Response to Step 1 Grievance

Transcription

1 Representing the bargaining unit employees of Passport Services, a division of the Department of State s Bureau of Consular Affairs James Lensen-Callas, Vice President IAMAW-NFFE FD1 FL1998 Phone # (415) Response to Step 1 Grievance TO: FROM: Aileen Lee Smith, Office Director CA/PPT/S/PMO James Lensen-Callas, Vice President National Federation of Federal Employees, Local 1998 RE: Step 1 Grievance Response Purported IR Deadlines DATE: November 10, 2015 In accordance with Article 20, Section 7(f) of the Agreement (herein referred to as the Master Agreement ) between the U.S. Department of State, Bureau of Consular Affairs, Passport Services, (herein referred to as the Agency ), and the National Federation of Federal Employees Local 1998 (hereafter referred to as the Union ), I am submitting this written response to the Agency s Step 1 Grievance dated, September 28, For the reasons stated below, the Agency s request for relief is Denied.

2 I. Background On September 12, 2015, the Union submitted an information request, pursuant to 5 U.S.C. 7114(b)(4), respectfully requesting that Management provide Robert Arnold, president, National Federation of Federal Employees, Local 1998 with specific information that exists, is reasonably available, and is normally maintained by the Agency in the regular course of its business. Pursuant to statute, the Union also articulated a particularized need for the requested information, and informed the Agency that the information is needed by October 3, Subsequently, on September 24, 2015, the Union s specific request for information was denied by the Agency. The Agency claimed that the Union s particularized need statement was deficient, thus, the reason for the denial. Four days later, on September 28, 2015, the Agency filed the instant Step 1 Grievance stating that in addition to its September 12, 2015 information request, [o]n previous occasions, the Union has purported to give the Agency a deadline for responding to statutory data requests. Further, The Agency, in such cases, has advised the Union that it is not empowered to impose a deadline upon an agency for providing requested information. The Agency also cited a February 4, 2015 data request filed by the Union where the Union asked for specific data by February 6, In its response to the Union s request the Agency stated that [a] requesting party is not empowered, under the federal labor statute or any other applicable authority, to establish a deadline for an agency to provide requested information or otherwise respond to an information request. The Agency then asked the Union to [p]lease ensure that NFFE ceases placing purported deadlines in information requests. II. Discussion A. Equitable Doctrine The Agency is correct that under the American Jurisprudence System, relief for claims made in equity, including cease and desist orders, have been awarded to plaintiffs. Nonetheless, the Agency fails to mention that the plaintiff in these cases must have clean hands in order to claim an equitable remedy. More specifically, a plaintiff is not entitled to claim an equitable remedy when acting unethically or in bad faith with respect to the subject of the complaint. Accordingly, the Agency cannot claim relief in equity as it has not acted in good faith with respects to responding timely to the Union s numerous information requests. For example, in its Step 1 Grievance, the Agency also cited an October 1, 2014 information request filed by the Union where the Agency claims the Union purported to give the Agency a deadline of October 15, 2014 to respond. An examination of this claim reveals: 1) the Union imposed no such deadline on the Agency as there is no penalty that may be imposed upon the Agency, consistent with 5 U.S.C. 7114(b)(4), should the Agency choose to ignore when the information is needed by the Union; and 2

3 2) the Agency s response in the form of a denial to the Union s request, on the grounds of deficient particularized need, was provided on December 10, 2014, two months after the Union s initial filing. Clearly, this protracted period of time to notify the Union of its particularized need deficiency was unreasonable, and was arguably done in bad faith. More specifically, the Agency led the Union to believe that the requested information would be forth-coming, as evidenced by the following from Robert Murphy, Labor Relations Consultant, OBXtek, Inc., CA/PPT/S/PMO/PC, to Gerald Moore, Senior Steward, NFFE, dated November 24, 2014: Gerald, I am reaching out to you to let you know that the Agency continues to work on responding to your two requests for information regarding PPT/DE employees. Doing so has required us to retrieve and review hundreds of pages of documents, and our responses likely won t be forthcoming for at least a few more weeks. We will keep in touch with you regarding the expected timeline of our responses, and will respond to each request as soon as is reasonably possible. Thank you. Best, Robert E. Murphy Labor Relations Consultant OBXtek, Inc. CA/PPT/S/PMO/PC th Street NW, Suite Washington, DC (202) (Emphasis added). It is reasonable to conclude that the Agency would not need to... review hundreds of pages of documents to reach the decision that the Union s particularized need statement was deficient. The evidence suggests that Mr. Murphy s was intended as a ruse, and in bad faith, simply to bring about delay in the process of responding to the Union s request for information. Therefore, the Agency is not entitled to claim an equitable remedy as it has clearly acted unethically, and in bad faith. B. The Agency s Claim That Article 6, Section 7 Was Violated Is Unfounded The Agency s insistence that the Union knew that it was not permitted under the statute to give the Agency a deadline for response, as its acting president had acknowledged the same on October 1, 2014 stretches the imagination of what is considered a reasonable subject for grievance. On its face this claim seems intended to be vexatious at best. 3

4 Under Article 6, Section 7 of the Master Agreement s DIGNITY AND RESPECT : in relevant part, All correspondence sent by Employer or Union officials will be professional, factually correct (to the best of the sender s knowledge), and will comply with applicable law and regulation. Clearly, the Union s inclusion of a suggested date or time frame with its request for data has absolutely no significance whatsoever with respect to 5 U.S.C Simply stated, the Union recognizes that under the statute management is required to respond within a reasonable time, and is not held to any specific deadline. It is actually the Agency itself that has violated Article 6, Section 7 of the Master Agreement, when the Agency responded with factually incorrect information when it stated, Doing so has required us to retrieve and review hundreds of pages of documents. Why would the Agency expend the resources to retrieve and review hundreds of pages of documents if the Agency believed that the Union had failed to meet particularized need requirement in its information request? Either the Agency is factually incorrect about the retrieval or review of these hundreds of pages of documents or it is factually incorrect that the Union did not meet the particularized need and the Agency simply determined that it did not want the Union to see the documents that it had reviewed. The Union requests information by a certain date to meet its own filing deadlines and to promptly represent the employees that make up the majority workforce of the Agency. Similar to NFFE, it is common practice for other unions to include specific dates within their Information Requests. For example, the largest federal labor union, American Federation of Government Employees (AFGE), uses the below language in one of its sample Information Requests (see afge.org): In accordance with the principles established in U.S. Immigration and naturalization Service, Border Patrol, Tucson Arizona and National Border Patrol Council, Local 2544 FLRA July 16, 1997, we need and expect to receive this information no later than (Date). If you believe that you cannot provide me with some of the information because of legal impediments, or if there are questions concerning the contents of this request, please contact me by close of business the day of receipt. (Emphasis added). Therefore, the Agency has not demonstrated that the Union is in anyway non-compliant with any applicable law or regulation. Further, there was no violation of Article 6, Section 7 on the part of the Union, as suggested by the Agency. The Union s request for information under 5 U.S.C. 7114(b)(4) was professional, factually correct and compliant with all applicable laws and regulations. For the reasons stated above, the Agency s request for relief is Denied. S/ James Lensen-Callas 4

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