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Grievance:
Relocations in the Government and Finance Division
On February
12, 2003, CREA received a "Notice of Proposed Relocations in
the Government and Finance Division" from CRS. CREA determined
that the proposal violates the division's "Guidelines Governing
Office Assignments," dated June 24, 1999.
Assistant Director
Michael Koempel wants to relocate three Senior Production Assistants
who currently occupy "D" offices (as opposed to cubicles)
into cubicles and one Senior Production Assistant from half of a
"DD" office into a different "DD" office that
would be shared with another Senior Production Assistant.
The "Office
Assignments/Selection Process" establishes the following procedure:
After senior-level
and division management staff, the office selection order for analysts,
technical and support staff at grades 15 and below will begin with
Section Heads and continue according to rank based on a score ...
for analysts and technical staff, followed by support staff.
Thus, the process
makes clear that production assistants (support staff) were not
to be singled out as a separate group with different procedures.
They were to be ranked with all other employees at GS-15 and below
and could select offices based on their rank. Each person currently
being asked to relocate selected an office based on his or her ranking
in 1999 when the office assignment procedures were implemented.
Furthermore, the process establishes that "once the initial
office assignments have been made they shall be considered permanent.
New division members will be assigned offices from the group of
vacant offices. No existing staff members will be asked to move."
CREA requested
that Mr. Koempel withdraw his request for relocations and follow
the terms of the June 24, 1999, agreement on procedures for office
allocation. Mr. Koempel refused. CREA presented alternatives to
Mr. Koempel that were similarly rejected. CREA then filed a grievance
against Mr. Koempel for failing to follow the division's office
assignment procedures. Mr. Koempel denied the grievance. Mr. Koempel's
position was upheld by Director Mulhollan and by the Library's Labor
Relations Office. The Board of Governors voted unanimously to take
the grievance to arbitration.
Status:
CREA has requested a panel of arbitrators, from which
one will be selected to hear the grievance.
Grievance:
Change in Position Descriptions Without Proper Notification and
Training
In December
2002 CRS issued revised position descriptions (PDs) to GS-14 and
GS-15 analysts/specialists. The primary change to the PDs was the
addition of a "mentoring requirement." Based on an agreement
with CREA, the Library had the responsibility to notify CREA of
the change and to offer "appropriate training" to those
affected by the change. In this case training would entail, among
other things, clarifying the criteria by which management would
evaluate how well an employee mentored another employee.
Shortly after
the PDs were issued, CREA filed a grievance for failure to notify
the union of the change and failure to explain the criteria for
evaluation and to train affected employees. The Library denied any
violation. The CREA Board of Governors voted to take the grievance
to arbitration.
Status:
CREA must request a panel of arbitrators from which one will be
selected to hear the grievance.
Grievance:
Choosing Outside Reviewer for Promotion Denial Appeal
According to
Article VIII of CREA's Collective Bargaining Agreement with the
Library, an employee may appeal the denial of a promotion to an
"expert consultant from outside the Library." This option
exists when the division or office has denied promotion and the
Director, on appeal, has upheld the denial. The contract stipulates
that the Library's Human Resources Services shall propose an expert
consultant to CREA and CRS, and "if there is no objection to
their qualifications or independence," the Library shall arrange
for an contract.
In this instance
the Library proposed an "expert consultant" and CREA raised
an objection concerning the expert's qualifications. The individual
proposed by the Library was a classifier. A classifier looks at
the critical elements of position descriptions and then assigns
them grades. A classifier is not judging actual work; rather, he
or she is rating the critical elements of a position description.
The Library
overruled CREA's objection and hired the contractor to handle the
promotion appeal. CREA filed a grievance stating that, under the
terms of our contract, the Library does not have authority to overrule
an objection. The Library stated that it does have this authority.
The Board of Governors voted to take the grievance to arbitration.
The same employee
then exercised his/her right to a six-month review for promotion.
Again the promotion was denied at the division and Director's levels
and an appeal was filed with the Library. Again the Library proposed
a classifier (not the same one), in this case one who was also a
contractor with the Library. CREA objected on the basis of both
qualifications and independence. The Library once again overruled
CREA and a second grievance was filed, with the same results. Again
the Board voted to take the grievance to arbitration.
Status:
CREA needs to request an arbitrator for these grievances.
Grievance:
Collecting Resumes After a Vacancy Announcement Has Closed
In early December
2002, CREA learned that CRS had requested/required interviewees
for a vacancy in the Government and Finance Division to bring in
resumes at the time they were being interviewed. The application
process under Section VI.C.9 in the June 19, 2001, "Library
of Congress Merit Selection and Promotion Plan," as agreed
to by CREA and the Library, states:
Applicants
will use an automated system or a "Job Kit" available
from the Library to submit their OF 612, SF171, or resume and a
self-rated applicant questionnaire.... Human Resources will scan
into the automated system resumes, OF 612s, and applicant questionnaires
submitted on or before the closing date of the vacancy announcement....
All required application material stated on the vacancy announcement
must be either submitted online or received by HRS on or before
the final closing date.
On December
12, 2002, at a meeting between the Human Resources Services Office
(HRS) and the Library's unions, CREA President Dennis Roth asked
Rafael Landrau, director of the Office of Work Life Services in
HRS, about the request for resumes. Mr. Landrau stated that the
resume or its equivalent were part of the application process and
that there was no need for interviewees to bring in additional information.
Mr. Landrau also agreed with President Roth that any application
without a resume or equivalent would not be complete and should
not be considered. The Library violated the agreement by requesting/requiring
and accepting resumes after the date of accepting applications had
passed.
CREA grieved
the Library's failure to follow the terms of the application process
as negotiated between CREA and the Library. Candidates with incomplete
applications should not have been considered for the position. The
Library denied CREA's grievance, saying that the documents were
not required. The Board of Governors voted to take the grievance
to arbitration.
Status:
CREA needs to request an arbitrator.
Grievance:
Director's Ban on CREA President's Work
In June 2002,
Domestic Social Policy Division Deputy Assistant Director Sharon
House asked CREA President Dennis Roth, who is a labor-relations
analyst in DSP, to answer requests regarding collective bargaining
and union recognition issues in the new Department of Homeland Security.
Mr. Roth agreed and was later given three requests by his section
head, Margot Schenet. Mr. Roth completed a general distribution
memorandum, a memorandum for a specific requestor, and a list of
exempt agencies for another requester. All work was reviewed following
division and Service procedures, and at no time were any comments
raised about the objectivity or nonpartisanship of the work completed.
Mr. Roth also responded to other requests through substantive oral
briefings over the telephone.
On or about
June 25, 2002, Mr. Roth was informed by Ms. House that he was no
longer to respond to any requests on this topic. The Director's
Office had decided that because Mr. Roth was president of the union
representing CRS employees, his handling of requests in this subject
area could give the "appearance of a possible conflict of interest."
On June 28, 2002, the Service prepared an overview piece on the
Department of Homeland Security. One section of this product contained
Mr. Roth's work. In the section naming the analysts responsible
for each subject area, however, Mr. Roth's name was not listed.
Instead, the section in which Mr. Roth works was given.
Article IV
of the Collective Bargaining Agreement (CBA) between CREA and the
Library, dealing with the "Rights of the Association,"
states: "The Library shall in no way restrain, interfere with,
coerce or discriminate against designated representatives of the
Association in the exercise of their right to serve as representatives
for the purpose of collective bargaining [and other duties]."
Article VI, Section 1, further states: "The Library shall assure
that ... no interference, restraint, coercion, or discrimination
is practiced within the Library to encourage or discourage membership
in or representation by the Association." The Director's decision
violated these articles of the CBA. It constituted an act of reprisal
for serving as an officer of the Association. It also discriminated
against the Association by creating a chilling effect with regard
to finding bargaining-unit employees to serve as Association representatives.
Employees will not volunteer to serve the Association if they believe
that management might therefore preclude them from using their subject
expertise to help the Congress.
Under 5 U.S.C
§ 7116, the Library is not "to encourage or discourage
membership in any labor organization by discrimination in connection
with hiring, tenure, promotion, or other conditions of employment."
The prohibition on Mr. Roth prevented him from fulfilling the basic
responsibilities of his job by performing analysis in his subject
area for the Congress. It constituted discrimination against him
based solely on the fact that he is president of CREA.
Furthermore,
the Director set a dangerous precedent in his statement justifying
his action. He stated that allowing Mr. Roth to do analysis in his
area of subject expertise could give the "appearance of a conflict
of interest." Here he uses language from the Congressional
Accountability Act (CAA), which does not govern CREA. For several
years Director Mulhollan has attempted to have CREA removed from
coverage under the Federal Service Labor-Management Relations Statute
(FSLMRS) and placed instead under the provisions of the CAA. Each
time the Office of Compliance has turned down his requests. Now
Mr. Mulhollan has placed CREA under the CAA unilaterally. This is
totally inappropriate and represents an invalid justification for
his actions against Mr. Roth.
With these
considerations in mind, the Board of Governors voted unanimously
in August 2002 to file a grievance.
Status:
Due to scheduling difficulties, the arbitration hearing
could not be scheduled until September 2003.
Grievance: Section Head Bonuses Did
Not Follow Library Regulations
In August 1999
the Library approved new position descriptions for CRS staff serving
as section heads. Twelve "Major Supervisory/Managerial Duties"
were added to their regular duties. Normally under such circumstances
management would seek a reclassification of the position and request
a higher grade. CRS did not want to pursue this step, however, "because
[for research analysts] it would mean creating additional senior
level positions or [for infrastructure staff] it would mean creating
positions at the same grade level as the supervisor." Instead,
management opted to use the awards system, arguing that it was acting
"in keeping with the principle that employees should be compensated
commensurate with their assigned responsibilities." It seemed
to CREA that a better way to enact this principle would be to establish
a higher pay grade for section heads, as the added supervisory/managerial
duties and responsibilities are significant.
Nevertheless,
in March 2000 the Library accepted CRS's proposal for a 4% cash
award bonus for GS-14/15 section heads "to recognize the additional
duties and responsibilities assumed by staff in these positions."
The first bonus, which covered the period from July 2000 to July
2001, averaged $4,360 per section head. A second bonus covered July
2001 to January 2002, with future bonuses to be paid annually in
May of each year. The only significant criterion for receiving the
bonus was that "section heads must have demonstrated an acceptable
level of performance; i.e., a summary rating of at least successful."
This justification for a bonus, based on "just doing the job,"
so to speak, differs significantly from the usual justification
for an individual incentive award. Indeed, section heads are also
eligible for individual incentive awards for performance "over
and above the acceptable level."
When asked
about the authority for the bonuses, management replied that they
fell under the incentive awards process for group cash awards as
outlined in LCR 2017-3. While CREA believes that CRS section heads
should be appropriately compensated, we do not believe the awards
system allows for the bonus instituted by CRS management. CREA objected
to the bonus on three grounds. First, the Incentive Awards Program
procedures, as outlined in LCR 2017-3, offer no provisions for rewarding
"satisfactory" performance. Second, even if the bonus
could be justified under LCR 2017-3, it would have to conform to
the award scale given in that section (a minimum of $350 or a maximum
not greater than a within-grade increase — an amount significantly
lower than 4%). Third, if management intends to reward "satisfactory/successful"
performance, then all CRS staff rated "satisfactory/successful"
should receive an incentive award for satisfactory performance.
CREA also voiced concern that payment of a section head bonus from
incentive awards funds would reduce funds available to the rest
of CRS staff.
Status:
CREA filed a grievance over the Section Head Cash Award
Program on behalf of bargaining-unit staff. Because the Library
took so long to respond to a CREA information request, arbitration
was delayed until this year. On March 11, 2003, two days prior to
going to arbitration, the Library requested a settlement hearing
with CREA. The Library presented data, for the first time, showing
that bargaining-unit employees were not affected by the section
head bonus because CRS had been unable to spend the total allocation
for individual awards at the division/office level since FY1999.
Unspent funds for FY1999 totaled $8,350, for FY2000 $38,925, for
FY2001 $12,525, and for FY2002 $12,443. Legal counsel who attended
the meeting with CREA advised us that these unspent funds would
make it difficult to prove an adverse impact on bargaining-unit
employees. However, CREA was able to get the Library to recognize
the violation of the LCR. The Library and CREA agreed to the following:
1. The Library
agreed that funds available to grant cash awards to bargaining-unit
members will not be reduced by the payment of cash awards to section
heads.
2. LCR 2017-3
will be amended, no later than September 30, 2003, to provide specific
authority for the payment of section head cash awards. To the extent
that these amendments would also affect bargaining-unit employees,
the Library agreed to bargain appropriately.
3. The Library
assumed responsibility for the arbitration cancellation fee.
In summary,
CREA won what it asked for in its grievance — recognition that
CRS was inappropriately applying the Incentive Awards LCR to give
bonuses to section heads.
In the larger
scheme of things, however, why is the Director requesting an additional
$56,000 in incentive award funding for FY2004 as a retention incentive
when CRS failed to spend its allocated amounts for this purpose
for the past four fiscal years?
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