony given by disinterested party gives an extremely strong argument to the issue. For example, a citizen testifies to the fact that he or she observed and heard a supervisor harassing a claims examiner.
Reluctant testimony is weak because it creates a strong presumption that the individual is trying to soften or avoid giving testimony directly relating to the issue. The reason for this reluctance may be fear on the part of the witness of losing his or her job. Consequently, the witness avoids as much as possible the real issues, facts, and details.
Under most grievance procedures a complaint formally enters the grievance procedure when it is first presented in writing. However, our Master Labor Agreement allows an oral first step to formally present a grievance, with the second and third steps are always formally presented in writing . Whether oral or wrtten, the grievance must address the issues and should adhere to the guidelines presented below. The steward usually has the responsibility for the writing the grievance, should do so only after talking to the supervisor and evaluating the supervisor's side of the story. The steward should check carefully to make sure he or she has covered the six W's the WHO, WHEN, WHERE, WHY, WHAT and WITNESSES of the grievance.
WHO: Refers to that which clearly identifies the employee with the grievance. This includes 1.employee's name; 2.pay or badge number; 3.office or shop; 4.classification.
WHEN: Refer to the time element. Often information regarding more than one date is needed:
1.the date on which the grievance is officially written;
2.the time and date on which the grievance officially happened;
3.the date on which the grievance was submitted to the immediate supervisor (first or informal step of the grievance procedure);
4.the date on which the immediate supervisor gave the decision.
WHERE : Refers to the exact place where the grievance took place the department, aisle, or machine.
WHY: Refers to the reasons why the complaint is considered a grievance.
The WHERE and WHY must be clearly stated to present all the facts. Remember: It is possible to have a legitimate grievance without being able to point to a violation of a specific clause of the contract.
WHAT: Refers to what should be done about the grievance the corrective action desired. The steward should be sure to request everything needed to redress the grievance. It is extremely important that this be done, since the arbitrator will base an award on the original request.
WITNESSES refers to those who may have seen what occurred in the incident which gave rise to the grievance being filed.
The same steward who can effectively present a grievance orally, sometimes experiences trouble in reducing the problem to writing. The steward can overcome this difficulty by following several simple rules:
1. Writing the grievance as concisely as possible;
2. Keeping a record of important details;
3. Say it first, then writing it;
4. Write legibly.
Writing the grievance as concisely as possible.
A grievance should be written as simply and concisely as possible. The exact nature of the grievance as well as the settlement desired should be included. The inclusion of too many details may allow management to sidetrack the union when the issue is discussed. Here are the facts of a sample case: John Smith woke up on Tuesday morning with a severe headache. He called in and reported sick. He says that later in the day he went to the doctor and was told he had a severe sinus infection, and was given a shot of penicillin and told to stay home a couple of days. For some reason, the supervisor became suspicious and stopped by Smith's house at about 8:00 P.M. He said he wanted to see how Smith was feeling. Smith's wife said he was not in at the moment. The supervisor knew that Smith bowled on the union league on Tuesday nights and went to check. Just as he pulled up in front of the bowling alley, Smith walked out of the front door, bowling ball in hand. Smith maintains he went down to pick up the bowling ball to have some work done on it. He says he did not bowl.
Smith stayed home Wednesday as well. When he showed up at his usual working time Thursday, His supervisor gave him a written statement which contained a three week suspension for falsifying his sick leave, and a notice requiring a doctor's statement when he takes sick leave in the future.
The facts when reduced to grievance form would look like this:
The nature of the grievance is that John Smith received a 3 week suspension on July 1 without justification. John Smith is also unjustly required to provide a medical certificate each time sick leave is taken.
The settlement desired is that Smith's 3 week suspension should be rescinded and he should receive back pay for all time lost. The requirement that Smith provide a medical certificate every time he takes sick leave should be rescinded.
Keeping a record of important details:
The steward should keep his or her own written record containing additional factual information needed in arguing the case. Management disciplined Smith because they thought that he was bowling when on sick leave. Smith maintains he only stopped to pick up his bowling ball. "Does Smith have witnesses? Who are they?" It is important that these facts be gathered immediately, since most people have short memories.
Saying it first and writing it later:
Writing is the equivalent of speaking with a pencil . Therefore, some stewards find it helpful before filing the grievance to first assume they are explaining the grievance to their supervisor. Then they write down the same language they would have used orally.
The grievance should be written so that others may read and understand it. It is a basic document and should be understandable to various levels of management as well as to other union representatives who may be processing the case at a higher level, or presenting the case to an arbitrator.
Distribution of the grievance
Grievances are usually made out with an original and three copies which are distributed to the following parties: 1) management, 2) steward, 3) chief steward or grievance committee 4) the aggrieved employee.
The steward should file copies of grievance victories chronologically or on a subject matter basis depending on how many there are. They can serve as an important precedent if similar cases arise. The lost grievance may also serve a useful function. Before the contract is reopened, the steward should examine the lost grievance file to see if he or she feels employees in the department are being treated unfairly because of weak contract language. If so, the steward should be prepared to recommend changes to the negotiating committee.
Steward & Employee
Most unions endorse the policy of the employee and Steward processing a grievance together. There are several good reasons for this. The Steward is the trained union representative and, therefore, best qualified to present the case to management.
In addition, the employee should be present when the grievance is discussed with the supervisor so that the grievant knows exactly what transpired and can't argue later, "If I had been there, I wouldn't have been sold down the river."
The Steward and employee, operating as a team, also provide an additional witness for the union that may come in handy in a later step in the grievance procedure. Most important of all, this policy builds the collective strength of the union. It shows management that the members understand the importance of protecting the contract through the official procedure. It also demonstrates to management that AFGE Stewards have the support and confidence of the people they represent.
If the Steward and employee find themselves with differing views in the presence of management, they should recess their meeting and reconcile their differences.
The Steward Alone
Sometimes it may be necessary that the Steward take up the grievance without the presence of the employee. This is usually done when the workforce is scattered and difficult to easily bring the Steward and the worker together. This is a bad practice because the employee does not directly participate in the discussion and, therefore, may not fully understand what has taken place.
In certain exceptional cases where strong emotional feelings exist between the employee and the supervisor, it may be necessary for the Steward to handle the grievance alone. Otherwise, the employee and supervisor may engage in a "shouting match" that produces "heat" but little "light."
Role of the Chief Steward
When negotiating a grievance procedure, some Local unions fail to make provisions for the use of the Chief Steward. In the negotiated procedure, the Chief Steward should usually enter the procedure in the second step, meeting with the second line supervisor. Chief Stewards play a key role because they supervise a number of department unit Stewards, and therefore, have responsibility for ensuring uniform interpretation of the contract. If your Local does not have a Chief Steward, someone in the Local should have responsibility for providing quidance to the Stewards.
Role of the National Representative
The National Representatives who serve the Local union should also be utilized in the grievance procedure when the Local feels it.might be appropriate. Their experiences in dealing with a wide variety of management representatives will be valuable. In addition, National Representatives are not on the agency payroll and therefore, should have no hesitancy about forcefully expressing themselves.
Grievance of Non Members
Title VII, section 7114, of the Civil Service Reform Act requires that when a union has obtained Exclusive Recognition it must handle the grievance of members and non members alike. However, as a matter of self preservation, all grievances should be pushed hard by the union. A violation of a contract in regard to a non member may serve as a precedent, to be used against a union member in the future.
Many unions in public employment have used the successful prosecution of nonunion members' grievances as a basic organizing tool. The successful handling of a grievance helps to answer the question, "What can the union do for me?" Even though the individual with the grievance may not join the union, some other nonunion worker may be persuaded to do so.
On the other hand not all grievances should or can be taken to arbitration. This is particularly true when the bargaining unit member is entitled to exercise an option to use either the negotiated grievance procedure expanded scope) or the statutory procedure for matters involving discrimination or adverse actions. The union must advise and assist the employee in choosing either one but not both. Local officials must consider the merits of the case, as well as the financial liability to be incurred should it be taken to arbitration.
A union can refuse to invoke arbitration and still meet the requirements of "fair representation". Lack of Local funds can be one of the factors in making this determination. However, the Local's actions cannot be in an "arbitrary, discriminatory or bad faith manner".
A Steward fulfills the duty of fair representation when all steps are carefully taken to process the individual's grievance, meeting all time limits in a diligent manner. This means keeping accurate records, logs, and a calendar for each step of the grievance procedure; it also includes advising the employee of your decision on the matter and of the employee's right to appeal to the Chief Steward and/or Local President.
The Employee Backs Down
Sometimes employees will refuse to sign the grievance form or seek to withdraw a grievance after filing it, for fear they will be penalized later by management. If the contract has been violated, the Steward should make every effort to get employees to sign the form and to support the grievance all the way explaining that to "stand on their own two feet" is part of all members' responsibility to themselves and the union. Otherwise, management may assume that the people have no respect for their representing Steward and consequently may be tougher to deal with on all matters brought to its attention. In addition, Stewards should point out that under the Civil Service Reform Act it is an unfair labor practice as well as a prohibited personnel practice for management to discriminate against an employee who files a complaint under the Act.
Steward & Supervisor
Stewards should understand their relationship with management. While the supervisor exercises certain authority over the Steward as an employee in the department, things change when they meet to discuss grievances: The Steward acts as an official representative of the union, and. therefore, has equal status. The Steward has every right to expect to be treated as an equal as well as the right to be self expressive on the problem under discussion. Section 7116 (a) of the Civil Service Reform Act (unfair labor practices by agency management) protects union officials, including Stewards, against management retaliation on union representation of employees.
Generally, every effort should be made to settle the grievance as close to the source of the dispute as possible. The representatives of both groups have to live with any settlement reached. If they can arrive at one, rather than having it imposed on them from above, the parties will be better off. In addition, the further the grievance travels up the procedure the more difficult it is to settle because it becomes a matter of pride or prestige. Therefore, both sides tend to back up their subordinates even when they feel they may have been wrong originally.
It is absolutely essential that the Steward talk to the supervisor after getting the employee's story. As the Steward, you can properly evaluate the complaint only after hearing, both sides. The supervisor may provide certain facts that were not available to the employee.
The degree to which grievances are successfully handled at the first step is largely dependent on the authority granted the supervisor. In some cases the supervisor is only a messenger for the management representative in the next step of the grievance procedure. If this situation exists, few settlements will be reached at the first level.
It is important to observe the steps in the grievance procedure even if the supervisor has limited authority. "Leapfrogging" to a higher step may have several undesirable effects. The supervisor may resent this and may be more difficult to deal with the next time, or management may seek to get the grievance thrown out because the proper steps were not followed.
Even the best Steward will, from time to time, have trouble in settling grievances because of various tactics used by the supervisor. Here are a few examples:
Stalling- If the supervisor stalls in giving an answer on a grievance, the Steward should not hesitate to invoke the time limitations spelled out in the contract. If there are no time limitations, it may be necessary to systematically nag the supervisor until you get an answer. If there is still no response you may have to file a grievance charging the supervisor with "stalling," or otherwise move directly to the next step in the procedure.
Horsetrading Sometimes the supervisor may offer to "split the grievances" the union wins half and loses half. This may prove to be a temptation, but it' is important to remember that each employee is entitled to fair treatment. If employees feel that their grievance has been traded off to benefit another worker, this destroys confidence in the union. Therefore, it is important to treat each grievance on its own merits.
Losing Your Temper Sometimes management will deliberately provoke you hoping that you will lose your temper and make rash promises or threats which cannot be carried out. Such actions result in the loss of respect by both management and the people whom the Steward represents. Most people do not think straight when they are angry.
Discussing Side Issues Often management will try to sidetrack the Steward by discussing matters not related to the grievance under consideration. If it is of concern to the organization, the .Steward should ask that it be discussed after the grievance is resolved. If the subject is completely irrelevant, the supervisor should be reminded of the purpose of the meeting. But supervisors should not be cut off sharply, therefore, causing them to take offense.
Know When To Stop Talking
It is usually better to say too little than too much. A good rule of thumb is to talk 20% of the time and listen 80% of the time. By listening to the other side, it is often possible to get a better understanding of management's argument and, therefore, be in a better position to combat it. If management has conceded the grievance, the Steward should end the discussion and not rehash it further. Otherwise, supervisors may think of some additional reasons why their position is correct, and it may be necessary to reargue the entire case. If the employee is not present at the time of settlement, you should notify the grievant immediately on the outcome of the case.
Failure to Reach an Agreement
If the Steward is unable to obtain a settlement, the supervisor should be informed that the Grievance will be taken to the next step in the grievance procedure. The Steward should inform the employee of what has happened. In addition, the Steward should brief the Chief Steward or the union representative who is involved in the next step of the grievance procedure, as to the main line of argument taken by the supervisor.
The way in which the Steward has handled and documented the grievance up to this point will have quite an impact on the way the union representative at the next step will proceed. The union representative has very little to go on other than the background information received from the first line union representative.
The Steward should be careful never to guarantee the employee a successful settlement of the problem. What appears to be an airtight case is sometimes completely destroyed upon further investigation. It may then be difficult to convince the employee why the case was lost.
The Steward should be prepared to vigorously process grievances of all bargaining unit members regardless of one's personal feelings. This should be done both as a matter of justice and as a method of ensuring that dangerous precedents involving contract violations are not established.
Since most employees want their respective grievance solved "today," or "tomorrow at the latest," it is important that they be kept informed on the progress of the case. Sometimes it may take months before a grievance is completely processed. Therefore, an employee should be informed of the various time limitations in the procedure which make a more rapid settlement possible.
What is Arbitration?
Arbitration is the referral of a dispute by either party to an impartial person for determination on the basis of evidence and arguments presented by the parties, who agree in advance to accept the decision of the arbitrator as final and binding. Arbitration, therefore, is a judicial type of proceeding and different in nature from mediation, conciliation, negotiation and fact finding.
What can be arbitrated?
In general, labor management arbitration is divided into two fields: contract negotiation disputes, sometimes called arbitration of interests (the Federal Service Impasses Panel has determined how arbitration will be used in collective bargaining impasses); and contract interpretation disputes, sometimes called arbitration of rights (an arbitrator resolves disputes over arbitrability of grievances). The latter is much more prevalent and the issues which arise under it are called grievances. The balance of this section will deal with the arbitration of grievances.
How do you get to arbitration?
Arbitration can be obtained only through a provision in your contract. The arbitration clause usually provides that the arbitrator is to be selected by mutual agreement. If the two parties cannot voluntarily reach agreement, usually a list of arbitrators is obtained from the Federal Mediation and Conciliation Service (FMCS), an independent agency of the United States Government, or the American Arbitration Association (AAA), a private body. The union and management try to select from the list a person who is agreeably to both. If they fail to agree, normally both parties will alternately strike names until one arbitrator is left. Decision by arbitrators are subject to review by the Federal Labor Relations Authority on limited grounds: 1) if the arbitrator exceeded the authority granted to him or her under the contract. 2) if the decision violates a law or regulation, or; 3) if the arbitrator engaged in unethical practices.
An arbitrator (or umpire) is most often an educator, practicing attorney, professional arbitrator, industrial engineer or labor consultant with some knowledge of labor law, labor economics, personnel problems, or industrial relations. Arbitrators are appointed on a case by case basis in federal arbitration matters.
Who presents the case first?
The grievant's case is presented first, except in disciplinary and adverse action cases. In the latter, management is the moving party and must first show that an action has taken place against which a grievance can be filed. Section 7121 of the Civil Service Reform Act provides that all disciplinary and adverse actions in the federal sector can be arbitrated if the negotiated grievance procedure so provides.
The steward's role in arbitration cases
A grievance advances from the first, informal step where the shop stewards are responsible, all the way to the final step- arbitration. Before we discuss the actual arbitration process, it is imperative that you understand the relationship that exists between the steward and arbitration. Beginning with the initial complaint by the employee and ending with the decision of the arbitrator, the knowledge and ability of the steward is the single most important factor in a successful case. Cases have been won or lost because of how they were handled at the first step.
The chief steward, local president, or field representative must depend largely on the steward's documentation of the case when they carry it through the following steps. The arbitrator will base the corrective action on what was originally requested by the employee, through the steward, and the employee will look to the steward as the vital link for achieving victory and justice. Therefore, a basic understanding of the entire process is necessary for you to perform your duties in the most effective manner possible.
Who has the "burden of proof"
The burden of proof rests with the grievant. That is, the moving party must show by a "preponderance of the evidence" the validity of their position. This means the heaviest task falls to the union.
Do you need a lawyer at the arbitration hearing?
In the vast majority of cases, no. A few cases may involve issues where it is desirable to have an attorney present the case. What is required is that the representative investigate all of the facts, make a plan to show what will be proven, present the case in a business like manner, and not become involved in a lot of technicalities. Before actually presenting the case, the representative should give an opening statement both orally and in writing. The opening statement will show the arbitrator what the representative plans to show in the case and the method by which the representative intends to do this. Preparing the opening statement will also enable the representative to marshal the information in a most effective manner.
How are arbitration hearings conducted?
An arbitration hearing is not like a courtroom hearing with motions, objections, and so on. The arbitrator tries to conduct the hearing in a relaxed manner and in an informal atmosphere. At an arbitration hearing, provisions are made for presenting documents, examining witnesses, cross examining witnesses, and summaries by the opposing sides. Although the arbitration hearing is relaxed, it is still a judicial hearing. The arbitrator will interject by asking questions only when more information is needed from a witness.
How to prepare for the arbitration hearing
1. Study the original statement of the grievance and review its history through every step of the grievance machinery.
2. Carefully examine the original written grievance to help determine the arbitrator's role. (The clear and proper writing and filing of the original grievance is an extremely important responsibility of the steward.)
3. Review the collective bargaining agreement from the beginning to end. Often, clauses which at first glance seem unrelated to the grievance will be found to have some bearing on the case.
4. Assemble all documents and papers needed at the hearing. When feasible, make photostatic copies for the arbitrator and the other party. If some documents are in possession of the other party, ask in advance that they be brought to the arbitration hearing.
5.If you think it will be necessary for the arbitrator to visit the job site for an on the spot investigation, make plans in advance. The arbitrator should be accompanied by representatives of both parties.
6.Interview all witnesses: make certain they understand the whole case and particularly the importance of their own testimony within it.
7.Make a written summary of what each witness will testify to. This will be useful as a check list at the hearing to make certain nothing is overlooked.
8.Study the case from the other side's point of view in order to best answer the opposing evidence and arguments.
9.Discuss your outline of the case with others in your Local. A fresh viewpoint will often disclose weak spots or previously overlooked details.
10.Read articles and published awards on the general subject matter in dispute.
While awards by other arbitrators for other parties have no binding precedent value, they may help clarify the thinking of parties and arbitrators alike. Cases relating to the federal, state and local sectors are found in the Government Employee Relations Report which is published by the Bureau of National Affairs, Inc.
How long until the arbitrator's decision?
Unless the collective bargaining agreement specifies otherwise, the arbitrator usually renders an award 30 days after the close of the hearing. In a 1974 FMCS study of arbitration, however, it was found that it took about 52 days, on the average, for arbitrators to issue a decision.
Should you get a transcript of the hearing?
Only if the case is very technical, otherwise it will hold up a decision, sometimes two or three months. Arbitrators feel that when there is a transcript they must thoroughly read it even though they make little or no use of it in coming to a decision.
What happens after the hearing?
Provision is made in cases and some agreements for the filing of posthearing briefs although most arbitrators try to discourage this. Only after those have been submitted is the hearing declared closed. The arbitrator will then review all of the facts and the negotiated agreement and issue an award.
Can arbitrators be overruled?
Yes, most arbitration awards are reviewable by the FLRA; however, cases involving adverse actions or discrimination are subject to judicial review. Arbitration awards can only be overturned if arbitrators exceed their authority or were found guilty of fraud or corruption, or were acting under duress.
Mistakes in arbitration cases
1. Using arbitration and arbitration costs as a harassing technique.
2. Over emphasis of the grievance by the union or exaggeration of an employee's fault by management.
3. Reliance on a minimum of facts and a maximum of arguments.
4. Concealing essential facts; distorting the truth.
5. Holding back books, records and other supporting documents.
6. Tying up proceedings with legal technicalities.
7. Introducing witnesses who have not been properly instructed on their conduct during the hearing and on the place of their testimony in the case.
8. Withholding full cooperation from the arbitrator.
9. Disregarding the ordinary rules of courtesy and decorum.
10. Becoming involved in arguments with the other side. The time to try to convince the other party is before arbitration during the grievance process, especially when the Steward is involved. At the arbitration hearing all efforts should be concentrated on convincing the arbitrator.
How are arbitrators selected?
The FMCS procedure for selecting arbitrators involves the submission of an odd numbered list of arbitrators to the parties who then alternately strike names until one remains. This person becomes the arbitrator. The party which strikes the second name from the list ultimately selects the arbitrator.
FMCS LIST OF ARBITRATORS
1. C. Jones Mgt
2. J. Smith
3. H. Walker
4. U. Blake Union
5. R. Moore
6. B. Peters Mgt
7. E. Ross
In preparing arbitration panels (several arbitrators), the FMCS considers a number of factors. These include not in order of significance importance of the case, geographical locale of the dispute, type(s) of issue(s) involved, experience of the available arbitrators, and the party wishes.
At the present, the FMCS arbitration roster contains the names of approximately 1350 arbitrators of whom 208 have had experience in the federal sector. Since arbitration obtains its authority from the consent of the parties, it is crucial that only individuals acceptable to significant numbers of labor and management representatives are placed on the roster. Actual arbitration experience is one indication of acceptability. However, an individual with a thorough background in labor management relations and a suitable number of references will also qualify for inclusion on the roster. In any event, each applicant's background is reviewed with representatives of labor and management in the community in which the applicant resides before a decision is made regarding their placement on the roster.
Who pays for arbitration?
Traditionally arbitration costs are borne jointly. The parties must pay all expenses including stenographic transcripts should they be necessary. The FMCS has found that the average arbitration case in private industry took up to three days of the arbitrator's time. This includes hearing, travel and study time.
Arbitration and Collective Bargaining
Arbitration is an extension of the collective bargaining process. Without arbitration, disagreements between employees and employers are usually settled by strikes. Arbitration makes the parties discuss their cases in a reasonable atmosphere and gives maturity to the collective bargaining relationship.
Acceptance of Arbitration
Arbitration has developed into something universally accepted as a method of settling disputes. A measure of this acceptance is the fact that about 95 percent of all private industry collective bargaining agreements provide for arbitration as the last step of the negotiated grievance procedure.
A History of Arbitration
Arbitration comes to us through English Common Law. In 1697, Parliament, knowing that merchants, traders and others were accustomed to using arbitration for quick settlement of their differences, passed a statute to facilitate its use, ,making the awards of arbitrators binding arbitration readily enforceable. The statute provided punishment for nonperformance, unless it was shown that the arbitrator or umpire misbehaved, or unless the award was procured by corruption or undue means.
Labor arbitration was developed as a by product of unionization and collective bargaining. The War Labor Board of World War II gave it great impetus. When the Board, exercising its war powers, found itself unable to handle its case load,it referred many disputes back to the parties with the direction to settle them by arbitration and to incorporate arbitration agreements into their contracts.
The Local Steward cannot do it all alone. The Local must help by building a good Steward System. Here are some suggestions.
New Stewards cannot be expected to know the finer points of the Local's contract with the agency or installation. Often they are uncertain about how to go about handling grievances. The Local can get the Steward off to a good start by setting up special training classes, or by planning education sessions during Steward's meetings.
Stewards should be given a copy of the Local's contract with the agency, and the Local's by-laws, the AFGE Constitution, and written grievance forms and materials that will aid them in interpreting the contract.
Holding regular Stewards' meetings is one of the best ways a Local can help keep their stewards up to date on on-the-job problems and union affairs.
Like everyone else, Stewards learn through experience. If the Local wants the Steward to handle grievances effectively, it must give the Steward an opportunity to learn through. watching the Local's experienced representatives in action while they handle grievances. When possible the new Steward should be brought in at higher steps of the grievance procedure. The Local can also help to assist by providing the Steward with advice from the Local's experienced grievance handlers. On routine grievances the Steward should be encouraged to seek advice and then go, back and handle the first-step grievance alone. This is one way a Local can build confidence in its new Steward. And last, Stewards deserve and appreciate a word of thanks for a job well done.
Educating the Local
The Steward's and the Local's job could be made much easier if the Local's members knew their contract. Members also are better protected when they know their rights under the contract. When they are better informed about their rights, the grievance procedure functions more smoothly. When they are informed properly, members are less likely to bring up complaints which are not grievances.
There are several ways the Local can better educate its members on the contract:
Provide a copy of the contract to each member;
Hold times aside during regular membership meetings of the Local to explain important sections of the contract;
Explain new clauses or benefits of a recently signed contract to members in detail. This can be accomplished at the regular membership meeting, or through handouts. If the Local has a newsletter, feature a series of articles on the new contract;
Put a booklet out which explains the contract provisions in detail.
Building a good Steward's system depends on a well informed Local. By explaining the contract to members, the Local goes a long way towards making the Steward's job a lot easier.
As a Local AFGE Steward, therefore, you are an integral part of the complete system of representation that the Federation provides. While AFGE provides its members representation with the President, Congress, the Office of Personnel Management, and the many executive branch agency headquarters, it is the Steward who provides AFGE representation to each and every member where they work.
Stewards are more than grievance handlers. They are organizers.
Organizing is the Steward's most important function. It is a never-ending job which provides the life's blood to the union. "Shot-in-the-arm," or "quick fix" organizing campaigns do not lead to membership growth. A Local's growth and strength depend upon a full-time commit¬ment to organizing.
As the Local's number one organizer, the Steward should”
greet new employees, introduce them to their co-workers, and show them around the workplace;
inform them about AFGE's efforts on their behalf;
tell them about improvements that were made at the worksite as a result of the Local;
tell them that improvements in their benefits come through the strength of their AFGE contract, NOT through the kindness of their employer;
explain to them the SF 1187 and ask them to sign up as dues'-paying members of AFGE.
For more information about internal organizing, ask your Local President to get you a copy of the AFGE Internal Organizing Manual.
MLA Article 13, Section 8 - Employee Grievance Process
STEP 1 State: a This is a grievance being presented
Include b. 1. Summary of relevant facts
2. Relief being sought
3. the grievant will be represented by the Union.
File with Time Limit How Management Response
Event causing complaint Immediate Supervisor 15 Calendar Days of event Orally or in Writing Within 7 Days Management Official shall respond to the grievance in the same manner as it was presented
STEP 2 State: 1. Summary of relevant facts
2. Relief being sought
3. the grievant will be represented by the Union.
Include a copy of the Step 1 reply
File with Time Limit How Management Response
Step 1 management answer The Department Head 7 Calendar Days of receipt of answer In Writing Within 10 days after submittal Department head or designee will investigate, meet with the grievant and/or representative and give written answer
STEP 3 State: 1. Summary of relevant facts
2. Relief being sought
3. the grievant will be represented by the Union.
Include a copy of the Step 2 reply
File with Time Limit How Management Response
Step 2 management answer The Activity Head 10 Calendar Days of receipt of answer In Writing Within 15 days after submittal Activity head or designee will investigate, meet with the grievant and/or representative and give written answer
Grievance Representative's Investigation Checklist
Summary of Complaint:
When did it occur?_________________________________________________________________________
Where did it happen?_______________________________________________________________________
Why did it happen?_________________________________________________________________________
Who else was Involved? Witnesses?
(Include full name and work area, if possible.)
What adjustment is expected?
Steward's Record Sheet of Grievance Process: Step One
Employee Filing this grievance:_______________________________________________________________
Job Title:_________________________________ Dept:___________________________________________
Statement Of Grievance:_____________________________________________________________________
Grievance was presented to supervisor:__Orally __In Writing: Date Presented:____
Grievance was presented to:___________________________________
Meeting Held? __yes __no Date:____
If a meeting was held, Who was Present?
What was supervisor's answer or offer of resolution?
Was the grievance resolved?__yes Date Of Resolution:_______
__no Further Action:____________________________________________
Steward Record Sheet of Grievance Process: __Step Two or __Step Three (Must Be Presented in Writing.)
Employee Filing Grievance:__________________________________________________________________
Statement of Grievance:_____________________________________________________________________
Grievance was Presented to:___________________________________
Place of meeting:___________________________ Date:______
Who was Present at Meeting?
What was Management's answer or offer of resolution?
Was the grievance resolved?__yes Date Of Resolution:_______
__no Further Action:________________________________________
HEARING MANUAL FOR INTERNAL DISCIPLINARY TRIALS
Prepared by the Office of the General Counsel
in consultation with the Legal Rights Committee of the National Executive Council 10/15/2006
TABLE OF CONTENTS
Do and Don't 3
Hearing Authority 4
Grounds for Trial 4
The Prosecutor 5
Rights of the Charged Party 5
Pre-Trial Procedures 5
Purpose of the Trial and Evidentiary Guidelines 6
Types of Evidence 6
Information for the Federation’s and the Charged Party’s Representative 7
Pre-Trial Outline 7
Preparing the Witnesses 7
Preparing the Documents 8
Pre-Trial Conference 9
Opening Statement 10
Direct Examination of Witnesses 10
Introducing Documentary Evidence 11
Cross-Examination of Other Side's Witnesses 12
Rebuttal Witnesses 13
Hostile Witnesses 13
Offer of Proof 13
Closing Statement 13
Post-Trial Procedures for the Trial Committee 14
Post-Trial Procedures for the Arbitrator 15
Attachment A - Checklist 16
Attachment B - Sample Opening Statement and Outline 17
Attachment C - Supplies 17
Attachment D - Sample Decision 18
Attachment E - Table of Penalties 19
Attachment F - Article IX, Section 5(d)-5(e) 20
Attachment G - Article XXIII 21
DO and DON'T
(1) Do file charges on disciplinary matters.
(2) Do specifically describe the alleged misconduct.
(3) Do complete the investigation and either dismiss the charges or prefer the charges within 120 days of the filing of the charges.
(4) Do send notice of the charges to the charged party by certified mail.
(5) Do select for the committee of investigation members who do not include the charged party, the charging party, any member of the Executive Board, or anyone directly or indirectly involved in the mat-ter.
(6) Do use all the members of the Executive Board as the trial committee (excluding involved officers) or elect the trial committee at the next regular membership meeting or at a special meeting at least five days after the charges have been filed with the local.
(7) Do have 3, 5, or 7 members on the elected trial committee.
(8) Do send the notice of trial to the charged party by certified mail at least two weeks before the trial.
(9) Do hold the trial within 180 days after preferring the charges.
(10) Do select a member/union employee as prosecutor (who can be a member of the committee of investigation, the charging party, etc., but not a member of the hearing authority, or a representative of another labor organization).
(11) Do allow the charged party to have a representative of his/her choice and to present witnesses and documents.
(12) Do give the charged party an audio tape recording or transcript or minutes of the trial.
(13) Do give the charged party the trial committee report.
(14) Do present the report in writing to the members of the local at the next regular meeting.
(15) Do allow the charged party to address the membership.
(16) Do vote without debate solely on whether to accept or reject the report.
(17) Do leave the officer in office or the member in good standing until after the trial and the vote of the membership.
(18) Do inform the charged party of the local's de-cision and appeal rights by certified mail.
(1) Don't file charges on conduct related to elections.
(2) Don't file charges by just reciting the list in Article XXIII, Section 2.
(3) Don't ignore time limits.
(4) Don't send charges and notices by regular mail.
(5) Don't use the same people to both investigate and adjudicate the case.
(6) Don't use members of the hearing authority to prosecute.
(7) Don't suspend the duties of the officer, or suspend the member from membership, before the vote of the membership.
Disciplinary actions should be undertaken only as a last resort, and only after the concerned members have made an honest effort to resolve their differences in other ways, such as by conflict reso-lution, by mediation through an outside party, or with the assistance of the District Office. The 2006 AFGE National Convention amended the AFGE National Constitution to provide for a conflict resolution program administered by the Office of the National Vice President for Women and Fair Practices. When other means have failed, this Manual is designed to assist each person involved in a disciplinary action.
We also begin with a caution. The Labor-Management Reporting and Disclosure Act (LMRDA), Section 101(a)(5) (29 U.S.C. §411), and Department of Labor Regulation 29 CFR §458.2(a)(5), provide safeguards against improper disciplinary action: (a) No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined, except for nonpayment of dues by such organization, or by any officer, unless such member has been (i) served with written specific charges; (ii) given a reasonable time to prepare his defense; (iii) afforded a full and fair trial.
Based on the LMRDA and Department of Labor regulations, Article XXIII of the AFGE National Constitution provides procedures for filing charges, investigating charges (see AFGE's Committee of Investigation Guidelines and Procedures Manual), preferring charges for trial, imposing discipline, and filing appeals. Charges against national officers are processed in accordance with Article XIII, Section 7 of the AFGE National Constitution.
Failure to follow these steps may be grounds for overturning the disciplinary action.
The conduct of a disciplinary trial is a serious undertaking, for it can affect a union member's right to hold office and an individual's right to hold union membership. The charged party has a statutory right to, and deserves, an impartial trial on the charges. We hope that this Manual will assist hearing authorities (local and council trial committees and arbitrators) in developing the facts of the matter in a fair and equitable manner and reaching a just decision and recommendation. This Manual also should be of assistance to the prosecutor, and to the charged party, in understanding both the process and the rights incorporated into the process.
A question frequently arises as to who may serve on a trial committee. No one may serve on a trial committee who is directly or indirectly involved in the matter which gave rise to the charges upon which the charged party is to be tried. No one can serve on both the committee of investigation and the trial committee. No one who will be called as a witness may serve on the trial committee. The trial committee must consist of either:
(1) The entire Executive Board (all Executive Board members except those who (a) are charged, (b) filed the charges, or (c) are directly or indi-rectly involved in the matter which gave rise to the charges, or
(2) A trial committee elected by the membership of the local, consisting of not less than three or more than seven members, at the next regular meeting after the charges have been filed (or at a special meeting not less than five days after a copy of the charges has been filed with the local).
If the National President appoints a trial committee or an arbitrator pursuant to Article IX, Section 5(d) or 5(e) of the AFGE National Constitution, then the hearing authority will consist of either three members or employees of the Federation, and these members will be independent of the local, or an independent arbitrator.
GROUNDS FOR TRIAL
Any member may bring or file charges against another member with the local where the charged party holds membership. (Charges alleging misconduct in the performance of a council officer's duties are filed with the council.) The Executive Board appoints a committee of investigation pur-suant to Article XXIII, Section 3, to investigate those filed charges. (See AFGE's Committee of Investigation Guidelines and Procedures Manual.) If the committee of investigation finds probable cause to go forward, that is, sufficient evidence to support the charges against the charged party, and cannot settle the matter with the charged party informally or through the conflict resolution process, it prefers those charges against the charged party. To "prefer" charges is a term of art meaning the referral for trial of charges that have been investigated and found to be supported by sufficient evidence to constitute probable cause, that is, some credible evidence that the charged act occurred and if so, that the act violated the AFGE National Con-stitution. Besides a committee of investigation, the National President, the National Executive Council, or the National Vice President having jurisdiction over the local of which the charged party is a member also may prefer charges. In a council, the council Executive Board will appoint a committee of investigation. Specific grounds for preferring charges to a trial are set forth in Attachment E.
Any member of AFGE, or employee of AFGE, may be the prosecutor. Usually, a member of the local holding the trial is designated by the Local President (or by the Executive Board if the Local President is the charged party) to be the prosecutor. Often, the chair of the committee of investigation, after charges have been preferred, or even the charging party, may serve as prosecutor. The prosecutor has the initial responsibility of: (1) assuring that the record of the trial includes (a) the documentation of the authority of the hearing authority; (b) all documents accepted into evidence; (c) the minutes of the trial; and (2) establishing a trial date, place, and time with the hearing authority.
RIGHTS OF THE CHARGED PARTY
Article XXIII, Sections 4 and 5 contain specific steps for the conduct of a trial, and under Article XXIII, the charged party has the right to:
(1) written specific charges in sufficient detail to enable a defense;
(2) a reasonable time, not less than two weeks, to prepare a defense;
(3) a representative selected by the charged party (who may not be a member of a rival union);
(4) a full and fair trial within 180 days of the preferring of the charges;
(5) at the trial, after a witness has provided direct testimony, a copy of the witness' previous statements.
If a trial committee is conducting the hearing, the chair should contact the other members of the committee prior to the trial date to arrange a time and place to meet before the trial. The purpose of this meeting is to introduce each member to the others, to discuss the conduct of the trial and the functions and responsibilities of each member, and to define the procedure for the trial committee in preparing its findings and recommendations.
The chair should delegate to one member the duty of recording the trial, and to the other the duty of correlating and recording the evidence produced during the trial. If an arbitrator is conducting the hearing, the arbitrator will keep an adequate record of the proceedings. The hearing authority has the responsibility of conducting the trial, including set-ting times for breaks and lunch, and ruling on the questions of testimony and evidence during the trial. The hearing authority should review and understand the notice of charges to the charged party and the pertinent Articles and Sections of the AFGE National Constitution. All intra-committee questions and discussion should take place during a pre-trial meeting. The hearing authority may bring questions concerning trial procedures or the AFGE National Constitution to the respective district office or the Federation's Office of the General Counsel (202) 639-6424) any afternoon 1:30-3:00 p.m. ET.
Prior to the trial date, the hearing authority should confirm the meeting place and all arrangements for the meeting: the room will be unlocked, lighted, and heated/cooled, contain at least one table and a sufficient number of chairs, a convenient electrical outlet for recording devices, and have appropriate supplies, such as water.
PURPOSE OF THE TRIAL
AND EVIDENTIARY GUIDELINES
For the prosecutor, the purpose of the trial is to draw out the complete facts involved in the charges, to develop a clear, complete and accurate record, and to assist the hearing authority in reaching its findings, recommendations and/or decisions on those charges. The prosecutor must meet the union's burden of proof, by establishing both the procedural correctness of the proceedings up to and including the trial, and the validity of those charges. The prosecutor should present the case in the most favorable light to enable the hearing authority to reach a finding of guilt.
For the charged party, the purpose of the trial is to obtain dismissal of all charges with prejudice (so that the charges cannot be brought again).
Following the hearing, the hearing authority will write its findings and recommendations from the record of the proceeding, specifically affirming or dismissing each charge.
The most important element of the hearing is the development of a clear, complete and accurate record. The record is that oral or documentary evidence submitted by either party. Since the hearing authority has received only a copy of the charges and does not familiarize itself with the facts of the case prior to the hearing, it should facilitate the parties’ presentation of their cases in the most logical and complete manner possible.
The hearing authority should inquire fully into all matters which are relevant to the issues of the hearing, in order to obtain a full and complete record upon which the hearing authority may make its findings and recommendations.
TYPES OF EVIDENCE
Evidence is anything that establishes or disproves a fact. There are many kinds of evidence, but for internal trial purposes, the most common are oral testimony and written documentation. Oral evidence is what the witnesses will say, and written evidence is the documents submitted into the record. The record is the hearing authority's notes, recording, or transcript of the hearing itself, including the evidence both sides submit.
The Federation has the burden of proof in establishing the validity of the charges by a preponderance of the evidence. Preponderance of the evidence is that degree of relevant evidence which a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue (5 CFR §1201.56(c)(2)), or, evidence which is more credible and convincing to the mind, even if only by 50.1%. The rules of evidence prevailing in courts of law do not control.
Evidence should be material -- adding something to help understand the case. Material evidence has importance and weight, and will influence the hearing authority to accept a position as more probable than not.
The evidence also should be relevant -- having something to do with the case. The hearing authority should admit all relevant evidence, except facts that only repeat what has gone before. Irrelevant evidence is useless or unrelated, and the hearing authority may exclude it. For example, evidence of events or documents that post-date the filing of charges are irrelevant to the reasons for the disciplinary action.
Speculative, "second-hand", or statements of opinion, known as hearsay, should carry little weight, for they are not produced from the personal knowledge of witnesses. The hearing authority should admit hearsay evidence, however, even though it holds limited value. Parties may object to evidence submitted as being irrelevant or repetitive, or may object to confusing questions.
INFORMATION FOR THE FEDERATION’S AND THE CHARGED PARTY’S REPRESENTATIVE
(1) Write a pre-hearing outline, including a statement of the issues, and state the issues as clearly and simply as possible. The outline also will include the points you want to make in your opening statement and the facts you want to establish by your witnesses' testimony.
(2) Decide what facts you must offer to prove your case, and what proof you need to support the charges.
(3) Think how you will prove those facts, what evidence you will need to submit, whom you will call as witnesses, and what documents you need to include. Make sure you have all the necessary documents. The record of the hearing must include a copy of the hearing authority appointment and the notice to the charged party. The Federation representative should contact the National Vice President for more information, witnesses, and documents that he or she will need in meeting the burden of proof.
(4) Write what you think will be the opposing side's position, and write out questions that you think may come up during the hearing. Write out how you will respond to them.
Neither side has the right to find out what the other side has in the way of witnesses or documents (discovery), so neither representative will have to give any information before the hearing to the other side. Of course, when a representative introduces a document, he or she will give a copy to the others.
PREPARING THE WITNESSES
A witness is a person who gives testimony under oath or swears to a fact. The Federation and charged party’s representative must choose their witnesses and prepare them. The representative should talk to every witness, and decide whether or not to use a particular witness to make the direct case, or to use one to rebut, or contradict, the opposite side's witness. Call people who can tell the story truthfully, simply, and well, and call them in logical order so that the story makes sense. If they have direct knowledge of facts about the charged misconduct, they will be key witnesses for the case. Next, put on those who know important facts, who can fill in blanks, or who can support the previous witness. Save the rest for rebuttal, or do not use them at all. The witnesses must have personal knowledge of the critical events, or know about af-filiate matters.
It is proper and necessary for the representatives to:
(1) Explain to each potential witness what a disciplinary proceeding is, and what the trial is about;
(2) Find out how much the witness knows in order to write the questions which will draw out that information when the witness is on the stand; and
(3) Tell the witness what questions will be asked. It is improper to change or influence the witness' testimony.
Write out the questions for each witness. Give each witness a dry run. Instruct the witness to listen to the question, take a deep breath, and give a short and truthful responsive answer. Write out the ques-tions so that the hearing authority will be shown through the witness:
(1) Who the witness is in relation to the case;
(2) Why the witness is testifying; and
(3) What the witness saw, heard, or knows, and/or why a document introduced through the witness as an exhibit is important.
Remember, witnesses offered for direct or rebuttal testimony usually make or break the case.
Expect cross-examination by the other side and prepare the witness for it. Predict some of the questions that the opposing side or hearing authority may ask your witness on cross-examination, and practice them. Also, tell your witness:
(1) Not to argue or take sides;
(2) To answer only the question asked;
(3) Never to volunteer information; and
(4) To be brief, absolutely accurate and truthful, and entirely calm.
Tell your witness to answer “yes” when the opposing side asks during the cross-examination if you had discussed his testimony with him before the hearing. Also, tell the witness to say that you ad-vised him "to be brief, accurate, and to tell the truth."
PREPARING THE DOCUMENTS
Prepare your written evidence. Collect all important and relevant papers and organize them in logical order. It helps to label or tab them so that you can open quickly to each. Make a copy of each document which you wish to use as evidence for:
(1) The hearing authority;
(2) The opposing side;
(3) A copy the witnesses can use for reference; and
(4) One for yourself.
A set of these documents will become part of the official record if you introduce them properly.
The prosecutor must have all the necessary documents, including a copy of Article XXIII of the AFGE National Constitution and the local's (or council's) constitution and bylaws, the initial charges filed by the member and the report of the committee of investigation (or the charges filed by the NVP), the notice to the charged party of the preferred charges and the trial place and date, and either the minutes of the meeting at which the Executive Board was selected or the trial committee members were elected, or if appropriate the independent committee member or arbitrator appointment letters from the National President. A notice to the charged party will include a listing of each specific charge preferred. The prosecutor should contact the chair of the committee of investigation for more information, including the committee's report, its list of witnesses and their testimony, and documents needed in meeting the burden of proof.
Even before the hearing begins, as the hearing authority is setting up the room, you should approach the opposing side and try to stipulate -- that is, get agreement on introducing the documents without objection from the other side -- as many documents as possible. This is the preferred way to enter documentary evidence into the record, for most documents are official records of the affiliate or the Federation, and should not be open to dispute. If both sides will stipulate to the documents, it will reduce the use of witnesses for introducing the papers. Most documents are official records of the local, council or the National Office and should not be open to dispute, such as trial committee appoint-ment letters, local bylaws, and even the notice to the charged party. The chair also may take official notice of (accept as part of the record) generalized knowledge without consent of the parties, that is, facts which are universally known and cannot reasonably be the subject of dispute (for example, Department of Labor regulations).
Before the hearing begins, there should be a brief off-the-record pre-hearing conference with the hearing authority. The chair should ask both the prosecutor and the charged party's representative to meet.
The charged party may offer to settle the matter at this time, rather than proceed with the trial. If a local committee of investigation had preferred the charges, and the prosecutor and charged party reach a mutual settlement agreement, it is within the dis-cretion of the hearing authority to accept the settle-ment. If a National Officer has preferred the charges, any settlement agreement is subject to the acceptance of the National Officer.
Once the hearing authority has been appointed or elected, it has jurisdiction over the preferred charges. Even at this late date, the hearing authority may allow the charging and the charged parties to enter into a conflict resolution program. If the hear-ing authority chooses to do so, it must approve any settlement reached by the parties. However, once the trial has commenced, no conflict resolution pro-gram is available.
The purpose of the conference is to save time in the trial by estimating the anticipated length of the trial and the number of witnesses, and marking as exhibits those documents stipulated to by the representatives. Here the representatives can produce them and explain that they have reached agreement on those papers. The hearing authority can mark them before the hearing even begins.
The hearing authority opens the hearing at the time announced in the notice to the members and introduces itself. The hearing authority rules on the procedural conduct of the hearing, such as when to break for lunch and whether to sequester witnesses. The hearing authority can order witnesses sequestered, which means that they must remain outside the hearing room while other witnesses testify or until it is their turn. The reason for this is to prevent one witness' testimony from tainting the testimony of a following witness. Normally each side may allow the witnesses to remain in the room after their testimony if the representatives agree not to recall them later. The hearing authority also rules on any issue raised regarding affiliate members in attendance. Only relevant witnesses, the representatives, and the National Vice President within whose district the affiliate lies, have a right to attend the trial.
The hearing authority explains the hearing procedure and asks the representatives through whom they intend to give testimony and/or evidence. The representatives should identify those individuals who will testify on their behalf.
After the hearing authority presents the format of the hearing, he or she calls upon the Federation rep-resentative. The hearing authority will ask the Federation representative if he or she is prepared to put on its case. Because the Federation has the burden of proof, the Federation representative will go first in presenting the Federation's case and at the closing statement. Normally, the representative of the Federation will begin with an opening statement and then will call witnesses who present oral and documentary evidence in support of the charges of misconduct. The hearing authority may swear in all witnesses.
For the hearing authority, the purpose of the trial is to elicit the complete factual account involved in the charges of misconduct. The hearing authority should facilitate the parties' presentations of their cases in the most logical and complete manner possible. Therefore, the hearing authority should inquire fully into all matters that are relevant to the issues of the trial, in order to obtain a full and complete record upon which it may make its findings, recommendations and decisions. Because the hearing authority has the responsibility of fully developing the facts, at his or her own initiative he may call, examine, and cross-examine witnesses and introduce documentary evidence into the record.
Finally, the hearing authority must be impartial and fair. Nothing taints the proceedings more than a member or members of the trial committee who come to the trial determined to “get” or clear the accused.
Normally, the Federation’s representative will begin with an opening statement. Here he or she will explain the theory of the case, which must be simple enough to explain in a few sentences. Of course, he or she will find it is most helpful to have organized this presentation, either as fully written or at least in a written outline, prior to the hearing. He or she should not hesitate to read from a written opening statement, if a bit unsure of memory or a little nervous as the hearing begins. The representative is not before a jury, and there is no need for the drama of "off-the-cuff" opening remarks.
(1) Introduce the case by framing the issue in the way most favorable to the Federation;
(2) Discuss the relevant Constitutional provisions;
(3) Summarize the basic facts;
(4) Talk briefly about the witnesses that will be called to testify, and explain briefly how each will contribute to the case; and
(5) State the basic arguments.
In similar fashion the affiliate’s representative may present an opening statement at this time or reserve the right to make an opening statement at the commencement of its case.
DIRECT EXAMINATION OF WITNESSES
After the opening statement, the prosecutor will present the direct case by calling witnesses, who will present oral and documentary evidence in support of the charges. In determining the order of witnesses, those who can tell the story best, or most of the story well, in a short, accurate, complete statement of the facts, should be called first. The prosecutor is presenting a "story" to the hearing authority that is unfamiliar with the facts, and should use good judgment in calling witnesses in an order (chronologically or otherwise) that makes sense for a logical and coherent retelling of what occurred.
The hearing authority should swear in each witness. The following instructions are good advice for both sides:
(1) Let the witness testify. Phrase questions to draw out complete factual statements. Avoid stating the facts with a question that requires only a "yes" or "no" from the witness.
(2) Be brief and to the point. Do not ask ten questions, when one will produce the best results.
(3) Don't be repetitive. If there are a number of witnesses to the same material facts, use good judgment in deciding which one to call.
(4) Don't leave a vague or incomplete statement of fact unclarified in the record, if it is important to the case. Question the witness further on the same topic, until the answer is clear and complete. If a fact is essential to the final decision, it must appear in the record in such a form that the hearing authority can make the appropriate finding from it.
(5) Carefully check off on your pre-trial outline each bit of evidence as it goes into the record. This confirms that you have offered all the necessary facts, and it will help you see which facts you still must introduce before the concluding argument. If you fail to present all the relevant facts, the hearing authority may not be able to support the desired action.
(6) In questions involving facts you wish to prove, use interrogatory words: who, when, what, where, why. Some examples of proper direct examination are:
(a) "Please state your name, address and occupation."
(b) "What is your current connection with AFGE Local/Council _?"
(c) "How did __ come to your attention?"
(d) "What action did you take?"
Close with a strong witness, who can end the case on a favorable note.
The other side has the right to cross-examine each witness who testifies. (See cross-examination of witnesses below.)
INTRODUCING DOCUMENTARY EVIDENCE
In regard to documentary evidence, the hearing authority should make sure that the Federation representative submits again at the hearing all relevant information and documents that were submitted prior to the hearing. Lay the foundation for the introduction of the evidence. There are three steps in getting a document into the record: (1) identification; (2) explanation; and (3) presentation or offer. These documents then become exhibits. Again, this is good advice for both representatives:
(1) Introduce the exhibits logically through your witnesses, using those who best will be able to testify as to the genuineness and contents of each document.
(a) First, you hand the document to the hearing authority: “I offer this document for identification and request that it be so marked.”
(b) The hearing authority then marks it as “Federation (or charged party) Exhibit No. __ for identification.” The hearing authority then hands it back to you.
(c) You give the document to the witness. “You have in your hand Federation (or charged party) Exhibit No. __, marked for identification. Would you please tell us what it is.”
(2) The witness has seen it, received it, or prepared it, and now must properly identify and describe the document for the record, showing that as an exhibit it is relevant and material to the issue.
(3) After the witness has discussed it, you must offer the document into evidence: “I offer into evidence this document, which has been marked ‘Federation (or charged party) Exhibit No. __ for identification.’”
At this point, the hearing authority should hear any objections from the opposing side. Finally, the hearing authority admits the document, and it now (and not before) becomes an exhibit and part of the official record. Now you can ask more questions from your witness about the exhibit.
Use properly introduced exhibits, as follows:
(1) To support your case;
(2) As an admission, use it directly against the opposing side when it prepared the document, and when the document is inconsistent with the opposing side's position;
(3) As impeachment, use it as the basis for cross-examination to contradict an opposing witness when the document is inconsistent with a prior statement by the witness, or when the witness raises a critical point omitted in the document. To impeach a witness:
(a) Lock the witness into the testimony that will form the basis of the impeachment;
(b) Identify the document;
(c) Ask whether it constitutes a full and complete statement of the point;
(d) Get the witness to agree that he had no intention to lie or to leave out any important information;
(e) Get the witness to agree that the statement was made at an earlier point in time, when it was easier to remember the events;
(f) Read the inconsistent point to the witness and ask if he remembers stating it; and
(g) Stop. Argue the contradiction and its significance in your closing argument.
Following the Federation presentation, the hearing authority calls upon the representative of the charged party for presentation of testimony and/or evidence.
CROSS-EXAMINATION OF OTHER SIDE'S WITNESSES
A representative may refute or downplay the testimony of an opposing witness in one of several ways:
(1) Ignore the testimony, and argue later that the evidence was not important;
(2) Cross-examine the witness, and show inconsistencies or contradictions;
(3) Rebut the witness by calling rebuttal witnesses, after the opposing side has finished.
The decision to cross-examine involves first asking yourself whether you were seriously hurt by the opposing witness. The basic purpose or goals of cross-examination is to strengthen your position or to weaken the opposition's case. More specifically, use cross-examination to:
(1) To take the sting out of adverse testimony by rounding out the story;
(2) To break down the story, showing inconsistencies, contradictions, or exaggerations in the testimony:
(a) Show that the witness was not in a position to see or hear what was said, or had no basis to remember the facts to which he has testified.
(b) Lock the witness into a position and contradict it later with your own witnesses.
(3) To demonstrate a lack of inherent credibility in the opposition witness, by encouraging him to take a ridiculous position, and arguing later that the witness is not believable;
(4) To demonstrate bias and hostility, including:
(c) A close personal or other relationship that creates a motive to exaggerate, cover-up or lie;
(d) A tendency of one witness to back up another.
(5) To gain admissions and concessions by stressing the facts and circumstances, and using documents, favorable to your case.
To accomplish this, establish control over the opposing witness:
(1) Do not tolerate evasiveness or unresponsiveness;
(2) Primarily use leading questions that lead to “yes” or “no” answers, not open-ended questions. For example, you might say, “Isn't it right that you ...” or “You then did ... , isn't that correct?”
(3) Keep the questions moving; do not hint at your next question.
Cross-examination involves risk to your case, for the opposing witness may gain credibility, reinforce points already made, and fill in gaps in the previous testimony during the cross. Therefore:
(1) Do not cross-examine the opposing witness if you have no definite objective in mind.
(2) Do not ask a question if you are totally unsure of the possible answer or feel that it may harm your position.
(3) If an opposition witness gives you a favorable answer, do not allow him to explain or modify the answer to the detriment of your position. Ask the witness to answer only your specific question, and if he fails to do so, ask the hearing authority to direct the witness to answer only those questions you have asked.
(4) Do not badger or embarrass the witness, for it is improper and useless.
The two final steps are re-direct examination, and re-cross examination, if needed. The hearing authority should limit the questioning in the re-examination to the matters covered in the previous examination. Generally, cross-examination is limited to matters covered in direct examination, and re-direct examination is restricted to subjects covered on cross-examination. The hearing authority also may ask questions of the witnesses.
Both representatives have the right to present rebuttal evidence. The purpose is to call witnesses and put into evidence testimony or documents that answer or put into context any damaging evidence presented by the opposing side. It is not for filling in gaps in the case for either side. The risk is that you are giving the opposing side one more shot at weakening your case by cross-examining another witness. If you feel it is necessary to call a witness for rebuttal, make sure you use a rebuttal witness who can directly refute the opposing side on a critical point, and ignore side issues.
If an opposition witness is the only source of crucial information, you must take his testimony. You may call him as your own witness as part of your case, if you are not sure the other side will be calling him. You should advise the hearing authority that you are calling the person as a hostile witness. You then may proceed to question the witness with leading questions, just as you would in cross-examination. Phrase your questions to require a specific, exact answer. Avoid general questions. If, in addition to giving out the crucial information you needed, the hostile witness makes any damaging statements, try to refute them through your own witnesses later.
OFFER OF PROOF
If the hearing authority rejects a document or does not allow one of your proposed witnesses to testify, tell him that you are making the following “offer of proof” on the record. “If the hearing authority had allowed me to call witness x, witness x would have said the following...” The purpose of this is to get it all into the record in the event of an appeal.
Both you and the opposing representative may make objections. The purpose is to keep out the other side’s irrelevant or repetitive evidence, or to prevent the other side from asking your witness confusing or leading questions. Make an objection only when it serves your purpose; don’t make a lot of objections on unimportant points, for that will irritate the hearing authority. If you have an objection, politely and firmly name the specific reason, get a ruling, and sit down. For example, “I object to that question, for the witness already answered it.”
Following the charged party's presentation of his defense, the hearing authority calls upon the prosecutor to summarize in a closing statement the argument for a finding of guilt, and the charged party to summarize in a closing statement the argument for a finding of not guilty. It is often helpful, prior to the trial, to write a draft closing statement, or at least prepare an outline. Do not hesitate to read portions of the closing statement, if unsure of memory, or if fatigued after a long proceeding.
(1) Restate the theory;
(2) Summarize the basic points that were not in serious controversy. Stress the undisputed evidence and the admissions from the other side, and stress any other evidence that is particularly credible or persuasive.;
(3) Discuss the evidence in dispute:
(a) Explain why your witnesses should be believed, and comment on any important documents admitted into evidence;
(b) Show why the opposing side's witnesses should not be believed:
(1) Show the weaknesses in the other side's case;
(2) Stress any contradictions established by cross-examination or otherwise, but be careful to not make unnecessary attacks that may create sympathy for the witness under attack;
(3) For credibility, stay with the facts, and do not stretch points beyond fair argument or logical inference.
(4) Conclude by stating the important basic points directly and simply.
(5) Tell the hearing authority what specifically you request. For the prosecutor, it is the specific penalty to be imposed and why that penalty is the appropriate one in light of the charges -- suspension from office and/or membership for a specific period, repayment with interest prior to reinstatement, etc. For the charged party, it is the dismissal with prejudice of all charges.
The hearing authority may ask whether either side wishes to submit written arguments, called a brief, and then closes the trial. In most instances, the is-sues and facts presented will not be complicated, and will not require written briefs in addition to the closing statements. If the trial continues to a second day, the hearing authority will attempt to secure the time and place, and to notify the parties on the record, prior to adjourning for the day.
After the close of the record, the hearing authority will assure that all exhibits are present, and will provide for safekeeping the evidence and record of the hearing. The hearing authority should return the room to its original state, including placement of the furniture, windows, lights, and the doors locked, notify the custodian that the hearing has ended, and convey an appropriate expression of appreciation.
POST-TRIAL PROCEDURES FOR THE TRIAL COMMITTEE
The chair will meet with the other committee members to plan how to write the findings, recommendations and/or decisions, to determine that all exhibits are present, and to safekeep the evidence and record of the trial. The secretary shall furnish to each party, by certified mail, a copy of the min-utes, audio tape recording, or transcript within a week of the close of the hearing. Each party has ten days from receipt to submit any objections to the accuracy of this trial record, in writing, to the secre-tary.
The chair will write the initial report of the committee's findings, recommendations and/or decisions from the record of the proceeding as soon as possible, but at least within two weeks after the time limit for objections to the record, and will send copies to the other committee members for their review. The trial committee should reach agreement on a decision supported by a majority of the members of the committee. No written dissenting opinion is authorized. Depending on the complexity of the issues, the committee's decision normally is only two to four pages long. Appendix C contains a sample decision.
Trial Committee Selected by Local or Council
If the local (or council) had selected the trial committee pursuant to Article XXIII, Section 4, the committee then submits its written findings, recommendations and/or decisions regarding the office and/or the membership of the charged party to the membership of the local at its next regular meeting (or to the constituent council locals). A trial committee's decision exonerating the charged party shall not be subject to local or council approval, there is no further internal appeal available to the charging party, and the finding is not subject to any further action within the local, council, or the Federation.
If the trial committee finds the charged party guilty, the local's membership as the first item of business votes without debate solely to accept or reject the committee's work. It may not increase the penalty set by the trial committee. (A council trial committee submits its written findings, recommen-dations and/or decisions regarding the charged party's office to the council, pursuant to the applicable provision of the council's constitution.) In the case of multiple charged parties with different penalties, the local membership may vote on each charged party separately. All participants in the trial, if members, except for the accused, may vote.
The committee should safeguard the notice of charges against the charged party, the documentation of the authority (election meeting minutes) by which the trial committee was elected or constituted, the motions, rulings, orders, stipulations, exceptions, the audio tape recording of the trial, documentary evidence, and any briefs or other evidence submitted by the parties, and retain this record for one year.
Trial Committee Appointed by National President
If the National President appointed the hearing authority pursuant to Article IX, Section 5(d) after suspending the officer, the hearing authority renders the decision. If the National President appointed the hearing authority pursuant to Article IX, Section 5(e), it submits its findings, recommendations and/or decisions regarding the office and/or the membership of the charged party to the National President for final decision. The package containing the hearing authority’s findings and recommendations should be forwarded to the National President not more than one month after the trial, and should include the notice of charges and trial, motions, rulings, orders, stipulations, exceptions, the transcript, audio tape recording, or minutes of the trial, documentary evidence, any briefs or other evidence submitted by the parties, and any objections to the transcript/minutes. The trial committee members may submit expense vouchers, as defined in their appointment letters, with the final report. Normally, the costs of the trial will be charged back to the local. A charged party may appeal an adverse disciplinary decision to the NEC pursuant to Article XXIII, Section 9.
POST-TRIAL PROCEDURES FOR THE ARBITRATOR
When the National President has suspended an officer and appoints an arbitrator pursuant to Article IX, Section 5(d), the arbitrator shall render a deci-sion on the office: suspending the accused for a specific time from the office, removing the indi-vidual from office, or barring the accused from holding any office for a specified time. The arbitrator also may reach a decision on the membership: suspending the accused for a specified period of time from membership or expelling the individual from membership. The arbitrator may require the accused to repay any misappropriated funds with interest. This may be a condition to reinstatement to office or membership. In the alternative, the arbitrator may find the defendant not guilty as accused. The arbitrator will transmit such decisions within 30 days to the accused, with a copy to the Local, the National Vice President, and to the National President.
When the National President has not suspended an officer and appoints an arbitrator pursuant to Article IX, Section 5(e), the arbitrator shall render findings, recommendations, and decision on the office: bar-ring the accused from holding any office for a specified time. The arbitrator also may render find-ings, recommendations, and decision on the membership: suspending the accused for a specified period of time from membership or expelling the individual from membership. The arbitrator may recommend that the accused repay any misap-propriated funds with interest. This may be a condition to reinstatement to office or membership. In the alternative, the arbitrator may find the defendant not guilty as accused. The arbitrator will submit its report within 30 days to the National President, who will issue a final decision to the ac-cused.
CHECKLIST FOR THE LOCAL
Did the charging party file charges on disciplinary matters, and not for conduct related to elections?
Did the charging party specifically describe the alleged misconduct in the notice of charges sent to the charged party, and not merely list the items in Article XXIII, Section 2?
Did the committee of investigation complete the investigation and either dismiss or prefer charges within 120 days of the filing of the charges?
Did the committee of investigation send the preferred charges to the charged party by certified mail?
Were the trial committee members all people who did not serve on the committee of investigation? Were any members of either the committee of investigation or the trial committee directly or indirectly involved in the charges?
Did the local select the trial committee at the next regular membership meeting, or at a special meeting at least five days after the committee of investigation preferred the charges?
Did the entire Executive Board (minus involved officers) serve as the trial committee, or, did the local elect a trial committee?
If elected, did the trial committee have an odd number of members (3, 5, or 7)?
Did the trial committee send the notice of trial to the charged party by certified mail, at least two weeks before the trial?
Did the trial committee conduct the trial within 180 days after the preferring of the charges?
Did the trial committee allow the charged party to present witnesses and documents and cross-examine opposing witnesses?
Did the trial committee give the charged party a copy of the audio tape recording, transcript or minutes of the trial?
Did the trial committee give the charged party the trial committee report?
Did the trial committee present its report in writing to the local membership at the next regular membership meeting following the trial as the first agenda item?
Did the local vote without debate only on whether to accept or reject the report?
Did the local leave the officer in office (and not suspend the officer's duties), or leave the member in good standing, until after the trial and vote of the membership?
Did the local inform the charged party by certified mail of the decision and appeal rights?
SAMPLE OPENING STATEMENT AND OUTLINE
I. INTRODUCTORY STATEMENT BY HEARING AUTHORITY
We are here pursuant to Article XXIII, Sections 4-6 of the AFGE National Constitution, for the conduct of a trial into disciplinary charges preferred by _ against _. We are here for a fact-finding trial.
While this is an adversarial procedure, the trial committee will allow no rudeness or disruption from the prosecutor or the charged party or representative or any witness or member of the local.
The prosecutor will put on his/her case first. Afterwards, the charged party will be extended the same right. The chair will resolve all disputes. This is not a court of law, and formal rules of evidence and procedure will not apply.
At the conclusion of the trial, the hearing authority will meet to write a recommended decision, and will present its finding of the facts, decision and recommendation to the next local regular membership meeting [council] [mail the decision (Sec 5(d)) or recommendation (Sec 5(e)) to the National President. The President then will notify the charged party of the decision.]
Is the prosecutor ready to proceed?
II. THE PROSECUTOR'S CASE
A. Opening statement
B. Witnesses and exhibits
(1) Direct examination by the prosecutor
(2) Cross-examination by the charged party
(3) Re-direct examination by the prosecutor
(4) Re-cross examination by the charged party
III. CHARGED PARTY'S CASE
A. Opening statement
B. Witnesses and exhibits
(1) Direct examination by the charged party
(2) Cross-examination by the prosecutor
(3) Re-direct and re-cross
IV. CLOSING STATEMENTS
A. By the prosecutor
B. By the charged party
V. CLOSE THE RECORD
If the hearing authority uses a cassette tape recorder rather than taking written minutes, it will need backup batteries or electrical connections, extension cords, and microphones if possible, and audio tapes for six to eight hours per day, labeled and numbered prior to the trial. The hearing authority should make one copy of the tapes following the trial for the charged party.
A copy of the AFGE National and the Local's (or council’s) Constitution and Bylaws.
A copy of the election minutes or appointment letter and the notice of charges to the charged party.
Office supplies: paper, pen & pencil, two color markers, large envelope, paper clips, rubber bands, stapler.
A duly constituted hearing authority conducted a trial on _ (date), at_ (place) on charges preferred by _ against _, as contained in the notice to the charged party. The hearing authority consisted of _.
An AFGE Local _ [or Council _] committee of investigation [or National Vice President _] preferred charges against _ (Joint or Federation Ex-hibit 1). Local _ [or Council _] constituted this trial committee on _ [or the National President, pursuant to Article IX, Section 5(d) or (e) of the AFGE National Constitution, by letter dated _, appointed the hearing authority (J or E Exhibit 2)].
_ prosecuted the charges before the hearing authority, and _ represented the charged party. The prosecutor presented the union's case with _ wit-nesses, and submitted Joint Exhibits 1 through _ and Union Exhibits 1 through _. The charged party presented narrative direct testimony and _ witnesses, and submitted _ Exhibits 1 through _.
FINDINGS AND RECOMMENDATIONS
Both of the representatives' extensive record evidence by direct and cross-examination of witnesses, and the hearing authority’s questions, produced a record sufficient in quality and quantity to enable the hearing authority to render a sound and reasonable report of its findings and recommenda-tions. The hearing authority reviewed both oral and documentary evidence. It [is unanimous in its finding (or the majority finds)] finds that the preponderance of the evidence supported the charges as filed. The charged party did not adequately rebut the evidence presented. It [is unanimous in its finding (or the majority finds)] finds insufficient evidence to support the charges as filed.]
Specifically, the hearing authority found that [discuss each charge!].
Accordingly, the hearing authority finds _: [guilty of the charges as filed (or guilty of charges _ - _), and it recommends that the charged party be (fined) (suspended from office) (barred from holding office) (suspended from membership) (removed from membership) (for life) (for _ years) (for the period _) (until repayment of _).]
[not guilty of the charges, and dismisses the charges (and the charged party, who had been suspended under Article IX, Section 5(d), is reinstated to the office of _). Exoneration of the charged party shall not be subject to local approval, there is no further internal appeal available to the charging party, and the finding is not subject to any further action within the local or the Federation.]
TABLE OF MANDATORY PENALTIES
Advocating, encouraging or attempting to bring about a secession from the Federation of any local or of any member or group of members.
Mandatory expulsion from membership for life.
Working in the interest of or becoming a member of the Communist Party or any other organization which advocates the overthrow of the democratic form of government under which our members live.
Mandatory expulsion from membership for life.
TABLE OF POTENTIAL PENALTIES
A wide range of penalties are available. The appropriateness of a specific penalty will depend upon the specific facts, the severity of the conduct, and the damage to the local. A suspension, removal, or bar from office could be for a specific length of time, until the next election, or for life. A suspension from membership would be for a specific length of time; expulsion from membership is for life.
Violation of any provision of this Constitution or the constitution and bylaws of the local to which a member belongs.
(1) Suspension from office, (2) removal from office, (3) bar from future candidacy for office, (4) suspension from membership, (5) expulsion from membership.
Making known the business of any affiliate of the Federation to management officials of any agency or other persons not entitled to such knowledge.
(1) Suspension from office, (2) removal from office, (3) bar from office, (4) suspension from membership, (5) expulsion from membership.
Engaging in conduct unbecoming a union member.
(1) Suspension from membership, (2) expulsion from membership.
Engaging in gross neglect of duty or conduct constituting misfeasance or malfeasance in office as an officer or representative of a local.
(1) Suspension from office, (2) removal from office, (3) bar from office, (4) suspension from membership, (5) expulsion from membership.
Incompetence, negligence or insubordination in the performance of official duties by officers or repre-sentatives of a local or council or failure or refusal to perform duties validly assigned.
(1) Suspension from office, (2) removal from office, (3) bar from office, (4) suspension from membership, (5) expulsion from membership.
Committing any act of fraud, embezzlement, mismanagement or appropriating to one's own use any money, property or thing of value belonging to the Federation or any affiliate.
Suspension from membership for a minimum of thirteen years. Repayment of misappropriated funds with interest, which may be a condition of rein-statement.
Refusing, failing or neglecting to deliver at specified periods or on demand, in accordance with this Constitution or the constitution and bylaws of the local or council to which a member belongs, a full and accurate account of all monies, properties, books and records for examination and audit.
(1) suspension from office, (2) removal from office, (3) bar from office, (4) suspension from membership, (5) expulsion from membership.
Assisting, counseling or aiding any member or offi-cer of the Federation or any of its affiliates to com-mit any of the offenses herein set forth.
(1) suspension from office, (2) removal from office, (3) bar from office, (4) suspension from membership, (5) expulsion from membership.
ARTICLE IX, SECTION 5(d)-5(e)
DUTIES OF THE NATIONAL PRESIDENT
SUSPENSION AND TRIAL
SEC. 5(d). The National President shall be authorized to suspend immediately any officer of an affiliate for serious misconduct, including but not limited to incompetence, negligence, or refusal to perform duties validly assigned, or any other offense, as described in Article XXIII, Section 2, where in his or her judgment the continuance in office of such officer would be inimical to the best interests of the Federation and its members. At the time of the suspension, the National President shall serve upon the suspended officer by registered or certified mail a written notice of the suspension stating in detail the charges against the officer, and he or she also shall mail a copy of such notice and charges to the president or highest remaining ranking officers of the local. Such suspended local officer shall be tried by his or her local under the procedures established in Article XXIII. However, the National President, when he or she deems it in the best interest of the Federation, or in his or her opinion the local will not proceed promptly to trial, or cannot be expected to fairly or judiciously try the matter, may (1) appoint a trial committee or (2) select an arbitrator under existing Federal Mediation and Conciliation Service or American Arbitration Association procedures, for the trial of the suspended officer. A suspended national bargaining council officer will be tried by a trial committee composed of three members, one of whom shall be an arbitrator selected in accordance with Article XXI, Section 7, and of the others, who shall be appointed by the National President, one shall be a national council president. A suspended local officer shall be tried by a trial committee appointed by the National President, composed of at least three members or employees of the Federation. Such trials shall be conducted speedily but with reasonable time for the accused to prepare his or her defense. The procedures described in Article XXIII, Sections 4, 5 and 6 governing the conduct of hearings by local trial bodies shall be followed by the trial committee or arbitrator to assure the accused a full and fair hearing in accordance with the basic requisites of due process. The trial committee shall render a decision suspending the accused for a specific time from his or her office, removing him or her from the office, barring him or her from holding any office for a specified time, and/or suspending for a specified period of time, or removing him or her from membership, or finding him or her not guilty as accused. An officer suspended or removed from office and/or membership shall have the appeal right as set forth in Article XXIII, Section 9, after decision by the trial committee.
The suspension or removal of an officer shall operate only to suspend the right of such person to occupy any office or position, or perform any of the functions thereof, but all other membership rights of such individual shall remain unaffected unless and until the trial committee renders a decision affecting his or her membership rights.
SEC. 5(e). Where the National President determines that the conditions within a local or council are such that a fair and impartial investigation and trial of charges against a member cannot be conducted by the local or council under the provisions of Article XXIII, Section 3, then in that event the National President may appoint a committee of investigation and/or a trial committee, such committees to be composed of at least three members. In lieu of a trial committee, the National President may select an arbitrator under existing Federal Mediation and Conciliation Service or American Arbitration Association procedures. In the case of a national council officer, the composition of the trial committee shall be consistent with Article XXI, Section 7. In no case will the committee of investigation and the trial committee be composed of the same members. All of the due process provisions in Sections 4, 5, and 6 of Article XXIII govern the trial before such trial committee. The findings and recommendations and decision of such trial committee shall be submitted to the National President. Within 15 days after the National President receives the transcript or minutes of the hearing and the findings and recommendation and decision of the committee or arbitrator, he or she shall render a written decision. The National President's decision may be appealed by the charged member to the NEC and to the National Convention in accordance with the procedures in Section 9 of Article XXIII.
OFFENSES, TRIALS, PENALTIES, APPEALS
SECTION 1. Except as provided for under the powers of the National President in Article IX, Section 5, the local in which an individual member holds membership is the court of original jurisdiction for trial of charges against the local's members and officers, unless the charges arise out of or result from an individual's conduct or status as a council officer on matters concerning council operations, in which case the council has original jurisdiction for trial of such charges. The due process provisions of Article XXIII shall govern at the council level when a council officer is charged and tried in his or her capacity as a council officer. Members of the Federation, including officers, agents, and representatives of locals or councils, shall be tried for any of the offenses listed in Section 2 hereof.
SEC. 2. Charges may be preferred for conduct detrimental or inimical to the best interests of the Federation. Offenses against this Federation include the following:
(a) Advocating, encouraging, or attempting to bring about a secession from the Federation of any local or of any member or group of members. The conflict resolution program is not available. Penalty for conviction under this subsection shall be expulsion;
(b) Working in the interest of or becoming a member of the Communist Party or any other organization which advocates the overthrow of the democratic form of government under which our members live. The conflict resolution program is not available. Penalty for conviction under this subsection shall be expulsion;
(c) Violation of any provision of this Constitution or the constitution and bylaws of the local to which a member belongs;
(d) Making known the business of any affiliate of the Federation to management officials of any agency or other persons not entitled to such knowledge;
(e) Engaging in conduct unbecoming a union member;
(f) Engaging in gross neglect of duty or conduct constituting misfeasance or malfeasance in office as an officer or representative of a local. The conflict resolution program is not available after the committee of investigation has preferred charges;
(g) Incompetence, negligence, or insubordination in the performance of official duties by officers or representatives of a local or council or failure or refusal to perform duties validly assigned;
(h) Committing any act of fraud, embezzlement, mismanagement, or appropriating to one's own use any money, property, or thing of value belonging to the Federation or any affiliate. The conflict resolution program is not available after the committee of investigation has preferred charges;
(i) Refusing, failing, or neglecting to deliver at specified periods or on demand, in accordance with this Constitution or the constitution and bylaws of the local or council to which a member belongs, a full and accurate account of all monies, properties, books, and records for examination and audit; and/or
(j) Assisting, counseling, or aiding any member or officer of the Federation or any of its affiliates to commit any of the offenses herein set forth.
SEC. 3. Charges may be preferred by the National President, the National Executive Council, the National Vice President having jurisdiction over the local of which the accused is a member, or by a committee of investigation of the local. Any member may request conflict resolution or bring charges by first filing them with the local of which the accused is a member, and the charges shall be investigated by a committee of investigation appointed by the local president or by the majority of the local Executive Board if the local president is being accused. If it is the local president who brings charges against a member, then the local Executive Board shall appoint a committee of investigation. If a member of the local Executive Board is the accused member, he or she may not vote in the selection of the committee of investigation. No member of the Executive Board may serve on the committee of investigation. The local committee of investigation shall conduct and complete the investigation within 120 days of the filing of charges. If the committee of investigation finds probable cause and cannot settle the matter informally or through the conflict resolution process, it shall prefer charges upon the accused. Such charges shall be in writing and shall be served upon the accused by registered or certified mail at his or her last known address, and the local of which the accused is a member also shall be served at its office or address of its highest ranking officer. The charges shall contain an allegation of the facts describing the nature of the offenses charged.
SEC. 4. The trial shall be conducted either (a) by all of the eligible members of the local’s Executive Board or (b) by a trial committee elected by the membership and composed of not less than three nor more than seven mem-bers of the local. In any event, no member of a local union shall be eligible to serve on the board or trial committee for the hearing of charges under this Article if he or she is directly or indirectly involved in the matter which gave rise to the charges upon which the accused is to be tried. In no case will the committee of investigation and the trial committee be composed of any of the same members. The trial committee shall be elected by the membership of the local at the next regular meeting after the charges have been preferred or at a special meeting called for that purpose to be held not less than five days after a copy of the charges has been filed with the local. The body hearing the trial shall select from among themselves a presiding officer and a secretary and fix the time and place of the trial. The presiding officer shall notify the accused and those who preferred the charges by registered or certified mail of the time and place of trial, and such trial shall be held promptly but shall not be held less than two weeks after the mailing of the notice so as to insure the accused of a reasonable time to pre-pare his or her defense, nor more than 180 days after the preferring of charges, so as to insure a prompt trial. The conflict resolution program is not available after the trial commences.
SEC. 5. All parties shall be given full opportunity to present all relevant evidence and exhibits which they deem necessary to the proper presentation of their case and shall be entitled to cross-examine witnesses of the other party or parties. The accused shall have the privilege of being represented by representatives of his or her choice, except by a member of the trial committee or a member of the Executive Board when it is acting as a trial board or a representative of another labor organization.
At the discretion of the local union a verbatim transcript of the trial proceedings may be taken. For the purpose of creating an official record of the hearing conducted by the trial body, a verbatim transcript also shall mean a tape recording. In the event no verbatim transcript is made, the secretary of the trial body shall reduce the minutes of the trial to writing and include therein the substance of the testimony and all exhibits submitted at the trial. The secretary also shall furnish to each party a copy of the transcript or minutes, as the case may be, and each party within ten days after receiving said transcript or minutes shall submit to the secretary in writing any objections thereto. The record thus made shall constitute the record of the trial for the purpose of appeal, and in the event any party fails to attest to the correctness of the record or to file objections to the correctness of the record within the time limit prescribed herein, the transcript or minutes furnished by the secretary of the trial committee for the purpose of appeal shall be deemed to be a correct record of the trial procedure and of the evidence presented. All matters relating to the procedure of the trial not otherwise specified in this Section shall be determined by the trial body, and all parties and their respective counsel shall comply with all orders and directions of the trial body with respect to such matters. No member of the board or trial committee who absents him or her self from any session of a trial may participate in findings, decisions, or recommendations of the board or trial committee or file any concurring or dissenting opinion.
SEC. 6. Should the accused fail, refuse, or neglect to appear for trial after due notice, or after appearing refuse to comply with orders or directions of the trial committee relating to the conduct of the trial or otherwise attempt to obstruct or thwart the trial committee in its conduct of the trial, the trial committee shall proceed with the trial in the absence of the accused, hear such evidence as may be presented by witnesses who respond to notice, and render its findings, recommendation, and decision. However, the accused shall not be deprived of the privilege of being represented by a representative of his or her choice.
SEC. 7. At the next regular meeting of the local following the conclusion of the trial, as the first order of business, the trial body shall read the sustained charges against the accused. At that time the accused or representative may make a statement on his or her behalf to the membership. The trial body then shall submit to the local in writing and read its findings of the facts, decisions, and recommendations. The accused shall retire from the room when the vote of the membership is taken. The members of the local there assembled shall vote without debate solely on the question of whether to accept or reject the decision and recommendations of the trial body. The local by a majority vote of its members voting may fine, suspend, or expel the accused from its membership or suspend or remove the accused from any local offices which the accused may hold. No further trial shall be had on the same charges except for violation of the procedures described by the Constitution or of procedural due process, and then only if desired by a decision on appeal.
SEC. 8. The accused and those who preferred the charges shall be notified by registered or certified mail of the decision of the local. The notice to the accused shall be mailed to the last known address and shall advise the accused of available appeal rights. Any adverse decision against the accused shall remain in effect pending final appeal.
SEC. 9. Any officer or member fined, suspended, or expelled from membership or suspended or removed from office by a vote of his or her local may appeal such decision to the NEC, provided such appeal is filed in writing with the NST within 15 days after the officer or member is notified of the decision of the local. The NEC shall consider the appeal at its next regularly scheduled meeting or at a special meeting called for that purpose by the National President or two-thirds of the NEC. The NEC shall review the case and affirm or reverse the decision, reduce the penalty, or return the case to the local for a new trial before a different trial committee. If the decision of the NEC should affirm any adverse action taken against the appellant by the local, the appellant may further appeal to the next National Convention.
SEC. 10. All provisions relating to the trial procedures and appeals in local constitutions and bylaws must comply with the Rules and Regulations of the Assistant Secretary of Labor for Labor-Management Standards implementing Public Law 95-454, Standards of Conduct for Labor Organizations. This Article supersedes any provisions in local constitutions and bylaws which do not meet the basic democratic procedures prescribed in this Article.
WORKERS COMPENSATION BOOKLET
American Federation of Government Employees, AFL-CIO
80 F Street, NW, Washington, D.C. 20001
Acknowledgement: This booklet is modeled after the American Postal Workers Union’s publication. We appreciate their generosity in allowing AFGE to use it.
Disclaimer: This booklet provides a general overview of the issues/procedures related to workers’ compensation. The discussion outlines set forth in this booklet are not a substitute for seeking legal advice/representation where appropriate. Cases in this area are very fact-specific and cannot be governed by any generalized overview.
Dear AFGE Member:
You can be assured that AFGE fights to protect your health and safety on the job and to keep workers’ compensation benefits from being cut. We encourage agencies to focus on preventing injuries and illnesses and not only on reducing workers’ compensation costs. We want to see AFGE members go home to their families intact. However, if you are injured or become sick as a result of your work, you are entitled to compensation.
This booklet is a concise explanation of what to do when you are injured at work or become ill as a result of your work. It is meant to help you understand the system and how it works, as well as your rights and responsibilities.
In it, we explain how to file a claim, the benefits you may be entitled to receive, the difference between traumatic injuries and occupational illnesses or diseases, claims for recurrences, returning to work, and appeal rights for denied claims. More detailed information has been published by the Office of Workers’ Compensation. OWCP materials are available at the Department of Labor’s Web site or from any of the District Offices listed at the back of this booklet.
Most claims are resolved promptly and without problems, but workers’ compensation can be a complicated system. To avoid delays in processing, be thorough when filing forms with OWCP. It is imperative that your physician state there is a causal relationship between your condition and your work, your physical limitations, and the possibility of your returning to work. Make sure you are complying with your requirements and that the agency is complying with their obligations. Your local and your district office stand ready to help.
Bobby L. Harnage, Sr.
AFGE National President
FECA DECIDES CLAIMS
If your work results in injury or illness, you are covered by the Federal Employees Compensation Act (FECA). FECA is administered by the Department of Labor’s Office of Workers' Compensation Program (OWCP). The OWCP District Offices responsible for making decisions on your injury compensation claim are listed in the back of this booklet.
HOW TO FILE A CLAIM
Your agency must provide the Compensation Act (CA) forms that you need. Each form includes instructions for completion and for the submission of all information and evidence to process your claim. It is very important that you provide all of the information the first time requested by OWCP to avoid delays.
As a rule, three years is the time limit for initially filing an OWCP claim. It is to your advantage to file a claim immediately after you became aware of a medical condition that was caused by work.
OWCP, not your agency, decides if you have a compensable injury and what benefits you are entitled to under FECA. When your claim is approved by OWCP, they will notify you in writing of their acceptance of a specific medical condition and assign you a claim number.
MEDICAL CARE is provided and you may initially select a local physician of your choice (within 25 miles of your home or workplace). The term “physician” includes surgeons, osteopathic practitioners, podiatrists, dentists, clinical psychologists, optometrists and chiropractors within the scope of their practice as defined by state law. Payment for chiropractic services is limited to treatment consisting of manual manipulation of the spine to correct a subluxation, as demonstrated by X-ray to exist.
CONTINUATION OF PAY (COP) is payable for traumatic injuries for up to 45 calendar days of medically supported disability. It is paid by your agency and is the same as your regular check.
TOTAL DISABILITY wage loss is paid when you have no capacity to earn wages, due to your workplace injury. It is paid at a rate of two-thirds (2/3) of your earnings at the time of injury, or three-fourths (3/4) if there are one or more dependents. It is tax free.
PARTIAL DISABILITY wage loss is paid at a reduced rate because you are able to perform some work and only have a partial loss of wage earning capacity.
SCHEDULE AWARDS are paid if there is a permanent impairment of the injured part or function of the body, such as loss of vision, arm or removal of a lung. A schedule award can also be paid for serious disfigurement of the head, face or neck. The law prohibits payment of schedule awards for back, neck or brain injuries, unless such an injury physically impairs another element of the body. Claims for a schedule award are filed on a Form CA-7. You cannot receive a schedule award and total wage loss compensation at the same time.
COST OF LIVING ALLOWANCES (COLAs) are provided annually to injured workers receiving wage loss compensation for the preceding year.
DEATH benefits are paid to the survivors if the death was a direct result of the work environment, or previous work injury. Form CA-5 or 5b is the appropriate form to file.
A traumatic injury is a wound or other condition of the body that is caused by external force, including stress or strain, identifiable in time and place, and that is the result of an incident, or a series of incidents, that occur during a single workday. You should report the injury to your supervisor and obtain medical care as soon as possible.
You, or someone on your behalf, should:
• Promptly notify your supervisor.
• Receive and complete Form CA-l, "Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation" (COP). Fill out completely and accurately and submit within 30 days of the injury. Your supervisor must submit it to OWCP within 10 days of receiving it from you. Your supervisor cannot refuse to accept your notice of injury or illness or keep it without sending it to OWCP.
Select Continuation of Pay (COP) unless there is some unusual reason for you to use your own leave. COP is your regular pay from your agency and may be continued up to 45 calendar days. COP is paid only for traumatic injuries, not for occupational illnesses or diseases.
If you have chosen COP on the Form CA-1 and you have provided the required medical documentation within 10 days, your agency must pay COP.
To be eligible for COP, the Form CA-1 must be submitted within 30 days of your traumatic injury. If COP is denied because you did not file within 30 days, you may still claim compensation for wage loss from OWCP on Form CA- 7, "Claim for Compensation."
You are responsible for providing to your agency within 10 working days after claiming COP medical evidence that states that you are totally disabled as a direct result of your workplace injury. If this is not done, your agency may stop your COP until they receive the medical evidence.
• Obtain Form CA-16, "Authorization for Examination and/or Treatment," and/or Form CA-17, "Duty Status Report" as appropriate.
Insist that you be fully informed of your FECA rights if you receive any medical treatment, including first aid.
You are entitled to the initial selection of a physician for treatment of an injury. Agency management may not interfere with your right to choose a treating physician or require you to go to their physician before you see your own. You can be reimbursed for travel costs if the physician is located within 25 miles of your home or workplace, or if there is no appropriate medical care within that range. (You may choose medical care beyond that distance, but OWCP will not cover it.)
Agency management may not contact your physician by telephone. They may contact your physician only in writing and only to obtain additional information or clarification about your duty status or medical progress. Your employer must give you and OWCP a copy of any written communication. Fax or e-mail communications are considered written communications.
• Request Form CA- 7, "Claim for Compensation," if your treating physician believes your disability (either total or partial) is going to continue beyond the 45 calendar days of COP. You should request that your supervisor issue the CA-7 on the 30th day so that you do not have to go without pay. Submit it to the agency at least 5 working days before the end of your 45 days of COP. Attached to Form CA-7 is Form CA-20, "Attending Physician Report," which must be completed fully and accurately by your physician.
OCCUPATIONAL DISEASES OR ILLNESSES
An occupational disease or illness is a medical condition produced by continued and repeated exposure to conditions at work, including stress or strain, that occurs over a longer period of time than a single work-shift.
You, or someone acting on your behalf, should notify your supervisor, using Form CA-2, "Notice of Occupational Disease and Claim for Compensation," within 30 calendar days from the date on which you were first aware of a possible connection between the illness or disease and your job. If it is impractical for Form CA-2 to be provided to your supervisor, written notice should be given to any agency official, or you can notify OWCP directly.
It is important for you to follow all of the instructions on Form CA-2. Be sure to provide your narrative statement explaining the cause of your condition and attending the physician's name and address.
COP is not authorized for an occupational disease or illness claim. Also, Form CA-16, "Authorization for Examination and/or Treatment" is not automatically provided for occupational claims. Authorization for treatment will be issued by your agency only with the approval of OWCP.
Recurrences are claimed by filing a Form CA-2a, "Notice of Recurrence." A recurrence is defined by OWCP as a work stoppage or a need for further medical treatment, which occurs after you have returned to work following an absence due to a medical condition that OWCP has accepted as being caused by your work. A recurrence must be the result of a spontaneous material change, demonstrated by objective findings of your previous accepted condition which requires treatment, or causes disability without any work factors, or work incidents being involved.
• If the return of symptoms is not spontaneous, but is caused by an event or a series of events at work that occur on a single work-shift, it is considered a "new" traumatic injury by OWCP and a new Form CA-l would be filed. You would also be entitled to a full 45 days of COP.
• If the return of symptoms is caused by a series of events that occur on more than one work-shift, then it would be considered a "new" occupational illness and a new CA-2 would be filed.
• It is possible that OWCP will combine, or "double" your new claim with your previously accepted claim. If they do, they will notify you and you would continue to use your old claim number.
If you have an accepted claim, but no OWCP benefits are claimed or paid during a six-month period, then your claim may be administratively closed by OWCP. This does not mean that your claim has been denied. If your claim has been closed due to inactivity, then Form CA-2a would be used to reopen your claim. You must note on the form that you are filing the CA-2a for medical benefits so a medical bill, prescription drug bill, or whatever OWCP benefit you are seeking, can be paid.
Although OWCP may have closed your claim, that alone should not have any impact on your limited duty or rehabilitation job.
RETURNING TO WORK
FECA requires injured employees to inform their treating physicians that the agency may be able to provide them with work that accommodates any medical limitations imposed by their injury or illness. If this work-related medical limitation is temporary, then you would be placed in a limited duty job. If your condition is permanent, the agency may place you in a medically suitable rehabilitation or re-employment position.
Form CA-17, "Duty Status Report" is the designated form to be used by your agency to have your attending physician list any work limitations or restrictions that you may have as a result of your work injury. The agency may contact your physician in writing in regards to such limitations or restrictions. If there are any changes as a result of this contact, then a new Form CA-17 must be prepared and provided to your physician, to you and to OWCP.
If you recover within one year of starting compensation, you have the right to return to your old position or a similar one. Your retention rights are covered by 5 CFR §§353, 302, and 330, and they are administered by the Office of Personnel Management and not OWCP.
If your agency refuses to re-employ you after suffering a compensable injury, you should be notified in writing by the agency of your right to appeal to the Merit Systems Protection Board (MSPB).
HEARING, APPEALS BOARD OR RECONSIDERATION
The filing of CA-l or CA-2 will normally result in a formal OWCP decision. You have 30 days from the date of an OWCP District Office denial to request an oral hearing from OWCP's Branch of Hearings and Review in Washington, DC, or you may request instead that they perform a review of the written record, with no oral testimony.
You have 90 days from the date of any formal OWCP merit decision to appeal to the Employees’ Compensation Appeals Board (ECAB), which can be extended to one year for good reason.
You may also, within one year of any OWCP or Appeals Board decision request a reconsideration (review) from any OWCP District Office. In order to secure District Office reconsideration, new and detailed relevant evidence (usually medical) must be submitted.
You cannot have a Branch of Hearings and Review oral hearing or review of the written records if you have already received an OWCP reconsideration decision.
• OWCP decisions will provide details regarding your hearing, reconsideration and appeal rights.
• OWCP's policy is to provide a decision on a request for reconsideration within 90 days.
• It is the policy of the Branch of Hearings and Review to provide a decision regarding a review of the written record also within 90 days. However, it may take six months to a year or longer after your request for an oral hearing to get a decision. The length of the delay depends primarily on how soon a hearing representative from Washington, DC is available to be assigned to your geographic area to hold hearings.
• If your appeal is to ECAB, it may take up to 2 or 3 years to get a decision.
If it is determined that you can no longer work, it is in your interest to apply for OWCP benefits and Civil Service disability retirement simultaneously. If both are approved, you can choose the one which best serves your needs.
OWCP DISTRICT OFFICES
District Office 1--Boston
(Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont)
U. S. Dept. of Labor, OWCP
JFK Federal Building, Room E-260
Boston, MA 02203
617-565-1931 - Interactive Voice Response System
District Office 2--New York
(New Jersey, New York, Puerto Rico, and the Virgin Islands)
U. S. Dept. of Labor, OWCP
201 Varick Street, Room 740
New York, NY 10014
* (The Interactive Voice Response System can also be accessed from this number.)
District Office 3--Philadelphia
(Delaware, Pennsylvania, and West Virginia)
U. S. Dept. of Labor, OWCP
Curtis Center, Suite 715 East
170 S. Independence Mall West
Philadelphia, PA 19106-3308
215-861-5453 – Fax
* (The Interactive Voice Response System can also be accessed from this number.)
District Office 6--Jacksonville
(Alabama, Florida, Georgia, Kentucky, Mississippi, No. Carolina, So. Carolina, and Tennessee)
U. S. Dept. of Labor, OWCP
214 North Hogan St., Suite 1006
Jacksonville, FL 32202
904-357-4778 - Interactive Voice Response System
District Office 9--Cleveland
(Indiana, Michigan, and Ohio)
U. S. Dept. of Labor, OWCP
1240 East Ninth Street, Room 851
Cleveland, OH 44199
216-522-2867 - Interactive Voice Response System
District Office 10--Chicago
(Illinois, Minnesota, and Wisconsin)
U. S. Dept. of Labor, OWCP
230 South Dearborn Street, Eighth Floor
Chicago, IL 60604
312-596-7145 – Fax
* (The Interactive Voice Response System can also be accessed from this number.)
District Office 11--Kansas City
(Iowa, Kansas, Missouri, and Nebraska; all employees of the Department of Labor, except Job Corps enrollees, and their relatives)
U. S. Dept. of Labor, OWCP
City Center Square
1100 Main Street, Suite 750
Kansas City, MO 64105
* (The Interactive Voice Response System can also be accessed from this number.)
District Office 12--Denver
(Colorado, Montana, No. Dakota, So. Dakota, Utah, and Wyoming)
U. S. Dept. of Labor, OWCP
1999 Broadway, Suite 600
Denver, CO 80202
or write to:
P.O. Box 46550
Denver, CO 80201-6550
720-264-3046 – Fax
* (The Interactive Voice Response System can also be accessed from this number.)
District Office 13--San Francisco
(Arizona, California, Hawaii, and Nevada)
U. S. Dept. of Labor, OWCP
71 Stevenson Street
San Francisco, CA 94105
or write to:
P.O. Box 3769
San Francisco, CA 94119-3769
* (The Interactive Voice Response System can also be accessed from this number.)
District Office 14--Seattle
(Alaska, Idaho, Oregon, and Washington)
U. S. Dept. of Labor, OWCP
1111 Third Avenue, Suite 615
Seattle, WA 98101-3212
* (The Interactive Voice Response System can also be accessed from this number.)
District Office 16--Dallas
(Arkansas, Louisana, New Mexico, Oklahoma, and Texas)
U. S. Dept. of Labor, OWCP
525 Griffin Street, Room 100
Dallas, TX 75202
214-767-4360 - Interactive Voice Response System
District Office 25--Washington, D. C.
(District of Columbia, Maryland, and Virginia; all areas outside the U.S., its possessions, territories, and trust territories; and all special claims)
U. S. Dept. of Labor, OWCP
800 N. Capitol Street, N.W., Room 800
Washington, D.C. 20211
202-565-9770* (D.C., Maryland and Virginia)
202-565-6990* (Overseas cases, cases prefixed by two letters)
* (The Interactive Voice Response System can be accessed from these numbers.)
COLLECTIVE BARGAINING MANUAL
Prepared by the AFGE Office of Labor Management Relations
I INTRODUCTION 1
A. HOW DOES THE UNION GET WHAT ITS MEMBERS WANT? 5
B. FINDING OUT WHAT THE MEMBERS WANT 5
C. TOOLS TO ACHIEVE THE MEMBERS’ OBJECTIVES 5
D. BARGAINING IN GOOD FAITH 6
II STAGES OF CONTRACT BARGAINING 9
A. DEVELOPING AND ADOPTING THE BARGAINING PLAN 9
B. APPOINTING AND TRAINING THE UNION BARGAINING COMMITTEE 10
C. EDUCATING AND SURVEYING THE MEMBERS 11
1. Surveys 12
2. Experience under the present contract and regulations 13
3. Membership endorsement 13
4. Drafting proposals 14
5. Timely request to bargain 15
D. THREE PRELIMINARIES 15
1. Notify FMCS 15
2. Authority of management negotiators: levels of bargaining and levels of recognition 15
3. Reserve right of membership approval 17
E. GROUND RULES 17
1. Bargaining schedule 18
2. Number of negotiators; official time 19
3. Identity of the negotiators 20
4. Meeting rooms; equipment 20
5. Publicity 20
6. Definition of impasse 20
7. Breaks and caucuses 21
8. Handling negotiability disputes 21
F. FACE TO FACE BARGAINING; IMPASSE 23
1. Identify the objective of each proposal. 23
2. Bargain to agreement or impasse 24
3. One person speaks for the team 27
4. Publicize what is happening 28
5. Keeping track of progress 28
G. HANDLING NEGOTIABILITY DISPUTES DURING BARGAINING 30
H. DECIDING WHETHER MANAGEMENT’S BEST OFFER IS GOOD ENOUGH 31
I. MEMBERSHIP PRESSURE IN SUPPORT OF BARGAINING DEMANDS 33
J. WINNING THROUGH THIRD PARTY IMPASSE RESOLUTION 35
1. Mediation 36
2. Submitting the dispute to the Federal Service Impasses Panel. 37
a) Basic procedures and options 37
b) Prehearing conference 38
c) The hearing 38
3. Submitting the dispute to voluntary arbitration 39
K. MISCELLANEOUS BARGAINING TIPS. 40
III WHAT HAPPENS WHEN AGREEMENT IS REACHED? 44
A. WHAT IS A TENTATIVE AGREEMENT? 44
B. MEMBERSHIP APPROVAL AND EXECUTION 45
C. IF THERE ARE PENDING NEGOTIABILITY DISPUTES 45
D. AGENCY HEAD REVIEW 46
1. When does the agency head’s 30 days begin? 47
2. How to challenge agency head disapproval 47
IV BARGAINING DURING TERM OF THE AGREEMENT 49
A. WAIVER OF BARGAINING RIGHTS AND OBLIGATIONS 49
B. MANAGEMENT-INITIATED CHANGES AFFECTING WORKING CONDITIONS 52
C. UNION-INITIATED CHANGES IN WORKING CONDITIONS 53
D. REORGANIZATIONS, RIFS, AND CONTRACTING OUT 53
1. The merits of the reorganization 53
2. The effects of the reorganization 54
V CONTRACT EXPIRATIONS AND ROLL-OVERS 55
A. CONTRACT EXPIRATION 55
B. ROLLING OVER 56
VI SCOPE OF BARGAINING 57
A. SIGNIFICANCE OF SCOPE OF BARGAINING ISSUES 57
B. ANALYZING SCOPE OF BARGAINING ISSUES 58
1. “Affecting working conditions” or not 58
2. Excluded by law or government-wide regulation 58
3. Excluded by other regulation 58
4. Prohibited by section 7106(a) 59
a) Apparently prohibited by 7106(a), but made permissible by 7106(b)(1) 65
b) Procedures for implementing management rights are mandatory topics for bargaining) 66
c) Appropriate arrangements for employees adversely affected by the exercise of a management right are mandatory topics for bargaining 66
VII OBTAINING INFORMATION 69
A. UNDER THE LABOR RELATIONS LAW 69
B. UNDER THE FREEDOM OF INFORMATION ACT 69
VIII PARTNERSHIP, PRE-DECISIONAL INVOLVEMENT, AND WORK GROUPS 73
A. PARTNERSHIP 73
B. BARGAINING IS PRE-DECISIONAL INVOLVEMENT 73
C. WORKGROUPS 75
IX PRIVATE SECTOR COLLECTIVE BARGAINING 76
A. WHAT DOES THE NLRB DO? 76
B. HOW ARE UNFAIR LABOR PRACTICE CASES PROCESSED? 77
C. INJUNCTIONS AGAINST UNFAIR LABOR PRACTICES 77
D. COLLECTIVE BARGAINING UNDER THE NLRA 78
1. Required Subjects of Bargaining 79
2. Duty to Bargain Defined 80
3. What Constitutes a Violation of the Duty to Bargain 80
4. Duty to Supply Information 81
E. UNFAIR LABOR PRACTICES (EMPLOYERS) 81
F. UNFAIR LABOR PRACTICES (UNIONS) 82
G. THE RIGHT TO STRIKE 83
1. Lawful and Unlawful Strikes 84
2. The Definition of Economic Strikes 84
3. The Definition of Unfair Labor Practice Strikes 85
4. Strikes Unlawful Because of Misconduct of Strikers 85
H. SOURCES OF INFORMATION REGARDING PRIVATE SECTOR EMPLOYERS 86
X FILING COMPLAINTS AND APPEALS 88
A. FILING NEGOTIABILITY APPEALS 88
B. FILING UNFAIR LABOR PRACTICE CHARGES 90
The premise of this manual is that contract negotiations in the federal sector can be conducted far more effectively and efficiently than they typically have been for the last several decades. We can and must reduce management’s power to require the waste of valuable time at the bargaining table and to stretch out bargaining for years. The tactics we suggest for this should also help the union concentrate on its members’ own priorities, and thus result in far better substantive contract terms.
This manual shows how to bargain effectively in the face of management’s unfair advantages.
Unions—private sector as well as federal sector—rely on a variety of tools to serve their members. These can be summarized as legislation, litigation, arbitration, negotiation, participation, and publication. It is critical to keep in mind that different problems can be best attacked by different methods; there is a difference between saying that a particular issue is outside the scope of bargaining and saying that the union is unable to successfully deal with it.
People join unions in the federal sector for the same reasons that people join unions in the private sector: they want to participate in setting their own working conditions, including pay and job security.
As is true in the private sector as well, some of these objectives are sought through direct collective bargaining with the employer, while others are sought through changes in laws and government regulations. For example, safe working conditions are an extremely high priority for industrial unions; rather than rely simply on their bargaining power with each employer, they have successfully convinced Congress to pass the Occupational Health and Safety Act, and they then aggressively enforce the law. Understand, though, that none of these legislative successes occurs without heavy union membership participation.
In the federal sector, the law controls more of the working conditions, pay, and job security issues than is the case in the private sector, but the difference is one of degree. The union objectives and union tactics are basically the same in both the federal and private sectors.
The purpose of this manual is to guide locals and bargaining councils in obtaining the best contract provisions, with the greatest amount of member participation, with the least expenditure of time and with the greatest side benefits, while recognizing that some problems can be better dealt with in other forums.
Bargaining effectiveness can be measured against four criteria:
How many of the high priority problems (as defined by the employees) were successfully addressed?
How many days (or weeks, or months, or years) elapsed between beginning to bargain and completing the bargaining?
How many days were actually spent at the bargaining table or in closely related activities such as mediation or impasse resolution?
To what extent did bargaining serve as a vehicle of employee participation in establishing working conditions?
Thus, the challenge to the union at all levels is to carry out a bargaining strategy that succeeds in achieving the highest priorities of the employees, as quickly as possible and with as little wasted effort as necessary, and in a way that the employees actually participate in the process.
These factors all work together. Negotiations that focus on the highest priority problems are move likely to be successfully concluded before negotiations that address 150 minor issues. The very decision to determine employee priorities begins the process of employee involvement. The more employee involvement, the greater the pressure on management to agree to the union’s demands. And so forth.
The most effective strategies will contain the following elements:
Bargaining is focused on a relatively small number of issues, those which the employees themselves have determined to be their highest priorities.
Bargaining, once begun, is continuous until it is concluded. It goes for at least eight hours a day, five days a week, four and a half weeks a month.
There are effective disincentives to management refusing to bargain on the grounds of non-negotiability.
Management’s refusal to bargain in good faith speeds up, rather than delays, completion of bargaining.
The union achieves its bargaining objectives, whether through agreement with management or an order by the Federal Service Impasses Panel.
The union negotiators have fun.
The practice of labor-management relations is a skill, not a science. Where possible, this manual suggests actions and tactics that are most likely to bring you success but piecing together the various concepts that make up an entire real-world situation necessarily engages your personal knowledge, ingenuity, and experience.
The chart on the following page outlines the major steps towards successful contract negotiations. Each step will be discussed in detail at the appropriate place in the manual.
A. HOW DOES THE UNION GET WHAT ITS MEMBERS WANT?
The union gets what its members want by finding out what their priorities are, and then using all the tools at its disposal to obtain those priorities. These include legislation, litigation, arbitration, and negotiations.
B. FINDING OUT WHAT THE MEMBERS WANT
It need hardly be said that the only way to get the members what they want is first to ask them. The techniques for doing this are discussed below.
C. TOOLS TO ACHIEVE THE MEMBERS’ OBJECTIVES
Once the employees have identified the problems or opportunities that concern them most, the union should allocate responsibilities among the appropriate committees of the local or council:
* legislative and political
* women’s and fair practices coordinator
* stewards committee
* communications committee
* membership committee
* bargaining committee
Many of the objectives of the union must be sought in ways other than bargaining. These alternatives include legislation, regulation, litigation, arbitration, participation, and publication.
For example, employees may encounter two different types of problems on a matter completely controlled by existing government-wide regulations. One problem might be that management IS NOT complying with the regulation. That should be addressed through litigation, arbitration, or publicizing the violations. It is generally a waste of time to try to get management to agree in a contract to do exactly what they are already required to do by higher authority. If management does not bother complying with regulations, they probably won’t comply with an identical contract provision.
A different problem might be that management IS complying with an existing regulation, but the employees just don’t like the regulation. This is not something that can be remedied at the bargaining table, because all contracts must be consistent with government-wide regulations. Instead, the remedy must be for the union to seek a change in those regulations.
Similarly with laws. The union has, or must have, the capacity to both enforce laws and to have them changed.
In addition, there may be issues which are adequately addressed by the current language of your contract. The problem is simply a failure to enforce those provisions. Nothing can be accomplished by further bargaining over the subject. Instead, we have to develop effective stewards and officers who can successfully enforce the contract. Indeed, any contract is worthless unless the union has the resources and the will to enforce it.
The union cannot bargain effectively unless it is active and competent in legislative and political action, contract enforcement, and organizing.
D. BARGAINING IN GOOD FAITH
The bargaining tactics we discuss depend on your ability to decide when management is bargaining in good faith and when it is not. A review of the applicable law may be useful.
Under the law governing bargaining in the federal sector, the union is entitled to negotiate collective bargaining agreements covering the employees it represents; stated otherwise, management is obliged to bargain with the union concerning the employees the union represents. The law itself further defines what that means:
“collective bargaining” means the performance of the mutual obligation of the representatives of an agency and the [union] to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment . . . 5 U.S.C. § 7103(a)(12).
Indeed, the law goes beyond that, and identifies specific elements of what bargaining in good faith is:
The duty of an agency and an exclusive representative to negotiate in good faith . . . shall include the obligation—
(1) to approach the negotiations with a sincere resolve to reach a collective bargaining agreement;
(2) to be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment;
(3) to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays . . . 5 U.S.C. § 7114(b)(3).
Good faith requires that the negotiators act in a way that reflects a sincere intent to reach a mutually satisfactory agreement. Subjective good faith is absolutely necessary, but it is not sufficient. That is, the negotiators must not only want to reach agreement, but their actions must be consistent with that intent. And, includes, of course, being prepared and avoiding delays.
As a practical matter, the test is this: is management attempting to develop a contract provision which meets each of the interests that the union’s original proposal was designed to achieve? Of course, this is only possible with the interests that the union articulated, not interests that it kept secret. If management is bargaining in good faith in this sense, it will openly articulate the interests that it seeks to serve at the same time. With both parties open about their interests, and both parties willing to find a solution that meets all the interests of both of them, it will almost always be possible to find a mutually acceptable solution. That is what good faith bargaining is.
Good faith bargaining takes at least a little time, plus a lot of effort. You really have to listen to the other side, and really need to analyze alternatives to reaching your objectives. But, in fact, this time is measured in minutes and hours, or at worst, days, and has results that are meeting your objectives. It is time and effort well spent.
However, the main purpose of this manual is to show how to bargain successfully, in the minimal amount of time, even when management is not bargaining in good faith.
II STAGES OF CONTRACT BARGAINING
A. DEVELOPING AND ADOPTING THE BARGAINING PLAN
The local leadership should develop and adopt a comprehensive bargaining plan at least six months before any bargaining is expected to begin. A national bargaining council should begin much earlier than that, given the complexities of communication, travel, and workforce diversity.
Normally, the first step is appointing a bargaining committee. The bargaining committee, in consultation with the local or council leadership, then needs to identify who is to carry out the following functions and what the applicable deadlines are:
• Determine when the notice to reopen the contract must be submitted
• Consult with the national AFGE on strategy and resources, including the use of AFGE staff on the bargaining committee (locals will usually work with AFGE District Offices, while national bargaining councils will usually work with the AFGE Office of Labor Management Relations)
• Obtaining training
• Carry out a series of surveys of the bargaining unit
• Draft contract proposals, including consultation with the appropriate national AFGE office
• Draft ground-rule proposals and negotiate them with management
B. APPOINTING AND TRAINING THE UNION BARGAINING COMMITTEE
Sometimes your local or council constitution will specify who is on the bargaining team and, sometimes, who serves as the chief negotiator; in other cases, the constitution specifies how the team will be appointed. Otherwise, the team should be appointed by the executive board. The leadership should keep in mind that throughout negotiations the union is going to have to continue to do routine representational work. If you put the entire leadership on the negotiating team, no one else will be available to make important day to day decisions and perform other essential work.
It is not essential to have an odd number of members, because if the team is closely split on an issue, it is worthwhile to work more towards a consensus. The actual number depends on the reality of the workplace. A multi-local council will need a larger bargaining committee than would a single, small local representing a homogeneous worksite. In either event, the makeup of the team should reflect the employees in the bargaining unit.
There are no established qualification standards for union bargaining representatives. The most important factors are common sense and actual knowledge of the workplace, including what the problems are that have led to grievances. You may wish to have particular subject matter experts on the team. This could be, for a example, a health and safety expert, someone knowledgeable about EEO issues, or a member with expertise about how the agency functions (including its’ mission, budget, and structure). While the actual number of negotiators who sit at the table will be agreed upon by the parties, the union can have additional people on the team who help with research and writing proposals.
Ultimately, it is good to have at least one person who is comfortable with drafting contract language. In this connection, however, remember that the goal of contract language is to clearly reflect the actual agreement of the parties. If any member of the union negotiating team cannot understand what a proposed provision means, then that draft is inadequate and should be revised.
Of course, few people are naturally born union contract negotiators. Part of your preparation for bargaining is obtaining training for the members of the negotiating team. Thus, initially, the question is not whether a person is already able to negotiate effectively, but whether he or she has the dedication and ability to learn those skills.
The more diverse the workplace, the larger and more diverse the union team should be. If the bargaining unit covers both professionals and non-professionals, at least one member from each group should be on the team. But even with the general category “non-professionals,” there are often widely different jobs with widely different problems and interests. Similarly, if there are both wage-grade and GS employees in the unit, both groups should be represented on the team.
C. EDUCATING AND SURVEYING THE MEMBERS
Although the members must ultimately make the critical decisions, they depend on the leadership for their information. It is not enough to ask employees what improvements they want in their working conditions and benefits, unless you first give them some ideas of what kind of things are available. Thus, if employees are unaware that it is possible to negotiate assistance for student-loan repayment, they are hardly going to list this as something they would like the union to seek.
This problem is particularly acute when it comes to union institutional needs. The fear that some local leaders have that the members will not support fights for sufficient official time and official facilities may be rooted in a failure to explain the need for these benefits. For example, the members need to know that without official time, they themselves will not be able to meet with union stewards over grievances during regular workhours, and that their representatives will not have the time to adequately prepare to represent them. Similarly, without a secure union office, there will be no private place to discuss problems with the union. Such possible subjects should be addressed in newsletters and meetings for several months before any surveys are taken.
Since the only reason we bargain is to make things better for the employees we represent, those employees must participate at every stage in the process. Collective bargaining is not a matter of the union geniuses sitting down with the management geniuses and deciding what is best for the employees.
The first step should be to survey all the employees to identify their problems and possible solutions. In most cases, the survey should go to potential members as well as actual members. Particularly where membership is low, distribution and collection of the survey form should be assigned to stewards and other members, not just left to the officers. This makes the union very visible, and provides a perfect opportunity for union activists to discuss problems with potential members and show how problems could be better solved if those people joined the union.
A sample survey form is attached. Modify it to suit your situation.
One week after the survey is distributed, remind people to turn it in. Use leaflets, desk drops, e-mails, bulletin board postings—whatever works at your facility.
As emphasized above, there are many employee demands which cannot be addressed through contract negotiations. The union leadership must refer these issues to their respective committees: legislation, political action, EEO, stewards, membership, and so forth. These committees will work aggressively on these issues at the same time the bargaining committee works on the issues referred to it.
2. Experience under the present contract and regulations
What are the problems that the employees have been bringing to the union over the last three years? Where have we failed because the current contract does not adequately address the issue?
These questions are answered by reviewing the grievance and arbitration record under the existing contract.
The union needs to think about how the contract will be enforced in the future. All the Bargaining Team’s efforts may be short-changed unless, during the bargaining preparation, the Team asks itself: “What are we finding out about how our Union operates that we didn’t realize, and do we need to do things differently to keep improving our contract administration and employee representation in all arenas?”
It is critical that someone review the various regulations relevant to particular issues, because it may be that the solution already exists in the form of enforcement rather than negotiations.
3. Membership endorsement
Although the surveys will probably go to all employees, acting on the survey results must be limited to the dues-paying members.
Remember, the sole purpose of the union is to give employees the opportunity to participate in setting their own working conditions. There is no possible free ride to participation. If an employee wants to participate, he or she joins the union; if an employee does not join the union, he or she cannot participate in determining what the union’s bargaining objectives are.
The survey results may show employee interest in anywhere from a few to a lot of problems or opportunities. Some areas may be of interest to only one or two employees; others may be of interest to nearly everyone; still others will fall somewhere in the middle.
The membership, however, is free to make whatever judgement it wants. It is in no way bound by the opinions expressed by non-members, which would be reflected in the survey results.
The leadership should probably suggest that the members set four or five priority objectives, together with whatever union institutional changes are needed.
4. Drafting proposals
Your basic objective in drafting proposals is simply to say what you mean as clearly as possible. If there is anyone on the team who does not understand a draft proposal, it must re-written.
When drafting proposals, understand possible scope of bargaining problems, for several reasons. First, it allows you to obtain a commitment from the national AFGE to handle the brief-writing in support of any negotiability appeals you file. Second, it allows you to avoid wholly unnecessary fights over negotiability.
5. Timely request to bargain
Most existing contracts require that requests to re-negotiate be filed with the other party during a specific period before the contract expiration date. Usually that is the period 90 to 120 days prior to expiration.
A failure to make a timely notice generally waives your right to bargain changes in the contract until, depending on the contract, another year or two or three pass.
D. THREE PRELIMINARIES
Before you start bargaining, there are three steps that you should routinely take.
1. Notify FMCS
At least 30 days prior to negotiations, the Local or Council must submit FMCS Form F-53 to the appropriate regional office of the Federal Mediation and Conciliation Service. This is required by law, and provides the FMCS some ability to schedule its workload. The form is available at www.fmcs.gov.
Requesting the services of a mediator when needed is discussed below.
2. Authority of management negotiators: levels of bargaining and levels of recognition
The party with whom you are bargaining is the employing agency.
If the employer is an independent agency, such as the EEOC or the National Transportation Safety Board, that obviously is the agency for this purpose. If the employees you represent are within a chain of command reaching to a cabinet-level department, that is the employer.
For example, the employer for all purposes of bargaining anywhere within the Department of Defense is the Department of Defense. It is not the Department of the Army or Air Force, nor DFAS nor DeCA. The employer is not a major command, a civilian personnel office, a military base or depot. The employer everywhere within DOD is DOD.
This is true for all the cabinet level departments. The agency for Census Bureau employees is the Department of Commerce; the agency for the Vector Bone Diseases of the Centers for Disease Control is the Department of Health and Human Services; the agency for the Western Region Research Center of the Agricultural Research Service is the Department of Agriculture; and so on.
One sometimes hears the phrase, “bargaining at the level of recognition.” Regardless of what that is supposed to mean, the law expressly requires the Department of Defense to authorize all management negotiators within the department to bargain on behalf of the department.
It might be useful to see in advance that the necessary delegations of authority have been made. We suggest the following letter be sent to local management a month or two before negotiations are to begin:
Pursuant to 5 U.S.C. 7114 and the Freedom of Information Act, please provide me copies of all documents:
a. Delegating authority from the head of the agency to review contracts under 5 U.S.C. 7114(c);
b. Delegating agency authority to the management chief negotiator to bargain with this Local.
On the other hand, there is no real risk going ahead with bargaining even though the management chief negotiator does not have a written delegation of authority. Certainly, we do not want management to be able to unilaterally delay the beginning of negotiations simply by ignoring this document request.
3. Reserve right of membership approval
We will discuss later the pluses and minuses of subjecting contracts to ratification by the union members. The critical point here is that if you are going to use ratification, you must inform management of this at the outset. For example:
This is to inform you that any contract negotiated by this bargaining team will be subject to ratification by the union membership.
E. GROUND RULES
In most cases it is a good idea to negotiate a memorandum that sets out the ground rules for the substantive negotiations. A lot depends on your overall relationship with management. There have been cases where these ground rules negotiations themselves have wasted immense amounts of time and effort.
Often a contract will contain the ground rules both for mid-term bargaining and for bargaining to replace the contract. The key thing is that ground rules are for the purpose of expediting negotiations, not slowing them down.
It is, therefore, far better to allow the beginning of substantive negotiations to be delayed while the FSIP handles your impasse over ground-rules than to agree to management ground rule proposals which will delay completion of negotiations for years.
Not everyone uses written groundrules. There are times when the union and management genuinely trust each other, and both know the other will bargain in good faith. Still, even here, to avoid misunderstandings, it makes sense to at least write a memo to the other side, beginning: “This is to confirm that . . . “ and filling in the details of the understanding.
1. Bargaining schedule
You do not have to obtain management’s agreement to bargain. That obligation is imposed by law and includes the obligation to bargain at reasonable times and places.
Begin with a memo to management, proposing that the parties meet at a specified time, date and place, and requesting alternatives if those are not acceptable. If management responds in good faith, the parties will quickly find a mutually acceptable time and place.
If management either ignores your request, or if it suggests an absurd alternative, show up at the time and place you suggested and, if management fails to appear, file an unfair labor practice charge. Management’s conduct is, by definition, an illegal failure to meet at reasonable times and places. Chapter X of this manual discusses filing unfair labor practice charges.
Normally, a ground rules agreement will not only set out the schedule for actually bargaining, but will also provide for exchanging proposals before the first meeting.
The bargaining schedule should ordinarily be all day, every work day, until the bargaining is completed. The parties may agree on some days to work late, in order to keep the momentum going. You need to be fully sensitive to the fact that some bargaining committee members may have other responsibilities which keep them from working late, however.
If the overall bargaining strategy contained in this manual is being followed, there is not need to set a deadline for completing negotiations. Deadlines are designed to discourage both parties from wasting time. One point of this manual’s strategy is that we can unilaterally act to keep time from being wasted.
2. Number of negotiators; official time
The union determines unilaterally the number of members on its own negotiating team. We have to bargain with management over how many of the union bargaining team members will be on official time (keeping in mind that we are automatically entitled to at least as many members on official time as there are members of the management negotiating team.)
What if management says that it only needs one or two people? Even though management is probably bluffing, there is no need to waste a great deal of time in discussions. Inform management of the benefits of diversity, and if that doesn’t work, declare the issue to be at impasse. The Federal Service Impasses Panel will then decide how many members of the union negotiating team will be on official time.
In addition to official time for the bargaining team members during actual negotiations, it may be necessary to negotiate preparation time (including time for meetings with employees), shift changes or differentials, and travel and per diem.
3. Identity of the negotiators
By and large, each side has total control over who will serve on its negotiating team. Neither side can refuse to bargain just because it doesn’t like a particular person on the other side. Two obvious exceptions are that the union team cannot have any managers, and the management team cannot have any member of the bargaining unit (whether or not that employee is a dues-paying member of the union).
4. Meeting rooms; equipment
It is stupid to try to bargain in a room that is small, ill-lit, ill-ventilated, or either too hot or too cold. It is equally stupid to try to bargain when the union does not have an adequate place to caucus, or where normal equipment is unavailable.
You might propose ground-rules to cover these matters, but don’t worry about them. If management in fact fails to provide adequate facilities, it is obvious that it is not going to be bargaining in good faith anyway. As discussed below, management’s failure to bargain in good faith will simply end negotiations quickly and place the dispute before the Federal Service Impasses Panel.
Do not agree to restrictions on publicity. One of the greatest factors handicapping negotiations is management’s ability to be obnoxious at the bargaining table, but appear reasonable to the people in the workplace.
We must reserve (and exercise) the right to accurately report on management’s conduct, behavior and positions. This should not be discussed in the ground-rules, however.
6. Definition of impasse
As will be discussed below, “impasse” is a term of art. It does not need to be separately defined in any agreement of the parties. Any such definition will only serve to delay completion of bargaining.
For example, if the groundrules say that an impasse occurs only after the parties have discussed the proposals three times, a couple of problems arise. What counts as “discussion” for the purposes of the groundrules bears no relationship to what the Federal Service Impasses Panel considers to be an impasse. What is likely to happen on a controversial topic is that there will be three meaningless chats, spread over a couple of weeks, and then a refusal by the FSIP to believe there is a genuine impasse.
7. Breaks and caucuses
As a practical matter, there is no way to stop a party from taking a break or a caucus at any time. If management says, “Your new proposal looks good, but we need a half hour in private to go over it,” you’re not going to object. Thus, there is absolutely no reason to define, in writing and in advance, when breaks will occur and when caucuses may be taken.
8. Handling negotiability disputes
Some locals have been tricked into accepting a ground rule on handling negotiability disputes that results in a waiver of the union’s control of the timing of filing negotiability appeals. In some cases, the entire right to challenge negotiability claims has been forfeited because the local did not know that the ground rule in effect created deadlines. You should absolutely refuse a groundrule that says that management will put negotiability allegations in writing, or when they will do so. The FLRA construes these types of provisions as a waiver of the union’s control over when to deal with negotiability issues.
At the same time, it might be useful to have an agreement in advance that if there are any pending negotiability cases at the point when everything else has been agreed to, the contract will be signed subject to reopening if the FLRA rules in our favor on negotiability. Of course, depending on the situation, you may want the contract completion to not occur until the negotiability dispute subjects have been resolved.
If you have any questions in this area, talk to your National Representative, who will bring the issue to OLMR for additional guidance, if necessary.
F. FACE TO FACE BARGAINING; IMPASSE
The union has two main objectives at the bargaining table: if management is bargaining in good faith, we try to reach agreements that achieve all our objectives while being consistent with management’s interests; if management is not bargaining in good faith, we obtain our objectives without spending too much time at the bargaining table.
1. Identify the objective of each proposal.
From the outset, state plainly why you want each proposal. Usually that can be explained in terms of the objectives adopted by the membership. Often, it helps to list all the interests that the proposal seeks to serve.
Invite management to identify any other interests relevant to the subject. If they identify those interests, it becomes relatively easy to jointly find a solution that satisfies everyone. If they refuse to identify those interests, make a careful note of what exactly they say.
As we shall see, we should easily win the impasse resolution process if our proposal meets all the interests both parties have articulated. If management insists it has no interests, so much the better.
“But”, management will whine, “we are not doing interest-based bargaining.”
We don’t care about labels. If management tells us what its interests are (or its objectives, or its reasons, or whatever), bargaining is likely to result in a mutually satisfactory agreement. If they don’t have any interests that they are willing to identify, it will be easier for us to win when the impasse is litigated.
In short, they don’t have to tell us their interests; but they can’t stop us from telling them ours, and continuing to invite them to search for mutually satisfactory solutions.
2. Bargain to agreement or impasse
One factor that tends to unnecessarily stretch out contract negotiations is the belief that bargaining does not reach impasse until some huge number of hours have been wasted in unproductive discussions. That is not true.
By definition, negotiations have reached an impasse when they have ceased movement, no matter how soon or how late in the process that occurs. Also, by definition, an impasse can be unilaterally broken at any time, by either party making a concession that opens the way to possible agreement.
Of course, you determine the existence of an impasse based on your own perception. The Federal Service Impasses Panel is not bound by your perception, so the mere fact that you say the dispute is at impasse does not mean the FSIP will take the case.
In the usual situation, the union has made a proposal. After we have answered all of management’s questions, and management has caucused and consulted as much as they want, only four options exist:
Management response Union response to response
1 yes There is an agreement; nothing more needs to be said.
2 A counterproposal that seeks to achieve the union’s interests as well as management’s This is bargaining in good faith. If both sides continue to search for terms that will meet the interests of both, an agreement will be reached fairly soon.
3 No—stated in a few different ways:
Just plain no
Management is not bargaining in good faith, and the negotiations are at impasse. Say this, and move on.
Frivolous or insulting counterproposal; one that does not even try to achieve the union’s interests Just say no; that means the bargaining is at impasse. Say this, and move on.
Claim that the union proposal is not even negotiable This is an admission that management isn’t even trying to bargain. Tell management we are moving on to the next subject.
To repeat: If we have made a proposal, and management neither agrees, nor offers a counter-proposal, nor formally refuses to bargain, the parties are at impasse over that proposal. It will rarely be of any use for us to try to discuss the issue further: that leads to bargaining against ourselves, which is never a good idea. We should note that the issue is at impasse, and move on to another subject.
Remember, though, that just as an impasse automatically comes into existence when there is no progress, any progress by definition destroys the impasse. There is nothing to bar management from making a counterproposal tomorrow on a subject on which it had nothing useful to say today. If a counterproposal is made, the impasse is broken, precisely because there is something to negotiate over.
There are two broad categories of management counterproposals: serious and frivolous. A serious counterproposal reflects a good faith effort to successfully address the subject of the union proposal. The union might agree to the counterproposal as written, or suggest some minor changes, or come up with a different approach. The key thing is that the parties are substantively attempting to reach an agreement.
A frivolous counterproposal need not waste our time . The union’s answer to a frivolous counterproposal is a simple “no.” At that point, by definition, the parties are at impasse, just as they would have been had management made no counterproposal at all.
A couple of questions:
What if we go through our initial proposals and management neither agrees to anything nor makes any serious counterproposals? Isn’t that really unfair? How can we make management bargain with us in good faith?
First of all, the members have identified the bargaining objectives. Our job is to reach those objectives whether or not management bargains in good faith. Under the scenario you describe, the worst that can happen is that in a month or two you have an impasse-resolution hearing, where you will present all the evidence you developed before bargaining even began. In fact, however, it is highly likely that either the mediator or the FSIP staff will convince management to start real bargaining before that point is reached.
But if management never bargains in good faith, so much the worse for them. We win.
What if, under the above definition of impasse, we find ourselves at impasse over the entire contract or huge portions of it? That actually creates a problem only if there are scores or hundreds of provisions at issue. If you are only bargaining over the highest priority demands of the employees, the total dispute will be manageable.
But if we are ordered back to the bargaining table? At least we are no worse off than we would have been had we spent the intervening weeks jawing at a management negotiating team with no interest in reaching agreement. And, the outside third parties now have a baseline from which to measure the reasonableness and problem-solving efforts of each side.
3. One person speaks for the team
Nothing should be said at the bargaining table by anyone which has not already been agreed to by the bargaining team.
This can be achieved in several ways. Some teams simply have the chief negotiator be the only one who talks. More often, teams leave it to the chief negotiator to call on team members at appropriate times.
The big thing is that no one, ever, says to management at the bargaining table “I think we should do . . .” or “We’ve not talked about this on the union side yet, but how about . . .”
The best way to handle an issue that comes up, but has not been discussed by the team, is to call a caucus. The rule should be that any member of the bargaining team can call a caucus any time he or she is afraid something might be going wrong. The member slips the chief negotiator a note, and the chief negotiator announces the union is going to caucus; the chief negotiator does not make a judgment of whether there actually is a need for a caucus or not.
4. Publicize what is happening
Every week or so announce to the employees the subjects that have been tentatively agreed to, and list those which have been discussed but no agreement reached.
Remember, you should never, ever, agree to ground-rules restricting the union’s right to communicate with the employees it represents.
Every time management refuses to bargain provide the employees a copy of the union proposal and a statement that, “Management refuses even to discuss this subject.” Use your bulletin boards, e-mail, newsletter, and every other medium of communication at your disposal.
Periodically distribute a document having two columns. In the left hand column, put the text (or a summary) of the union proposals. In the right hand column, put the text of the management proposal; or, if there is none, state, “Management has no proposal on this subject.”
5. Keeping track of progress
The following process will help you keep track of the progress of negotiations, although it is not mandatory.
The important thing is that you do not end up in a situation where you and management argue about whether on some previous day you had reached a tentative agreement on some subject.
Every time a provision is agreed to at the bargaining table, the two chief negotiators should initial and date the text. The union must either hold on to the original or must immediately obtain a photocopy so that it always has a complete and accurate record.
What is a “provision”? Is it a sentence, a paragraph, a section, or an article? It depends on what you intend. If some language has been agreed to which would be good if accompanied by another part of the union proposal, but bad if accompanied by another part of the management proposal, then don’t initial that language, no matter how long or short it is.
If some language has been agreed to that satisfactorily achieves one of the union’s objectives, regardless of what happens to the rest of the contract, do initial it.
Every time a proposal is withdrawn the two chief negotiators should initial and date a statement of this fact.
If management refuses to initial agreements and withdrawals, force them to state their position out loud. For example, ask management whether the parties have reached agreement on Article III, Section 5, as initially proposed by management, or have they not? Note management’s response on the union’s copy of the proposal.
Copies of all the initialed material should be immediately placed in a loose-leaf binder maintained for this purpose.
Post on the wall of the negotiating room a complete list of articles and sections that are being negotiated. Next to each provision have columns for “agreed,” “ withdrawn”, “refused to bargain,” and “impasse.” Write down the date any of these occurs with respect to each provision.
G. HANDLING NEGOTIABILITY DISPUTES DURING BARGAINING
“That’s non-negotiable” is management-speak for saying that the duty to bargain does not extend to a proposal or provision. Management’s claim may be that bargaining is illegal or prohibited, or merely that the proposal is on a permissive subject that management chooses to not bargain.
Ultimately, there is not much difference between, on the one hand, management saying our proposal is non-negotiable, and, on the other hand, management rejecting our proposal but failing to address the issue with a reasonable proposal of their own. Actually, the difference is between management honestly admitting that it is not even trying to bargain in good faith, and management refusing to bargain in good faith but claiming otherwise.
Management’s negotiability concerns should be looked at as simply interests that they want respected by the agreement. If management is interested in bargaining in good faith, they will join us seeking language that achieves the interests of both parties. If that is successful, we certainly don’t care about ‘negotiability.’
If language is contested through negotiability procedures, that involves certain very formal and specific steps that the union must take within strictly-defined time limits. Failure to follow those procedures results in losing the ability to negotiate for the contested language.
The main thing to do when management refuses, on the ground of negotiability, to seek the objectives of the union proposals is to simply publicize this fact. “Management refuses to even discuss [describe the problem addressed by the union proposal]”. That type of refusal is rude, crude, and indefensible. Many managers will join the rank and file employees in criticizing a refusal to even discuss how to solve what everyone agrees is a problem.
At the same time, you should initiate the negotiability appeals process. If management is not going to negotiate, let them litigate. That process is described in a later chapter of this manual.
The deadline for filing a negotiability appeal does not begin until management gives us a written allegation in response to our written request for an allegation. Unless and until we make a written request, there is no deadline for us to file a negotiability appeal. Thus, the union has total control over whether and when to initiate the negotiability appeals process. Normally, there is no reason to wait once management makes clear it in fact is not bargaining over the issue.
H. DECIDING WHETHER MANAGEMENT’S BEST OFFER IS GOOD ENOUGH
If subjects remain at impasse despite the mediator’s efforts, the union has to decide whether it is worth its time, energy, money and effort to continue to fight over the differences in the two sides’ proposals.
At this point in the bargaining, the union negotiators have spent days or even weeks doing their best to convince management of the need for the union proposals. It is not always easy to determine whether the last management counter-proposal—while a rejection of the union’s own demands—in fact comes close enough to the union’s objectives to be acceptable.
At the same time, it may be difficult to accept the fact that one has been unable to persuade management to points which one knows to be correct.
Almost every union in the United States submits the issue of accepting or rejecting management’s last offer to the affected members. They were the ones who established the bargaining objectives, and they can best make the judgement whether those objectives have been sufficiently achieved or, if not, whether they want to pay the price of continuing to struggle for them.
Some people believe that AFGE members do not want to make these types of decisions for themselves, that they elect their local leaders to make those decisions for them.
This may have made sense before the members got involved in setting the union’s bargaining objectives, and when bargaining seemed focused on hyper-technicalities understandable only by union experts and management experts. Now, though, AFGE members, like the members of every other labor union in the United States, are able to make rational and responsible decisions as to whether bargaining has or has not sufficiently achieved their objectives.
Continuing to fight for the objectives means either bringing membership pressure, or submitting the dispute to a third party to resolve the impasse, or both. None of these is cost-free.
Only union members can vote to accept or reject management’s last best offer. This opportunity to vote is a way to participate in setting one’s own working conditions, and there is no such thing as a free ride on participation.
I. MEMBERSHIP PRESSURE IN SUPPORT OF BARGAINING DEMANDS
Negotiations should not only be conducted within the confines of a conference room. The Union can use its membership to put pressure on management utilizing many of the same tactics that are used in the private sector. Although strikes are illegal, as is picketing that interferes with the agency's operation, there are a whole host of other ways to rally employee and community support for the union's position. These include:
• leafleting in-house and to the public
• ads in local newspapers
• well-attended membership meetings
• wearing armbands, ribbons or buttons
• informational picketing
• picketing by other unions in our support
• picketing the managers’ homes
• marching into work together
• one minute stand-up on the job
Collective actions vary in the amount of commitment and risk. The first actions should be as risk-free as possible. As negotiations proceed, the union can increase pressure on management by escalating employee involvement. You must build a safe environment for employee participation. Don't expect employees to be willing to immediately engage in informational picketing. You must build up to that level of participation. Wearing a button or a ribbon at work is generally a fairly safe, risk free act and most employees would be willing to wear a button.
Once the employees see their co-workers also wearing buttons, the employees will feel empowered and will be willing to increase their commitment and risk taking. Next, you may have all the employees wear the same color shirt, or send postcards to the employer or a Congressional representative (This can be effective if the employer is taking unreasonable stands or is bargaining in bad faith.) Eventually, you can engage in effective informational picketing. By gradually escalating the action, you are putting increasing pressure on management.
In order for this strategy to work, there are two important factors that need to be considered. First, you must build a strong communication network. If employees don't know the issues, they will not support the Union's negotiating team. Employees should be apprised of the negotiation's progress on a regular basis. E-mail, work area meetings (during breaks), membership meetings, flyers, bulletin boards, and newsletters are just a few ways a local can effectively communicate to its members.
It is essential that this communication be systematic and that every employee in the bargaining unit is kept informed. To accomplish this task, one of the negotiating team members should be given the responsibility for coordinating this communication.
Second, you must find an issue that is important to the employees. Official time and the size of the union office space are institutional issues and generally employees don't really care how much official time a union official receives. However, proposals dealing with contracting-out, flexi-place, alternate work schedules, and the number and size of break areas are issues that employees generally care about.
As discussed previously, the members themselves will have established the priority bargaining objectives, so the bargaining team will know exactly which issues are most important to the employees. Those are the issues to mobilize around.
By mobilizing your membership in support of the negotiating team, you will also have the side benefit of building your membership. After all, if during bargaining management starts receiving numerous membership applications, it sends a very powerful message that the employees are supporting the union and the union will also have increased its revenue and thus its ability to enforce the contract.
If you mobilize your membership, think out of the box. Employees are more likely to participate in your activities if they are fun and creative. Some of the actions taken by other unions include:
• flew balloons full of management's hot air outside the activity's office;
• rang cowbells for two minutes at their work stations to wake management up;
• community "trial" of the employer;
• mock funeral
• wore bandaids, crutches, canes, eye patches, etc. to work, with slogans such as "We're sick of the employer bargaining in bad faith”
J. WINNING THROUGH THIRD PARTY IMPASSE RESOLUTION
In the federal sector collective bargaining law, congress attempted to provide a fair alternative to the right to strike. Third parties are authorized to impose on the union and management the contract terms which presumably would have been voluntarily agreed to at the end of a strike.
For this impasse-resolution procedure to work to the union’s greatest advantage, however, it must be preceded by reliance on membership pressure. We want the third party to choose between the union’s proposals and the most that management is willing to give under pressure, not between the union proposals and the best management was willing to offer without being pressured.
Unless they reach a voluntary agreement, the parties will always have to go through mediation by the Federal Mediation and Conciliation Service. After that, they must decide whether to submit the remaining disputes to the Federal Service Impasses Panel or to a jointly chosen arbitrator.
Note that the FSIP will not resolve any dispute which, in its opinion, involves subjects outside the mandatory scope of bargaining; nor will it approve an arbitration agreement covering such subjects. See chapter VI of this manual for a discussion of the scope of bargaining.
The Federal Mediation and Conciliation Service (FMCS ) is an independent federal agency. The director is appointed by the President with the advice and consent of the Senate. The FMCS has a staff of federal mediators located throughout the country.
The mediator has no authority to make any decisions on the merits of a dispute. He or she is not an arbitrator.
The mediator’s role in federal sector negotiations is two-fold: help the parties actually reach agreement; certify to the FSIP that the parties are unlikely to reach agreement on their own.
For the reasons discussed above, progress in negotiations is nearly impossible if management will not even state the reason for its rejection of union proposals. The greatest service a mediator can provide is to persuade management to start doing this.
The mediator can help the union understand its own true reasons for various proposals, as well as help you put the issues into some kind of priority order.
The mediator will nearly always try to persuade you to drop whatever demands seem to be most resisted by management. You do not owe the mediator any favors. However, you should be open to deciding that a particular issue is not a high priority, so that its abandonment is no tragedy.
The mediator cannot and will not testify or otherwise get involved in disputes about intent or bargaining history.
Often, the efforts of the mediator will lead the parties to an agreement. If so, jump to chapter III of this manual, which addresses what to do when agreement is reached.
2. Submitting the dispute to the Federal Service Impasses Panel.
Unless the parties agree otherwise, either party can insist that disputes remaining after mediation be submitted to the Federal Service Impasses Panel (FSIP).
The FSIP is composed of a chairman and at least six other members appointed by the President for a term of five years. However, the president may remove any panel member.
Under Section 7119(c) of the Statute, it is the responsibility of the Panel to consider negotiation impasses and to take such action as it considers necessary to settle the impasse.
The primary basis the Panel uses to decide a issue is whether the party proposing the change has demonstrated a need for the change. It should be relatively easy for the union to prevail if its proposals were originally developed on the basis of the employees’ needs and if factual research has been completed before the dispute reaches the Impasses Panel. Example of evidence include past grievances, statements by management asserting that the current contract doesn’t provide the benefit in question, as well as responses to surveys.
a) Basic procedures and options
The submission to the Panel will include all the information listed on FSIP's form Request for Assistance.
After receipt by the Panel of a request for assistance, it will contact the person filing the request to make an initial inquiry to determine whether the Panel will accept jurisdiction in the matter.
If the Panel accepts jurisdiction, it can use any of a variety of processes of mediation and arbitration to resolve the disputes. The parties’ positions on what process to use are solicited, but the Panel make the ultimate decision on how to proceed.
b) Prehearing conference
No matter what process is being used, a major first step is usually a prehearing conference involving the parties and a Panel representative. At the conference, the union should:
• Clearly define issues—what is and is not in dispute
• Outline its case
• Identify its witnesses
• Provide copies of the exhibits it expects to use
• Ensure there is a final, clearly written proposal on each issue in dispute
• Explain any ULPs that it has filed related to the bargaining
• Make sure it understands management’s case
Note that sometimes the FSIP officer conducting the prehearing conference might decide that there is no need for a hearing, so the case is really decided on the basis of what the parties presented at the conference.
c) The hearing
• Filing a prehearing brief can be most helpful.
• The opening statement on each issue is very important. It should detail what you intend to establish, and thus enable the factfinder to determine relevance and rule on objections.
• Technical rules of evidence do not apply (i.e., hearsay).
• All regulations, contracts, etc., relied upon should be introduced as exhibits—make sure regulations are current— point out relevant portions (highlighting helpful)
• When negotiability problems are raised at the hearing stage, you should be prepared to address both jurisdictional and substantive issues. The Panel is bound by Authority rulings, so it is important that you know what those decisions say.
• Remember that a finding that a dispute is negotiable does not mean there is any merit to the union’s position; you still have to show why that position should be adopted.
• At times, it is preferable for the representative to be sworn and to testify in a narrative fashion.
• A closing statement is not required but is often preferable to having to file a post-hearing briefs.
3. Submitting the dispute to voluntary arbitration
As long as they get the FSIP’s approval, the parties can adopt alternative impasse-resolution procedures. Usually this means jointly hiring someone they both respect, and having him or her hold a hearing and decide what the contract terms will be.
The major advantage to using a private arbitrator is that the person picked will have some sense of dedication to the interests of the particular agency and to you, as the union involved. There is a significant expense to the union, but that can be estimated in advance because you will know exactly what the issues are and what the evidence each party has.
K. MISCELLANEOUS BARGAINING TIPS.
The union’s basic objective in bargaining is to obtain better working conditions.
The following suggestions are designed to facilitate the reaching of sound agreements in negotiations. The first rule you should follow is to be yourself. Use an approach which is consistent with your own personality, experience, and background. Some highly successful negotiators are "table thumpers" while others are quite reserved. Each is effective if they use their personalities to their own advantage.
No negotiator should try to copy the technique that he or she has observed in another when their personalities are completely different.
It is vital that the negotiator be ethical. The negotiator is dealing with a long-range, highly personal relationship which has all the daily frictions of the typical marriage, but without much likelihood of divorce. Thus, a temporary gain made through deception or distortion of facts will surely, in the long run, hurt the union.
Start discussions from areas of common agreement rather than from an obviously controversial matter. Secure a basis of agreement on which to build and you will find that subsequent favorable accommodations are more easily reached on disputed issues.
Do not indicate that you lack confidence in the reasonableness of any major proposal. The best way to follow this rule is to not propose anything which you do not believe is reasonable.
It never hurts to be gracious. If you win a point, credit the other party for sincerity and fair-mindedness. To gloat over minor victories may make it impossible for the other side to offer reasonable compromises without resentment and embarrassment.
Keep in mind that each party should be prepared to explain in detail its reasons for making or rejecting any demand or proposal. Furthermore, there are many times when the burden of proof shifts to management— particularly in management-initiated proposals or where management has information that is not available to the union.
Some people make the mistake of treating negotiations as a marathon college debate. While it is important to make your points, after they have been made and management has responded, don't continue to beat a dead horse. Record the issue as at impasse and move on.
Remember that you are engaged in collective bargaining, not begging. Be quick to demonstrate respect and courtesy; be equally quick to demand the same consideration.
By far, the most fruitful atmosphere for reaching sound agreements is the recognition by both parties of a mutual interest in solving problems of common concern. The greater the degree of objectivity that can be developed, the more constructive the relationship. It takes considerable time to overcome personality-centered clashes which mar the relationship. Collective bargaining at its best is a systematic, conscientious search for answers that work; answers which minimize frustrations.
The least productive bargaining is simply playing games with each other, where tactics are deliberately used to frustrate the other side and impede joint problem-solving in favor of manipulation of one side by the other. When management tries to do this, just don’t play. Indicate that a disagreement exists, then proceed to other issues. It is much better to concentrate on preparing convincing arguments for the impasses panel than to talk to a management team which has no intention of really listening.
Examples of unacceptable tactics include:
• stalling, being chronically late, or losing documents;
• taking regular, extended caucuses and returning late from lunch;
• threatening that the employees will be harmed unless the union backs down;
• refusing to look for ways to overcome scope of bargaining problems; presenting a moving target, always finding a new reason for rejecting the union’s proposals after management’s previous objections have been overcome;
• rudeness and failure to control anger, thus shifting the focus from facts to emotions;
• management telling the union to make a counter-proposal to the union’s own proposal, (or suggesting that management would consider such a counter-proposal).
The collective bargaining process certainly has shortcomings as a means of resolving conflicting interests in employment. However, it is superior to any known alternative for adjusting differences in a free society. It is worth the continuing effort by persons of honorable intent to improve its functioning.
In addition to constant improvement of your knowledge and skills , successful bargaining requires hard work, thorough research, and preparation, including prioritizing issues and the development of strategy. It also requires patience, goodwill, and flexibility since compromise is an essential component.
Sometimes negotiations get bogged down because each side is more concerned over whose draftsmanship will appear in the contract rather than the meaning of the language. Don't be afraid to work from management's language, if necessary, after it has been analyzed and required changes have been made to reflect the union's needs.
All disputes within the union team should be resolved in private caucus since the union committee must be united at the bargaining table.
A “useful tactic to use from the first day is to get both teams into a “yes’ habit. Among other things:
• Attitude: Be agreeable whenever possible. Your presentation often gets results that the virtues of your proposals cannot alone produce. Be friendly, tactful, amusing, firm, conciliatory, or feisty as best suits the occasion. Few management officials can be badgered into doing what you think is right. Present yourself as one who wishes to find out rather than one who knows all the answers.
• Those who already agree with you may be biased, but your arguments are not aimed at them. To win over the opposition, you must appear to be governed by the inescapable facts rather than personal opinion.
• Agree with the opposition but only as far as you can. Such an approach will establish your reputation for fairness.
• The points you cannot concede to management's team should be rebutted. Anticipate management's arguments.
• Listen actively. You can’t effectively demand courtesy from management unless you demonstrate courtesy yourselves.
• When management agrees with your position but proves a conflict with an agency-wide regulation, ask them to join you to obtain an exception to the regulations or to draft contract language that ends the conflict but addresses the underlying problem.
• You can strengthen your case by appealing to management's sense of justice and fair play. Remember you must not only explain, you must also convince. Be humorous, surprised, or offended as best suits the situation,
III WHAT HAPPENS WHEN AGREEMENT IS REACHED?
Even when the two negotiating teams have reached a complete agreement on the terms of a contract, several steps must be taken before the contract goes into effect. Until those steps are completed, the contract is still a tentative agreement.
A. WHAT IS A TENTATIVE AGREEMENT?
The parties have a tentative agreement when they have, one way or another, disposed of all the proposals that have been presented. If you have kept decent records, it should be clear when that point is reached.
B. MEMBERSHIP APPROVAL AND EXECUTION
The tentative agreement should be voted on by the members. It is not necessary that they have the final text, as long as they are provided accurate summaries of the major changes. If the members disapprove the contract, you have to go back to the bargaining table to fix whatever the problems were. Therefore, it is essential that if there is any risk of defeat, there be plenty of debate, so the negotiating team knows exactly what the problems are.
Only union members can vote to approve or disapprove a tentative agreement. This opportunity to vote is a way to participate in setting one’s own working conditions, and there is no such thing as a free ride on participation.
Disapproval of the tentative agreement should not be felt as a criticism or repudiation of the negotiating committee. Without the risk of membership disapproval, the union negotiators cannot credibly reject management proposals on the grounds that those proposals are so unpopular with the members that they would threaten the entire contract.
Once the tentative agreement is approved by the membership, the union and management chief negotiators should execute a complete agreement: that is, sign and date it.
C. IF THERE ARE PENDING NEGOTIABILITY DISPUTES
The FLRA sometimes takes years to decide negotiability disputes. It is not uncommon, therefore, to have a situation where the parties have reached agreement on everything they bargained on, but they have bypassed the issues which are the subject of negotiability appeals. In most cases, the parties agree they have a complete new contract, subject to reopening if the FLRA rules in the union’s favor on negotiability. That agreement can either be placed in the contract’s duration clause, or may take the form of a separate memorandum of understanding.
In other cases, the parties will agree that the tentative agreements on all the other provisions really are dependent on the outcome of any bargaining on the disputed proposal.
And in a few cases, one party will want to complete the contract, subject to later reopening, while the other party will want to leave the contract uncompleted until the FLRA decides the negotiability issue and any further bargaining takes place. Whether it is the union or it is management that wants to delay will depend on the facts of the particular situation.
In rare situations the agency may try to insist that the parties hold up the effective date of the overall contract until the negotiability issues have been dealt with. In these cases, the local should consult with its National Representative, who will, if necessary, discuss the matter with OLMR.
D. AGENCY HEAD REVIEW
When an agreement has been reached in bargaining, management is required to immediately send it to the head of the agency for review. If he or she does nothing within 30 days, the agreement becomes binding automatically. If he or she approves the agreement within 30 days, it becomes binding on the date of approval. If he or she disapproves the contract within 30 days, the parties have to deal with the situation.
This process is full of anomalies. The only basis for disapproving a contract is extremely is extremely narrow—that the contract contains a provision so illegal as to be unenforceable. The inclusion of an unenforceable term may be untidy, but management can hardly be said to be injured by it.
The agency head almost always delegates his or her authority to approve or disapprove contracts to a different management official than the agency head had delegated authority to negotiate the contract.
In practice, agency head disapproval of a contract is often a power play by some irresponsible headquarters bureaucrat who wants to override the judgement of the management officials who are responsible for getting the job done.
It is not clear why managers continue to put up with this violation of their right to manage according to their best judgement.
In addition, the way the law reads, the agency head disapproves the entire contract as a whole, even though there is seldom any dispute over more than one or two provisions. The parties have to decide whether to implement the rest of the contract while litigating the specific provisions the agency head objected to.
1. When does the agency head’s 30 days begin?
The 30 day period for agency head review begins on the date the contract is “executed.” Normally, executed means signed by the two chief negotiators as a final agreement (even though, by definition, it is not yet final).
The period starts on the date of execution, not on the date the agency head receives the contract. If management neglects to forward a contract for agency head review, or fails to do so in sufficient time for the agency head to act, then the contract becomes automatically effective on the 31st day.
2. How to challenge agency head disapproval
An agency head’s disapproval of a contract is tantamount to a written allegation that specified provisions are outside the scope of bargaining. The union has ten days from receipt of this allegation to file a negotiability appeal with the FLRA. Once that appeal is filed, the case proceeds exactly as do cases which arise during bargaining.
Meanwhile, however, it may be possible to reword the disputed provision in a way that meets the legal problems without reducing the benefits to the employees. If that succeeds, you can then withdraw the negotiability appeal.
IV BARGAINING DURING TERM OF THE AGREEMENT
At least as important as negotiating an overall collective bargaining agreement every three or four years is the bargaining that occurs during the term of that agreement.
Mid-term bargaining can come up in a number of ways. First, and foremost, management may take actions, such as reducing the total number of employees, which necessarily affect working conditions. Second, there might be changes in laws or government-wide regulations which have to be implemented. Third, there may be subjects which were not addressed in the contract negotiations, but which one side or the other now wishes to deal with. Fourth, the parties may simply agree to revisit certain subjects before the overall contract expires.
A. WAIVER OF BARGAINING RIGHTS AND OBLIGATIONS
The main reason for a duration clause in a contract is that the parties want to leave unchanged the terms of that contract for a set period of time. Both parties know they will not have to deal with those particular issues again until the contact expires. In effect, both parties are waiving some of the rights they would otherwise have to make on insist on changes.
These waivers are seldom set out expressly, in understandable English, and in many cases management has falsely but successfully argued that the parties had agreed to a completely one-sided waiver.
If the union and management sign an agreement on some subject, without specifying any duration, then they do not waive any rights and obligations to bargain about that subject at any time in the future. The agreement, however, remains in effect and governs the subject until and unless the parties agree to amend or discard it. Either party can force the other party to the bargaining table and to the Federal Service Impasses Panel.
It is, therefore, imperative that your contract plainly state what can and what cannot happen during the term of the agreement. First, the parties must choose what they mean by “covered by the contract.” The two basic choices are these:
A condition of employment is covered by this agreement only to the extent that changing that condition would require changing an express provision of this agreement. A condition of employment is covered by this agreement if the general subject area is addressed or if either party had unsuccessfully proposed a provision within the general subject area.
Both these definitions are possible, and each has its own benefits and drawbacks. The critical thing is that the parties expressly adopt one or the other. The obvious drawback to the second option is that it does not allow the reader of a contract to know what it covers and what it does not. An entire subject area which is not even hinted at in the contract might be deemed covered by the contract because the union had proposed provisions in that area but for whatever reason had withdrawn those proposals.
Once the parties tentatively agree on the meaning of “condition of employment covered by this agreement”, they must turn to the actual waivers they intend. There seem to be three major options:
Conditions of employment not covered by this agreement will remain in effect throughout the term of the agreement.
Both parties waive their rights to initiate changes on these matters. Conditions of employment not covered by this agreement may be changed only by agreement of the parties.
Neither party waives its right to initiate changes on these matters. Conditions of employment not covered by this agreement may be changed unilaterally by management.
The union waives all its bargaining rights on these matters. Management waives nothing.
The first two are both reasonable, and each has its own benefits and drawbacks for each of the parties, strongly affected by the definition of “condition of employment” that they agree to.
The third option is ridiculous, and should never be agreed to by the union. It is, however, precisely the option which the Federal Labor Relations Authority infers the parties did agree to if they have not expressly considered the waiver issue.
There is one other issue that needs to be expressly addressed, and that is the effect of the agency’s own regulations that existed at the time the contract was agreed to. The two major options seem to be:
Agency policies and regulations consistent with this contract and in existence at the time the agreement was approved will remain in effect except to the extent changes are required by law or federal regulation. The terms of any such changes will be negotiated by the parties. Agency policies and regulations not covered by this contract can be changed at the initiative of either party followed by the agreement of both parties.
Again, it cannot be said that either of these options is better or worse than the other. The critical thing is that the parties expressly agree on what they want to do with existing policies and regulations.
B. MANAGEMENT-INITIATED CHANGES AFFECTING WORKING CONDITIONS
Except as discussed above, throughout the life of the contract management may propose changes to policies not controlled by the contract. Absent a waiver by the union, none of these changes can occur except by the agreement of the union or by order of the Federal Service Impasses Panel.
Contractual waivers of the union’s bargaining rights are discussed above. It is possible, however, for the union to waive its bargaining rights through inaction. If management informs the union that it intends to change a regulation, and the union ignores this notice, management is free to implement the change. Management some times tries to cheat, by unilaterally setting a short deadline for the union to demand bargaining, and treating the union’s failure to meet that deadline as a bargaining waiver.
The easiest thing to do is to simply respond immediately with a generalized demand to bargain followed up with ground rule proposals, information requests, and substantive proposals as time allows. A generalized demand would read as follows:
Local ____ hereby demands to bargain on the proposed changes identified in the attached notice from management. Presuming information requests are timely responded to, we propose that bargaining begin at 9:00 a.m. four weeks from today. Until we have considered the matter more thoroughly, we propose that the policy addressed by the attached notice be left unchanged. We may provide additional proposals later.
If the union had not even been notified of the proposed change before it went into effect, your bargaining notice should contain a demand that the change be rescinded pending completion of bargaining. Whether or not management complies with this demand, file a grievance or unfair labor practice charge challenging the original unilateral action.
C. UNION-INITIATED CHANGES IN WORKING CONDITIONS
Except as discussed above, throughout the life of the contract the union may propose changes to policies not controlled by the contract; this is usually done by proposing changes in agency regulations. A failure to respond to these proposals should be treated as an impasse, and the impasse resolution process discussed elsewhere in this manual should be followed.
D. REORGANIZATIONS, RIFS, AND CONTRACTING OUT
There are several stages in a successful fight to save employees’ jobs in the face of a management decision to reorganize or contract out:
1) Develop a better reorganization
2) Propose to bargain
3) If management refuses to bargain, fight politically
4) Bargain appropriate arrangements for those who nevertheless will be adversely affected
1. The merits of the reorganization
Employees, through their union, can often develop ways of achieving the mission of the agency more effectively and less expensively than plans management develops.
Once you have developed the alternative to management’s plan, you need to formally propose it and formally offer to bargain over it. If management accepts the offer, bargaining proceeds as on any other subject—except, because legally this is a permissive rather than mandatory subject for baragining, it is not illegal for either party to stop bargaining at any time. Part of the union’s job is to persuade management to continue to bargain until agreement is reached.
If management refuses to bargain in the first place, or it withdraws from bargaining without an agreement, the political fight must begin.
The critical point to keep in mind is that management’s refusal to even talk to the union about making the agency work better and cost less is literally indefensible. Management is faced with a dilemma: either enter a process that will result in the union saving the employees’ jobs, or admit to the taxpayers (and their congressional representatives) that effectiveness and cost savings are less important than management’s prerogatives.
Once management is forced to the bargaining table by political pressure or public opinion, its ability to arbitrarily reject the union’s position on the merits will seriously compromised. That is to say, management will be motivated to actually bargain in good faith.
2. The effects of the reorganization
At the same time we are fighting to revise the reorganization so no one will be hurt, we are entitled to bargain on behalf of each employee who would be adversely affected by the management plan.
Indeed, management is not allowed to implement its reorganization until bargaining over each employee’s situation has been completed, either by voluntary agreement or by third-party impasse resolution. This provides a certain incentive to management to either revise the reorganization so no one will be adversely affected, or to treat each adversely affected employee fairly and reasonably.
V CONTRACT EXPIRATIONS AND ROLL-OVERS
Almost by definition, a comprehensive collective bargaining agreement has an expiration date. A collective bargaining agreement with an epiration date is a “term agreement.” Here is what that means in practice.
A note on nomenclature: legally, all of the following mean the same thing:
collective bargaining agreement
memorandum of understanding
memorandum of agreement
Practitioners tend to use the first two terms to describe comprehensive agreements that have duration clauses (e.g., “this contract will remain in effect for three years”) and grievance procedures. They tend to use the second two terms to describe agreements that cover individual subjects and which do not have duration clauses or their own grievance procedures. The labels, however, have absolutely no legal effect.
A. CONTRACT EXPIRATION
When a term agreement expires, usually after three years, there is often a period between the expiration date and the effective date of the next contract (due to the time it takes to complete bargaining and then complete the approval process). During that period, an agency may be tempted to make changes to the old agreement. If a national or regional contract is involved, the same local changes may be proposed at numerous activities around the country during the same open period.
Certain rules of law affect this situation:
1) The labor relations law requires maintaining the status quo on mandatory subjects unless they are changed through the collective bargaining process, that is, by notifying the other party and bargaining upon demand concerning the proposed change.
2) The labor relations law also permits either party to unilaterally rescind provisions on permissive subjects by notifying the other party.
3) Parties can agree by contract to obligations beyond what the Statute requires.
4) Efficiency and stability are overriding considerations in labor-management relations. It generally makes no sense to introduce individual changes to the term agreement after it expires and during the period when the parties are negotiating the next term agreement or are preparing to do so.
The FLRA has held it is legal to provide such efficiency and stability through provisions in agreements that require "Conditions created by this collective bargaining agreement will remain in effect while a new agreement is negotiated." This kind of language avoids piecemeal changes made after the expiration of a term agreement on matters that will be renegotiated as part of the next term agreement.
B. ROLLING OVER
The typical AFGE contract provides that if neither party moves to reopen during the period 120 to 90 days before the contract expiration date, the contract is automatically renewed or extended for a year. If nobody moves to reopen during the open period toward the end of that year, there is another automatic renewal. And so forth.
For all practical purposes, the contract during the extension period is identical to the contract during the original period.
VI SCOPE OF BARGAINING
A. SIGNIFICANCE OF SCOPE OF BARGAINING ISSUES
All possible bargaining subjects fall into three categories:
illegal or prohibited
If a proposal is within the mandatory scope of bargaining, management cannot legally refuse to bargain over it; the Federal Services Impasses Panel can impose it on the parties; and either party can tie agreement on that proposal to agreements on other mandatorily negotiable proposals.
If the proposal is permissive or illegal, either party can legally refuse to bargain over it; the Federal Service Impasses Panel cannot impose it as a contract term; and it an unfair labor practice for either party to condition agreement on a mandatory subject upon agreement on the non-mandatory proposal.
In addition, an agreement on an illegal subject is void, and either party may, with impunity, repudiate that agreement. In contrast, an agreement on a permissive subject is binding for the life of the contract.
B. ANALYZING SCOPE OF BARGAINING ISSUES
It is useful to understand the basic framework used by the FLRA for deciding negotiability cases.
1. “Affecting working conditions” or not
The FLRA first determines whether the proposal generally concerns conditions of employment in a union’s bargaining unit. They nearly always do, otherwise why would you be making the proposal? If so, it then is management’s burden to persuade the FLRA that the proposal is nevertheless outside the mandatory scope of bargaining. The union does not have to show that Congress explicitly placed the particular subject within the mandatory scope; management must show the exclusion was intended.
2. Excluded by law or government-wide regulation
To rely on this exception, management first has to show there is an actual law or government-wide regulation, in contrast to mere OPM guidance or to some lawyer’ s peculiar understanding of the law.
Management then has to show a clear inconsistency between the union’s proposal and the law or regulation. The critical test here is whether the law or regulation would allow management, in the absence of a union, the discretion to adopt the policy that is now being proposed. If so, the proposal is within the scope of bargaining. In this situation, management must bargain within the limits of what would otherwise be its discretion.
3. Excluded by other regulation
The labor relations law states that if AFGE represents the majority of eligible employees in an agency or primary national subdivision (e.g., DOD as the agency or the Air Force as a primary national subdivision), regulations of the agency or subdivision, respectively, have no limiting effect on the scope of bargaining. At the present time, however, AFGE does not represent the requisite number of employees in DOD or any of its primary national subdivisions. Therefore, management within DOD can refuse to bargain over a proposal that would change an agency regulation, but only if there is a compelling need for the regulation. That situation exists in many other agencies and agency subdivisions.
Fortunately, management is rarely able to meet the compelling need standard.
4. Prohibited by section 7106(a)
The management rights provision (Section 7106(a) of the labor relations law) reflects Congress’ fear that the union negotiators are so much more skillful than management that, unless restrained, management will simply abdicate its responsibility to basically run the agency.
Probably every matter that affects working conditions also affects management authority in section 7106(a) areas. The FLRA and the courts have given a more restrictive reading to much of section 7106(a). Most importantly, they have created a distinction between the exercise of a subsection (a) right and the procedures by which that right will be exercised as well appropriate arrangements for employees adversely affected by management’s action. That distinction is discussed below.
§ 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency--
(1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and
(2) in accordance with applicable laws--
(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;
(C) with respect to filling positions, to make selections for appointments from--
(i) among properly ranked and certified candidates for promotion; or
(ii) any other appropriate source; and
(D) to take whatever actions may be necessary to carry out the agency mission during emergencies.
(b) Nothing in this section shall preclude any agency and any labor organization from negotiating--
(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;
(2) procedures which management officials of the agency will observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.
Authority to Determine its Budget: In Wright-Patterson, 2 FLRA No. 77, the Authority constructed a balancing test for determining when a proposal violates management's rights to determine its budget. In Wright-Patterson the Authority found that:
The Agency's authority to determine its budget extends to the determination of the programs and operations which will be included in the estimate of proposed expenditure and the determinations of the amounts required to fund them. Under the Statute, therefore, an agency cannot be required to negotiate those particular budgetary determinations. That is, a union proposal attempting to prescribe the particular program or the operations the agency would include in its budget or prescribe the amount to be allocated in its budget for them would infringe on an agency's right to determine its budget under section 7106(a)(1).
In AFGE Local 1857, 36 FLRA No. 85, the Authority devised a two prong test for determining if a union proposal violated management's right to determine its budget. The first test is very narrow. Under this test, a proposal cannot specify the program to be included in an agency's budget or the amounts to be allocated to those programs. Even if a proposal does not attempt to determine the programs or the amount of money to be allocated to those programs, the Authority still might determine that the proposal is outside the scope of bargaining. Under the Authority's second test, the agency must make a substantial demonstration that the proposal would lead to increased costs that are significant, unavoidable and not offset by compensating benefits.
If management claims that a union proposal is non-negotiable because it directly interferes with management’s right to determine its budget, the union should demand that management demonstrate at the table how each of the two prongs of this test are met. At the table, the union should demand that the agency show how the proposal requires a particular amount or item to be included in the agency’s budge; AND how the increased costs required by the proposal, if any, outweigh the benefits. If management cannot demonstrate both of those factors, then the proposal is clearly negotiable. Once the union convincingly demonstrates that the benefits outweigh the additional costs, then there should no reason for the agency to refuse to agree to the proposal itself.
To Determine its Organization
An agency has the right to determine its organizational structure. The right of an agency to determine its organization structure "refers to the administrative and functional structure of an agency, including the relationships of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties. This right encompasses the determination of how an agency will structure itself to accomplish its mission and functions. This determination includes such matters as the geographic locations in which an agency will provide services or otherwise conduct its operations, how various responsibilities will be distributed among the agency's organizational subdivisions, how an agency's organizational grade level structure will be designed, and how the agency will be divided into organizational entities such as sections.” NTEU Chapter 83 and Department of the Treasury, IRS, 35 FLRA No. 53, (1990).
When there are multiple locations where the agency’s work is performed, the determination of which emloyee will work at a particular location is negotiable, unless a relationship exists between job location and job duties.
To Determine Number of Employees
This is a straightforward right. Just as an agency has the right to determine its organizational structure, it also has the right to determine how many employees it needs to accomplish this task. Like many of management's retained rights, the union can propose contract language that provide certain procedures on how employees are hired and under what conditions they are promoted or disciplined. However, any proposal that seeks to dictate the number of employees within an organization or a sub-component of an organization will be found by the Authority to be outside the mandatory scope of bargaining.
Determine Internal Security
The Authority has found that:
the term 'internal security practices' includes those policies and actions which are part of the Agency's plan to secure or safeguard its personnel, physical property, and operations against internal or external risks. Moreover, the Authority stated that 'the determination of the practices and policies which are necessary to the accomplishment of the security function of an agency, including the equipment to be used and the assignment of personnel, is directly related to the determination of an agency's internal security practices.'"
Providence, 32 FLRA 944, 956-57 (1988).
This means if management claims a union proposal is non-negotiable because it interferes with the right to determine internal security, at the table the union should demand that management demonstrate: 1) that it has an internal security policy and what its purpose is; and 2) how the union proposal conflicts with the internal security policy and its purpose. If the agency cannot demonstrate both points, then the union should continue to pursue the proposal and may decide to file a negotiability appeal.
Management's rights under 7106(a)(2) must be exercised "in accordance with applicable laws”. While management has a right to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees, these rights must be exercised in accordance with the law.
An allegation that management is violating a law when exercising these rights can be pursued as a grievance. For instance, management has the right to discipline an employee, however, such action must be taken in accordance with existing laws, rules and regulations. If it is found that the employee was improperly disciplined, then the discipline can be reduced or reversed by an arbitrator or by the Merit Systems Protection Board. A brief discussion on each of these rights is below.
The employer has the right to hire any qualified employee. The union can not dictate that the employer hire any particular person.
This refers to management's right to assign projects, or other work.
Management has the right to not only assign a particular task, they also have the right to tell an employee how to accomplish the task.
To Layoff and Retain
The agency has the right to enact a reduction in force or to furlough employees. These rights are not unfettered and there is a myriad of regulations and laws which management must comply with. 5 CFR Part 335.
To Suspend, Remove, Reduce in Grade or Pay, or take other Disciplinary Action Against such Employees
All these actions relate to discipline. A reduction in grade or pay, a removal, and a suspension in excess of fourteen (14) days are all considered more severe disciplinary actions and are often referred to as adverse actions. Adverse actions usually can either be grieved or adjudicated by the Merit Systems Protection Board.
There are numerous contractual, regulatory and legal requirements covering nearly every aspect of how these rights are exercised covering everything from the amount of advance notice an employee has to ensuring every action by management is for just cause.
7106(a)(2)(B) Rights: To assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted
This applies to assigning work, and determining personnel by which agency operations shall be conducted.
Management invariably makes broad claims that anything involving assignment of work is non-negotiable. The truth is many aspects of union proposals that involve work assignments are negotiable, such as shift assignment, overtime, alternative work schedules, holiday pay, rotation, use of seniority, etc.
7106(a)(2)(C) Right: To select from any appropriate source.
To select from any appropriate source – Proposals which require management to consider inside sources first are negotiable. However, management is allowed to keep its discretion in deciding the source for the ultimate selection.
7106(a)(2)(D) Right: To take necessary actions during emergencies.
By definition, in a true emergency (such as a fire, or a terrorist attack on the facility), steps may need to be taken immediately, without regard to the normal rules of bargaining. This is true in the private sector as well as in the public sector.
Development of procedures or policy that are to be followed when the agency declares an emergency are negotiable. In an actual emergency, the obligation to bargain after the emergency still exists.
a) Apparently prohibited by 7106(a), but made permissible by 7106(b)(1)
There is no law against bargaining over the number, types and grades of employees, or the methods, means and technology of performing work, even though these subjects necessarily overlap section 7106(a) subjects. However, since they are not mandatory, we are unable to have the Federal Services Impasses Panel impose language in these areas.
At the same time, if management at the Local level agrees to a proposal within subsection (b)(1), that agreement cannot be disapproved by the head of the agency even though it otherwise clearly interferes with a subsection 7106(a) authority.
b) Procedures for implementing management rights are mandatory topics for bargaining)
Subsection (b)(2) creates a distinction between the exercise of a subsection (a) right, and the procedures used in that exercise. For example, management has a subsection (a) right to discipline employees. The union retains the right to bargain procedures to determine whether and who should be disciplined.
First, the agency must identify the subsection (a) right which allegedly is being affected. If management does this, we can argue that the agency is wrong. However, assuming our proposal would have some impact on a subsection (a) right, the next question is whether the provision itself is clearly procedural in form. If so, it is negotiable unless management can prove that the procedure would keep it from acting at all.
However, if management shows that the union’s proposal is one that sets procedures by which management must act, then, to bar bargaining, management needs only to prove that the proposal would directly interfere with decision-making. It is not at all clear what “direct interference” means in this context.
c) Appropriate arrangements for employees adversely affected by the exercise of a management right are mandatory topics for bargaining
Subsection (b)(3) reserves the union’s right to bargain over appropriate arrangements for employees adversely affected by the exercise of any subsection (a) management right, even if the proposal itself would otherwise violate subsection (a).
For example: ordering a reduction in force is an (a)(2)(A) management right. Selecting candidates for a vacancy from any appropriate source is an (a)(2)(C) management right. But the right to select from any appropriate source is not an impediment to bargain over a union proposal that employees laid off in a RIF be non-competitively rehired for the first vacancies for which they qualify.
The reason is that the union proposal is an appropriate arrangement for employees injured by the reduction in force.
The starting point of a (b)(3) case is that there are employees adversely affected by the exercise of a management right. The objective of the union proposal is to avoid or reduce that injury. If that can be done without interfering with some other management right, then there is no obstacle to bargaining in the first place.
In order for there even to be a dispute, management must demonstrate that 7106(a) would bar bargaining in the absence of special circumstances. If management succeeds, then the union must demonstrate that the proposal would create an appropriate arrangement for the adversely affected employees.
Several points are obvious: if there are no adversely affected employees, (b)(3) simply cannot and does not come into play. If the proposal would not avoid or reduce the adverse impact on those employees, (b)(3) does not come into play.
Thus, the only real dispute is whether the proposal is an appropriate, in contrast to an inappropriate, arrangement; and that depends on the merits of the proposal. That is, the FLRA weighs the benefit to the employees of the proposal against the degree of interference with management’s authority.
Remember that management can refuse to bargain over changes in “agency-wide” regulations and regulations of a primary national subdivision, but only if there is a compelling need for the refusal.
The regulations of activities that are not either agencies or primary national subdivisions have no bearing at all on bargaining.
VII OBTAINING INFORMATION
Employers, whether private sector or government, have data useful to unions in collective bargaining. There are two ways to obtain data from your agency.
A. UNDER THE LABOR RELATIONS LAW
Your agency is required to provide you, free of charge, information that you need for bargaining, subject to certain exceptions. Specifically, an agency must furnish information to a union, upon request and to the extent not prohibited by law, if that information is: (1) normally maintained by the agency; (2) reasonably available; (3) necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (4) not guidance, advice, counsel or training related to collective bargaining..
Your information request should state expressly why you need the information, even though that is usually obvious. A failure to do so may lead to an unnecessary delay in receiving the information.
B. UNDER THE FREEDOM OF INFORMATION ACT
When you want to get documents from management, and there is reason to doubt that management will be cooperative, you should request the material under both the Freedom of Information Act (FOIA) and the labor relations law. There are several reasons for including the FOIA as a basis for the information request:
* the FOIA covers some documents which the agency does not have to disclose under the labor relations law ;
* the agencies take far more seriously their responsibilities under the FOIA than they do the labor relations law;
* even if a document turns out to be exempt from disclosure under the FOIA, the agency has to at least admit its existence;
* there are enforceable deadlines for compliance with FOIA requests.
The biggest drawback to using the FOIA is that under certain circumstances you can be charged for search time and for duplication. Some managers may find an irresistible temptation to discourage use of the FOIA by threatening improper charges. The sample letter contains language to protect against this. The letter should be addressed to whomever you normally send document requests.
Dear [ ]:
This is to request the following information pursuant to the Freedom of Information Act and 5 U.S.C. 7114(b)(4):
[Describe, as clearly as you can, the information or documents being sought. You should also clearly state how the information relates to carrying out your representation function . Consult the FLRA General Counsel's 1996 memorandum on this subject. www.flra.gov/gc/inf_guid.html].
Because one of the reasons the information is being requested is to contribute to public understanding of the operation or activities of the agency, we request that any fees assessable under the FOIA be waived. If the agency intends to charge any fees, please provide an estimate prior to any being incurred.
You are reminded that you must respond to the FOIA portion of this request within ten working days. If you are not the proper person to respond to the FOIA portion of this request, please forward it to that person.
Alternatively, you can send two separate letters, one under the FOIA and one under the labor relations law:
Dear [ ]:
This is to request the following information pursuant to 5 U.S.C. 7114(b)(4):
[Describe, as clearly as you can, the information or documents being sought. You should also clearly state how the information relates to carrying out your representation function. Consult the FLRA General Counsel's 1996 memorandum on this subject. www.flra.gov/gc/inf_guid.html].
Sincerely, Dear [ ]:
This is to request the following information pursuant to the Freedom of Information Act:
[Describe, as clearly as you can, the information or documents being sought.]
Because one of the reasons the information is being requested is to contribute to public understanding of the operation or activities of the agency, we request that any fees assessable under the FOIA be waived. If the agency intends to charge any fees, please provide an estimate prior to any being incurred.
You are reminded that you must respond to this request within ten working days.
If you are not the proper person to respond to this request, please forward it to that person.
Two additional points should be kept in mind. First, if a document is releasable under both the FOIA and the labor relations law, and the agency wants to charge you under the FOIA, tell it you'll take it instead under the labor relations law. Second, the agency might admit the existence of a particular document but claim it is exempt from disclosure under the FOIA, but might still have to disclose it under the labor relations law. In either event, the main benefits to using the FOIA are: it forces management to admit the existence of documents which management might deny existed if the request were made under the labor law only; and the union does not have to limit its request by excluding documents that constitute internal management guidance on labor relations matters.
VIII PARTNERSHIP, PRE-DECISIONAL INVOLVEMENT, AND WORK GROUPS
Partnership and collective bargaining are not mutually exclusive concepts. On the contrary, the fact that an agreement was reached in a partnership forum does not somehow make it something other than an enforceable collective bargaining agreement.
There is no particular format required for collective bargaining. The fact that a method other than traditional adversary negotiations is used does not keep a partnership solution from being just as binding as any other collectively bargained agreement.
To avoid disputes, the union and management should expressly discuss at the outset whether the solution they reach in partnership will be a binding agreement or whether, instead, the parties will then have to engage in some other kind of bargaining in order to reach a binding agreement.
A phony partnership is worse than no partnership at all. In a real partnership, the partnership council will either make binding decisions or will make recommendations to the union and management both. A phony partnership gives management final, unilateral decision-making authority on matters that should be bargained.
B. BARGAINING IS PRE-DECISIONAL INVOLVEMENT
Some managers offer the union "pre-decisional involvement," often shortened to "PDI", as an alternative to bargaining. The suggestion is that by offering PDI to the union regarding a management-initiated change, management avoids the need to bargain.
Actually, collective bargaining itself (or "negotiating") is a perfect example of pre-decisional involvement. The result of the bargaining is a decision—the language in the contract—that the parties make jointly. If management wants, for example, a procedure for filling vacancies through merit selection, the parties meet, reach an agreement (or have an agreement imposed on them by the Federal Service Impasses Panel), and thus decide what the procedure should be. This pre-decisional involvement by the employees through their union is in stark contrast to the normal process in a non-union environment, where management unilaterally develops the selection procedure, announces it, and then allows employees to comment.
Congress has determined, by law, that pre-decisional involvement of employees through collective bargaining is in the public interest:
"the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them . . . safeguards the public interest [and] contributes to the effective conduct of public business . . . " 5 U.S.C. § 7101(a).
At the same time, we recognize that many individual issues do not warrant highly formalized bargaining. The important thing is that the parties sit down together, make a good-faith effort to reach agreement, and comply with any agreement that is reached. It does not matter if management insists on calling this informal process "pre-decisional involvement" rather than bargaining or negotiations.
What has been called pre-decisional involvement has often occurred as a prelude to a reorganization. Management wants employees to participate in deciding how a particular office should be staffed, and what changes in technology should be adopted. It makes more sense to have employee participation prior to making the decision rather than afterwards. Management does not have the right, however, to unilaterally determine the mode of the employee involvement.
Note, moreover, that pre-decisional involvement on issues concerning a possible reorganization can be initiated by the union. There is no need to wait for management to decide it would benefit from that type of employee participation.
The perfect model of pre-decisional involvement is collective bargaining. Accept no substitutes.
The result of bargaining, whether or not called pre-decisional involvement, is a signed, written agreement that can be enforced by a neutral third party. If you do not insist on clear written agreements, you may be waiving the union’s right to actually bargain.
Management sometimes appoints bargaining unit employees to workgroups or task forces in such areas as EEO, reorganizations, training, awards, and efficiency improvement. Sometimes management claims that this meets its obligation to bargain with the union over those subjects. That simply is not true. Unless the union and management have clearly authorized the members of the workgroup to reach an agreement binding on both parties, then the most the workgroup can do is make recommendations. Those recommendations can be considered by the union and management, but are not a substitute for actual bargaining.
IX PRIVATE SECTOR COLLECTIVE BARGAINING
While the vast majority of AFGE bargaining units are in the federal and the District of Columbia sector, AFGE does, in fact, represent and bargain on behalf of private sector workers. While the basic techniques regarding how to bargain remain virtually the same between federal and private sector workers, there are important legal distinctions governing private sector bargaining.
Earlier chapters in this guide explained the role of the FLRA and the FSIP, which govern federal labor management relations. Private sector labor law, however, is governed by the National Labor Relations Board, which administers the National Labor Relations Act, the primary law governing relations between unions and employers in the private sector. The statute guarantees the right of employees to organize and to bargain collectively with their employers. The Act implements the national labor policy of assuring free choice and encouraging collective bargaining as a means of maintaining industrial peace. Through the years, Congress has amended the Act and the Board and courts have developed a body of law drawn from it,
A. WHAT DOES THE NLRB DO?
In its statutory assignment, the NLRB has two principal functions: (1) to determine, through secret-ballot elections, the free democratic choice by employees whether they wish to be represented by a union in dealing with their employers and if so, by which union; and (2) to prevent and remedy unlawful acts, called unfair labor practices, by either employers or unions. The NLRB does not act on its own motion in either function. It processes only those charges of unfair labor practices and petitions for employee elections that are filed with the NLRB in one of its 52 Regional, Subregional, or Resident Offices.
B. HOW ARE UNFAIR LABOR PRACTICE CASES PROCESSED?
When an unfair labor practice charge is filed, the appropriate field office conducts an investigation to determine whether there is reasonable cause to believe the Act has been violated. If the Regional Director determines that the charge lacks merit, it will be dismissed unless the charging party decides to withdraw the charge. A dismissal may be appealed to the General Counsel’s office in Washington, DC.
If the Regional Director finds reasonable cause to believe a violation of the law has been committed, the region seeks a voluntary settlement to remedy the alleged violations. If these settlement efforts fail, a formal complaint is issued and the case goes to hearing before an NLRB Administrative Law Judge. The judge issues a written decision that may be appealed to the five-Member Board in Washington for a final agency determination. The Board’s decision is subject to review in a U.S. Court of Appeals. Depending upon the nature of the case, the General Counsel’s goal is to complete investigations and, where further proceedings are warranted, issue complaints if settlement is not reached within 7 to 15 weeks from the filing of the charge. Of the total charges filed each year, about 35,000, approximately one-third are found to have merit of which over 90% are settled.
C. INJUNCTIONS AGAINST UNFAIR LABOR PRACTICES
Section 10(j) of the National Labor Relations Act empowers the NLRB to petition a federal district court for an injunction to temporarily prevent unfair labor practices by employers or unions and to restore the status quo, pending the full review of the case by the Board. In enacting this provision, Congress was concerned that delays inherent in the administrative processing of unfair labor practice charges, in certain instances, would frustrate the Act’s remedial objectives. In determining whether the use of Section 10(j) is appropriate in a particular case, the principal question is whether injunctive relief is necessary to preserve the Board’s ability to effectively remedy the unfair labor practice alleged, and whether the alleged violator would otherwise reap the benefits of its violation.
Under NLRB procedures, after deciding to issue an unfair labor practice complaint, the General Counsel may request authorization from the Board to seek injunctive relief. The Board votes on the General Counsel’s request and, if a majority votes to authorize injunctive proceedings, the General Counsel, through his Regional staff, files the case with an appropriate Federal district court.
In addition, Section 10(l) of the Act requires the Board to seek a temporary federal court injunction against certain forms of union misconduct, principally involving “secondary boycotts” and “recognitional picketing.” Finally, under Section 10(e), the Board may ask a federal court of appeals to enjoin conduct that the Board has found to be unlawful.
D. COLLECTIVE BARGAINING UNDER THE NLRA
Collective bargaining is one of the keystones of the Act. Section 1 of the Act declares that the policy of the United States is to be carried out “by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”
Collective bargaining is defined in the Act. Section 8(d) requires an employer and the representative of its employees to meet at reasonable times, to confer in good faith about certain matters, and to put into writing any agreement reached if requested by either party. The parties must confer in good faith with respect to wages, hours, and other terms or conditions of employment, the negotiation of an agreement, or any question arising under an agreement.
These obligations are imposed equally on the employer and the representative of its employees. It is an unfair labor practice for either party to refuse to bargain collectively with the other. The obligation does not, however, compel either party to agree to a proposal by the other, nor does it require either party to make a concession to the other.
Section 8(d) provides further that when a collective-bargaining agreement is in effect no party to the contract shall end or change the contract unless the party wishing to end or change it takes the following steps:
1. The party must notify the other party to the contract in writing about the proposed termination or modification 60 days before the date on which the contract is scheduled to expire. If the contract is not scheduled to expire on any particular date, the notice in writing must be served 60 days before the time when it is proposed that the termination or modification take effect.
2. The party must offer to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed changes.
3. The party must, within 30 days after the notice to the party, notify the Federal Mediation and Conciliation Service of the existence of a dispute if no agreement has been reached by that time. Said party must also notify at the same time any State or Territorial mediation or conciliation agency in the State or Territory where the dispute occurred.
4. The party must continue in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract until 60 days after the notice to the other party was given or until the date the contract is scheduled to expire, whichever is later.
1. Required Subjects of Bargaining
The duty to bargain covers all matters concerning rates of pay, wages, hours of employment, or other conditions of employment. These are called “mandatory” subjects of bargaining about which the employer, as well as the employees’ representative, must bargain in good faith, although the law does not require “either party to agree to a proposal or require the making of a concession.” In addition to wages and hours of work, these mandatory subjects of bargaining include but are not limited to such matters as pensions for present employees, bonuses, group insurance, grievance procedures, safety practices, seniority, procedures for discharge, layoff, recall, or discipline, and union security. Certain managerial decisions such as subcontracting, relocation, and other operational changes may not be mandatory subjects of bargaining, even though they affect employees’ job security and working conditions. The issue of whether these decisions are mandatory subjects of bargaining depends on the employer’s reasons for taking action. Even if the employer is not required to bargain about the decision itself, it must bargain about the decision’s effects on unit employees. On “nonmandatory” subjects, that is, matters that are lawful but not related to “wages, hours, and other conditions of employment,” the parties are free to bargain and to agree, but neither party may insist on bargaining on such subjects over the objection of the other party.
2. Duty to Bargain Defined
An employer who is required to bargain under this section must, as stated in Section 8(d), “meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party.”
3. What Constitutes a Violation of the Duty to Bargain
An employer, therefore, will be found to have violated Section 8(a)(5) if its conduct in bargaining, viewed in its entirety, indicates that the employer did not negotiate with a good-faith intention to reach agreement. However, the employer’s good faith is not at issue when its conduct constitutes an out-and-out refusal to bargain on a mandatory subject. For example, it is a violation for an employer, regardless of good faith, to refuse to bargain about a subject that it believes is not a mandatory subject of bargaining, when in fact it is.
4. Duty to Supply Information
The employer’s duty to bargain includes the duty to supply, on request, information that is “relevant and necessary” to allow the employees’ representative to bargain intelligently and effectively with respect to wages, hours, and other conditions of employment.
Note to union negotiators: Prior to negotiations, the labor negotiators should request, in writing, from the designated management representative the following information.
1. Aggregate base salaries for a calendar year for all employees in the bargaining unit.
2. Aggregate cost of the employer’s contributions for health and welfare, optical, and dental.
3. Aggregate cost of the employer’s contributions for pension, and 401(k), if applicable.
4. Copies of all health and welfare and pension documents.
E. UNFAIR LABOR PRACTICES (EMPLOYERS)
Section 8(a)(1) forbids an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Any prohibited interference by an employer with the rights of employees to organize, to form, join, or assist a labor organization, to bargain collectively, to engage in other concerted activities for mutual aid or protection, or to refrain from any or all of these activities, constitutes a violation of this section. This is a broad prohibition on employer interference, and an employer violates this section whenever it commits any of the other employer unfair labor practices. In consequence, whenever a violation of Section 8(a) (2), (3), (4), or (5) is committed a violation of Section 8(a)(1) is also found. This is called a “derivative violation” of Section 8(a)(1).
Examples of employer unfair labor practices include:
Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity.
Threatening to close the plant if employees select a union to represent them.
Questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act.
Promising benefits to employees to discourage their union support.
Transferring, laying off, terminating or assigning employees more difficult work tasks because they engaged in union or protected concerted activity.
Spying on union gatherings or pretending to spy.
F. UNFAIR LABOR PRACTICES (UNIONS)
Section 8(b)(1)(A) forbids a labor organization or its agents “to restrain or coerce employees in the exercise of the rights guaranteed in section 7.” The section also provides that it is not intended to “impair the rights of a labor organization to prescribe its own rules” concerning membership in the labor organization.
Unlawful coercion may consist of acts specifically directed at an employee such as physical assaults, threats of violence, and threats to affect an employee’s job status. Coercion also includes other forms of pressure against employees such as acts of a union while representing employees as their exclusive bargaining agent. A union that is a statutory bargaining representative owes a duty of fair representation to all the employees it represents. It may exercise a wide range of reasonable discretion in carrying out the representative function, but it violates Section 8(b)(1)(A) if, while acting as the employees’ statutory bargaining representative, it takes or withholds action in connection with their employment because of their union activities or for any irrelevant or arbitrary reason such as an employee’s race or sex.
Some examples of union unfair labor practices are:
Threats to employees that they will lose their jobs unless they support the union’s activities.
Refusing to process a grievance because an employee has criticized union officers.
Fining employees who have validly resigned from the union for engaging in protected activity following their resignation.
Seeking the discharge of an employee for not complying with a union shop agreement, when the employee has paid or offered to pay a lawful initiation fee and periodic dues.
Refusing referral or giving preference in a hiring hall on the basis of race or union activities.
Fining or expelling members for filing unfair labor practice charges with the Board or for participating in an investigation conducted by the Board.
G. THE RIGHT TO STRIKE
Section 7 of the Act states in part, “Employees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Strikes are included among the concerted activities protected for employees by this section. Section 13 also concerns the right to strike. It reads as follows:
Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.
1. Lawful and Unlawful Strikes
The lawfulness of a strike may depend on the object, or purpose, of the strike, on its timing, or on the conduct of the strikers. The object, or objects, of a strike and whether the objects are lawful are matters that are not always easy to determine. Such issues often have to be decided by the National Labor Relations Board. The consequences can be severe to striking employees and struck employers, involving as they do questions of reinstatement and backpay.
Employees who strike for a lawful object fall into two classes, “economic strikers” and “unfair labor practice strikers.” Both classes continue as employees, but unfair labor practice strikers have greater rights of reinstatement to their jobs.
2. The Definition of Economic Strikes
If the object of a strike is to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions, the striking employees are called economic strikers. They retain their status as employees and cannot be discharged, but they can be replaced by their employer. If the employer has hired bona fide permanent replacements who are filling the jobs of the economic strikers when the strikers apply unconditionally to go back to work, the strikers are not entitled to reinstatement at that time. However, if the strikers do not obtain regular and substantially equivalent employment, they are entitled to be recalled to jobs for which they are qualified when openings in such jobs occur if they, or their bargaining representative, have made an unconditional request for their reinstatement.
3. The Definition of Unfair Labor Practice Strikes
Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor practice strikers. Such strikers can be neither discharged nor permanently replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs back even if employees hired to do their work have to be discharged.
If the Board finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer, the Board may award such strikers backpay starting at the time they should have been reinstated.
4. Strikes Unlawful Because of Misconduct of Strikers
Strikers who engage in serious misconduct in the course of a strike may be refused reinstatement to their former jobs. This applies to both economic strikers and unfair labor practice strikers. Serious misconduct has been held to include, among other things, violence and threats of violence. The U.S. Supreme Court has ruled that a “sitdown” strike, when employees simply stay in the plant and refuse to work, thus depriving the owner of property, is not protected by the law. Examples of serious misconduct that could cause the employees involved to lose their right to reinstatement are:
Strikers physically blocking persons from entering or leaving a struck plant.
Strikers threatening violence against nonstriking employees.
Strikers attacking management representatives.
H. SOURCES OF INFORMATION REGARDING PRIVATE SECTOR EMPLOYERS
The Securities and Exchange Commission has responsibility to protect investors and maintain the integrity of the securities markets. All publicly held companies are required to file extensive financial reports with the SEC. The Division of Corporation Finance oversees corporate disclosure of important financial information to the public. This information is quite valuable to union negotiators in preparing for private sector negotiations. The Division of Corporation Finance reviews documents that publicly held companies are required to file with the Commission. The documents include:
registration statements for newly offered securities;
annual and quarterly filings (Forms 10-K and 10-Q);
proxy materials sent to shareholders before an annual meeting;
annual reports to shareholders;
documents concerning tender offers (a tender offer is an offer to buy a large number of shares of a corporation, usually at a premium above the current market price); and
filings related to mergers and acquisitions.
Other Sources of Information
It is common for private sector companies to have collective bargaining agreements with multiple unions. Therefore, prior to negotiations it is useful to check with other AFL-CIO affiliates to determine if any affiliate has an existing collective bargaining agreement with a specific employer. All affiliates should willingly provide AFGE with copies of these collective bargaining agreements.
HOW TO RUN A LOCAL MEETING
Prepared by the Office of the General Counsel
In conjunction with the Legal Rights Committee of the National Executive Council
Table of Contents
1. Why Parliamentary Law? 1
Where the Rules Came From 1
Knowing the Rules 1
2. What Makes A Good Meeting? 2
What Officers Can Do to Improve Meetings 2
Checklist to Improve Union Meetings 3
3. Let's Plan Meetings 4
Unanimous Consent 4
4. What Makes a Good Chair? 4
What Does the Chair Have to Know? 5
What Does the Chair Do? 5
5. The Recording Secretary 6
6. The Local Treasurer 7
7. Committees and Their Reports 7
Types of Committees 8
Committees at Work 8
Preparing and Presenting Committee Reports 8
Acting on Committee Reports 9
Minority Reports 9
8. Basic Rules of Order - How Motions Get Action 9
How Motions Are Made 9
Stating the Question 10
Discussing the Motion 10
Amendments or a Substitute Motion? 10
Amendments to an Amendment 11
By General Consent 11
By Voice 11
By Show of Hands 12
By Roll Call 12
Vote by Ballot 12
Tie Vote 12
9. How Action Takes Place 12
Make the Motion First 12
Getting a Second 12
An Amendment 13
One Thing at a Time 13
Vote on the Amendment 13
10. Motions to Help Keep Order 14
Point of Order 14
Appeal from the Decision of the Chair 14
Point of Information 15
Parliamentary Inquiry 15
Question of Privilege 15
11. Motions for Unusual Action 16
To Object to Consideration of a Question 16
Withdrawing a Motion 16
To Table a Motion 16
To Postpone Indefinitely 16
Limit or Extend Debate 17
Move the Previous Question 17
Motion to Reconsider 17
Motion to Rescind 18
12. Miscellaneous Motions 18
To Suspend the Rules 18
Move to Adjourn 18
13. Nominations and Elections 19
14. Motions with Peculiar Characteristics 19
Checklist for Union Meetings 20
15. Tips on How to Reach the Union Member 20
All the Rules at a Glance 21
The practice and spirit of democracy in the labor movement depends, at least in part, on the knowledge, imagination and hard work of local union leaders in making the union meeting a really democratic and educational experience for each member. We must constantly work to make our union meetings more important and more interesting to our members.
This handbook is designed to help local leaders obtain a knowledge of democratic meeting procedures and to suggest some ideas for increasing membership interest, participation and attendance at meetings. The major portion of this handbook is devoted to the duties of local union officers and the rules of parliamentary procedure. It is designed to help union officers get the business of the meeting taken care of in an orderly, efficient manner and at the same time protect the rights of all members.
Not all union members come to union meetings, even when they are well run, but there are other ways to reach union members. The AFL-CIO Department of Education and delegates from international unions and state and local central bodies spent four days discussing roadblocks which stand in the way of reaching the union member. One development was this handbook, written by the AFL-CIO and modified by AFGE for our own use. New times call for new approaches to new problems. Consider these ideas as you continue your efforts to reach your members.
If the information in this handbook is put to work, we will not only reap the benefits in our own movement, we will also increase the knowledge of democratic participation which our members and leaders will carry over into other organizations in the community to which they belong.
1. WHY PARLIAMENTARY LAW?
It has been said many times that democracy begins in the union meeting.
To the individual member, the measurement of democracy in the union is often just that - what goes on at the union meeting. Do I know how to get up and say what I think? Is the meeting dominated by a small bunch of long-winded characters? Do we get things done at the meeting? Is it just a clique that's running things? These are often the yardsticks the member uses to measure the union. To insure democracy and to prevent members from milling around in confusion when they come together for a meeting, a set of rules for meetings has been developed over the years.
Where the Rules Came From
Because these rules were originally based upon the experience of British Parliament, they are known as parliamentary law, or parliamentary procedure. We will refer to them as rules for union meetings.
Thomas Jefferson wrote the first manual of procedure for Congress. But the book most often used today is one that adapts the rules of Congress for action by deliberative bodies. Henry M. Robert's Rules of Order was first published in 1876. Most unions have modified Robert's Rules to suit their own purposes. Others have provided in their constitution or bylaws some particular rules for conducting meetings.
Knowing the Rules
Rules for meetings enable the work of the union meeting to get done effectively and efficiently, while at the same time protecting the rights of all the members. Just as learning to play a game properly requires knowledge of the rules, so playing a proper role in the union requires a working knowledge of the rules for union meetings.
When only the chair knows the rules, the work of the meeting suffers. When most of the body has a working knowledge of the rules, the "floor," meaning the members, actually controls the meeting and the "chair" simply directs it.
This does not mean that a member must memorize the rules in order to participate in a union meeting. No one can know everything about parliamentary procedure. Even the best parliamentarian, at times, has to rely upon good judgment and the common sense of the group. Remember that these rules are not carved in stone. So start with basic principles behind the rules and then, when in doubt, look it up or ask questions.
The basic principles behind the rules can be stated as follows:
1. Only one subject should come before the meeting at a time.
2. Each proposal coming before the meeting shall be freely debated with meaningful discussion.
3. The will of the majority is sought, but a minority has the right to present a case.
4. Each member has rights and responsibilities equal to those of every other member.
5. The desires of the membership should move along in such a way that the welfare of the or-ganization, as a whole, is served.
2. WHAT MAKES A GOOD MEETING?
The lack of attendance at many union meetings indicates that the meetings are not serving to advance the well being of all the workers. It is not enough just to go through a routine and expect to maintain peoples' interest. A union meeting can help the members develop their group interests or can be the means of developing new interests. It can help members establish common views and ideas on things that are important to all of them.
Or, a union meeting can be an endless round of dry reports, individual grievances, or a series of department or shop squabbles. It doesn't take a psychiatrist to know that listening to a grievance that only a steward can handle, and a supervisor settle, is not interesting or entertaining. It is a boring experience and members lose interest in the union meeting.
Nor should meetings attempt to be entertainment with the members as spectators. Members would rather watch TV.
More people will start coming if you have well run, interesting union meetings. Both officers and members can do something about this.
Meetings begin by determining whether or not there is a quorum. Without a quorum, the union cannot conduct business, with two exceptions. Those present may act to obtain a quorum, such as telephoning members. Also, scheduled nominations and/or elections must go forward even without a quorum. The number required to constitute a quorum is set forth in the local's bylaws, but that number is guided by the Federation's position since the 1940's that the quorum is the number of offices plus one.
What Officers Can Do To Improve the Meeting
1. Start promptly! Establish the practice of starting on time. Give notice that the next meeting will begin promptly at 7 (or 8) o'clock. Then speak to some of the officers and members and get them to promise to be there at the appointed time. If this happens once or twice, other members will get the idea and show up on time.
2. End on time! It is a good rule to keep the meeting down to one-and-a-half hours. There are many things that should be handled by committees - details that should not clutter up a union meeting.
3. Plan the meeting. Plan to have a lively, interesting highlight as the main event for each meeting. For example, election of delegates to the District Caucus, Council, or National Convention should offer an opportunity to review the achievements of the national officers. A quiz program about the services of the union, its officers and some of its history could be prepared and run by the Education Committee.
4. Streamline the meeting. The routine parts of the meeting can be streamlined. Make sure reports of committees and officers are prepared in advance and are well organized and brief. Correspondence should be handled efficiently. Only in rare circumstances should "new" correspondence be read to the membership. Some letters can be handled by the officers at executive meetings and detailed to appropriate committees for action or reply.
5. Keep the meeting moving along. If you're the chair and the membership is shy about making motions, don't wait too long - simply say: "You have heard the report and the suggestion that this local should establish a special com-mittee to work with Security. Do I hear a mo-tion?" Then, again, you may have a few people who will want to talk on and on. Learn how to cut them short. Sometimes even the chair must remember not to talk too much.
6. Consult the membership. Maybe the local should change the time or date of the meeting. It is a good idea to let the members consider this from time to time. What was a good meeting night or time a few years ago may be very bad now.
Similarly, ask the members from time to time what they want from the meetings. Group experience and interests change. If members do not come out to meetings, they must think that nothing is going to happen that will interest them. Effective participation boils down to a question of whose union is it? Who decides what is important, the officers, or the members?
Checklist to Improve Union Meetings:
1. Know something about the rules of the meeting.
2. Debate the issue, not the person who presents it.
3. Ask for information when in doubt.
4. Enter the debate when a point should be made.
5. Address the chair and get recognition before talking.
6. Talk briefly and not too frequently.
7. Assume a share of responsibility for action decided upon by the group.
8. Keep informed about the union.
Participation is the key to democratic procedure and a good union meeting. But this doesn't mean that everyone must have something to say on every issue. Meetings profit from listeners as well as speakers. If a member listens, weighs the facts and arguments, and votes, that member is making a contribution. And it is important that the listeners realize that they also are contributing to the meeting. The chair should remember this, also, and should keep the speakers from rambling all over the lot, and prevent a few speakers from dominating the debate.
In fact, a good listener can help here too. If a speaker is getting off the track, rise to a point of order and tactfully call the chair's attention to this problem.
If the listener does not understand something, a question is in order. Chances are a lot of others got lost at the same time and the question will help them. A good chair will create the atmosphere to encourage members to participate constructively at meetings.
3. LET'S PLAN MEETINGS
The only way to ensure an orderly, efficient meeting is to work up an agenda beforehand.
It is the President's duty, with the help of the Executive Board, to plan the agenda for each membership meeting. They should meet a week or a few days before the membership meeting and draw up the agenda.
At such a meeting the communications to the local can be read and turned over to the committee leaders or summarized briefly for presentation to the membership. To speed up a regular meeting the Executive Board may have recommendations ready on all those letters demanding action, or the committees may plan to include the communications in their reports. It will also give leaders of the various committees something specific to report on. It is monotonous when the recording Secretary reads a long series of letters.
The Executive Board should check the minutes of the last meeting and include any "unfinished business" in its working plan. The officers should note on the agenda which committees are due to report.
But don't go off the track with this. The membership must still make the final decisions. And your union bylaws set up rules on what can, and what cannot, be taken care of by the Executive Board.
Many unions have their own Order of Business as part of their bylaws or constitution. If your union has no special Order of Business you might use the following:
(a) Roll call of officers
(b) Reading of the minutes of the previous meeting
(c) Report of financial condition by Local Treasurer
(d) Reports of committees
(e) Unfinished business
(f) New business
(g) Comments for the good of the local
The Order of Business is just an outline. When the officers work out the agenda, they put flesh on it. Each meeting should be adjusted to meet the current needs of the local, or to develop understanding of social, economic, or political issues of the day.
The agenda is the chair's guide for timing the various items of business so that the really important things are not crowded out.
This does not mean that the chair should use the agenda as an excuse to be arbitrary. Using common sense, the chair should be able to follow through with an agenda without pushing people around.
The chair should always keep in mind that a great deal of the business of a meeting could be accomplished by unanimous consent. So, when the minutes of the previous meeting are distributed, the chair will ask, "Are there any corrections?" And then, if none are made, "If there is no objection the minutes will stand as presented." This same procedure may operate about communications or reports. In all instances, the purpose is not to short-cut democratic proce-dures, but to get along to the main events in the meeting.
When there are special items of business to come before the meeting, the chair may suggest changes in the agenda, or even the omission of some items. This should not be done as a regular procedure, however, and should never be done without the consent of the meeting.
4. WHAT MAKES A GOOD CHAIR?
A good chair is made, not born.
But this does not mean that a good chair is necessarily the officer who has learned all the rules of order. Such a "walking encyclopedia" is quite apt to be entangled in too many details to be completely effective.
What Does the Chair Have to Know?
A good chair does need to know enough about the rules to meet the problems of procedure that may come up in the local meeting.
In addition, the chair should be familiar with both the union's constitution and bylaws and the AFGE National Constitution. This is important because the chair at times may have to rule on constitutional questions. Infringements of the union's constitution are serious matters. A local may find itself in real trouble if it violates the constitution, even inadvertently.
The chair must also understand the union's relationship to other union organizations such as the AFL-CIO and its state and local central labor bodies.
Finally, the chair must learn to be fair, impartial and courteous to everyone when chairing the meeting, much like a referee or an umpire.
What Does the Chair Do?
It is up to the chair to:
1. Keep the meeting moving along.
2. See that members understand what is going on - which rules apply, and why.
3. See that there is full discussion so voting is informed.
4. Protect the minority.
It may look like a big job, and it is. But much of the skill required of the chair comes with practice. Nevertheless, here are a few tips on how to do the job and handle some of the situations that come up:
1. Keep it moving. Get to know the membership. Keep an eye on those two or three members who seem to attend so that they can test the rules of procedure - the "legal eagles" -or to talk to a captive audience. Do not let them tie up the meeting. Listen to all that is said. Look out for abuses of the rules. A person who rises to a "point of order" is out of order if he or she uses it as an excuse to hold forth on the motion under consideration.
Always keep the debate on the subject. Politely bring speakers back to the subject of the motion when they wander off, even if it is necessary to interrupt them. Everyone gets the idea after a while. In addition, meeting time is too precious to allow for personal exchanges between speakers. "The chair must interrupt Brother Hardy and ask him to speak on the motion before the membership and address his remarks to the chair only" - is the way to handle this. On the other hand, the chair can suggest motions to keep the meeting moving along such as "Do I hear a motion to adopt the report of the Legislative Committee?"
2. Help Members Know What's Going On. Parliamentary rules can be very complicated to many members. Particularly when there is extended debate or when amendments come up, people often lose track of what they are voting on. From time to time repeat the question before the membership. If people seem confused about what they are going to vote on, then repeat the motion. If it is an amendment, then make it clear what the amendment says and means. A good chair can also help a member who is having difficulty making a point. The chair can help word the motion or point out how the member may accomplish the purpose under the rules. For example: "Sister Thomas is suggesting we set up our own local Committee on Political Education. It is out of order here. I suggest she put this in the form of a motion when we come to New Business, which is the next item on our agenda after we dispose of our committee reports."
3. Promote Full Discussion and Informed Voting. Ask long-winded speakers to shorten their remarks. "Brother Smith, you have already stated your main arguments on this motion, and the chair would like to request that you conclude your remarks to allow time for others to speak on the motion" is in order if a man is droning on and on. Note those who want to speak on a motion. Recognize the first person who asked for the floor, but indicate to the others who will be next. The Secretary can help by keeping a running list of those to be recognized. Five minutes for each speaker on a motion is a good "cut-off" time.
Always repeat the motion being voted on before a vote is actually taken.
4. Protect the Minority. Be in a position to know who is for or against certain motions. Then give them the floor alternately. If you are not sure, then it's proper to say, "We have just heard someone 'for' the motion. The chair will now recognize a speaker 'against' the motion. Sister Jones are you 'for' or 'against'?" Never let an unpopular or minority viewpoint be shouted down. Point out that they all can record their opinion when it comes to the vote but everyone has a right to state his or her views during the debate.
At times the chair is called upon to introduce an outside speaker. This is not the occasion for the chair to make a speech. It is enough to give the name of the speaker, title, and qualifications, the subject, and even indicate how much time has been allocated for this part of the program. Better yet, spread the limelight by having the appropriate committee chair make the introduction.
These are only a few of the situations a chair runs into.
There are thousands of local union members who chair meetings across the country. Not every one of them knows all the rules, faces the same situations, or conducts a meeting in exactly the same way. But a good chair learns willingly and constantly tries to improve as a chair and leader.
The point of this chapter has been summed up very well in this statement from a handbook of rules published by a union in Canada:
"A democratically minded chair, well versed in the rules of order, tolerant, patient, and impartial and, above all, possessing a liberal supply of good sense, is more of a safeguard for an orderly meeting than a library of parliamentary law ... . It is more important for a chair and the members of an organization to get the spirit of democratic procedure than to observe the letter of the law. The will for order may often obtain order and progress in a meeting even if errors are made in the use of rules. It is, however, best to be conversant with the rules in order that meetings may be orderly."
5. THE RECORDING SECRETARY
There are three parts to the Secretary's job: taking minutes of the meeting, preparing them for presentation, and handling correspondence. The Secretary also can be an important aid to the chair during the meeting by helping to follow the agenda and reading back accurately worded motions when needed.
Endless reading of long, dull correspondence has deadened many a meeting from the outset. With a little practice, the Secretary can learn to look over correspondence before the meeting and summarize rather than read the less important letters.
The minutes should include:
1. Time and place of meeting; 2. Statement that notice was duly sent and the meeting duly called; 3. Names of the presiding officer, Secretary, and other officers present; 4. Quorum statistics; 5. Correction and approval of minutes of the previous meeting; 6. Presentation of the Treasurer's report and that it became a part of the record; 7. Short summaries of officers' and committees' reports and any actions taken thereon; 8. Record of business transacted at the present meeting, including resolutions or motions proposed and the disposition thereof. Include the name of the maker of the motion. It is not required to record the seconder of the motion or the record of the vote. The debate is not re-corded. The words must describe the action clearly, but should not include the discussion nor reflect the personal opinion of the Secretary or any other officer. They should be an impartial, accurate record of the action taken by the meeting. Unfinished business is recorded before new business. 9. Announcements; 10. Time of adjournment; and 11. Signature of the Secretary.
No one expects a local union Secretary to take shorthand or speedwriting. The experienced Secretary takes rough notes of the action at a meeting and then rewords the notes for the record. Cut the minutes to the bare details.
6. THE LOCAL TREASURER
One important part of this union job is reporting to the membership on the union's finances. Senate investigations have uncovered some cases where officers were spending money without members being aware of it. The public, and even some members, have been sold the idea that union members do not get reports of what happens to their money. In order to insure proper accounting of union funds, AFGE's Financial Officers Manual contains a list of minimum accounting and financial controls for financial officers of affiliates to follow.
It is the Treasurer's job to make sure that as broad a range of members as possible sees and understands the union's finances. Expenditures should be read and approved at each meeting, and a full financial statement presented to the membership meeting at least once a year.
However, financial statements are not easy to understand and can be dry and boring. It is good to explain the complicated items to the membership. Members can understand better if they have a copy of the statement in front of them. Some locals distribute their yearly statement or print it in their local union paper if they have one. Short of this, writing it up on a blackboard can help the membership understand the items being read off by the Secretary. Try your financial report with visual aides. Some imaginative financial secretaries have used the occasion of the yearly financial report to plan a program with the Education Committee on "How Your Dues Were Spent This Year."
The Treasurer, of course, is responsible for keeping accurate records of the local's finances. These records are required by the Department of Labor and AFGE National Constitution.
Guarding the funds of a local is fundamental to good trade unionism. The Treasurer is the essential person for this job along with the local's trustees or Audit Committee.
7. COMMITTEES AND THEIR REPORTS
It is impossible for a local to carry on all its work at the regular meetings. There must be preliminary planning and work before each membership meeting. Some problems need action between meetings. Other things do not deserve the attention of the whole meeting and yet must be done. These are the reasons why good, func-tioning committees are so important.
But, in addition, the more people actively serving on committees the stronger the local. This is so because a person taking part in a particular activity becomes more interested in the union as a whole. Furthermore, with good functioning committees, a local can get a lot more done to benefit the membership. The experience of many locals also shows that good committee reports and discussion on these reports can often make the difference between an alive, interesting meeting and a dull, boring one.
Types of Committees
Every local should have a number of committees. In general, there are two types of committees: standing and special committees.
A standing committee is one that continues from year to year, although the people on it may change. Many unions provide in their constitutions or bylaws for certain standing committees.
The most important standing committees are the Executive Committee or Board and the Shop Stewards.
The Executive Board is responsible for local union decisions between meetings. It should help to plan the local meetings and other union activities. Specific duties are usually listed in the union's bylaws.
Other standing committees deal with special fields, such as EEO, legislation and political arrangements, membership and organizing, safety, etc.
Depending upon the procedure established in the local's constitution or bylaws, a special committee is appointed by the President, appointed by the Executive Board, or elected by the membership to handle a specific assignment; when that job is done the committee ceases to exist. The local might have a special committee to conduct an election, receive an outstanding guest, or to plan a dance or a picnic. Or, as often happens at a meeting, the chair may see that the membership does not have enough information to act on a new proposal or idea. It may be suggested that a special committee be appointed to get the facts and report at the next meeting. Special committees should be dismissed with thanks after their work has been finished.
Committees at Work
Usually, when a committee is selected, one of its members is named chair. When this is not done, either the first named member acts as chair or the committee chooses its chair. Each committee should also select a Secretary and, if it is a large committee, a vice chair.
Some unions place a member of the local executive board on each committee and in some cases this person serves as chair. But there is no hard rule on this. It is also common practice that the local union president is an ex-officio member of every committee, except the Audit and Election Committees.
A committee chair is responsible for steering the committee. This person sees to it that the committee meets regularly, that the committee members are notified of meetings, and that reports are made at the proper times and places. The chair does not issue decisions without a majority of the committee in favor.
One of the big advantages of committee action is its informality. In small groups, the rules of parliamentary procedure can be ignored. Members enjoy a meeting where they can take an active part easily.
This informality makes it possible for a committee to discuss a problem or suggestion thoroughly and reach a common agreement. However, the chair must keep the committee on the track. Never permit the meeting to become just a "bull session." Committees have responsibilities.
Preparing and Presenting Committee Reports
The report to the local membership meeting should be made as short and interesting as possible. Usually, the chair or a particularly interested member of the committee makes the report. When they are extremely important or recommend action, it is good practice to put the reports in writing. Minutes of the Executive Board are usually submitted as the report of that committee.
An outline of a general, short committee report could include:
1. Names of the members of the committee.
2. Main activities of the committee - what the committee is doing.
3. Problems the committee is having and why; successes the committee is having and why.
4. Summary - Specific action recommended by the committee or how members could help.
But in case you have fallen into a rut, try to think of different ways of reporting. Try a skit - hold a committee meeting up front at the union meeting, or let different members of the committee stand up and present different parts of the report. Or draw up an attractive handbill report that can be distributed at the meeting or passed out to all the local membership. Do not forget to prepare a press release for community newspapers and write it up for the local's paper.
Acting on Committee Reports
The members should have an opportunity to "accept" committee reports. Such acceptance is usually done by a vote. This signifies approval of the committee's report and also adopts its recommendations.
A motion coming from a committee does not need a second. When the report of a committee includes several suggestions or recommendations for action, "acceptance" or "rejection" should be handled one point at a time. This is especially true in cases of a constitution or bylaws committee.
Specific recommendations made by a committee may be amended by the membership before accepting them. They might raise or lower the amount to be given for a contribution, or change the date of a special event, etc.
When the members of a committee cannot agree on a report, the minority may oppose adoption of the report by the membership, or it may desire to submit a minority report to the membership. Ordinarily, the meeting should hear the minority report, but if there is any objection, the matter should be put to a vote without debate.
The membership should act upon the report of the majority unless a motion is passed to substitute the minority report for that of the majority. If this happens, discussion proceeds on the minority report. If this motion is defeated, then the membership acts on the majority report.
8. BASIC RULES OF ORDER - HOW MOTIONS GET ACTION
The motion is the basis of all action at a membership meeting. A membership decision to take action on a problem comes with a motion. It is the keystone of all rules of order.
Without a motion, no report can be dealt with, no new business can be introduced, no discussion closed, and no meeting adjourned. Yet, in spite of its importance, a motion is a simple thing. Complications arise from the way in which discussions are handled, the kind of motion offered, and the possibility of amendments and amendments to amendments.
How Motions Are Made
Briefly, the steps are: recognition, making a motion, seconding, stating a motion, discussion, restating the motion, voting, announcing the results.
A motion must relate to the business at hand and be presented at the right time. It must not be obstructive, frivolous, or against the bylaws.
A member desiring to present a motion rises and addresses the chair as "Mr. Chairman," or "Madam Chair." Anyone in the meeting can rise to talk, but no one has the right to talk until recognized by the chair, and has been "given the floor."
Ordinarily the chair recognizes the first member to arise, but when two or more arise at the same time, the chair must exercise judgment in making a choice. When a member has been given the floor, the rest of the group should sit and listen. The chair recognizes a member by nodding or pointing to the member or by calling out her name or position in the hall: "Sister Smith," or "The brother in the fourth row center."
When Sister Smith is recognized by the chair, she rises and offers a motion. The member should speak clearly and concisely, state the motion affirmatively (“I move that ...,” instead of “I move that we do not ...”), avoid personalities, and stay on the subject:
"Mr. Chairman, I move that Local 101 ...". She sits down. Another member rises to be recognized and seconds the motion. He does this by simply saying: "I second the motion, Mr. Chairman."
No motion can be considered until it receives a second (except incidental motions discussed below). Presumably, any proposal that cannot get a second is not worthy of discussion. In some instances, a member desiring to make a motion will ask the privilege of explaining the purpose of his motion before making it. If there is no objection from the body, the chair may allow the member to do this. In most union meetings all that is required for a motion to be seconded is for a member to call out "Second" in a loud voice, while remaining seated.
Stating the Question
When the motion has been made and seconded, the chair should repeat it loudly and clearly, so that all members will know what action has been proposed. If the motion is poorly worded or confusing, the chair should reword the motion, politely, so that its meaning will be clear. If the chair believes the motion is out of order, this should be pointed out as soon as it is made.
In repeating the motion for the membership, the chair may ask the Secretary to read it.
The motion is now the property of the assembly, and the maker cannot change it without consent of the members.
Discussing the Motion
When the chair has restated the motion, or has it read, discussion is in order: "A motion has been made and seconded that Local 101... . Is there any discussion?"
Members must address the chair, not each other.
The person proposing the motion is usually given the first opportunity to speak on the motion, since it is expected that the best arguments to support the motion will be made by the person who makes the motion. After this opening members speak for or against the motion as they are recognized by the chair.
It is a good practice for the chair to alternate speakers for and against a motion. No one should speak twice on a motion so long as there are others desiring to speak. A member who seldom participates should be given preference over the one who speaks frequently. A member may not speak a third time without approval of the body.
The chair may speak on a motion provided he or she leaves the "chair." No speech should be made from the chair. The chair should not dominate the meeting so that the members hesitate to state their opinions. It is best that the chair speak only when the full meaning of the motion has not been brought out by discussion, or when the matter is so very important to the well-being of the local that everyone should know where the chair stands.
In such a situation, the chair should step down to talk to a motion, and another officer should take the gavel. The chair's remarks will be better received from the floor than from the chair.
Amendments or a Substitute Motion?
If debate becomes extensive, or the debate indicates the motion is unclear, the members would probably like to change the motion a little. That is the time when (a) an amendment is used or (b) a substitute motion is in order. Either may be offered at any time after a motion has been seconded and before the vote is taken.
The person wishing to move for an amendment to a motion must get the floor in the same manner as one speaking on the motion. And the amendment must be seconded before it can be considered.
The amendment must be stated clearly and defined as to what section of the motion it applies. For example, someone may move that "the Executive Board investigate the possibility of the local sponsoring a Little League ball team." Another member may want to change this by saying, "I propose an amendment changing the words "the Executive Board" to "a special committee." Ordinarily, amendments are made to change a motion or include information that is more specific.
It must also be closely related to the subject of the motion. It cannot be used to introduce a new subject.
Once an amendment has been moved and seconded, discussion then follows on the amendment. In voting, the vote is taken first on the amendment and then the main motion. The chair says: "All those in favor of the amendment which strikes out the words ... and substitutes the words ... please indicate by the usual sign." If the amendment is defeated, another amendment is in order.
A substitute motion replaces the original motion. It can be directly contrary to the original motion, or can include changes or suggestions brought out in discussion or offered by amendments. It keeps the action simple and straightforward. Discussion and voting take place on the substitute motion. However, it too can be amended just as if it were an original motion.
Amendment to an Amendment or Substitute Motion?
Just as it is possible to change a motion, so it is also possible to change an amendment. A member may not be satisfied with the amendment and so will attempt to improve it by moving an "amendment to the amendment." In the example above, some members may feel that the committee should be elected, and so would move "an amendment to the amendment providing that the committee is elected."
An amendment to an amendment is made in the same way as an amendment or a motion. It requires a second. When it is made, the discussion then must take place on the amendment to the amendment. The chair can sometimes ask the maker of the motion and his second whether they would be willing to accept the amendment as part of the original motion. If they agree and no other member objects, this can be done, saving time and energy.
Otherwise, the amendment to the amendment, the amendment, and the motion must be debated and voted upon step by step in that order. And the chair must carry through each step until the main motion has been voted on. A favorable vote on an amendment or an amendment to the amendment does not carry the main motion with it. Members may favor an amendment as the least objectionable choice and still oppose the idea embodied in the main motion.
It is important to note that while there can be an amendment to an amendment, there cannot be two separate amendments to a motion before the meeting at the same time. That is as far as the situation can go, for there can be no amendment to an amendment to the amendment.
When it appears that no one else wants to discuss the motion or propose amendments, the chair asks, "Are you ready for the question?" If no one desires to speak, the vote is taken. But the chair must use care not to cut off debate.
When the membership is ready to vote the chair (or Secretary) reads the motion again.
By General Consent
When a motion isn't likely to be opposed, the chair says: "If there is no objection ...". Members show agreement by their silence. If someone objects, the matter must be put to a vote.
For a simple voice vote the chair then says: "All those in favor of this motion say 'aye.' ... those opposed, 'no.'” If the response is favorable, the chair then says: "The ayes have it and it is so ordered."
The chair should always be sure to call for the "nays" as well as the "ayes" although there seems to be a unanimous vote in favor.
A member may move for an exact count on any vote.
By Show of Hands
When there is any doubt on the part of the chair or the membership as to which side has won, a vote by show of hands or a standing vote is in order. The chair may ask for such action. In fact, it is suggested that a show of hands be used as the common measure, since this will give a clear-cut division of the membership on all issues.
A member may call for a vote by a show of hands by simply calling out the word "division" from his seat. The chair must grant this request at all times. If the group is a large one the chair may appoint, or have available, a committee of tellers who will count hands for or against the move. Otherwise, the Secretary and the chair do the counting. The actual count should be made unless the result is so obvious as to be without question.
By Roll Call
If a record of each person's vote is needed, each member answers "yes," "no," or "present" (indicating the choice not to vote) as his or her name is called.
By law, elections and a vote on local dues require a secret ballot. This makes each vote a matter of record and it preserves secrecy. In other instances, a vote by ballot may be agreed to by general consent, or by a motion from the floor. Such a motion is not debatable and requires a simple majority.
A tie vote is not a majority, and the motion fails. It is within the discretion of the chair whether to make or break a tie.
9. HOW ACTION TAKES PLACE
We have discussed motions, amendments, discussion, and voting. To illustrate all this, let us take an example of a local membership acting at a meeting on a problem that has been brought before it.
We are under "New Business" in the agenda.
The chair asks: "Is there any new business?"
A sister in the third row is given the floor.
"Mr. Chairman, it seems to me, we have sent several delegates to union leadership training schools during the past several years, but I don't recall participating in any program led by those new leaders. I think if we are going to spend money to send ..."
Make the Motion First
The chair interrupts the sister by saying: "The chair appreciates your interest in leadership training. If you have any suggestions to make in the use of trained leaders, please put them in the form of a motion. Unless there is a motion on the floor you cannot speak."
"Okay, Mr. Chairman," says the sister. "I move that the president appoint an education committee from among the persons who have attended leadership training schools so that we can begin to realize ..."
Getting a Second
Again, the chair interrupts. "Is there a second to this motion that I appoint an education committee from among those who attended leadership schools?" Several voices speak up to "second the motion." "All right, sister, now you may speak on your motion."
"Well, as I was saying, it's a waste to send people off to leadership training schools, and then let them get lost without any opportunity to serve on an education committee. All of us need more information to cope with the problems we are facing as citizens in our union and our nation. And I guess I could use a class on rules for union meetings by the way I'm conducting myself here tonight."
"Mr. Chairman." Sister Brown seeks the floor and is recognized. "Mr. Chairman, I agree with the sister from Department 6, that we should have an education committee, but I don't think we should limit education committee membership to persons who have attended leadership training schools. I move we amend the motion so that the president can appoint any interested person to the education committee."
The chair restates the proposed amendment and asks if there is a second. There is, and the chair asks if there is any discussion on the amendment.
One Thing at a Time
"Yes, Brother Hernandez."
"Mr. Chairman, there are a lot of activities that we ought to start. I hear lots of good things about credit unions and I'm sure a lot of fellows would join one ... ."
"Just a minute, Brother Hernandez, are you rising to talk on the amendment to the motion about setting up a local union education committee? If not, you are out of order, and I'll have to ask you to take your seat. Sister Ester, did you want to speak on the amendment?"
"Yes, Mr. Chairman, but I noticed that no one has said anything about the size of the committee, so I would like to offer an amendment that this committee should have seven members."
"Sister Ester, this is an amendment to the second degree. We are now discussing an amendment to the amendment that would permit the selection of seven interested persons to the education committee and not limit it just to persons who have attended union schools."
There are several "Seconds."
"Mr. Chairman!" The sister in the third row who made the original motion rises. "I'll accept this amendment as part of my original motion."
The chair asks, "Mr. Secretary, who seconded this motion?" "I did, sir, and I'll accept the amendment, also."
"If there is no objection, the original motion is now further amended to set the size of our education committee at seven. Is there any further discussion? We are back to the original amendment. Brother Henderson is recognized."
"Mr. Chairman, I think that the fact that a person attends a union school indicates that he has an interest in education. How better can we measure a person's interest?"
"Yes, Mr. Chairman, I agree with Sister Brown that we should open the committee to interested persons. Just because a person goes to a union school doesn't make him or her interested in the work of an education committee; they may be better as stewards or like Charlie, over here, interested in legislation. Let's put people on the committee who are interested in doing the job and then they can get special training if they need it."
Vote on the Amendment
"Is there any further discussion on the amendment? There being none, we shall vote on the amendment that any interested person can be selected for an education committee. All in favor say, 'Aye' ... those opposed, 'No'. The chair is in doubt. Let's have a show of hands. Will the Secretary be the teller? All in favor of the amendment please raise your right hand ... Those opposed, like sign ..."
The Secretary takes the count and gives the results to the chair. There is a shuffle of feet and chairs in the hall.
"Quiet, please," the chair calls out. "The amendment as amended carried 46 to 42."
We will now vote on the motion as amended, that the president of Local 101 appoint an educational committee of seven from among any interested members in the local. All those in favor say 'aye'... opposed, 'no'. The ayes have it and the motion is carried. The chair will name the committee at the next regular meeting. Meanwhile, I will appreciate hearing from anyone who is interested in serving on this committee. I think we can all gain a great deal from such a committee and I am looking forward to working with it.
"Is there any further new business?"
10. MOTIONS TO HELP KEEP ORDER
Simple as we try to keep rules in a union meeting, not every member is likely to know all of the fine points. It is the duty of the chair to see that the rules are abided by and, equally important, that explanations of the rules are made at difficult points.
Point of Order
But, even the best chair may miss a violation of rules or make a ruling that is felt to be wrong. A member may call for a "point of order" if situations like these develop:
1. When discussion seems to be wandering away from the point of the motion or its amendments, a member may rise to a point of order to force the chair to bring the discussion back to the subject.
2. When the bylaws of the local or the AFGE National Constitution are being broken, a member may rise to call the chair's attention to this violation.
3. When the chair permits a member to discuss a "privileged" motion, the discussion should be halted since such a motion is undebatable.
The member wishing to call the chair's attention to an oversight or misrule simply stands and calls out: "Madam Chair, I rise to a point of order." The member may do this although another person who has the floor is being interrupted.
The chair must recognize this request. The chair asks: "Brother, what is your point of order?"
The brother states his "point of order" and the chair then rules on it. The chair may say that this point of order is well taken, or that it is not well taken.
Naturally, there are persons in some locals who make nuisances of themselves by calling for "point of order." In the case of minor infractions of rules, it would seem best to let the chair carry on without interruptions from the floor.
A point of order should not be used as:
An excuse to slow down a meeting
A convenient way to interrupt a speaker
An excuse to make a speech
An excuse to criticize the chair
Appeal from the Decision of the Chair
When a member has been ruled out of order or when the chair does not accept the point of order, the usual thing is to proceed with the business at hand. If, however, a member feels that a grave injustice has been done, and that a ruling of the chair is in violation of procedure, the member may make an "appeal from the decision of the chair." This requires a "second." It then will give the meeting the opportunity to decide.
Such an appeal can only be made immediately after the ruling by the chair has been made. It may be made by any member present at the meeting.
The member announces: "I appeal the decision of the chair." If there is a second, the chair may turn the meeting over to a vice chair or other designated person. Some unions require the chair to step down. The person making the appeal takes the floor and gives a reason for appealing and then the chair states the reasons for the ruling.
This is usually the extent of the discussion. However, an appeal is debatable unless it refers to disorderly conduct, speaking off the question, the order of business, or a motion which is not debatable, or unless it arises during a vote.
No member may speak more than once except the chair, who has the right to conclude such debate. The question is put to a vote in this manner:
"All those in favor of ..." or, "Shall the ruling of the chair be sustained?"
Immediately upon the decision on the appeal, the order of business is resumed. The chair resumes control of the meeting regardless of the decision - sustained or overruled.
Point of Information
When a member feels that more information is needed about the meaning of a motion or its effect on the local, the member may direct an inquiry to the chair by simply saying: "Point of information."
The chair should recognize the questioner although another person on the floor is interrupted. Needless to say, there is always the possibility that members will ask frivolous questions, or questions which convey opinions. The chair must be on guard against abuses of this sort. Courtesy and common sense should rule.
Sometimes the questioner desires information from another member. When this happens, the chair should ask the person holding the floor whether that person will yield for the purpose. The speaker cannot be forced to yield. Moreover, even if the speaker yields, the questioner must address the point of information through the chair and the answer must be made to the chair. Members may not address one another during the meeting.
When the specific information that a member is seeking has reference to parliamentary rules, this is a "parliamentary inquiry."
A member may want to know if a certain motion is in order. The chair's answer to such a question is not a decision that can be appealed. Only a decision that the chair made after the motion had been brought up would be subject to appeal.
Question of Privilege
A question of privilege may be used by a member to call the attention of the chair to remedy something that affects the safety, comfort, rights, or privileges of either the assembly or the member. The questioner may ask to have the windows raised or lowered. The speaker may be asked to speak louder. Questions of privilege are decided by the chair, subject to appeal.
If the question concerns the welfare of only one person in the group, it is a question of personal privilege.
These special privileges are rights of all members but they should not be used as a pretext to disrupt a meeting. Again, common sense and decency must rule.
The form for such a motion is "Madam Chair, I rise to a question of privilege." The chair says: "State your question." "Can we ask that the members do not smoke?" The chair can answer: "Your privilege is granted. Will the sergeant-at-arms open the windows?"
Or if it is to propose a motion which cannot wait, the form is "Madam Chair, as a question of privilege, I move that all nonmembers leave while we discuss this business." The chair can grant the privilege. The motion proposed is then handled like any ordinary motion before picking up where the meeting was interrupted.
11. MOTIONS FOR UNUSUAL ACTION
These are motions intended to help in the handling of action motions. They cannot be debated. Some require more than a majority vote to carry support.
To Object to the Consideration of a Question
When a motion is made which will lead to discussion of a matter that will cause hard feelings or friction, a member may rise immediately to prevent discussion. Any member may rise and say, "Mr. Chairman, I object to consideration of this question." The chair will reply: "There has been an objection to the consideration of the question. Those in favor of considering the question say, 'Aye.' Those opposed, 'No.'"
There is no discussion. It is put to a vote immediately. If two-thirds of the members vote against considering the question then it cannot be brought up again during that meeting. This motion should be used only in exceptional cases.
Withdrawing a Motion
The maker of a motion may decide to withdraw the motion and ask permission of the chair to withdraw the motion. The chair puts the question before the members: "If there is no objection, the motion will be withdrawn." If there is an objection, the question of withdrawal must be put to a vote. It requires no second. It cannot be debated. It then takes a simple majority to be withdrawn.
To Table a Motion
A motion to table sets aside consideration of a pending main motion until such time, later in the same meeting, that the assembly votes to resume consideration of it. If the assembly fails to introduce the tabled motion at the same meeting, it dies. Thus, the motion to table may be made with intent to kill a main motion without hearing full debate. Or, a membership may seem unable to reach a conclusion, or perhaps it appears more study should be given to a motion before debate continues. In such cases, a member makes a motion to "table the motion." Such a motion cannot be debated and requires only a majority vote.
The maker of a motion to table cannot do so while speaking on a motion being discussed, or if he has previously spoken on the motion and there are others who still desire to speak.
When a motion to table is seconded, the chair must immediately put the question of tabling to a vote. A motion to table until the next meeting is a motion to postpone. A motion to postpone is a debatable motion.
Because a motion to table postpones or delays action by a body, a motion that has been tabled can be "removed from the table." This action can be requested as soon as some other business has been transacted, or not later than the next meeting.
Thus, a member may rise to be recognized and move that the matter be "removed from the table." Again, the matter is decided without debate and by majority vote.
Killing an action by a "motion to table" can be overdone. Majority rule should be able to close debate in the regular manner and then defeat the motion.
To Postpone Indefinitely
This strategy allows members to dispose of a motion without making a decision for or against. It is useful in case of a badly chosen main motion for which either a "yes" or "no" vote would have undesirable consequences. If adopted, it prevents a vote from being taken on the pending main motion and bars reintroduction of that motion during the current meeting.
Limit or Extend Debate
The membership may limit debate: by setting a time limit for each speaker on the same motion, by setting a time for calling the question to a vote, by prescribing the number of speeches pro and con, or by allotting a specific amount of time for each side of a question.
Motions to limit discussion are made in the usual manner and require a second. They can be amended if the purpose of a motion to limit discussion is to establish general rules limiting talk on all questions before the local. Such a motion is debatable. If they apply only to a motion being discussed on the floor, they are not debatable. Most unions permit a majority vote to decide upon the limitation. Strict rules of parliamentary law prescribe a two-thirds majority.
Many local union bylaws limit the time a member may talk on a motion. The usual limit is five minutes. The same set of rules usually provides that no one may speak twice on the same motion if another member is waiting to speak. But this is something the chair should be able to handle even without a rule.
If it is felt that discussion should be extended after it has been limited, this may be done by a motion to extend debate. This motion must have a second. It is not debatable and, again, most unions accept a majority vote for a decision.
Move the Previous Question
A motion to call for "the previous question" is a method of stopping all discussion on a motion and forcing a vote. In many locals persons who want to vote call out "Question" from their seats. This should have no effect in stopping someone who wants to speak on a motion. As long as someone wants to talk, the chair should recognize him or her.
A motion to "call for the previous question" starts in the usual way. The form is: "I move the previous question," or: "I move that we close debate and vote on the question."
The motion requires a second. It is not debatable. A person cannot make such a motion while speaking on the question, or if the person has spoken and there are still others who want the floor. Many unions accept a majority vote for a decision. (Robert's Rules requires a two-thirds majority.)
The chair should put this motion to a vote as soon as it is seconded. If the move for the "previous question" passes, then the chair should repeat, or have read, the main motion with amendments, if any, and call for a vote.
Motion to Reconsider
If a local has approved a motion on some matter that later events or new information indicate should be reconsidered, this may be done with a motion to reconsider.
A move to reconsider can be made only on the same day that the vote on the motion to be reconsidered was taken or at the next meeting. The motion to reconsider must be made by a person who voted with the majority in the first vote. Any member may second this motion. If the vote was by secret ballot, any member may move to reconsider.
Not all motions can be reconsidered. Motions to adjourn, recess, lay on the table, take from the table, suspend the rules, or a previous move to reconsider, cannot be reconsidered. Nor should a motion to reconsider be used to reconsider an action that has been partially acted upon.
Because the motion to reconsider has as its purpose the correction of a mistake made by the group, it is a privileged motion, and the maker of it may interrupt a speaker and make the motion while there is other business on the floor. However, debate on the motion to reconsider does not start until the work that was on the floor has been completed.
The member desiring to make a motion to reconsider says to the chair: "I move that we reconsider the vote on ... (identifying the motion)." If there is a second, the chair puts the matter of reconsideration before the group. The move to reconsider is debatable and usually requires only a majority vote to pass. However, at the National Convention, it requires a two-thirds vote (Appendix C, Section 10 of the AFGE National Constitution). No question can be reconsidered twice.
When a motion to reconsider passes, the original motion in question is brought before the group as it was before the vote was taken and debate on it continues. The Secretary should carefully read aloud the minutes of the meeting dealing with the original debate on the question.
Motion to Rescind
A motion to "rescind" nullifies a previous decision of the group. Such a motion is made in the normal fashion and can be made by any member. It requires a two-thirds vote.
Under some circumstances, a motion can be rescinded by a majority vote. Thus, a motion passed at one meeting can be rescinded at the next meeting by a majority vote, if the members were notified at the first meeting that an attempt to rescind would be made at the next meeting. For such a purpose, a motion to reconsider can be used, but some unions prefer to use a motion to rescind.
Just as with a motion to reconsider, the motion to rescind cannot be used to reverse an action that cannot be reversed - if money has been spent or someone has left on a trip.
The passage of a motion to rescind reverses a previous action. A motion to reconsider simply reopens the matter for further discussion and decision by the group. The latter should be in order for most cases, but this can be a matter of union bylaws or local ground rules.
A motion to rescind may be made by any member at any meeting. A motion to reconsider must be made by a member who voted with the majority at the same meeting at which the original motion was passed, or the next succeeding meeting.
12. MISCELLANEOUS MOTIONS
To Suspend the Rules
Occasionally something may come up which requires a change in the order of business. For example, Article XVIII of the AFGE National Constitution requires a vote of the members without debate on a trial committee's report, and thus the first order of business should be the report. There may be a deadline on an important question. There may be a question that requires more time for debate, or a visiting speaker may want to come and go as early as possible. For these or other occasions, the chair can request a motion to "suspend the rules."
This motion can be offered by a member rising and saying: "Mr. Chairman, since many of the members present have to make the special shift, I move that we suspend the rules and consider the question of registration now rather than wait for new business."
This motion requires a second. It cannot be debated. It needs a two-thirds vote to pass.
Move to Adjourn
A motion to adjourn is required to end a meeting. It is particularly "in order" when there is no further business to come before the meeting. The right to adjourn belongs to the members and not to the chair, but the chair can indicate when it is best to entertain such a motion.
However, the motion to adjourn the meeting can be made at any time except during a vote or when someone has the floor. The mover must first be recognized by the chair. The motion to adjourn requires a second. It is not debatable. It takes only a majority to carry.
When the motion is made before the "planned" end of the meeting, the chair has the right and obligation to point out to the members what items the local's executive board thinks should be acted upon. The mover of the motion can be asked to withdraw the motion for the present.
This does not mean that the members should allow the chair continually to drag out meetings simply for the sake of the agenda or out of courtesy to the chair and the officers.
If the motion to adjourn is accepted, any question stopped by such action may be brought up at the next meeting as old business. If the motion is defeated, it cannot be renewed until the group has acted upon some other motion or report.
A meeting is legally adjourned only when, following a vote on the motion, the chair announces adjournment. Then no further business can transpire.
13. NOMINATIONS AND ELECTIONS
When the time comes, the chair of the Election Committee calls for nominations. They are made orally from the floor as the chair recognizes each member seeking the privilege of placing a name before the membership.
Placing a member in nomination merely requires permission from the chair to rise and say: "Mr. Chairman, I nominate Joe Duffy, second shift, Film Division." A member of the Election Committee writes down the name of each nomi-nee. No second is required.
As nominations are made, the chair should guard against persons who would close nominations as soon as their favorite candidates have been nominated. Any motion to close nominations should be ruled out of order by the chair until adequate time has been allowed for every potential candidate to be named. Many chairs ask three times for further nominations.
The motion to close nominations requires a second and a two-thirds vote to support it. This is an undebatable motion. The chair says: "The motion has been made and seconded that nominations be closed. All those in favor say 'aye.' Opposed 'no.'"
When nominations have been closed, the chair should ask the Secretary to read the names of the candidates from the last nominated to first. Each nominee should accept or decline at this time or indicate his or her decision in writing some time before the close of nominations.
Nominations and elections are thoroughly discussed in AFGE's Election Manual, available from the district office, AFGE’s Service Department, and on the AFGE website.
14. MOTIONS WITH PECULIAR CHARACTERISTICS
Things You May Do When Another Member Has the Floor
1. Rise to a point of order, point of information, or question of privilege
2. Object to the consideration of the question
3. Move to reconsider
Motions That Cannot Be Amended
1. To adjourn (if the motion is to adjourn at a particular time it can be amended)
2. To table, or to take from the table
3. To reconsider
4. To call for the previous question
5. To suspend the rules
6. To object to the consideration of the question
7. To postpone indefinitely
Motions That Cannot Be Debated
1. To fix a time to adjourn, or to adjourn
2. To object to the consideration of a question
3. To table, or to take from the table
4. To call for the previous question
5. To limit or extend debate
6. To withdraw a motion
7. To suspend the rules
Motions That Do Not Require a Second
1. To object to the consideration of a question
2. To withdraw a motion
3. To call for a division of the house
4. Point of order
Motions That Require a Two-Thirds Vote
1. To suspend the rules
2. To sustain an objection to the consideration of a question
3. To rescind (except as noted in the text)
4. To limit or close debate (in some unions)
5. To close nominations
Motions Used to Delay Action on the Original Motion
1. To postpone indefinitely
2. To postpone definitely
3. To refer to committee
4. To lay on the table
Check List for Union Meetings
Has the Executive Board met to plan the agenda?
Have the officers been contacted and general publicity about the meeting been handled?
Are the minutes of the previous meeting ready for presentation?
Is the correspondence ready for presentation?
Are committees prepared to report? (Do they know when and how much time they have been given to report?)
Has the meeting hall been prepared? (Check flag, heat, lights, ventilation, chairs, restrooms, etc.)
Is all special equipment ready to use? (Blackboards, easels, projectors, microphones, etc.)
Are program arrangements complete? (Have education films or pamphlets arrived?)
Are materials ready for distribution? (Agenda, financial reports, minutes of the last meeting, committee reports, newspapers, pamphlets, or handbills.)
Have arrangements been made for guests or special speakers? (Do they know when and where the meeting is being held? Do they know what you expect them to do?)
15. TIPS ON HOW TO REACH THE UNION MEMBER
There are many ways to reach the union member besides union meetings. Not everyone can or will come to a union meeting no matter how hard you try, though you can improve attendance if union meetings are more interesting and run efficiently. How to run an interesting, democratic and efficient meeting is the subject of this booklet. Some other ways are:
Welcome the new member. Make new members feel that they are a significant addition to the union and will share many benefits won through collective bargaining. Tell them about union-won benefits in a letter or a new member's kit. Plan an initiation or orientation program. Shop stewards should invite new members to the union meeting, and explain how the union functions to protect every member's rights.
Reach out to the young member. Union solidarity requires involvement of younger people as well as more experienced trade unionists in running the union. Recruit young members with leadership potential to serve on committees and participate in training programs, summer schools, and other activities. Keep the union open to all groups and welcome their ideas. The generation gap disappears when the democratic process works.
Train shop stewards. Shop stewards are the average member's direct link with the union. When the shop steward does not know the answers, there is a serious break in the union's ability to function. Contract enforcement, grievance procedure, information on political action, in-plant safety all depend on a strong, well informed, dedicated crew of shop stewards. Hold periodic classes to train new stewards and provide senior stewards with an opportunity to review the contract and swap information.
Start a public relations campaign. Union members as well as other citizens are influenced by the distorted image of unions created by the public press. To counteract this unfavorable image, local unions should have a public relations program to tell the truth about the union, the employee, the contract, and the problems. Write letters to the editor of your favorite newspaper, and send out press releases on union activities that are newsworthy. Learn to tap newer outlets such as cable TV and the Internet.
Improve your union publications. Whether you publish a newsletter or a newspaper, it will only be widely read IF you plan each issue carefully. By planning and working in advance you can achieve an attractive, readable format and publish timely, relevant stories. Stick to the facts and write a good news story long on facts and short on adjectives and opinions. Use cartoons, pictures and features. Announce the union meetings. The paper can help get members to attend.
Communicate through a variety of techniques that will stimulate greater interest and attention. Try using some of the following media: videotape, movies, colorful posters, audiotape cassette recorders. Remember the AFL-CIO has the largest labor film library in the country. Write for a catalogue today at AFL-CIO, 815 16th St NW, Washington, DC 20006 (202) 637-5000, fax 637-5058, www.aflcio.org.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
FAIR LABOR STANDARDS ACT
Office of the General Counsel
In consultation with the Legal Rights Committee of the National Executive Council (NEC)
American Federation of Government Employees
80 F St NW, Washington DC 20001
I. INTRODUCTION 3
II. THE FAIR LABOR STANDARDS ACT (FLSA) 4
A. FEDERAL EMPLOYEES ARE COVERED BY THE FLSA 5
B. REGULATIONS IMPLEMENTING THE FLSA 5
C. FLEX-TIME, COMPENSATORY TIME, AND RELATED PROVISIONS 5
III. EMPOYEES EXEMPT FROM FLSA COVERAGE 6
A BURDEN OF PROOF REQUIRED OF GOVERNMENT TO PROVE
EXEMPTION FROM FLSA COVERAGE 6
B. THE ADMINISTRATIVE EXEMPTION 8
1. Department of Labor Regulations 8
2. Office of Personnel Management Regulations 9
C. THE PROFESSIONAL EXEMPTION 9
1. Special Problems for Computer Related Positions 10
2. 29 C.F.R. §541.312 Salary basis 10
D. THE EXECUTIVE EXEMPTION 11
E. NO COLLECTIVE BARGAINING EXEMPTION 11
IV. PROVING AN FLSA CASE 12
A. THE PRIMARY FUNCTION OF A POSITION 12
B. PROOF REQUIRED TO RECEIVE OVERTIME PAY 14
C. BURDEN OF PROOF OF FLSA OVERTIME COMPENSATION 14
D. WHAT IS NOT “WORK”UNDER THE FLSA 15
E. STAND-BY TIME 16
V. DAMAGES AND COMPENSATION 18
A. DAMAGES UNDER THE FLSA 18
B. SUFFERED OR PERMITTED OVERTIME 18
1. WHAT IS “WORK”, DEFINITION OF “EMPLOY” 19
2. NEED FOR EMPLOYER KNOWLEDGE OF WORK 19
3. NON-DEFENSE OF “NO OVERTIME WORK” DIRECTIVES 20
C. THE “DE MINIMIS” RULE 20
D. LIQUIDATED DAMAGES 21
1. FLSA LIQUIDATED DAMAGES 21
2. AGENCY DEFENSES TO LIQUIDATED DAMAGES 22
3. DUTY FREE LUNCH 23
E. ATTORNEY FEES AND COSTS 24
1. BACKPAY ACT: ATTORNEY FEES 24
2. HOURLY RATE CALCULATION 25
VI. THE CLAIMS PERIOD 27
A. BACKPAY PERIOD 27
VII. THE AVAILABILITY AND APPROPRIATENESS OF INTEREST ON
THE FLSA OVERTIME AWARD 28
APPENDIX A 30
29 C.F.R. §541.2 (2009) 30
APPENDIX B 36
5 C.F.R. §551.2 (2009) 36
APPENDIX C 44
29 C.F.R. §541.4 (2009) 44
APPENDIX D 47
ARBITRATION PROCEDURE TIPS 47
APPENDIX E 50
FLSA EVIDENCE GATHERING CHECKLIST 50
THE FAIR LABOR STANDARDS ACT
This manual provides a working overview and practical guide to investigating, evaluating, and arbitrating overtime pay claims under the Fair Labor Standards Act.
Overtime for general schedule (GS) federal government employees is recoverable under either Title 5 of the United States Code (Title 5 overtime) or under the Fair Labor Standards Act (FLSA overtime). Each provision has certain advantages and provides an overtime hourly rate of one and one-half (150%) of the employees’ basic hourly rate.
Federal employees are entitled to receive overtime pay at the rate of one and a half times their regular hourly rate under the Federal Employees Pay Act (FEPA or Title 5). 5 U.S.C. §§5501-5541 et seq. However, overtime under Title 5 has two principle disadvantages. Overtime pay under Title 5 is capped at the GS-10, step 1 overtime rate. 5 U.S.C. §5542(a)(2). The result of the "cap" is that persons at or over GS-10, step 1 (those earning over $31,800, including overtime) are paid at an overtime hourly rate which is the same as their basic hourly pay rate. In other words, overtime is paid the same as straight time. The second major obstacle is that Title 5 overtime must be approved in advance.
Neither the "cap" nor the need for explicit overtime authorization is applicable to FLSA overtime. However, unlike Title 5 overtime, FLSA overtime is not available to all bargaining unit GS employees. It is the purpose of this manual to provide guidance in understanding and applying the FLSA.
II. THE FAIR LABOR STANDARDS ACT (FLSA)
The Fair Labor Standards Act is a piece of "New Deal" legislation codified in the 1930's as part of the American labor movement's press for the 40 hour work week. The FLSA discourages management from working employees over 40 hours in a seven day work period by mandating that all hours worked in excess of 40 hours be paid at one and one-half (150%) of the employee's normal hourly rate. Redman v. U.S. West Business Resources Inc., 153 F.3d 691, 694 (8th Cir.1998).
29 U.S.C. §207(a)(1) provides in relevant part:
Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce ... or is employed in an enterprise engaged in commerce ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.
Section 7(a) of the Fair Labor Standards Act, 29 U.S.C. §207(a), provides that an employer shall compensate its employees at not less than one and a half times their regular hourly rate for each hour employed in excess of forty hours per week.
It is important to note that the FLSA deals in terms of a seven (7) day work-week and not in terms of the federal government two week pay period. Except in flex-time situations (see below) the FLSA test is how many hours an employee works in seven (7) days, not how many hours were worked in a pay period. The federal government operates under an additional set of laws including the Federal Employee Pay Comparability Act of 1990 (P.L.101-509) which allows for FLSA overtime for more than 8 hours in a work-day in some instances. See, FPM Ltr 551-24 (1/14/92)(there are many exceptions to this 8 hour rule including flex-time, firefighters, and other 24 hr. positions).
The humanitarian purposes of the overtime pay requirements of the FLSA “are two-fold: (1) to fairly compensate employees for the burden of working extended hours on behalf of their employer; and (2) to spread employment by placing financial pressure on employers to hire more workers.” Walling v. Helmerich & Payne, 323 U.S. 37, 40 (1944); Donovan v. Brown Equip. & Serv. Tools, Inc., 666 F.2d 148, 152 (5th Cir.1982); Benshoff v. Cith of Virginia Beach, 9 F.Supp.2d 610, 616 (ED VA. 1998).
The FLSA specifically prohibits retaliation by the employer for filing FLSA claims by employees. 29 U.S.C. §215(a)(3). Valerio v. Putnam Assoc. Inc., 173 F.3d 35, 40-43 (1st Cir.1999); Lambert v. Ackerley, 180 F.3d 997, 1002-1005 (9th Cir.1999). Valerio speaks directly to retaliation for FLSA claims made internally with the employer rather than via a formal complaint to DoL or OPM. Valerio, 173 F.3d at 42; Lambert, 180 F.3d at 1005.
A. FEDERAL EMPLOYEES ARE COVERED BY THE FLSA
In 1974, after decades of letter writing and intense lobbying, AFGE (which received its labor charter in 1932) was able to have the definition section of the FLSA amended to include, for the first time, federal employees. Federal employees are "employees" of an "employer" under the Fair Labor Standards Act, 29 U.S.C. §203(d). P.L. 93-259, 88 Stat. 55, codified at, 29 U.S.C. §203(e)(2)(A)(ii).
B. REGULATIONS IMPLEMENTING THE FLSA
Pursuant to law, the Department of Labor (“DoL”) administers the FLSA for the private sector and for state and local governments. Department of Labor regulations are entitled to substantial deference as to the FLSA. Ingram v. County of Bucks, 144 F.3d 265, 268 (3rd Cir.1998); Cash v. Conn Appliances, Inc., 2 F.Supp.2d 884, 890-91 (E.D. Tex. 1997). The definition of terms in DoL regulations is considered to have the effect of binding law while interpretive DoL regulations do not have that force. Shaw v. Prentice Hall Computer Pub. Inc., 151 F.3d 640, 642 (7th Cir.1998) (citing Batterton and Skidmore); Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
The Office of Personnel Management (“OPM”) is charged with the responsibility of administering the FLSA for federal agencies. 29 U.S.C. §204(f).
C. FLEX-TIME, COMPENSATORY TIME, AND RELATED PROVISIONS
The flex-time provisions of 5 U.S.C. §6128(a) provide a waiver of the 40 hour FLSA workweek to allow for an 80 hour bi-weekly computation period at the employee's option. The first 80 hours in a bi-weekly flex-time period are not subject to FLSA overtime.
5 U.S.C. §6123(a)(1) provides that an employee may elect (with the approval of the Agency) compensatory ("comp.") time in lieu of overtime when working flex-time. The employer cannot legally force an employee to take comp. time in lieu of FLSA mandated overtime. See also the collective bargaining provisions of 5 U.S.C. §6130. See Collins v. Lobdell, 188 F.3d 1124, 1130 (9th Cir.1999); AFSCME v. State of LA., 145 F.3d 280, 284-286 (5th Cir. 1998).
It should be noted that the right to FLSA overtime is independent of the collective-bargaining process (except in the flex-time area) and that FLSA overtime is not waivable “and cannot be abridged by contract.” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 740-41 (1981); Abendschein v. Montgomery County, Md., 984 F.Supp. 356, 359-60 (D.MD. 1997) (quoting from Barrentine). But as to home-work, see Gaby v. Omaha Home for Boys, 140 F.3d 1184, 1186-89 (8th Cir. 1998); Henchy v. City of Absecon, 148 F.Supp.2d 435, 440-442 (D.NJ. 2001).
III. EMPLOYEES EXEMPT FROM FLSA COVERAGE
The FLSA does not apply to employees who are exempt from its coverage. Employees are exempt from the coverage of the FLSA if they are employed "in a bonafide executive, administrative or professional capacity." 29 U.S.C. §213(a). An employee is either exempt or nonexempt from provisions of the FLSA; an employee may not be partially nonexempt from the FLSA. Auer v. Robbins, 65 F.3d 702, 718 (8th Cir.1995).
In a landmark case, AFGE v. OPM, 821 F.2d 761, 769 (D.C. Cir.1987), the Court of Appeals agreed with AFGE's position that OPM could not use its regulatory authority to deny FLSA coverage (expand an FLSA exemption criteria) to federal employees to a degree greater than the DoL regulations.
The principle issue in most federal employee FLSA cases is whether a particular position (or group of positions) is "FLSA exempt" and, hence, not entitled to FLSA overtime. The exemption criteria and regulations are first identified below and then the methods of proof as to the exemptions are discussed.
A. BURDEN OF PROOF REQUIRED OF GOVERNMENT TO PROVE EXEMPTION FROM FLSA COVERAGE
Exemptions to the FLSA are to be narrowly construed in order to further Congress' goal of providing broad federal employment protection. Davis v. Mountaire Farms, Inc., 453 F.3d 554, 556 (3rd Cir.2006); Madison v. Resources for Human Development, Inc., 233 F.3d 175, 183 (3rd Cir.2000); Mitchell v. Lublin, McGaughy & Assoc., 358 U.S. 207, 211 (1959); Dent v. Cox Communications Las Vegas, Inc., 502 F.3d 1141, 1146 (9th Cir. 2007); Dept. of Labor v. North Carolina Growers Ass’n, 377 F.3d 345, 350 (4th Cir. 2004); Roy v. Country of Lexington, S.C., 141 F.3d 533 (4th Cir. 1998).
Employers who claim that an exemption applies to their employees not only have the burden of proof, Meachem v. Knolls Atomic Power Laboratory, 128 S.Ct. 2395, 2396 (2008); Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974); Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3rd Cir.2008); Cowart v. Ingalls Shipbuilding, Inc., 213 F.3d 261, 264 (5th Cir.2000); Reich v. State of New York, 3 F.3d 581, 586 (2nd Cir.1993), cert. denied, 510 U.S. 1163 (1994); Heidtman v. County of El Paso, 171 F.3d 1038, 1042 (5th Cir.1999); Hays v. City of Pauls Valley, 74 F.3d 1002, 1005 (10th Cir.1996); Shaw v. Prentice Hall Computer Pub. Inc., 151 F.3d 640, 642 (7th Cir.1998), but also they must show that the employees fit "plainly and unmistakenly within [the exemption's] terms." Auer v. Robbins, 519 U.S. 452, 462 (1997); Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960), reh. den., 362 U.S. 945 (1960); Desmond PNGI Charles Town Gaming, L.L.C., 564 F.3d 688, 692 (4th Cir.2009); Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3rd Cir.2008); McLaughlin v. Boston Harbor Cruise Lines, Inc., 419 F.3d 47, 58 (1st Cir.2005); Aaron v. City of Wichita, 54 F.3d 652, 657 (10th Cir.1995), cert. denied, 516 U.S. 965 (1995); Hays v. City of Pauls Valley, 74 F.3d 1002, 1006 (10th Cir.1996).
The employer has the burden of establishing by affirmative evidence all the necessary requirements of the exemption. Huff v. DeKalb County, 516 F.3d 1272, 1278 (11th Cir.2008); Johnson v. Volunteers of America, 213 F.3d 559, 563 (10th Cir.2000); Karson v. American College of Cardiology, 198 F.3d 237, **1 (4th Cir.1999); Clark v. J.M. Benson Co., Inc., 789 F.2d 282, 286 (4th Cir.1986); Donovan v. United Video, Inc., 725 F.2d 577, 581 (10th Cir.1984).
An employer must prove that the employee is exempt by "clear and affirmative" evidence. Archuleta v. Wal-Mart Stores, Inc., 543 F.3d 1226, 1233 (10th Cir.2008); Huff, 516 F.3d at 1278 (11th Cir.2008);Aaron v. City of Wichita, Kan., 54 F.3d 652, 657 (10th Cir.1995).
While an examination of an employee’s duties are questions of fact, the ultimate question whether an employee is exempt under the FLSA is an issue of law. Hertz v. Woodbury County, 566 F.3d 775, 780 (8th Cir.2009); Jarrett v. ERC Properties, Inc., 211 F.3d 1078, 1081 (8th Cir.2000).
The Agency should not be allowed to raise an FLSA exemption for the first time late in the proceedings. If an Agency attempts to raise an exemption at the start of an arbitration hearing (or later) the Union should object that the late raising of the defense acts as a waiver of the defense. FLSA exemptions are an affirmative defense that must be pleaded and proved by the defendant; Hertz v. Woodbury County, Iowa, 566 F.3d 775, 783 (8th Cir.2009); Baden-Winterwood v. Life Time Fitness, Inc., 566 F.3d 618, 627(6th Cir.2009)(holding standard of proof to be by a preponderance of the evidence); Jones v. Giles, 741 F.2d 245, 248 (9th Cir.1983).
Defendants may raise an affirmative defense [such as an FLSA exemption] for the first time in a motion for summary judgement only if the delay does not prejudice the plaintiff. Norwood v. Vance, ___ F.3d ____, 2009 WL 1961185, *11 (9th Cir.2009); Magna v. Com. of the Northern Mariana Islands, 107 F.3d 1436, 1446 (9th Cir.1997) (citing Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir.1994)).
OPM Regulations provide at 5 C.F.R. §551.202(a): "Exemption criteria shall be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption." At §551.202(b) it provides: "The burden of proof rests with the Agency that asserts the exemption." At §551.202(c) OPM provides: "All employees who clearly meet the criteria for exemption must be exempted."
OPM Ltr. 551-7 (Attachment, pg. 12) mandates an extremely heavy burden of proof for the Agency to meet in asserting that a position is FLSA exempt. OPM directives in FPM Ltr. 551-7 B. 2. A state as follows:
(1) FLSA exemptions must be narrowly construed and applied only to employees who are clearly within the terms and spirit of the exemptions; (2) The burden of proof rests with the employer who asserts the exemption. Thus, if there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee should be ruled nonexempt." (Emphasis supplied.)
The Union should take the position that if the Union raises a "reasonable doubt" as to a position's exempt status, the position must be found to be non-exempt [FPM Ltr. 551-7(B)(2)(A)(2)].
B. THE ADMINISTRATIVE EXEMPTION
The "administrative" exemption is, by far, the basis for exemption most often claimed by the United States as a justification for the denial of FLSA overtime for federal employees. Both DoL and OPM have issued regulations explaining the "administrative" exemption. See Jarrett v. ERC Properties, Inc., 211 F.3d 1078, 1081 (8th Cir.2000). The administrative exemption is not merely a division of "blue collar" and "white collar" employees. In the modern work environment "white collar" employees may be FLSA non-exempt. FLSA status depends on the actual work of the employee, not the office or factory floor location of the work. Reich v. John Alden Life Ins., 126 F.3d 1, 7, 11-12 (1st Cir.1997). An employee only qualifies for the administrative exemption if the primary duty consists of office work requiring the exercise of discretion and independent judgment. Demos v. City of Indianapolis, 126 F.Supp.2d 548, 562 (S.D.Ind. 2000).
1. Department of Labor Regulations
The definition of a bona fide administrative employee who is exempt from the FLSA is contained in 29 C.F.R. §541.2.
The courts have interpreted the "administrative" exemption as follows:
"The phrase, "directly related to management policies of his employer or his employer's customers," is interpreted at 29 C.F.R. §541.205, and "describes those types of activities relating to the administrative operations of a business as distinguished from 'production'."
[The employer's] business is "producing" information for its clients, and the plaintiff's duties
consisted almost entirely of gathering that "product." Thus, it appears to the court that the plaintiff was engaged in "production" within the meaning of the regulation."
Gusdonovich v. Business Information Co., 705 F.Supp. 262, 265 (W.D.Pa. 1985).
The DoL has published a "short test" for the administrative exemption at 29 C.F.R. §541.2 that applies to essentially all federal employees over GS-1, step 2. See Heidtman v. County of El Paso, 171 F.3d 1038, 1041 (5th Cir.1999).
2. Office of Personnel Management Regulations
The OPM has also published regulations on the "administrative" exemption found in the FLSA at 5 C.F.R. §551.206. Recall that under AFGE v. OPM, OPM regulations must be read so that they do not expand an exemption beyond that of DoL. Thus an OPM regulation which defines an exemption more expansively (broadly) than the comparable DoL regulation is inoperative. However, it is permissible for an OPM regulation to define an exemption more narrowly than DoL. For example, DoL regulations define "executive" as supervising employees, while OPM defines "executive" as supervising three or more employees.
C. THE PROFESSIONAL EXEMPTION
This exemption is used to a far lesser extent by the United States as a defense to the payment of FLSA overtime to AFGE bargaining unit members. Both OPM (5 C.F.R. §551.207(a)) and Department of Labor (29 C.F.R. §541.300-02) have issued regulations on the "professional" exemption. It should be noted that the professional exemption includes the salary (rather than hourly) pay requirement. Danesh v. Rite Aid Corp., 39 F.Supp.2d 7, 10 (D.D.C. 1999). The word "professional" has been expanded in colloquial usage to encompass terms such as "professional secretary" or "professional plumbers." In the FLSA context, however, the "professional" exemption covers only those positions that were historically termed "professions," i.e., doctors, dentists, nurses, medical technologists, attorneys, CPAs (not staff accountants), teachers, engineers, airline pilots, artistic professionals and architects, engineers and scientists. See Fife v. Harmon, 171 F.3d 1173, 1176 (8th Cir.1999); 29 C.F.R. §541.303. Examples of positions that have been found not to qualify for the professional exemption include probation officers, x-ray technicians, and insurance investigators. See Ragnone v. Belo Corp., 131 F.Supp.2d 1189, 11193-94 (D.Or. 2001) (helicopter pilot not a “professional” under FLSA because training does not revolve around specialized academic instruction).
It is important to note that this exemption normally requires knowledge in a field of science or learning at least to the level of a bachelor's degree. See 77 ALR Fed. 681 (1986); see also Rutlin v. Prime Succession, Inc., 220 F.3d 737, 748 (6th Cir.2000); Debejian v. Atlantic Testing Laboratories, Ltd., 64 F.Supp.2d 85, 88-89 (N.D.N.Y. 1999) (noting that an advanced degree is not determinative, and the proper inquiry is whether the position necessitates advanced education).
Recently, the government has been attempting to expand the "professional" exemption to cover technician type positions. The government argues that electrical technicians have the analytical duties and the special education to make them analogous to electrical engineers. AFGE, of course, argues that analytical duties and special training are elements in essentially every white collar federal position and to expand the limited "professional" exemption solely on these qualities would have the exception swallowing the rule. This matter is currently in litigation, and no clear cut answer is available at this time. However, any expansion of the "professional" exemption beyond its traditional boundaries should be resisted and carefully tested by the DoL exemption regulations.
1. Special Problems for Computer Related Positions
Special rules apply to computer related positions when referring to the "professional" exemption. In the Federal Government computer specialists are usually identified as the GS-334 position.
In 1990 Congress expanded the "professional" exemption as it relates to computer related positions. Public Law 101-583, §2, 104 Stat. 2871, reads as follows:
Section 2 of Public Law 101-583, enacted November 15, 1990, provides as follows:
Not later than 90 days after the date of enactment of this Act [Nov. 15, 1990], the Secretary of Labor shall promulgate regulations that permit computer systems analysts, computer programmers, software engineers, and other similarly skilled professional workers as defined in such regulations to qualify as exempt executive, administrative, or professional employees under section 13(a)(1) of the Fair Labor Standards Act of 1938 [29 U.S.C. 213(a)(1)]. Such regulations shall provide that if such employees are paid on an hourly basis they shall be exempt only if their hourly rate of pay is at least 6 1/2 times greater than the applicable minimum wage rate under section 6 of such Act (29 U.S.C. 206)[section 206 of this title].
P.L. 101-583, codified at, 29 U.S.C. §213 note; reprinted at, 56 Fed. Reg. 8250 (Feb. 27, 1991) (emphasis added).
As of March, 1996, OPM has issued no regulations implementing P.L. 101-583. The Department of Labor regulations implementing P.L. 101-583 are found at 29 C.F.R. §541.303.
Similarly 29 C.F.R. §541.312 has been modified by DoL for computer related positions.
2. 29 C.F.R. §541.312 Salary basis
The salary basis of payment is explained in 29 C.F.R. §541.118 in connection with the definition of "executive." Usually, for a position to be considered FLSA exempt under the "administrative" or "executive" exemptions the employee must be paid “on a salary basis”. McGuire v. City of Portland, 159 F.3d 460, 462-63 (9th Cir.1998) (quoting from Stanley v. City of Tracy, 120 F.3d 179, 183 (9th Cir.1997) (citing 29 C.F.R. §§ 541.1(f), 541.2(e))). Pursuant to Public Law 101-583, enacted November 15, 1990, payment "on a salary basis" is not a requirement for exemption in the case of those employees in computer-related occupations, as defined in § 541.3(a)(4) and § 541.303, who otherwise meet the requirements of § 541.3 and who are paid on an hourly basis if their hourly rate of pay exceeds 6-1/2 times the minimum wage provided by section 6 of the Act.
It is clear from both the plain language of P.L. 101-583 (which is the express basis of the DoL regulations titled "§541.303 Computer Related Occupations Under Public Law 101-583") and the legislative history, that only those computer related positions paying over 6 1/2 times the minimum wage, as required by 29 C.F.R. §541.312, are exempted from the FLSA as "professional" employees by P.L. 101-583. It is AFGE's position that only employees at the GS-14, step 7 pay rate, or above, qualify for exemption under P.L. 101-583. No GS-13 pay-rate meets the salary requirement of P.L. 101-583, as the GS-13 pay scale pays a maximum of $91,801.00.
See also, 29 C.F.R. §451.3(a)(4), §451.303.
D. THE EXECUTIVE EXEMPTION
By its terms, the "executive" exemption does not apply to AFGE bargaining unit members who, by definition, cannot be "supervisors." We have never seen a case where an Agency has claimed this exemption for members of our bargaining units. OPM regulations on this exemption can be found at 5 C.F.R. §551.204.
E. NO COLLECTIVE BARGAINING EXEMPTION
There is no collective bargaining exemption to the FLSA. Furthermore, a union cannot bargain away the FLSA rights of the employees. Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 740, 745 (1981); Collins v. Lobdell, 188 F.3d 1124, 1127 (9th Cir.1999); L-246 Utility Workers v. Southern Cal. Edison Co., 83 F.3d 292, 297 (9th Cir.1996); Featsent v. City of Younstown, 70 F.3d 900, 905 (6th Cir.1995); Castillo v. Case Farms of Ohio, Inc., 96 F.Supp.2d 578, 638 (W.D.Tex. 1999); Braddock v. Madison County , 34 F.Supp.2d 1098, 1106 (S.D.Ind. 1998); Brooks v. Village of Ridgefield Park, NJ, 978 F.Supp. 613, 618 (D.N.J. 1997). Employers and employees may not, in general, make agreements to pay and receive less pay than the FLSA provides for, and such agreements are against public policy and unenforceable. Roman v. Maietta Construction Co., 147 F.3d 71, 76 (1st Cir.1998); Martin v. Indiana Michigan Power Co., 292 F.Supp.2d 947, 959 (W.D.Mich. 2002).
The union may bargain on alternative work schedule (flex-time) for bargaining unit employees. 5 U.S.C. §6130. The flex-time provisions may have an effect on FLSA overtime as flex-time, by its very nature, tends to compress work schedules.
IV. PROVING AN FLSA CASE
A. THE PRIMARY FUNCTION OF A POSITION
A FLSA case will be won or lost on the actual job duties of a particular position. Whether a particular position is FLSA exempt (which is the principal Agency defense in most FLSA cases) is decided solely upon the actual job duties of the challenged position. “Whether an employee is exempt from overtime pay is determined by the employee's actual work activities, not by the employer's characterization of those activities through a job title or job description.” Hunter v. Sprint Corp., 453 F.Supp.2d 44, 51 (D.D.C. 2006); Demos v. City of Indianapolis, 126 F.Supp.2d 548, 559 (S.D.Ind. 2000); Burke v. County of Monroe, 225 F.Supp.2d 306, 319 (W.D.N.Y. 2002); Cooke v. General Dynamics Corp., 993 F.Supp. 56, 61 (D.Conn. 1997). The focus of the inquiry will be on what the job actually entails on a day-to-day basis, i.e., the primary duty of the position. Both OPM and DoL have issued regulations and guidance on the "primary duty" of a position for FLSA purposes.
The Courts have interpreted the definitions by DoL in 29 C.F.R. §541.103 as follows:
The administrative capacity exemption first requires that the employee's "primary duty" consist in the performance of office or nonmanual work "directly related to management policies or general business operations." The regulations state that "primary duty" means "the major part or over 50 percent" of the employee's time. 29 C.F.R. §§541.103, 541.206(b) (footnote omitted).
Clark v. J.M. Benson Co. Inc., 789 F.2d 282, 286 (4th Cir. 1986).
See also Smith v. First Union Nat. Bank, 202 F.3d 234, 250-51 (4th Cir.2000); Paul v. Petroleum Equipment Tools Co., 708 F.2d 168, 170 (5th Cir.1983); Smith v. Wynfield Development Co., Inc., 451 F.Supp.2d 1327, 1333 (N.D.Ga. 2006); Moore v. Tractor Supply Co., 352 F.Supp.2d 1268, 1276 (S.D.Fla. 2004); Sack v. Miami Helicopter Service, Inc., 986 F.Supp 1456, 1464 (S.D.Fla. 1997); 29 C.F.R. §§541.206(b), 304(a).
The Clark Court then used the DoL regulations to fashion the appropriate burden of proof:
The district court therefore erred in persistently framing the issue as whether Clark met her burden to disprove her administrative status. Its [the district court] error could be harmless, however, if Clark's own testimony demonstrated that her primary duty directly related to management policies or general business operations, and included the exercise of discretion and independent judgement. We are, however, not convinced that Benson [the employer] met this burden.
* * * *
Clark's [the employee] testimony does not clearly indicate how her time was apportioned, so we cannot conclude, as a matter of law, that over 50 per cent of her work time was directly related to administrative functions.
* * * *
We must conclude, therefore, that Benson [the employer] did not meet its burden of proving, to the point beyond which reasonable minds could differ, the facts requisite to establishing the first element [the performance of office or nonmanual work "directly related to management policies or general business operations"] of the administrative exemption.
Clark, 789 F.2d at 286-87 (emphasis in original).
Thus, the Department of Labor stresses that what an employee does as actual job duties for 50% of his/her time is the controlling element of defining the "primary duty" of a position.
B. PROOF REQUIRED TO RECEIVE OVERTIME PAY
To prevail on their FLSA claims for overtime compensation, plaintiffs must prove by a preponderance of the evidence that:
1. they were employed by the defendant in excess of forty hours per week; and,
2. that the work they performed was for the benefit of the employer (government); and,
3. that they were not properly compensated for that work.
C. BURDEN OF PROOF OF FLSA OVERTIME COMPENSATION
Each employee must prove that "he has in fact performed work for which he was improperly compensated" and "produce sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 688 (1946), superceded by statute on other grounds; Hertz v. Woodbury County, Iowa, 566 F.3d 775, 781 (8th Cir.2009); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1278 (11th Cir.2008); DoL v. Cole Enterprises, Inc, 62 F.3d 775, 779 (6th Cir.1995). The fact that a plaintiff is unable to prove the precise extent of the uncompensated work does not preclude recovery. Chao v. Akron Insulation and Supply, Inc.,184 Fed.Appx.508, 512 (6th Cir.2006); Cole, 62 F.3d at 779; Fegley v. Higgins, 19 F.3d 1126 (6th Cir.1994); Herman v. Palo Group Foster Home, Inc. 976 F.Supp. 696, 701 (W.D.M.I. 1997).
Plaintiffs are not required to produce actual records or logs, but may establish the amount of overtime worked through their own testimony. Bueno v. Mattner, 829 F.2d 1380, 1387 (6th Cir.1987).
Testimony of a relevant sampling of employees may be sufficient to prove the claims of all similarly situated employees. Maynor v. Dow Chemical, Co., 2008 WL 2220394, *9 (S.D.T.X. 2008); Herman, 91 F.Supp.2d at 447.
Where plaintiffs establish that they performed overtime work for which they were not compensated and the amount and extent of that work as a matter of just and reasonable inference, “the burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the plaintiffs' evidence,” and if the defendant fails to produce such evidence, the court may then award damages to the plaintiffs, even if the amount is only approximate. Mt. Clemens Pottery, 328 U.S. at 687-688; Brown v. Family Dollar Stores of IN, LP, 534 F.3d 593, 595 (7th Cir.2008); Metzler v. IBP, Inc., 127 F.3d 959, 965-66 (10th Cir.1997); Bueno, 829 F.2d at 1387. Under Mt. Clemens Pottery, an employer cannot complain about the employee's calculation method unless it introduces specific evidence to the contrary of the hours actually worked or evidence that undermines the reasonableness of the estimate. Metzler, 127 F.3d at 966; Waldbaum, 833 F.Supp. at 1045. The use of representational examples (rather than every overtime employee) is permissible. Chao v. Vidtape, Inc., 66 Fed.Appx. 261, 264-65 (2nd Cir. 2003); Reich v. Southern New England Telecommunications Corp., 121 F.3d 58, 66-67 (2nd Cir.1997).
It is certainly in the employee's interests to enter the strongest evidence of time worked. Records such as time logs, desk calendars with work notations, diaries, and other evidence of hours worked are invaluable, as official Agency records (T&A cards) are often lacking.
D. WHAT IS NOT "WORK" UNDER THE FLSA
An employer is not required to pay overtime compensation in regard to "activities which are preliminary to or postliminary to" the principal activities which the employee is employed to perform "which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities." 29 U.S.C. §254(a)(2). Thus, for example, the changing into sterile clothing before a workshift at NIH would not be compensable time. However, employee activities performed either before or after the regular work shift are compensable under §254(a)(2) if those activities are an integral and indispensable part of the principal activities for which the person is employed. ;Gorman v. Consolidated Edison Corp., 488 F.3d 586, 590 (2nd Cir.2007); Alvarez v. IBP, Inc., 339 F.3d 984, 902 (9th Cir.2003); see also Preston v. Settle Down Enterprises, Inc., 90 F.Supp.2d 1267, 1278-79 (N.D.G.A. 2000); Mitchell v. King Packing Co., 350 U.S. 260, 263 (1956); Steiner v. Mitchell, 350 U.S. 247, 252-53 (1956).
Requiring that employees arrive to work at a reasonable time before starting work, in order to complete non-compensable preliminary activities differs from requiring employees to report to work at a particular time before their duty starts. Bureau of Prisons and AFGE Local 3981, 63 FLRA 107, 10 (2009). However, only under the latter situation are employees entitled to compensation for time before the beginning of their shifts. Id.
To decide whether an activity is an integral and indispensable part of a principal activity, the court must determine whether the activity is performed as part of the regular work of the employees in the ordinary course of business. Smith v. Aztec Well Servicing Co., 462 F.3d 1274, 1290 (10th Cir.2006); Duchon v. Cajon, Co. 840 F.2d 16, 1988 WL 12800, *4, (6th Cir. (Oh.)) (Unpublished/ Table Only); Dunlop v. City Electric, Inc., 527 F.2d 394, 400-01 (5th Cir.1976).
Picking up equipment at a penitentiary’s control center and walking from there to duty stations, and returning the equipment to the control center are compensable activities. Bureau of Prisons and AFGE Local 3652, 63 FLRA 127, 13 (2009). However time spent traveling in an elevator, or waiting to travel in an elevator is not compensable because it is not an integral and indispensable part of correctional officers’ duties, nor is it closely related to the performance of principal activities. Id. at 13-14.
Preliminary or postliminary activities are not compensable under the FLSA's overtime provision if they are undertaken for the employee's own convenience, are not required by the employer, and are not necessary for performance of duties for the employer. Hellmers v. Town of Vestal, N.Y., 969 F.Supp. 837, 843 (N.D.N.Y. 1997).
The term "principal activities" is liberally construed as including any work of consequence performed for an employer, no matter when the work is performed, as well as activities closely related to a principal activity which are indispensable to its performance. 29 C.F.R. §790.8; see also Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 910 (9th Cir. 2004).
Whether off-duty conduct is predominantly for the benefit of the employee, for determining it compensability under the FLSA depends on the degree to which an employees freedom is undermined by the work-related activity. Police officers who were required to pick up squad cars at another location prior to reporting to substation where they began their work were entitled to be compensated under the FLSA for time spent driving in squad car to substation. DeBrask v. City of Milwaukee, 11 F.Supp.2d 1020, 1035 (E.D.Wis. 1998).
E. STAND-BY TIME
The issue of "stand-by" time is becoming more important in the federal work sector as beepers and portable phones become more commonplace. The employer must compensate employees for time spent predominantly for the employers benefit. Aiken v. City of Memphis, Tennessee, 190 F.3d 753, 760 (6th Cir. 1999); (Citing Martin v. Ohio Turnpike Comm’n, 968 F.2d 606, 609 (6th Cir. 1992)(Citing Armour & Co. v. Wantock, 323 U.S.126, 133, (1944)) The issue of whether on-call employees are engaged in FLSA compensable hours of work is decided as follows:
Are the employees waiting to be engaged (non-compensable); or;
Engaged to be waiting (compensable)
Armour & Co. v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift & Co., 323 U.S. 134 (1944); Dinges v. Sacred Heart St. Mary’s Hospital, Inc., 164 F.3d 1056, 1057 (7th Cir. 1999); Preston v.. Hyman v. Efficiency, Inc., 605 S.E.2d 254 (N.C. Ct. App., 2004); Settle Down Enterprises, Inc., 90 F.Supp.2d 1267 (N.D. Ga. 2000).
Less eloquent (but more useful) is an examination of the freedom of on-call employees. The following are critical questions that need to be answered in any given case:
1. Are there restrictions in movement of on call-employees? Is an employee tied to their phone?
2. Are there restrictions in physical location of on-call employees? Is an employee tied to a specific location during the call-back time?
3. Are there restrictive report or callback requirements for on-call employees? Must an employee report for duty or phone-in within a certain time period after the call-back?
4. What are the penalties, if any, for failure to respond to a call-back?
The more restricted the freedom of the employee during the on-call period the more likely the on-call period may be found to be compensable hours of work. See, Jonites v. Exelon Corp., 522 F.3d 721 (7th Cir. 2008); Adair v. Charter County of Wayne, 452 F.3d 482 (6th Cir. 2006); Rutlin v. Rime Succession, Inc., 220 F.3d 737 (6th Cir. 2000); Dinges v. Sacred Heart St. Mary’s Hospital, Inc.; 164 F.3d 1056, 1057 (7th Cir. 1999); Ingram v. County of Bucks, 144 F.3d 265 (3rd Cir. 1998); Brekke v. City of Blackduck, 984 F.Supp. 1209 (D. Minn. 1997); Bartholomew v. Cith of Burlington, Kansas, 5 F.Supp.2d 1161 (D. Kan 1998).
Some cases have held that an employee’s free time must be severely restricted for off-time to be construed as work for FLSA purposes. Dooley . Liberty Mut. Ins. Co., 307 F.Supp.2d 234 (2004); Aiken v. City of Memphis, Tennessee, 190 F.3d 753 (6th Cir. 1999). A question should be was the waiting time spent primarily for the benefit of the employer and its business. Plumley v. Southern Container, Inc., 303 F.3d 364 (1st Cir. 2002); Ragnone v. Belo Corp., 131 F.Supp.2d 1189 (D.Or. 2001).
See, DoL hours of work regulations, 29 C.F.R. 553.221(c-d); §29 C.F.R. §785.7.
V. DAMAGES AND COMPENSATION
A. DAMAGES UNDER THE FLSA
As a primary matter, upon proof of a violation of §207(a)(1), an Agency is liable for the amount of unpaid overtime compensation. 29 U.S.C. §216(b). Note that if any Title 5 overtime was paid for the challenged work the employee is only entitled to the difference between the Title 5 overtime and the FLSA overtime.
Sums paid for occasional periods when no work is performed due to vacation, holiday, illness, payments for traveling and other reimbursable expenses, and other payments to an employee which are not made as compensation for hours of employment are not included in determining an employee's "regular rate" under §207(a)(1). 29 U.S.C. §207(e)(2). For purposes of the FLSA the regular rate of pay, by its very nature, must reflect all payments which the parties have
agreed shall be received regularly during the work week, exclusive of overtime payments. It is not
an arbitrary label chosen by the parties, but is instead an actual fact. Johnson v. Big Lots Stores, Inc., 604 F.Supp.2d 903, 927-28 (E.D.La. 2009). Herman v. Anderson Floor Co., Inc., 11 F.Supp.2d 1038, 1041 (E.D. WI. 1998).
B. SUFFERED OR PERMITTED OVERTIME
A principle advantage of FLSA overtime as compared to Title 5 overtime is that under the FLSA an Agency must pay for all Agency work that it either ordered or that it "suffered or permitted" employees to work. Thus, if employees come into the office early, work late, work weekends, or work through lunch, the Agency is obligated to pay for this time, providing all of the worktime adds up to more than 40 hours in a week. Advance authorization to work overtime is not required. The only requirement is that the Agency had knowledge that the overtime was being worked and that the work is being done for the benefit of the Agency.
1. WHAT IS "WORK", DEFINITION OF "EMPLOY"
To "employ" means to suffer or permit to work. 29 U.S.C. §203(g). Work may be suffered or permitted even if it is not requested in advance. 29 C.F.R. §785.11. Work may be suffered or permitted even if it is performed away from the employer's premises, even at home. 29 C.F.R. §785.12. "Work" for purposes of the FLSA is physical or mental exertion, whether burdensome or not, controlled or required by the employer, is necessarily and primarily for the benefit of the employer, and is an integral and indispensable part of the job. Holzapfel v. Town of Newburgh, NY, 145 F.3d 516 (2nd Cir. 1998)., 147; Scott v. City of New York, 592 F.Supp.2d 386, 400 (S.D.N.Y., 2008); Anderson v., Pilgrim's Pride Corp F.Supp.2d 556 (E.D. TX 2001). The employee has the initial burden of showing that he/she performed work for which the employee was improperly compensated for by the employer.
2. NEED FOR EMPLOYER KNOWLEDGE OF WORK
In order to show that they were suffered or permitted to work, employees must show that the defendant had either actual or constructive knowledge of the overtime work. Reich v. Stewart, 121 F.3d 400, 407 (8th Cir. 1997); Pforr v. Food Lion, Inc., 851 F.2d 106, 109-10 (4th Cir. 1988); Singh v. City of New York, 418 F.Supp.2d 390, 401 (S.D.N.Y. 2005). An employer who knows or should have known through the exercise of reasonable diligence that an employee is working overtime must comply with the FLSA requirements. See, Holzapfel v. Town of Newburgh, NY, 145 F.3d 516, 524 (2nd Cir. 1998); Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413 (9th Cir. 1981); Brennan v. General Motors Acceptance Corp., 482 F.2d 825, 827-28 (5th Cir. 1973) (constructive knowledge found due to knowledge and acts of employees' immediate supervisors) Allen v. Board of Public Education for Bibb County, 495 F.3d 1306, 1321 (11th Cir. 2007). Constructive knowledge may also be established through proof of a pattern or practice of overtime work. Pforr, 851 F.2d at 109.
An employer who is armed with the knowledge that an employee is or was working overtime cannot stand idly by and allow the employee to perform overtime work without proper compensation, even if the employee does not make a claim for overtime. Scott v. City of New York, 592 F.Supp.2d 501, 504 (S.D.N.Y. 2008); Jerzak v. City of South Bend, 996 F.Supp. 840 (N.D.Ind. 1998). FLSA overtime may not be denied solely on the grounds that the employee could have completed his or her tasks during scheduled hours thereby avoiding the need for overtime altogether. Holzapfel v. Town of Newburgh, NY, 145 F.3d 516 (2nd Cir. 1998).
3. NON-DEFENSE OF "NO OVERTIME WORK" DIRECTIVES
An employer cannot take shelter in an instruction to employees not to work more than forty hours per week knowing the employee actually works more. Allen v. Board of Public Education, 495 F.3d 1306, 1316 (11th Cir. 2007); Reich v. Stewart, 121 F.3d 400, 407 (8th Cir. 1997); Wirtz v. Bledsoe, 365 F.2d 277 (10th Cir. 1966). Compare with Carman v. Yolo Flood Control and Water Conservation Dist., 535 F.Supp.2d 1039, 1053 (E.D.Cal. 2008) (explicit agreement not to exceed set hours without approval reasonable and enforceable).
Even where an employer has not specifically ordered an employee to work, an employee must be compensated for time spend working on the employer's behalf if the employer accepts the benefits of such work and does not act to stop performance of the work it does not want performed, regardless of whether the employee demands overtime compensation. Mumbower v. Callicott, 526 F.2d 1183, 1188 (8th Cir. 1975); Bull v. U.S., 68 Fed. Cl. 212, 224 (2005). An employer must pay for work suffered or permitted notwithstanding an agreement to obtain authorization to work beyond a specified work period. Chao v. Gotham Registry, Inc., 514 F.3d 280, 288 (2nd Cir. 2008); Burry v. National Trailer Convoy, Inc., 338 F.2d 422 (6th Cir. 1964); Majchrzak v. Chrysler Credit Corp., 537 F.Supp. 33, 36-38 (E.D. Mich. 1981).
The mere promulgation of a policy or instructions not to work overtime, standing alone, does not establish that the employer did not suffer or permit the work where the nature of the work required overtime or the employer pressured the employees to work overtime. Reich v. Dept of Conservation & Nat. Resources, 28 F.3d 1076 (11th Cir. 1994); Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984); Hellmers v. Town of Vestal, N.Y., 969 F.Supp 837 (N.D.N.Y. 1997).
C. THE "DE MINIMIS" RULE
Under the "de minimis rule," employees generally cannot recover for otherwise compensable time if it amounts to only a few seconds or minutes of work beyond scheduled working hours. Anderson v. Mt. Clemens Pottery, 328 U.S. 680, 692 (1946); Gorman v. Consol. Edison Corp., 488 F.3d 586 (2nd Cir. 2007) (Time spent donning ordinary protective gear ex. Safety glass, helmet, steel toed boots non-compensable as De Minimis); IBP, Inc. v. Alvarez, 546 U.S. 21 (2005) (Small amounts of time that are principal activities are compensable; once having completed first principal activity, time spent walking to work station is compensable as part of the continuous workday); Reich v. Monfort, 144 F.3d 1329 (10th Cir. 1998) (8-11 minutes not De Minimis); Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984) (Holding 5-15 minutes prior to shift De Minimis); Jerzak v. City of South Bend, 996 F.Supp. 840 (N.D. Ind. 1998)(It is a factual finding as to how much time not at work is compensable).
Factors to be considered in determining whether a claim is de minimis include: 1) the practical administrative difficulty of recording the additional time; 2) the aggregate amount of compensable time; and 3) the regularity of the additional work. Lindow, 738 F.2d at 1062-1063; see also Monfort Davis v. State, Dept. of Transportation, 159 P.3d 427, 431 (Wash. Ct. App. 2007).
Most courts have found periods of approximately ten minutes or less to be de minimis. Lindow, 738 F.2d at 1062; but see, Monfort, 10 minutes compensable; AFSCME, 15 minutes compensable. But see, Bartholomew v. Cith of Burlington, Kansas, 5 F.Supp.2d 1161 (D. Kan 1998), 15 minutes non-compensable. However, a small but regular daily amount of time aggregated over a period of three years may not be de minimis. Id. at 1063.
D. LIQUIDATED DAMAGES
In addition to recovering the wrongfully withheld FLSA overtime, an award of liquidated damages in an amount equal to the unpaid back wages is mandated in the case of a violation of the statute. The FLSA provides for a doubling of any overtime award. This doubling of the wrongfully withheld overtime is called liquidated damages.
It is important to note that the FLSA not only requires proper payment of wages but that it also requires the timely payment of proper wages. Late payment of proper FLSA overtime triggers the liquidated damages provision of the Act. Brooklyn Savings Bank v. O'Neil, 324 U.S. 697 (1945); Calderon v. Witvoet, 999 F.2d 1101, 1107 (7th Cir. 1993).
1. FLSA LIQUIDATED DAMAGES
29 U.S.C. §216 provides:
(b) Any employer who violates the provisions of section 206 or section 207 of this title [hours of work over 40 per week] shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and an additional equal amount as liquidated damages. (Emphasis added.)
The trier of fact (such as an arbitrator) must award liquidated damages unless the Agency meets its substantial burden of proof to avoid liquidated damages. See,; See also, Jarrett v. ERC Properties, Inc., 211 F.3d 1078 (8th Cir. 2000); Reich v. Southern New England Telecommunications Corp., 121 F.3d 58, 70-71 (2nd Cir. 1997); Wajcman v. Investment Corp. of Palm Beach ___F.Supp.2d___, 2009 WL 1564156, *4 (S.D. Fla., 2009).
Thus, the trier of fact's decision whether to award liquidated damages does not become discretionary until the employer carries its burden of proving good faith. In other words, liquidated damages are mandatory absent a showing of good faith. Chao v. Barbeque Ventures, LLC, 547 F.3d 938, 941-43 (8th Cir. 2008.); Greene v. Safeway Stores, 210 F.3d 1237 (10th Cir. 2000); Nero v Industrial Molding Corp., 167 F.3d 921 (5th Cir. 1999); Bernard v. IBI Inc. of Nebraska, 154 F.3d 259 (5th Cir. 1998); EEOC v. First Citizens Bank of Billings, 758 F.2d 397, 403 (9th Cir.), cert. denied, 474 U.S. 907 (1985).
Before a trier of fact may exercise its discretion to award less than the full amount of liquidated damages, it must explicitly find that the employer acted in good faith. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1282 (11th Cir. 2008); Joiner v. City of Macon, 814 F.2d 1537, 1539 (11th Cir. 1987); Williams v. Tri-County Growers, Inc., 747 F.2d 121, 129 (3rd Cir. 1984);; see also, L-246 Utility Workers v. Southern Cal. Edison Co., 83 F.3d 292 (9th Cir. 1996). The employer bears the burden of showing good faith and there is strong presumption in doubling the award. Herman v. RSR Sec. Services Ltd., 172 F.3d 132, 142-43 (2nd Cir. 1999); Shea v. Galaxie Lumber & Construction Co. Ltd, 152 F.3d 729 (7th Cir. 1998); Herman v. Hector I. Nieves Transp. Inc., 91 F.Supp.3d 435 (D. Puerto Rico 2000)
The liquidated damages provision of 29 U.S.C. §216(b) was specifically applied to federal employees in 29 U.S.C. §204(f):
Notwithstanding any other provision of this chapter [the FLSA], or any other law, the Civil Service Commission [now Office of Personnel Management] is authorized to administer the provisions of this chapter with respect to any individual employed by the United States .... Nothing in this subsection shall be construed to affect the right of an employee to bring an action for unpaid minimum wages, or unpaid overtime compensation and liquidated damages under section 216(b) of this Act." (Emphasis added.)
Liquidated damages are not meant to be punitive; rather, they are compensatory in nature to provide adequate recompense to employees whose proper wages were illegally withheld. Chao v. Barbeque Ventures, LLC, 547 F.3d 938, 941 (8th Cir. 2008.); Herman v. RSR Sec. Services Ltd., 172 F.3d 132 (2nd Cir. 1999). Congress provided for liquidated damages to compensate employees for losses they might suffer by reason of not receiving their lawful wage at the time it was due. Reich v. Southern New England Telecommunications Corp., 121 F.3d 58 (2nd Cir. 1997); Marshall v. Brunner, 668 F.2d 748, 753 (3rd Cir. 1982); Martin v. Cooper Electric Supply Co., 940 F.2d 893, 907 (3rd Cir. 1991). See also, L-246 Utility Workers v. Southern Cal. Edison Co., supra; Cox v. Brookshire Grocery Co., 919 F.2d 354, 357 (5th Cir. 1990); Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094 (11th Cir. 1987); Yu G. Ke v. Saigon Grill, Inc., 595 F.Supp.2d 240 (S.D.N.Y. 2008). The FLRA has confirmed that arbitrators have the authority to award liquidated damages against the federal government in FLSA situations. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 49 FLRA No. 40, 49 FLRA 483, 489-90 (March 10, 1994), citing, U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and National Treasury Employees Union, 46 FLRA No. 97, 46 FLRA 1063, 1073 (1992) (finding a waiver of sovereign immunity under the Back Pay Act (5 U.S.C. §5596)).
2. AGENCY DEFENSES TO LIQUIDATED DAMAGES
a. 29 U.S.C. §260
Under 29 U.S.C. §260, an Agency may be relieved from payment of liquidated damages "if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation" of the FLSA. However, an award of liquidated damages is discretionary even where the employer shows that he acted in good faith. Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259 (11th Cir. 2008); Heidtman v. County of El Paso, 171 F.3d 1038 (5th Cir. 1999); McClanahan v. Mathews, 440 F.2d 320 (6th Cir. 1971); Herman v. Hector I. Nieves Transp. Inc., 91 F.Supp.3d 435 (D. Puerto Rico 2000);.
3. DUTY FREE LUNCH
In a "duty free lunch" scenario the issue is whether employees are required to "work" during their "free" lunch period. This is a question of fact revolving around the duties the employees are required to perform. See, 29 C.F.R. §785.19; Roy v. County of Lexington, 131 F.3d 533, 544-45 (4th Cir. 1998); Beasley v. Hillcrest Med. Ctr., 78 Fed.Appx. 67, 70 (10th Cir. 2003); Bernard v. IBP, Inc., 154 F.3d 259, 265 (5th Cir. 1998); Reich v. Southern New England Telecommunications Corp., 121 F.3d 58 (2nd Cir. 1997); Perez v. Mountaire Farms, Inc, 610 F.Supp.2d 499, 520 (D.Md. 2009).
Under 29 C.F.R. §785.13 there is an affirmative duty of the management to exercise its control and see that the work is not performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.
An actual "duty free lunch" is not considered hours of work for FLSA purposes. However, to the failure to pay employees for meal time is an exception to the FLSA that must be narrowly construed and the burden is on the employer to show that it is entitled to the exception. Bernard v. IBI Inc. of Nebraska, 154 F.3d 259, 265 (5th Cir.1998); Roy v. County of Lexington, S.C., 141 F.3d 533, 544 (4th Cir.1998); Abendschein v. Montgovery County, Md., 984 F.Supp. 356, 359 (D.Md. 1997); see also Ballaris, 370 F.3d at 913-14; cf. Hertz, 566 F.3d at 783-84 (because employees argued they worked during their mealtimes, in addition to their regularly scheduled shift, which amounts to an overtime claim for which employees retain burden of proof rather than an exemption claim brought as an affirmative defense by employer).
The "predominant benefits test" is applied to determine who primarily benefits from a meal period for purposes of determining whether, under the FLSA, employees are entitled to compensation for their meal period. 29 CFR 785.19; Hartsell v. Dr. Pepper Bottling co. of Texas, 207 F.3d 269, 274 (5th Cir. 2000); Alexander v. City of Chicago, 994 F.2d 333, 337 (7th Cir.1993); Henson v. Pulaski County Sheriff Dep’t, 6 F.3d 531, 534 (8th Cir.1993); Mendez v. Radec Corp., 232 F.R.D. 78, 83 (W.D.N.Y. 2005); Summers v. Howard University, 127 F.Supp.2d 27, 33 (D.D.C. 2000).
a. ATTORNEY FEES AND COSTS
The FLSA grants the prevailing party reasonable attorney fees and costs. 29 U.S.C. §216(b). The Act orders that the court:
[s]hall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." [Emphasis added.]
29 U.S.C. § 216(b).
The Courts have held that the attorney's fee provision is mandatory and that the prevailing plaintiffs shall be awarded their attorney's fees.
Section 216 provides for an award of attorney's fees, as opposed to granting the court discretion in awarding such fees, to the prevailing plaintiff in FLSA cases. In consideration of the language of section 216(b) and its underlying purpose, we hold that attorney fees are an integral part of the merits of FLSA cases and part of the relief sought therein.
Shelton v. Ervin, 830 F.2d 182, 184 (11th Cir. 1987); Gary v. Health Care Services, Inc., 744 F.Supp. 277, aff'd, 940 F.2d 673 (5th Cir. 1991); Jackson v. Estelle Place, LLC; 2009 WL 1321506 2-3 (E.D. VA.2009); Powell v. Carey Intern., Inc., 547 F.Supp.2d 1281 (S.D.Fla. 2008).
The "good faith" of an employer is irrelevant to the mandatory award of attorney's fees and costs and provides no defense to the employer to the award of costs and fees. Weisel v. Singapore Joint
Venture, Inc., 602 F.2d 1185 (5th Cir. 1979). See also, Luther v. Wilson, 528 F.Supp. 1166, 1176 (S.D. OH. 1981); Astor v. U.S., 79 Fed. Cl. 303 (2007)
Such awards may include fees for appellate and post-remand services. See, Mints v. Education Testing Service, 99 F.3d 1253, 1257-59 (3d Cir. 1996); Perkins v. Standard Oil Co., 399 U.S. 222 (1970); Newhouse v. Robert's Ilima Tours Inc., 708 F.2d 436, 441 (9th Cir. 1983); Williamsburg Plantation, Inc. v. Bluegreen Corp., WL 445289 (E.D.Va. 2007) (Not Reported in F.Supp.2d).
1. BACKPAY ACT: ATTORNEY FEES
In a suit against the federal government (or its agencies) for FLSA back pay, attorney fees may also be recovered against the United States pursuant to the Back Pay Act. The Back Pay Act, 5 U.S.C. §5596(b)(1)(A)(ii), reads as follows:
An employee...is entitled...to receive...
(ii) reasonable attorney fees related to the personnel action, which, with respect to any decision relating to an unfair labor practice, or a grievance processed under a procedure negotiated in accordance with chapter 71 of this title [5 U.S.C.],....shall be awarded in accordance with standards established under section 7701(g) of this title; and [emphasis added]
5 U.S.C. §7701(g)(1) reads as follows:
(g)(1) Except as provided in paragraph (2) of this subsection, the Board, or an administrative law judge, or other employee of the Board designated to hear a case, may require payment by the agency involved of reasonable attorney fees incurred by an employee or applicant for employment if the employee or applicant is the prevailing party and the Board, administrative law judge, or other employee (as the case may be) determines that payment by the agency is warranted in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which the agency's action was clearly without merit.
2. HOURLY RATE CALCULATION
Until relatively recently there has been disagreement over the appropriate hourly rate for union or other non-profit attorneys under various fee shifting statutes. Previously, defendants have argued that salaried non-profit attorneys should receive only their salary plus an amount (usually a 100% multiplier) for their overhead expenses under the various fee shifting statutes. This type of fee calculation is identified as a "cost plus" or "cost basis" attorney award.
The "cost plus" calculation method for non-profit (such as salaried Union) attorneys was rejected by the Supreme Court in Blum v. Stenson, 465 U.S. 886 (1984), which held that both private and nonprofit counsel fees:
[a]re to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.
Id., 465 U.S. at 895.
Hence, the Supreme Court specifically mandated that private counsel and public service counsel should have identical hourly rates based upon their skill, not their salary. A fee award should be calculated in accordance with prevailing market rates and the fee award should not vary according to whether the prevailing party was represented by private counsel or a nonprofit legal services group. Dameron v. Sinai Hospital of Baltimore, Inc., 644 F.Supp. 551, 557 (D.Md. 1986), citing Blum, 465 U.S. at 892; Certain v. Potter, 330 F.Supp.2d 576 (M.D.N.C., 2004).
Until recently the Federal Labor Relations Authority retained its use of the "cost plus" or "cost basis" for awards of attorney's fees for union salaried attorneys. AFGE challenged the FLRA's use of the "cost plus" method of ascertaining attorney's fee and urged the adoption of "market rate" fees. In AFGE L-3882 v. FLRA, 944 F.2d 922 (D.C. Cir. 1991), AFGE's General Counsel's Office was successful in overturning the FLRA's use "cost plus" fee computations and the Court ordered the use of "market rate" fees.
As the Supreme Court has noted, "[t]here are over 100 separate statutes providing for the award of attorney's fees; and although these provisions cover a wide variety of contexts and causes of action, the benchmark for the awards under nearly all of these statutes is that the attorneys's fee be 'reasonable'" 142/ We are constrained to follow our earlier decisions equating "reasonable" with market-rate fees. (emphasis added)
* * * *
142/ Pennsylvania v. Delaware Valley Citizen's Council for Clean Air, 478 U.S. 546, 562, (1986).
AFGE L-3882 v. FLRA, 944 F.2d at 937.
Pursuant to the decision of the Court of Appeals in AFGE L-3882 v. FLRA the FLRA has adopted "market rate" attorney's fees as the appropriate measure of "reasonable fees" to be awarded to members of the staff of the American Federation of Government Employees General Counsel's Office. United States Department of Justice, Bureau of Prisons, Washington, D.C. and Bureau of Prisons, Federal Correctional Institution, Ray Brook, New York and American Federation of Government Employees, AFL-CIO, Local 3882, 46 FLRA No. 89; 46 FLRA 1002, 1007 - 1008 (1992)(adopting "market rate" rather than "cost plus" fees and specifically approving the AFGE Legal Representation Fund). See also, U.S. Customs Service and NTEU, 46 FLRA No. 98, 46 FLRA 1080, 1095-96 (1992)(award of "cost-plus" fees by ALJ erroneous. Remand to ALJ and order to use market-rate fees); Raney v. Federal Bureau of Prisons, 222 F.3d 927 (Fed. Cir. 2000).
Attorney fees are recoverable for time spent attempting to recover fees. Attorney fees include a determination whether the hours claimed to have been expended on the fee request bear a rational relation to the number of hours spent litigating the merits. Batt v. Micro Warehouse, Inc., 241 F.3d 891 (7th Cir. 2001); Batt v. Micro Warehouse, Inc., 241 F.3d 891, 893-94 (7th Cir. 2001); Heder v. City of Two Rivers, 255 F.Supp.2d 947 (E.D.Wis. 2003).
VI. THE CLAIMS PERIOD
A. BACK PAY PERIOD
A separate FLSA violation accrues for each pay period that an employee was wrongfully paid (exempted). Viciedo v. New Horizons Computer Learning Center of Columbus, Ltd., 246 F.Supp.2d 886, (S.D. Ohio 2003); Henchy v. City of Abscon, 148 F.Supp.2d 435 (D.N.J 2001). The government has argued that the limitations found in arbitration agreements should limit the back pay period. At least one court has decided that the back pay period of the FLSA takes precedence over contract language concerning the filing of a grievance. Louis v. Geneva Enterprises, Inc., 128 F.Supp.2d 912 (N.D.Cal. 2000).
The limitations period in an FLSA action is contained in 29 U.S.C. §255(a). An FLSA claim must be filed within two years of the accrual of the claim, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued. The use of the term "continuing violation" (a FLSA pay violation occurs at every pay period of erroneous pay) as used in the statute of limitations context is a misnomer in the case of failure to pay overtime compensation, since each failure to pay overtime constitutes a new violation of the FLSA from which a new limitations period runs. Knight v. Columbus, 19 F.3d 579 (11th Cir. 1994); Saxton v. Young, 479 F.Supp.2d 1243 (N.D. Ala. 2007); Hasken v. City of Louisville, 234 F.supp.2d 688 (W.D. Ky. 2002); Arnold v. State of Arkansas, 910 F.Supp. 1385 (E.D. Ark. 1995).
The employer bears the burden of proving that a violation was not willful so as to avoid the benefit of the three-year recovery period. Jarrett v. ERC Properties, Inc., 211 F.3d 1078 (8th Cir. 2000); COMPARE Davis v. Mountaire Farms, Inc., 598 F.Supp.2d 582 (D. Del. 2009) with Morrison v. Quality Transports Services, Inc., 474 F.Supp.2d 1303 (S.D. Fla. 2007) . Proof of willfulness requires a showing that the employer either knew, or showed reckless disregard for whether, its conduct was prohibited under the FLSA. Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962 (6th Cir. 1991); Nichols v. Mahoney, 608 F.Supp.2d 526 (S.D.N.Y. 2009); Koelker v. Mayor and City Council of Cumberland (Maryland), 599 F.Supp.2d 624 (D. Md. 2009). Willfulness cannot be found on the basis of mere negligence or on a completely good faith but incorrect assumption that a pay plan complied with the FLSA, and an employer who does not act recklessly in determining its legal obligation does not act willfully. McLaughlin v Richland Shoe Co., 486 U.S. 128 (1988); Saunders v. City of New York, 594 F.Supp.2d 346 (S.D.N.Y. 2008); De Leon-Granados v. Eller & Sons Trees, Inc., 581 F.Supp.2d 1295 (N.D. Ga. 2008).
NOTE: The Courts have been almost universal in refusing to find the United States, as an employer, "willful" in its disregard of the FLSA. The Courts have therefore applied the two (2) year backpay period found in 29 U.S.C. §225(a). This is a primary reason to utilize the negotiated grievance procedure (arbitration) rather than federal court.
The theory of laches does not apply in FLSA cases. Morrison v. Executive Aircraft Refinishing, Inc., 434 F.Supp.2d 1314 (S.D. Fla. 2005); Herman v. Swannee Swifty Stores, Inc., 19 F.Supp.2d 1365 (M.D. Ga. 1998).
VII. THE AVAILABILITY AND APPROPRIATENESS OF
INTEREST ON THE FLSA OVERTIME AWARD
Although interest is usually not recoverable against the United States, there is an explicit waiver of sovereign immunity for backpay interest under the Backpay Act, 5 U.S.C. §5596(b)(2)(A).
The FLRA has found that payment for wrongfully withheld FLSA overtime is made pursuant to the Back Pay Act.
The Back Pay Act requires backpay for the amount of pay or differentials lost by an employee due to an Agency's unwarranted or unjustified personnel action. 5 U.S.C. §5596(b)(1)(A). The failure of an Agency to pay employees monies to which they are entitled constitutes an unwarranted personnel action within the meaning of the Back Pay Act. See Federal Employee Metal Trades Council and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 39 FLRA 3, 7 (1991); Astor v. U.S., 79 Fed. Cl. 303, 319 (2007). An arbitrator can properly award backpay to remedy an unjustified or unwarranted personnel action that resulted in the loss of a differential, such as overtime pay, that employees otherwise would have received. See generally U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina and Federal Employees Metal Trades Council, 39 FLRA 987, 993 (1991); SSA v. FLRA; 201 F.3d 465 (D.C. Cir. 2000). Backpay is authorized for violations of the overtime provisions of the FLSA. See, International Association of Firefighters, Local 13, and Panama Canal Commission, General Services Bureau, Balboa, Republic of Panama, 43 FLRA 1012, 1026 (1992); Abbey v. U.S., 82 Fed. Cl. 722 (2008). See also, 29 U.S.C. §216(b).
Arbitrators have found that grievants have been affected by the Agency's unjustified personnel action that improperly classified them as exempt from coverage under the FLSA. He ruled that the grievants were entitled to backpay for the amount of overtime pay that they would have received "but for the Agency's illegal designation that they were exempt from coverage under the FLSA, for a back pay period and in a manner to be determined." Award
at 32. Therefore, we conclude that the Arbitrator made the proper findings for an award of backpay and there is no basis on which to find the award deficient under the Back Pay Act.
U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 44 FLRA No. 66, 44 FLRA 773, 798 (April 14, 1992) (emphasis added).
Note: Federal employees cannot be actually awarded and paid both liquidated damages and interest on the backpay award, as this would amount to double payment. Parker v. Burnley, 703 F.Supp. 925, 927 (N.D. Ga. 1988); see also, Braswell v. City of el Dorado, Ark., 187 F.3d 954 (8th Cir. 1999); Adams v. U.S., 48 Fed Cl. 602 (2001). The Union should press for the award of both liquidated damages and interest and request the arbitrator to require the Agency to calculate the backpay due employees under both systems and actually pay the higher (liquidated damages (usually) or interest).
Employer’s who are the prevailing party in an employee’s FLSA action, is statutorily entitled to the payment of post-judgment interest. Monelus v. Tocodrian, Inc., 609 F.Supp.2d 1328 (S.D. Fla. 2009).
29 C.F.R. §541.2 (2009)
(a) The term “employee employed in a bona fide administrative capacity” in section 13(a)(1) of the Act shall mean any employee:
(1) Compensated on a salary or fee basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities;
(2) Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and
(3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance
(a) To qualify for the administrative exemption, an employee's primary duty must be the performance of work directly related to the management or general business operations of the employer or the employer's customers. The phrase “directly related to the management or general business operations” refers to the type of work performed by the employee. To meet this requirement, an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.
(b) Work directly related to management or general business operations includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations, government relations; computer network, internet and database administration; legal and regulatory compliance; and similar activities. Some of these activities may be performed by employees who also would qualify for another exemption.
(c) An employee may qualify for the administrative exemption if the employee's primary duty is the performance of work directly related to the management or general business operations of the employer's customers. Thus, for example, employees acting as advisers or consultants to their employer's clients or customers (as tax experts or financial consultants, for example) may be exempt.
a) To qualify for the administrative exemption, an employee's primary duty must include the exercise of discretion and independent judgment with respect to matters of significance. In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered. The term “matters of significance” refers to the level of importance or consequence of the work performed.
(b) The phrase “discretion and independent judgment” must be applied in the light of all the facts involved in the particular employment situation in which the question arises. Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to: whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree, even if the employee's assignments are related to operation of a particular segment of the business; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long- or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances.
(c) The exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision. However, employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level. Thus, the term “discretion and independent judgment” does not require that the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review. The decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action. The fact that an employee's decision may be subject to review and that upon occasion the decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment. For example, the policies formulated by the credit manager of a large corporation may be subject to review by higher company officials who may approve or disapprove these policies. The management consultant who has made a study of the operations of a business and who has drawn a proposed change in organization may have the plan reviewed or revised by superiors before it is submitted to the client.
(d) An employer's volume of business may make it necessary to employ a number of employees to perform the same or similar work. The fact that many employees perform identical work or work of the same relative importance does not mean that the work of each such employee does not involve the exercise of discretion and independent judgment with respect to matters of significance.
(e) The exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures or specific standards described in manuals or other sources. See also § 541.704 regarding use of manuals. The exercise of discretion and independent judgment also does not include clerical or secretarial work, recording or tabulating data, or performing other mechanical, repetitive, recurrent or routine work. An employee who simply tabulates data is not exempt, even if labeled as a “statistician.”
(f) An employee does not exercise discretion and independent judgment with respect to matters of significance merely because the employer will experience financial losses if the employee fails to perform the job properly. For example, a messenger who is entrusted with carrying large sums of money does not exercise discretion and independent judgment with respect to matters of significance even though serious consequences may flow from the employee's neglect. Similarly, an employee who operates very expensive equipment does not exercise discretion and independent judgment with respect to matters of significance merely because improper performance of the employee's duties may cause serious financial loss to the employer.
The term “employee employed in a bona fide administrative capacity” in section 13(a)(1) of the Act also includes employees:
(1) Compensated for services on a salary or fee basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government) exclusive of board, lodging or other facilities, or on a salary basis which is at least equal to the entrance salary for teachers in the educational establishment by which employed; and
(2) Whose primary duty is performing administrative functions directly related to academic instruction or training in an educational establishment or department or subdivision thereof.
(b) The term “educational establishment” means an elementary or secondary school system, an institution of higher education or other educational institution. Sections 3(v) and 3(w) of the Act define elementary and secondary schools as those day or residential schools that provide elementary or secondary education, as determined under State law. Under the laws of most States, such education includes the curriculums in grades 1 through 12; under many it includes also the introductory programs in kindergarten. Such education in some States may also include nursery school programs in elementary education and junior college curriculums in secondary education. The term “other educational establishment” includes special schools for mentally or physically disabled or gifted children, regardless of any classification of such schools as elementary, secondary or higher. Factors relevant in determining whether post-secondary career programs are educational institutions include whether the school is licensed by a state agency responsible for the state's educational system or accredited by a nationally recognized accrediting organization for career schools. Also, for purposes of the exemption, no distinction is drawn between public and private schools, or between those operated for profit and those that are not for profit.
(c) The phrase “performing administrative functions directly related to academic instruction or training” means work related to the academic operations and functions in a school rather than to administration along the lines of general business operations. Such academic administrative functions include operations directly in the field of education. Jobs relating to areas outside the educational field are not within the definition of academic administration.
(1) Employees engaged in academic administrative functions include: the superintendent or other head of an elementary or secondary school system, and any assistants, responsible for administration of such matters as curriculum, quality and methods of instructing, measuring and testing the learning potential and achievement of students, establishing and maintaining academic and grading standards, and other aspects of the teaching program; the principal and any vice-principals responsible for the operation of an elementary or secondary school; department heads in institutions of higher education responsible for the administration of the mathematics department, the English department, the foreign language department, etc.; academic counselors who perform work such as administering school testing programs, assisting students with academic problems and advising students concerning degree requirements; and other employees with similar responsibilities.
(2) Jobs relating to building management and maintenance, jobs relating to the health of the students, and academic staff such as social workers, psychologists, lunch room managers or dietitians do not perform academic administrative functions. Although such work is not considered academic administration, such employees may qualify for exemption under § 541.200 or under other sections of this part, provided the requirements for such exemptions are met.
29 C.F.R. §541.2 Administrative.
The term "employee employed in a bona fide * * * administrative * * * capacity in section 13 (a)(1) of the Act shall mean any employee:
(a) Whose primary duty consists of either:
(1) The performance of office or non-manual work directly related to management policies or general business operations of his employer or his employer's customers, or
(2) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and
(b) Who customarily and regularly exercises discretion and independent judgment; and
(c) (1) Who regularly and directly assists a proprietor, or an employee employed in a bonafide executive or administrative capacity (as such terms are defined in the regulations of this subpart), or
(2) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge, or
(3) Who executes under only general supervision special assignments and tasks; and
(d) Who does not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent, of his hours worked in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (c) of this section; and
(e) (1) Who is compensated for his services on a salary or fee basis at a rate of not less than $155 per week ($130 per week, if employed by other than the Federal Government in Puerto Rico, the Virgin Islands, or American Samoa), exclusive of board, lodging, or other facilities, or
(2) Who, in the case of academic administrative personnel, is compensated for services as required by paragraph (e)(1) of this section, or on a salary basis which is at least equal to the entrance salary for teachers in the school system, educational establishment, or institution by which employed: Provided, that an employee who is compensated on a salary or fee basis at a rate of not less than $250 per week ($200 per week if employed by other than the Federal Government in Puerto Rico, the Virgin Islands, or American Samoa), exclusive of board, lodging, or other facilities, and whose primary duty consists of the performance of work described in paragraph (a) of this section, which includes work requiring the exercise of discretion and independent judgment, shall be deemed to meet all the requirements of this section.
5 C.F.R. §551.2 (2009)
An administrative employee is an employee whose primary duty is the performance of office or non-manual work directly related to the management or general business operations, as distinguished from production functions, of the employer or the employer's customers and whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
(a) In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered. The term “matters of significance” refers to the level of importance or consequence of the work performed.
(b) The phrase discretion and independent judgment must be applied in light of all the facts involved in the particular employment situation in which the question arises. Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to, whether the employee:
(1) Has authority to formulate, affect, interpret, or implement management policies or operating practices;
(2) Carries out major assignments in conducting the operations of the organization;
(3) Performs work that affects the organization's operations to a substantial degree, even if the employee's assignments are related to operation of a particular segment of the organization;
(4) Has authority to commit the employer in matters that have significant financial impact;
(5) Has authority to waive or deviate from established policies and procedures without prior approval;
(6) Has authority to negotiate and bind the organization on significant matters;
(7) Provides consultation or expert advice to management;
(8) Is involved in planning long- or short-term organizational objectives;
(9) Investigates and resolves matters of significance on behalf of management; and
(10) Represents the organization in handling complaints, arbitrating disputes, or resolving grievances.
(c) The exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision. However, an employee can exercise discretion and independent judgment even if the employee's decisions or recommendations are reviewed at a higher level. Thus, the term discretion and independent judgment does not require that decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review. The decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action. The fact that an employee's decision may be subject to review and that upon occasion the decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment.
(d) An organization's workload may make it necessary to employ a number of employees to perform the same or similar work. The fact that many employees perform identical work or work of the same relative importance does not mean that the work of each such employee does not involve the exercise of discretion and independent judgment with respect to matters of significance.
(e) The exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures, or specific standards described in manuals or other sources.
(f) The use of manuals, guidelines, or other established procedures containing or relating to highly technical, scientific, legal, financial, or other similarly complex matters that can be understood or interpreted only by those with advanced or specialized knowledge or skills does not preclude exemption. Such manuals and procedures provide guidance in addressing difficult or novel circumstances and thus use of such reference material would not affect an employee's exemption status. However, employees who simply apply well-established techniques or procedures described in manuals or other sources within closely prescribed limits to determine the correct response to an inquiry or set of circumstances will be nonexempt.
(g) An employee does not exercise discretion and independent judgment with respect to matters of significance merely because the employer will experience financial losses if the employee fails to perform the job properly. For example, a messenger who is entrusted with carrying large sums of money does not exercise discretion and independent judgment with respect to matters of significance even though serious consequences may flow from the employee's neglect. Similarly, an employee who operates very expensive equipment does not exercise discretion and independent judgment with respect to matters of significance merely because improper performance of the employee's duties may cause serious financial loss to the employer.
(h) Employees in certain occupations typically assist and support line managers and assume facets of the overall management function. Neither the location of the work nor the number of employees performing the same or similar work turns such work into a production function. For example, independent agencies or agency components often provide centralized human resources, information systems, procurement and acquisition, or financial management services as support services to other agencies or agency components. However, this does not change the inherent administrative nature of the work performed to line or production work. Similarly, employees who develop, interpret, and oversee agency or Governmentwide policy are performing management support functions. Some of these activities may be performed by employees who would otherwise qualify under another exemption.
Depending upon the purpose of the work and the organizational context, work in certain occupations may be either exempt or nonexempt. For example, criminal investigators who perform work directly related to the internal management of the agency and typically would be expected to provide recommendations of great significance based on the analysis of investigative findings would likely be considered as performing a staff function. In contrast, the performance of investigative and inspectional work to confirm whether specific regulatory requirements have been met for an investigative/inspectional component of any agency would likely be considered as performing a line rather than a staff function.
(i) An employee who leads a team of other employees assigned to complete major projects (such as acquisitions; negotiating real estate transactions or collective bargaining agreements; designing and implementing productivity improvements; oversight, compliance, or program reviews; investigations) generally meets the duties requirements for the administrative exemption, even if the employee does not have direct supervisory responsibility over the other employees on the team. An example is a lead auditor who oversees an audit team in an auditing agency and who is assigned responsibility for leading a major audit requiring the use of substantial agency resources. This auditor is responsible for proposing the parameters of the audit and developing a plan of action and milestones to accomplish the audit. Included in the plan are the methodologies to be used, the staff and other resources required to conduct the audit, proposed staff member assignments, etc. When conducting the audit, the lead auditor makes on-site decisions and/or proposes major changes to managers on matters of significance in accomplishing the audit, including deviations from established policies and practices of the agency.
(j) An executive assistant or administrative assistant to a high level manager or senior executive generally meets the duties requirements for the administrative exemption if such employee, without specific instructions or prescribed procedures, has been delegated authority regarding matters of significance.
(k) Human resources employees who formulate, interpret or implement human resources management policies generally meet the duties requirements for the administrative exemption. In addition, when interviewing and screening functions are performed by the human resources employee who makes the hiring decision or makes recommendations for hiring from a pool of qualified applicants, such duties constitute exempt work, even though routine, because this work is directly and closely related to the employee's exempt functions.
(l) Management analysts who study the operations of an organization and propose changes in the organization, program analysts who study program operations and propose changes to the program, and other management advisors generally meet the duties requirements for the administrative exemption.
(m) Acquisition employees with authority to bind the organization to significant purchases generally meet the duties requirements for the administrative exemption even if they must consult with higher management officials when making a commitment.
(n) Ordinary inspection work generally does not meet the duties requirements for the administrative exemption. Inspectors normally perform specialized work along standardized lines involving well-established techniques and procedures which may have been catalogued and described in manuals or other sources. Such inspectors rely on techniques and skills acquired by special training or experience. They have some leeway in the performance of their work but only within closely prescribed limits.
5 C.F.R. §551.206
Administrative exemption criteria:
An administrative employee is an advisor, assistant, or representative of management, or a specialist in a management or general business function or supporting service who meets all of the following criteria:
(a) The employee's primary duty consists of work that-
(1) Significantly affects the formulation or execution of management policies or programs;
(2) Involves general management or business functions or supporting services of substantial importance to the organization serviced; or
(3) Involves substantial participation in the executive or administrative functions of a management official.
(b) The employee performs office or other predominantly non-manual work which is-
(1) Intellectual and varied in nature; or
(2) Of a specialized or technical nature that requires considerable special training, experience, and knowledge.
(c) The employee must frequently exercise discretion and independent judgment, under only general supervision, in performing the normal day-to-day work.
(d) In addition to the primary duty criterion that applies to all employees, General Schedule employees classified at GS-5 or GS-6 (or the equivalent in other white collar systems) must spend 80 percent or more of the worktime in a representative workweek on administrative functions and work that is an essential part of those functions.
5 C.F.R. §551.205 has been further interpreted by the OPM as follows:
FPM Ltr. 551-7(A)(2)
2. Administrative Employees: An administrative employee is an advisor, assistant or representative of management, or a specialist in a management or general business function or supporting service whose position meets the criteria in subsections a. through e., below:
a. The employee's primary duty consists of work that:
(1) Significantly affects the formulation or execution of management policies or programs; or
(2) Involves general management or business functions or supporting services of substantial importance to the organization serviced; or
(3) Involves substantial participation in the executive or administrative functions of a management official.
b. The employee performs office or other predominantly non-manual work which is:
(1) Intellectual and varied in nature, or
(2) Of a specialized or technical nature that requires considerable special training, experience and knowledge.
c. The employee must frequently exercise discretion and independent judgment, under only general supervision, in performing the normal day-to-day work.
d. The employee's position is classified no lower than GS-7 or the equivalent level in other white collar pay systems.
e. In addition to the primary duty criterion that applies to all employees, General Schedule employees below GS-10, or the equivalent in other salary systems, must spend 80% or more of the worktime in a representative workweek on administrative functions and work that is an essential part of those functions.
FPM Ltr. 551-7 (FPM Ltr. 551-7(B)(1)(g-i) also contains an explanation of some of the key terms used in the definition of the administrative exemptions, which helps to clarify administrative work:
FPM Ltr. 551-7(B)(1)(g-i) states:
g. Formulation or execution of management policies or programs:
Management policies and programs range from broad national goals that are expressed in statutes or Executive Orders to specific objectives of a small field office. Employees may actually make policy decisions or participate indirectly, through developing proposals that are acted on by others. Employees who significantly affect the execution of management policies or programs typically are those whose work involves obtaining compliance with such policies by other individuals or organizations, within or outside of the Federal Government, or making significant determinations in furtherance of the operation of programs and accomplishment of program objectives.
Administrative employees engaged in formulation or execution of management policies or programs typically perform one or more phases of program management (i.e., planning, developing, promoting, coordinating, controlling, or evaluating operating programs of the employing organization or of other organizations subject to regulation or other controls). Some of these employees are classified in occupations that reflect these functions (e.g., program analyst) but many are classified in subject matter occupations.
h. General management, business, or supporting services: This element brings into the administrative category a wide variety of specialists who provide general management, business, or other supporting services as distinguished from production functions. The administrative employees in this category provide support to line managers by:
(1) Providing expert advice in specialized subject matter fields, such as that provided by management consultants or systems analysts;
(2) Assuming facets of the overall management function, such as safety management, personnel management, or budgeting and financial management;
(3) Representing management in such business functions as negotiating and administering contracts, determining acceptability of goods or services, or authorizing payments; or
(4) Providing supporting services, such as automated data processing, communications, or procurement and distribution of supplies.
Neither the organizational location nor the number of employees performing identical or similar work changes general management, business or servicing functions into production functions. However to warrant exemption, each employee's work must involve substantial discretion on matters of enough importance that the employee's actions and decisions have a noticeable impact on the effectiveness of the organization advised, represented, or serviced.
i. Participation in the functions of a management official; This element includes those employees (variously identified as secretaries, administrative or executive assistants, aids, etc.) who participate i
in portions of the managerial or administrative functions of a supervisor whose scope of responsibility precludes personally attending to all aspects of the work. To support exemption, such assistants must be delegated and exercise substantial authority to act for the supervisor in the absence of specific instructions or procedures.
Typically, these employees do not have technical knowledge of the substantive work under the supervisor's jurisdiction. Their primary knowledge are of administrative procedures, organizational relationships, and, more importantly, the policies, plans, interests and views of the supervisor. They apply such knowledge with substantial discretion in performing varied duties such as:
- personally attending to or redirecting calls and visitors;
- scheduling or rejecting invitations and requests for appointments;
- representing or arranging for another staff member to represent the supervisor in meetings or conferences;
- locating and assembling information, compiling reports and responding to technical inquiries;
- composing varied correspondence on own initiative and in response to incoming correspondence, or
- similar actions which significantly affect the supervisor's effectiveness.
29 C.F.R. §541.4 (2009)
a) Computer systems analysts, computer programmers, software engineers or other similarly skilled workers in the computer field are eligible for exemption as professionals under section 13(a)(1) of the Act and under section 13(a)(17) of the Act. Because job titles vary widely and change quickly in the computer industry, job titles are not determinative of the applicability of this exemption.
(b) The section 13(a)(1) exemption applies to any computer employee compensated on a salary or fee basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities, and the section 13(a)(17) exemption applies to any computer employee compensated on an hourly basis at a rate not less than $27.63 an hour. In addition, under either section 13(a)(1) or section 13(a)(17) of the Act, the exemptions apply only to computer employees whose primary duty consists of:
(1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
(2) The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
(3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
(4) A combination of the aforementioned duties, the performance of which requires the same level of skills.
(c) The term “salary basis” is defined at § 541.602; “fee basis” is defined at § 541.605; “board, lodging or other facilities” is defined at § 541.606; and “primary duty” is defined at § 541.700.
The exemption for employees in computer occupations does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations identified in § 541.400(b), are also not exempt computer professionals.
Computer employees within the scope of this exemption, as well as those employees not within its scope, may also have executive and administrative duties which qualify the employees for exemption under subpart B or subpart C of this part. For example, systems analysts and computer programmers generally meet the duties requirements for the administrative exemption if their primary duty includes work such as planning, scheduling, and coordinating activities required to develop systems to solve complex business, scientific or engineering problems of the employer or the employer's customers. Similarly, a senior or lead computer programmer who manages the work of two or more other programmers in a customarily recognized department or subdivision of the employer, and whose recommendations as to the hiring, firing, advancement, promotion or other change of status of the other programmers are given particular weight, generally meets the duties requirements for the executive exemption.
29 C.F.R. §541.303 Computer related occupations under Public Law 101-583.
(a) Pursuant to Public Law 101-581, enacted November 15, 1990, § 541.3(a)(4) provides that computer systems analysts, computer programmers, software engineers, or other similarly skilled workers in the computer software field are eligible for exemption as professionals under section 13(a)(1) of the Act. Employees who qualify for this exemption are highly-skilled in computer systems analysis, programming, or related work in software functions. Employees who perform these types of work have varied job titles. Included among the more common job titles are computer programmer, systems analyst, computer systems analyst, computer programmer analyst, applications programmer, applications systems analyst, applications systems analyst/programmer, software engineer, software specialist, systems engineer, and systems specialist. These job titles are illustrative only and the list is not intended to be all-inclusive. Further, because of the wide variety of job titles applied to computer systems analysis and programming work, job titles alone are not determinative of the applicability of this exemption.
(b) To be considered for exemption under § 541.3(a)(4), an employee's primary duty must consist of one or more of the following:
(1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;
(2) The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
(3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
(4) a combination of the aforementioned duties, the performance of which requires the same level of skills.
(c) The exemption provided by § 541.3(a)(4) applies only to highly-skilled employees who have achieved a level of proficiency in the theoretical and practical application of a body of highly-specialized knowledge in computer systems analysis, programming, and software engineering, and does not include trainees or employees in entry level positions learning to become proficient in such areas or to employees in these computer-related occupations who have not attained a level of skill and expertise which allows them to work independently and generally without close supervision. The level of expertise and skill required to qualify for this exemption is generally attained through combinations of education and experience in the field. While such employees commonly have a
bachelor's or higher degree, no particular academic degree is required for this exemption, nor are there any requirements for licensure or certification, as is required for the exemption for the learned professions.
(d) The exemption does not include employees engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs, e.g., engineers, drafters, and others skilled in computer-aided design software like CAD/CAM, but who are not in computer systems analysis and programming occupations, are also excluded from this exemption.
(e) Employees in computer software occupations within the scope of this exemption, as well as those employees not within its scope, may also have managerial and administrative duties which may qualify the employees for exemption under § 541.1 or § 541.2 (see §§ 541.205(c)(7) and 541.207(c)(7) of this subpart).
ARBITRATION PROCEDURE TIPS
ARBITRABILITY OF GRIEVANCE:
FLSA issues may be litigated through the negotiated grievance procedure unless the contract explicitly excludes FLSA claims. Following Carter v. Gibbs, it is clear that arbitrators have the authority to decide FLSA issues based on the application of pertinent law and regulations. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 44 FLRA No. 66, 44 FLRA 773, 793 (April 14, 1992). New legislation in 1996 provides that overtime claims may also be brought in the United States trial courts (Claims Court or Federal District Court). See, 5 U.S.C. §7121; Filebark v. U.S. Dept. of Transportation, 555 F.3d 1009 (D.C. Cir. 2009).
FLSA GRIEVANCES DO NOT INVOLVE THE CLASSIFICATION OF POSITIONS:
Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990), cert. denied, sub nom, Carter v. Goldberg, 498 U.S. 811 (1990); superseded by statute , establishes that FLSA backpay matters do not fall under the classification exception contained in §7121(c)(5) or under most standard form Contract exclusions. The Court of Appeals in Carter specifically rejected the proposition that the 5 U.S.C. §7121(c) statutory exceptions to grievance procedures make a matter non-arbitrable. Carter v. Gibbs, 909 F.2d at 1455; Doe v. U.S., 513 F.3d 1348, (Fed. Cir. 2008); Abramson v. U.S., 42 Fed. Cl. 621 (1998). The Carter case held that the federal courts were no longer available to federal employees seeking FLSA backpay (covered by a collective bargaining agreement) and that the employees must use the contractual grievance procedure.
Arbitration and hearing presentation is an art, not a science. The following procedures are ones that have been successful over a long period of years. It is not suggested that this is the only way, the "right" way, or the only successful way to win an FLSA case. It has proved useful in gaining awards of almost $40,000,000.00 to AFGE bargaining unit members. However, there is simply no substitute for case and witness preparation. No matter who you are, you are not doing your job if you don't prepare your case and prep your witnesses.
In preparing witnesses (assuming the Agency is asserting the "administrative" exemption) to testify (if these are the actual facts) you should emphasize the following:
1. Have the employee testify as to what he/she actually does during a normal day.
2. The employees do not make policy for the Agency. They carry out Agency policy.
3. The employees strive for consistency of result in any decisions made.
4. The employees carry out duties which are the purpose of the employing Agency. Link the employees duties to the mission of the Agency.
5. Examine the Position Description (PD) carefully and have the employee testify if the PD (as is often the case) is inaccurate or does not accurately reflect the actual major job duty of the position.
6. Examine the GJT (General Job Tasks [performance appraisals] for the critical elements of the position. The critical elements usually more accurately describe the primary duty of a position than does the PD.
7. Prepare the witness for cross-examination. Discuss anticipated questions and possible points of concern. Stress the need for the witness to be terse to the point of rudeness on cross-examination.
It is a huge plus for the union for the Agency to put on its case first, trying to prove its FLSA exemption. Suggest to the Agency that it is the Agency's obligation to prove that an FLSA exemption is applicable to a group of employees. Therefore, the Union expects the Agency to put on its case first for each position. This is not the usual order of proof in a Union grievance, but the FLSA puts the burden of proof on the Agency to prove its case, not (as is usual) the Union to prove its grievance.
If the Agency does not agree to put on its case first (for each position), then immediately bring the matter before the Arbitrator for his/her determination of the order of the hearing. Do not save this argument for the day of the hearing. Confirm your demand that the Agency proceed first (and any subsequent agreement) in writing via a letter to the Agency with a copy to the Arbitrator.
Order the hearing so that both the Agency and the Union deal with a particular position (assuming that more than one position is at issue) before moving on to the next position. Have the Agency put on its case as to the exempt status of a particular position, and then have the Union factually attack (if necessary) the Agency presentation. If you deal with all of the positions at once, the transcript and the Arbitrator's recollection as to who testified as to what for which position will become hopelessly muddled.
FLSA EVIDENCE GATHERING CHECKLIST
Note: If it can't be read it's useless. Print clearly and do not highlight or make notes on documents that could be used as evidence unless there are clean copies readily available.
Never send or submit originals of any document unless specifically required to do so (such as at a hearing).
[ ] 1. A mission statement for the Agency and all subordinate sub-components that are in the challenged position chain of command/production.
[ ] 2. The current Position Description (PD) of the position and any predecessor PDs for the current position. Make sure that you get the current PD-you may be given out-of-date documents.
[ ] 3. Any internal pay & classification records, notes, reports having to do with the exemption determination of the challenged position. Include entry for position found in the OPM "Handbook of Occupational Groups & Series" (available at your personnel office).
[ ] 4. The current GJT (performance appraisal-critical elements work-sheet) of the position and any predecessor GJTs for the current position. Make sure that you get the current GJTs-you may be given out-of-date documents.
[ ] 5. A current organizational chart and organizational charts that cover the entire backpay period.
[ ] 6. At least two (2) witnesses for each challenged position. Include their names, addresses (work & office), and their work & home telephone numbers (including area codes) and e-mail addresses both personal and work.
[ ] 7. Copies of all time sheets or any other documents which could support a claim for suffered or permitted overtime.
[ ] 8. A copy of the filed grievance and relevant grievance documentation showing escalation of the grievance through the invocation of arbitration and the timely choosing of the Arbitrator. Include a copy of the Arbitrator's CV (resume) if available.
[ ] 9. The name (with full official title), complete office address, and office telephone number (including area code) of the Agency official that is responsible for the grievance arbitration. Include the same information for the Agency representative's immediate supervisor.
[ ] 10. The name, address (work & office), and work & home telephone numbers (including area codes) of the local union official who is responsible for the case.
COMMITTEE OF INVESTIGATION GUIDELINES AND PROCEDURES MANUAL
Prepared by the Office of the General Counsel
109443 in conjunction with the Legal Rights Committee of the National Executive Council 9-29-2004
TABLE OF CONTENTS
Do and Don't 1
The Disciplinary Process 2
What a Charge Is and Who Can Bring It 2
Role of the Committee of Investigation 3
How to Conduct an Investigation 3
Time Frame for Investigations 4
Rights of the Accused/Charged Party 4
What a Committee Does With Its Findings 5
Finding Probable Cause
Committee of Investigation Constituted
by a Local 5
Committee of Investigation Appointed
by the National President 5
Finding No Probable Cause
Committee of Investigation Constituted
by a Local 5
Committee of Investigation Appointed
by the National President 5
Attachment A - Sample Certified Letters of Charges 6
Attachment B - Article IX, Section 5(d) and 5 (e) 7
Attachment C - Article XXIII, Sections 2-3 8
Attachment D - Statutes and Regulations 9
DO and DON'T
1. Do file charges on disciplinary matters.
2. Do specifically describe the alleged misconduct.
3. Do complete the investigation and dismiss or prefer the charges and issue a report within 120 days of the filing of the charges.
4. Do send the charges by certified mail.
5. Do select members for the committee who do not include: the charged party, the charging party, any member of the trial committee, any Executive Board member, or anyone directly or indirectly involved in the matter.
6. After the committee of investigation prefers the charges, do select all members of the Executive Board (minus involved members) to serve as a trial committee or elect a trial committee at the next regular membership meeting or at a special meeting at least five days later.
7. Do send the notice of trial to the charged party by certified mail at least two weeks before the trial.
1. Don't file charges on conduct related to elections (complaints about which must be filed as election protests).
2. Don't file charges by just using the list in Article XXIII, Section 2 of the AFGE National Constitution (the conduct must be specified in detail).
3. Don't ignore time limits (such as those set forth in #3, #6, and #7 above or the requirement for a prompt trial – within 180 days of the preferring of the charges).
4. Don’t have any member of the Executive Board on the committee of investigation.
5. Don't send charges and notices by regular mail (always send notice of trial by certified mail).
6. Don't use the same people to both investigate and adjudicate the case (no member may be on both the committee of investigation and the trial committee).
7. Don't disclose witnesses' names or information obtained during the investigative stage (which should be confidential until trial, except information and names set out in the notice of charges).
You have been appointed to a committee of investigation, by your own local, council, or by AFGE's National President. The Federation recognizes the seriousness of this process, and has developed this guide to help you. This guide explains AFGE's disciplinary procedures, the operation of the committee, and your responsibilities as a member of the committee. Through the use of this guide we believe you will be able to conduct the investigation with fairness, consistency, and justice, dismissing the charges when warranted and preferring charges when necessary. We thank you for the time and the work you will be committing to this process.
THE DISCIPLINARY PROCESS
Article XXIII of the AFGE National Constitution sets out the procedures for filing and processing disciplinary charges within a local or council. Disciplinary actions should be undertaken only as a last resort, and only after the concerned members have made an honest effort to resolve their differences in other ways, such as by conflict resolution, by mediation through an outside party, or with the assistance of the District Office. When other means have failed, this manual is designed to assist in the opening steps of this process.
Article XXIII disciplinary procedures are applicable to elective officers and to members, not to those holding appointive offices. If the constitution/bylaws provide that the office is appointive rather than elective, then the authority to appoint is the authority to remove, and Article XXIII does not apply.
The disciplinary process begins when a member files charges against another member or an officer of his/her local. The member bringing the charge must file with the local where the accused/charged party holds membership or the council of which the accused is an officer. The president of that local (or council) will then appoint the members of the committee of investigation. However, if the charges are against the president (or if the president brings the charges or is otherwise directly involved in the circumstances giving rise to the charges), then a majority of the local's Executive Board appoints the committee members. If the charges are against a member of the Executive Board, that Executive Board member may not vote in the selection of the committee. The charging party, the charged party, members of the Executive Board, and any person directly or indirectly involved in the circumstances may not be a member of the committee. If the charges are against the entire Executive Board, then the National Vice President who has jurisdiction over that local may investigate the charges and, if finding probable cause, may prefer the charges. Finally, under the authority of Article IX, Section 5(d) or 5(e) of the AFGE National Constitution, the National President may appoint a committee when, based upon a showing made by either the charging or the charged party, and a recommendation of the NVP, he determines that the conditions within a local are such that it cannot conduct a fair and impartial investigation.
If the committee of investigation finds sufficient evidence to support the charges, it prefers charges against the accused, and the union body establishes a trial committee. Neither the committee of investigation nor the trial committee can include the complainant(s) or the charged party, or members of the other committee, and each committee must be otherwise impartial. The committee of investigation cannot include any member of the Executive Board. The trial committee then conducts a trial of the charged party, and if it finds the accused guilty of any of the charges, it presents its findings to the union membership for a vote. If the membership votes for an adverse action against the disciplined member, the disciplined member may appeal to the National Executive Council. If the NEC does not overturn the action of the membership, the disciplined member may appeal further to the next AFGE National Convention.
WHAT A CHARGE IS
AND WHO CAN BRING IT
Under the AFGE National Constitution (Article XXIII), any member may bring charges against a fellow member or officer. However, members should undertake charges against members or officers of the union at any level of the organization only as a serious and deliberate act for the purpose of righting willful misconduct or gross negligence.
No particular words are necessary in expressing any particular charge, but the member must state the allegation and its relationship to any specified offense so that a committee of investigation reasonably may understand the words as used in their ordinary meaning. The committee will not infer charges from mere conclusions or allegations of wrongdoing which of themselves do not state the essence of a triable offense. The list of trial offenses is set forth at Article XXIII, Section 2 (Attachment A).
Charges against officers must relate directly to the official duties and responsibilities of the position of the officer in his/her capacity as an official of AFGE. The charges must contain allegations of fact which, if true, constitute acts or omissions of a serious nature that exceed or are contrary to the authority of the officer. Acts or omissions which fall within the area of judgment and discretion in the performance of official duties cannot constitute a legal basis for triable charges, unless the officer undertakes those acts or omissions with such recklessness and disregard of authority as to constitute a clear abuse of discretion.
Additionally, non-criminal acts or omissions of officers or members which take place during an election campaign are not actionable (cannot be brought) as disciplinary offenses. Therefore, if it is believed that a non-criminal constitutional offense has taken place during an election campaign, the sole mechanism for redress is an election appeal. Violations of either the AFGE Rules of Conduct for an Election (Appendix A of the AFGE National Constitution) or constitutional provisions governing elections are only considered in the context of election protests and appeals pursuant to Appendix A, Part III, rather than Article XXIII.
Charges against national officers are processed in accordance with Article XIII, Section 7 of the AFGE National Constitution.
ROLE OF THE COMMITTEE
The committee of investigation is a fact-finding body charged with the responsibility to elicit and review evidence relevant to the written charges. It conducts oral interviews and reviews sworn written statements, records, minutes, documents, reports, and all related evidence in the course of the investigation. It determines whether there is probable cause that the charged party committed an offense. Probable cause means some credible evidence to support the charges against the charged party. Constitutional offenses are listed in Article XXIII, Section 2 of the AFGE National Constitution (see Attachment B). The committee shall investigate the actual charges as filed, and may not go beyond the scope of those charges. That is, it cannot go on a "fishing expedition" to find new improprieties not included in the charges as filed.
HOW TO CONDUCT AN INVESTIGATION
The committee may investigate the charges by initially interviewing orally or in writing each complainant, each charged party if appropriate, and such other persons as it deems necessary to determine if good and sufficient grounds exist for finding probable cause on each charge. The committee may inform the charged parties of the charges against them, if appropriate, and advise that the committee will seek interviews with them at the proper time. The committee has wide discretion in scheduling witnesses for interviews and in reviewing material. Obviously, the committee should schedule the complainants first so they may clarify their charges and present supporting evidence. In turn, the committee usually should provide an opportunity for each of the charged parties to provide evidence to refute the charges. In this regard, the committee's role is one of fact-finding, and no party has a right to representation during the investigation. At the same time, the committee should not take the refusal of a charged party to appear or to produce documents as an admission of guilt. The committee should include with its report a recording or transcript of the testimony of each witness, for the use of any subsequent trial committee and prosecutor.
If the committee finds probable cause, it then should attempt to settle the matter informally. That is, it tries to reach a written settlement with the charged party, in which the charged party agrees to take actions that satisfy the committee in exchange for its dropping the charges. This may include changes in conduct, resignation from office, restitution to the local, or even resignation from membership. If the parties settle the matter, then the disciplinary process ends there. Of course, failure on the part of the charged party to abide by the agreement would be a basis for new charges.
Especially in investigations involving alleged financial mismanagement, it is vital that the committee of investigation obtain all bank and credit union records, the minutes of all regular and Executive Board meetings, and the annual budget, in order to determine whether, and to what extent, evidence exists in support of the allegations.
Department of Labor Standards of Conduct Regulations, incorporating by reference the Labor-Management Reporting and Disclosure Act of 1959, are clear on the fiduciary responsibility of officers of labor organizations. If the committee of investigation determines that there has been a theft or similar criminal conduct, the committee must report the information in writing to the nearest field office of the Office of Labor-Management Standards, U.S. Department of Labor; to the National Vice President of the District within which the local belongs; and to AFGE's Office of the General Counsel.
Those who contemplate bringing charges, as well as those who serve on a committee investigating the charges, should bear in mind that all members have certain statutory and regulatory rights, including rights of free speech and dissent. The mere exercise of the right to dissent cannot be the basis of charges.
While the investigation is ongoing, the committee should not reply to any questions about its findings or how the investigation is proceeding. If the committee itself has questions regarding any aspect of its investigation, it may contact AFGE's Office of the General Counsel. If the committee makes a finding of probable cause on any charge, the committee shall seek, if warranted, any proposed informal settlement.
Finally, if finding probable cause, the committee should prepare a report for the trial committee and prosecutor, outlining the evidence and testimony of witnesses and the relationship of each to the specific charge(s).
TIME FRAME FOR INVESTIGATION
By constitutional mandate, the local or council committee of investigation shall complete the investigation within 120 days of the filing of the charges. Only extraordinary circumstances justify an exception to this time limit, such as when the charged party challenges the composition of the investigation committee, and a new committee is selected with a new deadline. If the investigation is not completed within 120 days of the filing of charges, under Article XXIII, Section 3, the charging party should contact the National Vice President, because the local or council committee of investigation loses jurisdiction on the 121st day.
The deadlines set forth in Article XXIII apply to local and council committees of investigation and trial committees. They do not apply to independent committees appointed by the National President under Article IX, Section 5.
RIGHTS OF THE ACCUSED/CHARGED
The accused/charged party has the right, during the conduct of the investigation, to a copy of the charges being investigated (but the committee has it within its discretion to sanitize the name of the charging party). After the investigation ends, if the committee of investigation prefers charges, the accused has the right to, and must receive, a copy of those charges as well. The charges must be sufficiently specific to allow a defense. The charged party has the right to a minimum of two weeks from the mailing of the preferred charges to the beginning of the trial.
The charged party does not have the right to a copy of any other information gathered by the committee during the course of the investigation, particularly a list of witnesses and their statements, because such information often is confidential, and because the committee often does not rely upon it. Of course, the accused will receive at the trial a copy of any documentation, such as witness statements, introduced at the trial to support the charges. In addition, if a witness testifies, the charged party has a right to receive and review in advance a copy of all of the witness' previous statements.
WHAT A COMMITTEE DOES WITH ITS FINDINGS
1. FINDING PROBABLE CAUSE
(a) COMMITTEE OF INVESTIGATION CONSTITUTED BY A LOCAL:
When the local has constituted the committee, and the committee has not been able to settle the matter informally, the committee shall serve the charges upon the accused, in writing, by registered or certified mail to the charged party's last known address, and the committee also shall serve the local at its office or address of its highest ranking officer. Such charges shall contain an allegation of the facts describing the nature of the offenses charged. It is then the responsibility of the local to conduct a trial pursuant to Article XXIII, Section 4 of the AFGE National Constitution.
(b) COMMITTEE OF INVESTIGATION APPOINTED BY THE NATIONAL PRESIDENT:
When the National President appoints the committee, the committee shall refer to the Office of the General Counsel its investigative file, including all relevant evidence, its detailed factual finding of whether probable cause exists on each charge, and any proposed settlements. The General Counsel will review the findings of the committee and all supporting documents. The General Counsel then will advise the National President as to whether legally sufficient grounds exist for a finding of probable cause on each charge, as to the legal sufficiency of any proposed settlement agreement, and as to the need for a trial.
After a finding of probable cause, it is not uncommon, when the matter goes to trial, that a member of the committee of investigation is called upon to prosecute the charges against the accused at trial.
2. FINDING NO PROBABLE CAUSE
(a) COMMITTEE OF INVESTIGATION CONSTITUTED BY A LOCAL:
When the committee of investigation does not find probable cause, it dismisses the charges with notice to the charged party's last known address, and the committee also serves the local Executive Board and the charging party.
(b) COMMITTEE OF INVESTIGATION APPOINTED BY THE NATIONAL PRESIDENT:
When the committee of investigation does not find probable cause, the committee shall refer to the Office of the General Counsel its investigative file, including all relevant evidence, and its detailed factual finding regarding probable cause. The National President will dismiss the charges with notice to the charged party's last known address, and also serves the local at its office or address of its highest ranking officer and the charging party.
A committee of investigation's finding of no probable cause or a trial committee's decision exonerating the charged party shall not be subject to local or council approval, there is no further internal appeal available to the charging party, and the finding is not subject to any further action within the local, council, or the Federation.
SAMPLE CERTIFIED LETTERS OF CHARGES
COMMITTEE OF INVESTIGATION CONSTITUTED BY A LOCAL:
THIS IS ONLY A SAMPLE:
Pursuant to our authority under Article XXIII, Sections 1-3 of the AFGE National Constitution, the AFGE Local ____ Committee of Investigation hereby serves you with this notice of a charge. We have found probable cause to believe that you have committed the act described below, and request that you meet with the committee to settle the matter informally.
[Specifically, as President of AFGE Local ____, you allegedly signed and mailed to the membership of Local ____ a notice of a special meeting to be held on ____ to vote to secede from the Federation and to join another union.]
In the event that we cannot settle the matter with you informally, we will prefer this charge against you for conduct detrimental and inimical to the best interests of the Federation and constituting offenses against the Federation, as set forth at Article XXIII, Section 2([a): Advocating, encouraging or attempting to bring about a secession from the Federation of any local or of any member or group of members.]
In that event, Local ____ will select a trial committee that will notify you of the time, date, and place of your trial. All of the due process provisions of Article XXIII will govern the trial before the trial committee, including your right to choose a representative (except a member of the trial committee, or a member of the Executive Board when it is acting as a trial board, or a representative of another labor organization).
COMMITTEE OF INVESTIGATION APPOINTED BY THE NATIONAL PRESIDENT:
THIS IS ONLY A SAMPLE:
Pursuant to our authority under Article IX, Section 5(e), and Article XXIII, Sections 1-3 of the AFGE National Constitution, as an independent committee of investigation, we hereby serve you with this notice of charges. We have found probable cause to believe that you have committed the acts described below, and request that you meet with the committee to settle the matter informally.
[Specifically, as Treasurer of AFGE Local ____ for the period from ____, 20__ to ____, 20__:
1. You allegedly failed to document correctly, properly record, and otherwise account for operating, travel, per diem, and other expenses, for which approximately $__,000 were disbursed, in violation of Article __, Section __ of the ____ NEC-approved Local Constitution and Bylaws.
2. You allegedly failed to obtain proper authorization by the Local's membership of disbursements in the amount of approximately $__,000, in violation of Article VIII, Section 3 of the standard local constitution. In addition, you allegedly failed to obtain prior approval by the Local's membership for expenditures in excess of $500 per month, in violation of Article XIX, Section 6(e) of the AFGE National Constitution.
3. Contrary to AFGE policy and your fiduciary responsibilities, you allegedly executed checks without the required co-signature of your President, in violation of AFGE’s Financial Officers Manual.
4. You allegedly failed to file required LM-3 Reports with the Department of Labor for the years of 20__ and 20__.]
In the event that we cannot settle the matter with you informally, we will prefer these charges against you for conduct detrimental and inimical to the best interests of the Federation and constituting offenses against the Federation, as set forth at Article XXIII, Section 2(f-h):
(f) Engaging in gross neglect of duty or conduct constituting misfeasance or malfeasance in office as an officer or representative of a local;
(g) Incompetence, negligence or insubordination in the performance of official duties by officers or representatives of a local or council or failure or refusal to perform duties validly assigned;
(h) Committing any act of fraud, embezzlement, mismanagement or appropriating to one's own use any money, property or thing of value belonging to the Federation or any affiliate;
In that event, Local ____ will select a trial committee that will notify you of the time, date, and place of your trial. All of the due process provisions of Article XXIII will govern the trial before the trial committee, including your right to choose a representative (except a member of the trial committee, or a member of the Executive Board when it is acting as a trial board, or a representative of another labor organization).
ARTICLE IX, SECTIONS 5(D) and 5(E);
OF THE AFGE NATIONAL CONSTITUTION
SEC. 5(d). The National President shall be authorized to immediately suspend any officer of an affiliate for serious misconduct, including but not limited to incompetence, negligence, or refusal to perform duties validly assigned, or any other offense, as described in Article XXIII, Section 2, where in his or her judgment the continuance in office of such officer would be inimical to the best interests of the Federation and its members. At the time of the suspension, the National President shall serve upon the suspended officer by registered or certified mail a written notice of the suspension stating in detail the charges against the officer, and he or she shall also mail a copy of such notice and charges to the president or highest remaining ranking officers of the local. Such suspended local officer shall be tried by his or her local under the procedures established in Article XXIII. However, the National President, when he or she deems it in the best interest of the Federation, or in his or her opinion the local will not proceed promptly to trial, or cannot be expected to fairly or judiciously try the matter, may (1) appoint a trial committee or (2) select an
arbitrator under existing Federal Mediation and Conciliation Service or American Arbitration Association procedures, for the trial of the suspended officer. A suspended council officer will be tried by a trial committee composed of three members, one of whom shall be an arbitrator selected in accordance with Article XVI, Section 7, and of the others, who shall be appointed by the National President, one shall be a national council president. A suspended local officer shall be tried by a trial committee appointed by the National President, composed of at least three members or employees of the Federation. Such trials shall be conducted speedily but with reasonable time for the accused to prepare his or her defense. The procedures described in Article XXIII, Sections 5 and 6 governing the conduct of hearings by local trial bodies shall be followed by the trial committee to assure the accused a full and fair hearing in accordance with the basic requisites of due process. The trial committee shall render a decision suspending the accused for a specific time from his or her office, removing him or her from the office, barring him or her from holding any office for a specified time, and/or suspending for a specified period of time, or removing him or her from membership, or finding him or her not guilty as accused. An officer suspended or removed from office and/or membership shall have the appeal right as set forth in Article XXIII, Section 9, after decision by the trial committee.
The suspension or removal of an officer shall operate only to suspend the right of such person to occupy any office or position, or perform any of the functions thereof, but all other membership rights of such officer shall remain unaffected unless and until the trial committee renders a decision affecting his or her membership rights.
SEC. 5(e). Where the National President determines that the conditions within a local or council are such that a fair and impartial investigation and trial of charges against a member cannot be conducted by the local or council under the provisions of Article XXIII, Section 3, then in that event the National President may appoint a committee of investigation and/or a trial committee, such committees to be composed of at least three members. In lieu of a trial committee, the National President may select an arbitrator under existing Federal Mediation and Conciliation Service or American Arbitration Association procedures. In the case of a national council officer, the composition of the trial committee shall be consistent with Article XVI, Section 7. In no case will the committee of investigation and the trial committee be composed of the same members. All of the due process provisions in Sections 4, 5, and 6 of Article XXIII govern the trial before such trial committee. The findings and recommendations and decision of such trial committee shall be submitted to the National President. Within 15 days after the National President receives the transcript or minutes of the hearing and the findings and recommendation and decision of the committee, he or she shall render a written decision. The National President's decision may be appealed by the charged member to the NEC and to the National Convention in accordance with the procedures in Section 9 of Article XXIII.
ARTICLE XXIII, SECTIONS 2-3;
OF THE AFGE NATIONAL CONSTITUTION
SECTION 2. Charges may be preferred for conduct detrimental or inimical to the best interests of the Federation. Offenses against this Federation include the following:
(a) Advocating, encouraging or attempting to bring about a secession from the Federation of any local or of any member or group of members. Penalty for conviction under this sub-paragraph shall be expulsion.
(b) Working in the interest of, or becoming a member of the Communist Party or any other organization which advocates the overthrow of the democratic form of government under which our members live. Penalty for conviction under this sub-paragraph shall be expulsion.
(c) Violation of any provision of this Constitution or the constitution and bylaws of the local to which a member belongs.
(d) Making known the business of any affiliate of the Federation to management officials of any agency or other persons not entitled to such knowledge.
(e) Engaging in conduct unbecoming a union member.
(f) Engaging in gross neglect of duty or conduct constituting misfeasance or malfeasance in office as an officer or representative of a local.
(g) Incompetence, negligence or insubordination in the performance of official duties by officers or representatives of a local or council or failure or refusal to perform duties validly assigned.
(h) Committing any act of fraud, embezzlement, mismanagement, or appropriating to one's own use any money, property, or thing of value belonging to the Federation or any affiliate.
(i) Refusing, failing or neglecting to deliver at specified periods or on demand, in accordance with this Constitution, or the constitution and bylaws of the local or council to which a member belongs, a full and accurate account of all monies, properties, books and records for examination and audit.
(j) Assisting, counseling or aiding any member or officer of the Federation or any of its affiliates to commit any of the offenses herein set forth.
SEC. 3. Charges may be preferred by the National President, the NEC, the NVP having jurisdiction over the local of which the accused is a member or by a committee of investigation of the local. Any member may bring charges by first filing them with the local of which the accused is a member, and the charges shall be investigated by a committee of investigation appointed by the local president or by the majority of the local Executive Board if the local president is being accused. If it is the local president who brings charges against a member, then the local Executive Board shall appoint a committee of investigation. If a member of the local Executive Board is the accused member, he or she may not vote in the selection of the committee of investigation. No member of the Executive Board may serve on the committee of investigation. The committee of investigation shall conduct and complete the investigation within 120 days of the filing of charges. If the committee of investigation finds probable cause and cannot settle the matter informally, it shall cause charges to be served upon the accused. Such charges shall be in writing and shall be served upon the accused by registered or certified mail at his or her last known address, and the local of which the accused is a member shall also be served at its office or address of its highest ranking officer. The charges shall contain an allegation of the facts describing the nature of the offenses charged.
STATUTES AND REGULATIONS
29 U.S.C. § 411. Bill of rights; constitution and bylaws of labor organizations
(a)(1) Equal rights
Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws.
(5) Safeguards against improper disciplinary action
No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.
29 U.S.C. §501(a) Fiduciary Responsibility of Officers of Labor Organizations
The officers, agents, shop stewards, and other representatives of a labor organization occupy positions of trust in relation to such organization and its members as a group. It is, therefore, the duty of each such person, taking into account the special problems and functions of a labor organization, to hold its money and property solely for the benefit of the organization and its members and to manage, invest, and expend the same in accordance with its constitution and bylaws and any resolution of the governing bodies adopted thereunder, to refrain from dealing with such organization as an adverse party or in behalf of an adverse party in any matter connected with his duties and from holding or acquiring any pecuniary or personal interest which conflicts with the interests of such organization, and to account to the organization for any profit received by him in whatever capacity in connection with transactions conducted by him or under his direction on behalf of the organization. A general exculpatory provision in the constitution and bylaws of such a labor organization or a general exculpatory resolution of a governing body purporting to relieve any such person of liability for breach of the duties declared by this section shall be void as against public policy.
5 U.S.C. §7116 Unfair Labor Practices
(b) For the purpose of this chapter, it shall be an unfair labor practice for a labor organiza-tion--
(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;
(2) to cause or attempt to cause an agency to discriminate against any employee in the exercise by the employee of any right under this chapter;
(3) to coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member's work performance or productivity as an employee or the discharge of the member's duties as an employee;
(4) to discriminate against an employee with regard to the terms or conditions of membership in the labor organization on the basis of race, color, creed, national origin, sex, age, preferential or nonpreferential civil service status, political affiliation, marital status, or handicapping condition.
5 U.S.C. §7120 Standards of Conduct for Labor Organizations
The maintenance of democratic procedures and practices including provisions for periodic elections to be conducted subject to recognized safeguards and provisions defining and securing the right of individual members to participate in the affairs of the organization, to receive fair and equal treatment under the governing rules of the organization, and to receive fair process in disciplinary proceedings.
29 CFR §458.2(a)(2)
Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments or opinions; and to express at meetings of the labor organization his views upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.
29 CFR §458.37 Prohibition of certain discipline.
No labor organization or any officer, agent, shop steward, or other representative or any employee thereof shall fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of the CSRA or FSA or this subchapter.
§ 458.38 Deprivation of rights under the CSRA or FSA by violence or threat of violence.
No labor organization or any officer, agent, shop steward, or other representative or any employee thereof shall use, conspire to use, or threaten to use force or violence to restrain, coerce, or intimidate, or attempt to restrain, coerce, or intimidate any member of a labor organization for the purpose of interfering with or preventing the exercise of any right to which he is entitled under the provisions of the CSRA or FSA or of this subchapter.