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Attachment 5 AFL-CIO American Federation of Government Employees National Citizenship and Immigration Services Council Immigration and Customs Enforcement Council 118 Local 3377 P.O. Box 560905 Dallas, Texas 75356-0905 May 26, 2010 David Roark USPS Certified No. 7005 +++++++++++++ Director, TSC, USCIS 7701 N. Stemmons Freeway Dallas, TX 75356-0905 Subject: Step II Grievance: Pattern and Practice of Reprisal against Union Director Roark: This is a Step II Union grievance under the provisions of Article 38F (2) (a) (2) on behalf of AFGE Local 3377. Texas Service Center violations include, but are not limited too, Article 3, Article 6, Article 7, Article 8, Article 9 and Article 11 of the contract currently in effect, 5 U.S.C. 2302, 5 U.S.C. 5 U.S.C. 7102, 5 U.S.C. 7116(a) (1) and (2), 5 U.S.C. 7131, the common law tort of intentional infliction of emotional distress, and any other relevant law, rule, regulation or contract. Texas Service Center, over the past three years, has established a pattern and practice of restraint and reprisal against employees and union officials who exercise their statutory and contractual rights and engage in protected activities. The most recent acts have been charging the Health and Safety Representative with AWOL, counseling and threatening a union steward with AWOL for sending an e-mail addressing working conditions while on break, attempting to break into the Union office to change the lock without negotiating changes in past practices, escorting the Union President out of the building after he engaged in robust debate with a management official, charging the Union president with AWOL for attending an ICE All hands meeting while he was on excused absence from duty (”administrative leave”) and investigating an union steward who was talking to two co-workers while on break. These are ongoing violations. Narrative On or about March 8, 2010, AFGE Local 3377 Gwendolyn Moss addressed a matter affecting working conditions in an e-mail, sent while on break, signing as “Steward”. On or about March 19, 2010, she was presented a “counseling statement”, dated March 11, 2010, by her first line supervisor, admonishing her for sending the e-mail as a union steward while not on approved official time, informed that she could not send an e-mail to her co-workers without approval of her supervisor and threatened with AWOL and possible disciplinary action if she were to do such again. See Attachment 1. The undersigned had similarly sent an e-mail while on break concerning the same situation that was addressed by Steward Moss. On March 11, 2010, the undersigned received an e-mail from supervisor David Badger Attachment 5 (Attachment 2) to which the undersigned responded. (Attachment 4) no further action was taken against the undersigned. On or about March 12, 2010, AFGE Local 3377 Health and Safety Representative Randall Jansen identified a potential health hazard while on break, and requested official time to report it. The Form G-1161 was approved by the undersigned President and turned in to Mr. Jansen’s first line supervisor. The G-1161 was returned to Mr. Jansen as “denied’ and he was charged with 15 minutes (0.25 hours) AWOL for performing a union activity (identifying a health hazard) while not on approved official time. See Attachment 4. On or About April 2, 2010, the private attorney representing Steward Alma Flores withdrew from representing her in her EEO case, and Steward Flores designated the undersigned as her representative in this case. This is a consolidated case of approximately six complaints alleging TSC management’s reprisal against Steward Flores for engaging in EEO activities. This is being presented as evidence in this grievance. On April 15, 2010, the undersigned president was served a letter that “directed” him to clear and organize the Union office, provided under the provisions of Article 8 of both the previous Agreement 2000, and the current contract that went into effect on January 1, 2010, and threatened discipline up to and including removal if it were not completed by a date certain. An Unfair Labor practice charge was filed for threatening the undersigned with discipline and was given FLRA Case No. DA-CA-10-0326. See Attachment 5. This particular violation is not a part of this grievance, but is being presented as evidence of the ongoing practice of reprisal and threats of reprisal against employees engaging in protected activities. I wrote a letter to Deputy Director Barrows offering counter proposals that included a larger office and a number of man-hours to clear, organize and move the Union office. This was served on April 21, 2010. See Attachment 6. On April 21, 2010, the undersigned was served another letter demanding that a key to the Union office be turned over. The undersigned contacted AFGE and was told that the Building Manager designated by GSA should have a copy of the key for fire and safety purposes, but that restrictions on who has access to the key and how that access was to be controlled could be negotiated. Please note that there has been a long established past practice of management not having a key for the Union office. Not less than five minutes after the undersigned had talked to the AFGE Representative, and as a response was being prepared, there was a knock on the door. A Supervisory Management and Program Analyst from the Texas Service Center Administrative Division (a representative of management), accompanied by a maintenance employee of the building owner and another person, later identified as a locksmith were standing in front of the Union office door. (This supervisor later stated in the presence of Chief Steward crispin Perez that she did not know that the undersigned was in the office, which leads to the conclusion that the attempt to change the lock was intended to be surreptitious in nature). They stated that they wanted access to the Union office so that they could change the lock. The undersigned refused, stating that a response had already been served to Ms. Barrow’s request, and that we needed more time and space to secure the sensitive documents in the Union office. The undersigned closed the door. A few minutes later, they returned and stated that the Director was directing the undersigned to allow them access. Robust debate ensued, and the undersigned was escorted from the building by the Federal Protective Service. Later that afternoon, Supervisor Badger called and stated that the undersigned was on administrative leave until further notice. See Attachment 7. On April 23, 2010, the Director OF THE Dallas ICE DRO field office notified the undersigned of a Formal Meeting on April 26, 2010. See Attachment 8. Had the undersigned NOT been on excused absence/ administrative leave, the Maxiflex schedule would have been adjusted in order to “flex” the time spent at the formal meeting, as accrued leave balance is low. As the undersigned was not is a duty status, the Formal Meeting was attended by the undersigned as a representative of the union. Attachment 5 On April 29, 2010, Supervisor Badger sent the undersigned the attached memo, directing that undersigned call in between 9:30 AM and 10 AM on core days and to submit leave requests and requests for official time in order to perform any representational work. Please note that this was three days AFTER the formal meeting. See Attachment 9. On May 13, 2010, Supervisor Badger sent the undersigned an e-mail requesting that the submission of G-1161s and leave slips after the fact for April 21 to April 29. See Attachment 10. The undersigned responded that all the CIS representational work had been done after 6 PM except for the 15 min teleconference with the EEO Judge, and that the time for the ICE Formal Meeting should be charged as “flex time”. See Attachment 11. After noting that the leave and Earnings Statement for Pay Period 9 showed 1.5 hours of AWOL, the undersigned inquired on May 24, 2010. See Attachment 12. Supervisor Badger responded that the undersigned was charged AWOL for the ICE Formal Meeting as no leave slip had been provided. See Attachment 13. On or about May 6, 2010, AFGE Local 3377 Health and Safety Representative Randall Jansen was taking a break and talking with fellow employees of TSC, Stephen Zavadsky and Deborah Myatt. He noted that Deputy Director Barrows passed by while they were talking. On May 13, 2010, he was directed to appear for an examination in connecting with an investigation that day. He was questioned about his discussion with Stephen Zavadsky and Deborah Myatt on May 6th, and was particularly asked if he was on approved official time. It is understood that the other employees involved were also subjected to the stress of an investigatory examination often referred to as a “Weingarten Interview”. Please see Attachment 14. Attachment 16 identifies additional instances of reprisal, only a few of which have been described here. Violations Article 3 Article 3 restates 5 U.S.C. 7102 in that is states that employees shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right, and shall have the right to communicate with their union officials. By subjecting employees to investigatory interviews for speaking with another employee who happens to be a union official, TSC management creates a fear of reprisal in employees, inhibiting them in the exercise of their statutory and contractual rights. TSC management is in violation of Article 3 and 5 U.S.C. 7102. Article 6 Article 6 provides for no restraint on union officials in the exercise of their representational duties. By retaliating against union officials, charging them AWOL for performing representational activities and threatening and imposing discipline, TSC is in violation of Article 6, and has engaged in unfair labor practices pursuant to 5 U.S.C. 7116(a) (1) and (2). Article 7 Attachment 5 Article 7 provides an equitable process for the allocation and approval of official time. It states that “The representative will be released unless a union representative's presence is necessary to meet customer service and the work of the office requirements” (emphasis added) There is no provision for denying official time because the representational activity had already been performed, or for any other reason, unless the activity being performed is prohibited to be performed on official time by 5 U.S.C. 7131(b) (“internal union business”). By denying Randall Jansen official time to report a health issue, and then charging him with AWOL is a violation of Article 7. Article 8 Article 8 provides for the provision to the Union of office space and equipment and the use of internal government e-mail to communicate with the employees. The counseling statement given to Steward Moss, and threatening her with AWOL for using e-mail to communicate with the employees and sup4rvisor is a violation of Article 8I. It has been a long standing past practice for TSC management to not have a key to the union office. The attempted break-in to change the lock and thus deprive the undersigned President with access to the Union office is a violation of Article 8H. Article 9 Article 9 provides the basis for midterm bargaining. As stated above, the provision of an office and office equipment for the use by the Union is a contractual provision of Article 8H. Access to the Union office is silent in the master contract and thus is appropriate for local level bargaining. It has been a long, well established past practice for AFGE Local 3377 that no management official maintains a key to the Union office. There are other alternatives, but they are all open to negotiation. There was no notice of change in working conditions as required by Article 9A. They forced acquisition of access to the Union office without negotiation is a violation of Article 9, and an unfair labor practice pursuant to 5 U.S.C. 7116(a)(1) and (5) Article 11 Article 11 restates 5 U.S.C. 2302, and addresses prohibited personnel practices, Article 11B restates 5 U.S.C. 2302(b), which states in pertinent part that it is a prohibited personnel practice to . . . (9) Take, fail to take, or threaten to take or fail to take a personnel action against an employee or applicant for exercising an appeal, complaint, or grievance right; testifying for or assisting another in exercising such a right; cooperating with or disclosing information to the Special Counsel or to an Inspector General; or refusing to obey an order that would require the individual to violate a law; To retaliate against union officials and employees who have exercised their statutory and contractual rights is a prohibited personnel practice, and a violation of Article 11 and 5 U.S.C. 2302. The common law tort of Intentional Infliction of Emotional Distress The elements of the common law tort of Intentional infliction of emotional distress are: (1) the defendant intended to inflict emotional distress; (2) the conduct of the defendant was extreme and outrageous; Attachment 5 (3) the actions of the defendant were the cause of the plaintiff’s distress; and (4) the resulting emotional distress to the plaintiff was severe Prosser and Keeton [W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS §12, at 57 (5th ed. 1984).] explain that: “[s]o far as it is possible to generalize from the cases, the rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” The threatening of, and imposing discipline on an employee in and of itself causes emotional distress. It is recognized that it is a management right to, on occasion review, criticize, demote, transfer and discipline employees. The Texas Supreme Court, although adopting a very conservative approach to the tort in the employment context, has commented that: “[i]n the employment context, some courts have held that a plaintiff’s status as an employee should entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if he were a stranger. . . . This approach is based partly on the rationale that, as opposed to most casual and temporary relationships, the workplace environment provides a captive victim and the opportunity for prolonged abuse. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999). The key element to the tort of intentional infliction of emotional distress is the presence of extreme and outrageous conduct. Conduct which violates law and contract rises to the level of outrageous. Texas Service center, in its pursuit of reprisal against the union’s officers, officials and members, has violated contract and law, and thus has engaged in extreme and outrageous conduct. To meet the requirement of intent, the defendant/employer must have intended to inflict the emotional distress on the plaintiff; or conversely, that the defendant knew or should have known to a probable or substantial certainty that emotional distress would be the likely result of the defendant’s conduct. Brunson v. Bayer Corp., 237 F. Supp. 2d 192, 207 (D. Conn. 2002) The reckless infliction of emotional distress shares the same legal standards and consequences as the intentional infliction of emotional distress.142 Therefore, acting with a deliberate disregard or a reckless indifference of a high degree of probability that emotional distress will ensue is sufficient to satisfy the “recklessness” standard. RESTATEMENT (SECOND) OF TORTS § 46(1) Please see Attachment 15. This letter was provided to Supervisor Badger in fulfillment of a request for medical documentation. TSC management was aware, or should have been aware, the undersigned was in a “fragile state” by being treated for a major depressive disorder, was a Particularly Sensitive or Susceptible employee and that subsequent actions of threatening or imposing discipline would only increase the distress. Subsequent to being escorted our of the building by FPS, the undersigned’s medical provider prescribed additional medication for increased anxiety. Thus, TSC has engaged in the intentional infliction of emotional distress on the undersigned by continuing to retaliate for engaging in protected union activities, in reckless disregard to the undersigned medical condition and emotional state. Remedies Attachment 5 As remedies we request that AFGE Local 3377, with all officers, officials and members, be made whole to the maximum extent possible, to include, but not limited to, the following: 1. Cease and desist from: (a) Discriminating or retaliating against employees in the collective bargaining unit represented by the American Federation of Government Employees, Local 3377, AFL-CIO, by disciplining, threatening with discipline, charging AWOL or by any other means, because they have submitted grievances or have otherwise engaged in protected activity within the meaning of the Statute. (b) Making statements that interfere with, restrain or coerce employees in their exercise of activities protected by the Statute. (c) In any like or related manner, interfering with, restraining or coercing employees in the exercise of rights assured by the Statute. 2. Post at facilities where employees assigned to Texas Service report to work copies of a notice that Texas Service center will not discriminate or retaliate against employees, as stated in remedy 1. 3. Expunge all records of AWOL from the records of Health and Safety Representative Randall Jansen and the Undersigned President that they were charged with when engaging in representational activities under the statute and contract, and restore their back pay with interest. 4. Return the key to the Union office to AFGE Local 3377 and negotiate access as required by the statute. Sincerely, Kevin m Tinker President AFGE Local 3377 Cf: Director Mayorkas, USPS Certified No. 7005 1160 0003 4667 9900 Attachments: 1. Counseling Statement, G Moss, dated 03112010 2. e-mail: Not following G-1161 procedures, D Badger, 031110, 3:46 PM 3. e-mail, Re: Not following G-1161 procedures, K tinker, 031110, 6:19 PM 4. e-mail: AWOL, R Jansen, 031310 7: 40 PM 5. FLRA 22c: DA-CA-10-0326 6. Letter to DD Barrows, 04212010 7. Declaration of Kevin M. Tinker 8. Letter from ICE DRO FOD, 04212010 9. Administrative Leave Instruction memo, with response, 042910 10. e-mail from SISO Badger, 051310 Attachment 5 11. e-mail response, 051210 12. e-mail inquiry on AWOL for PP 9, 052410 13. email response, 052410 14. Weingarten investigation of Randall Jansen. 15. Letter from Dr. Knipstein, 013110 16. Other incidents of reprisal FORM EXEMPT UNDER 44 U.S.C. 3512 FOR FLRA USE ONLY UNITED STATES OF AMERICA Case No. DA-CA-10-0326 ___________________________________ FEDERAL LABOR RELATIONS AUTHORITY Date Filed Apr 19 2010 CHARGE AGAINST AN AGENCY Complete Instructions are on the back of this form. 1. Charged Activity or Agency 2. Name and address of charging (labor organization or individual Name: Angela K Barrows, Deputy, Director Name: AFGE Local 3377 Texas Service Center, USCIS Address: PO Box 560905 Address: P.O. Box 565088 Dallas, TX 7356-0905 Dallas, TX 75356-5088 Tel.#: (214) 962- 2626 Tel.#: 214-905-5440 Fax.#: (214) 962-1451 Fax.#: 214-905-5370 3. Activity or agency contact Information 4. Labor organization or individual contact information Name: John Dymond Name: Kevin M Tinker Title: Assoc LER, USCIS Title: President, AFGE Local 3377 Address: 7701 N Stemmons Freeway Address: PO Box 560905 Dallas, TX 75247 Dallas, TX 7356-0905 Tel.#: 214 905-5486 Tel.#: 214-905-5440/469-774-1814 Fax.#: 214-905-5858 Fax.#: 214-905-5370/ 214-234-9442 5. Which subsection(s) of 5 U.S.C. 7116(A) do you believe have been violated? (See reverse) (1) and (2). Deputy Director Barrows threatened to discipline, up to and including removal from employement of, the President of AFGE Local 3377. 6. Tell exactly WHAT the activity (or agency) did. Start with the DATE and LOCATION, state WHO was involved, including titles The Agency has provided AFGE Local 3377 with office space pursuant to the master labor contract. Since 2006-2007, AFGE Local 3377 has informed the Agency that that amount of space in the union office was not adequate, and requesting either a larger office or another room to use as a file room. Our requests have been denied, with the assertion that there is not available room. Sometime during the week of March 15, 2010, a leak developed in the HVAC in the ceiling above the Union office, causing the ceiling tile to disintegrate and debris to fall to the floor and furniture.. This was reported to building maintenance. Initially, maintenance closed a valve to stop the leaking. On or about April 13, 2010, building maintenance replaced the valve and ceiling tile. Furniture and files were moved by the maintenance workers and piled up in the office in order to obtain access to the HVAC system in the ceiling. On April 15, 2010, the President of AFGE Local 3377 was served a letter, dated April 14, 2010, titled “Written Directive” signed by Deputy Director Angela Barrows that “directed” the Union President to “clear and organize” the Union office, and threatening discipline up to and including removal from the Service if this were not completed by a date certain. Attached were photographs of the office that were taken while it was in disarray when the HVAC in the ceiling was being repaired. Deputy Director Barrows has violated 5 U.S.C. 7116 (a) (1) and (2). 7. Have you or anyone else raised this matter in any other procedure? X No Yes If, yes where? [see reverse]__._________________ 8. I DECLARE THAT I HAVE READ THIS CHARGE AND THAT THE STATEMENTS IN IT ARE TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. I UNDERSTAND THAT MAKING WILLFULLY FALSE STATEMENTS ON THIS CHARGE CAN BE PUNISHED BY FINE AND IMPRISONMENT, 18 U.S.C. 1001. THIS CHARGE WAS Attachment 5 SERVED ON THE PERSON IDENTIFED IN BOX #3 BY [check “X” BOX] Fax X 1st Class Mail In Person Commercial delivery Certified Mail _Kevin M Tinker_________________________ _____________________________ ____April 19, 2010__________ Type of print your name Your Signature Date FLRA Form 22 (Rev. 1/99) Attachment 6 AFL-CIO American Federation of Government Employees National Citizenship and Immigration Services Council Immigration and Customs Enforcement Council Local 3377 P.O. Box 560905 Dallas, Texas 75356-0905 April 20, 2010 Angela K Barrows Deputy Director Texas Service Center, USCIS 7701 N Stemmons Freeway, Dallas, TX 75247. Subject: Your Written Directive: Offer to Settle ULPs Deputy Barrows: We are in receipt of your letter, dated April 14, 2010, titled “Written Directive” where you “direct” the undersigned Union President to “clear and organize” the Union office, and threatening discipline up to and including removal from the Service if this were not completed by a date certain. The Agency has provided AFGE Local 3377 with office space pursuant to the master labor contract for decades. Since 2006-2007, AFGE Local 3377 has informed the Agency that that amount of space in the union office was not adequate, and requesting either a larger office or another room to use as a file room. Our requests have been denied, with the assertion that there is no room available. Sometime during the week of March 15, 2010, a leak developed in the HVAC in the ceiling above the Union office, causing the ceiling tile to disintegrate and debris to fall to the floor and furniture.. This was reported to building maintenance. Initially, maintenance closed a valve to stop the leaking. On or about April 13, 2010, building maintenance replaced the valve and ceiling tile. Furniture and files were moved by the maintenance workers and piled up in the office in order to obtain access to the HVAC system in the ceiling. On April 15, 2010, the undersigned President of AFGE Local 3377 was served a letter, dated April 14, 2010, titled “Written Directive” signed by you that “directed” the Union President to “clear and organize” the Union office, and threatening discipline up to and including removal from the Service if this were not completed by a date certain. Attached were photographs of the office that was taken while it was in disarray when the HVAC in the ceiling was being repaired. A clear distinction must be made regarding my dual capacity as an employee and a union official. Ant activities performed in the Union office is in my capacity as a Union official. It is inappropriate for a management official to direct the activities of a union official. It is unlawful to threaten to discipline a union official for activities performed in their capacity as union officials. The attached ULP has been filed with the FLRA. See Attachment 1. Attachment 6 We shall consider your letter of April 15, 2010 as a “request” and will comply to this “request” to the best of our ability. However, we cannot comply fully without more space, and we will not be able to comply within the time frames you specified.. Previously, the agency had asserted that there were no rooms available to provide to the Union. That is not the case now. Texas Service Center has vacated the 4th floor of 7701 N Stemmons. The office formerly occupied by ACD Covington is now vacant. We request that AFGE Local 3377 be provided with the office on the 4th floor formerly occupied by ACD Covington for our use as the Union office pursuant to Article 8H of the new contract in effect. We also request that administrative time be provided to union members to move from the closet on the second floor currently used as a Union office to the new office on the 4th floor of 7701 N Stemmons. We request that this time be provided not to exceed 40 man-hours. Should you agree to this, and not pursue the threatened disciplinary action, the union will withdraw the four attached unfair labor practice charges. Sincerely, Kevin M Tinker President AFGE Local 3377 Attached: 1. FLRA 22c 04202010 2. DA-CA-10-0161 3. DA-CA-10-0224 4. FLRA 22c 03252010 Attachment 7 DECLARATION Full Name: Kevin M Tinker Work Telephone: 214-905-5440/ 469-774-1814 (cell) Work Position: Immigration Service Officer Work Location: Dallas, TX Years with Employer: 13 Union Position: President, AFGE Local 3377 I, Kevin M Tinker, make the following declaration in accordance with the provisions of 28 U.S.C. 1746. I have personal knowledge of the matters contained in this declaration: I am the President of the AFGE Local Union (AFGE 3377) formed by the employees of Texas Service Center and other Homeland Security offices in North Texas and Oklahoma, and an employee of Texas Service Center Background The Agency (USINS, then USDHS) has provided AFGE Local 3377 with office space pursuant to master labor contracts for decades. In 2004, when an internal Union dispute required the locks on the Union office door be changed, I, as the newly-elected Local Union President, went to the Building Manager, who was an employee of Customs and Border Protection (CBP) at the time. [This was approximately a year after the dismembering of the Immigration and Naturalization Service (USINS, or INS), was before the FLRA certified NTEU as the exclusive representative of CBP employees in 2006, and the CBP employees assigned to Building 7701 N Stemmons were under the same AFGE Contract as ICE and CIS employees.] Once the lock on the Union office had been changed, I asked him if we wanted a key. He responded that he not think he could or should, or words to that effect. Since 2006-2007, AFGE Local 3377 has informed the Agency on several occasions that that amount of space in the union office was not adequate, and requesting either a larger office or another room to use as a file room. Our requests have been denied, with the assertion that there is no room available. Sometime during the week of March 15, 2010, a leak developed in the HVAC in the ceiling above the Union office, causing the ceiling tile to disintegrate and debris to fall to the floor and furniture. This was reported to building maintenance. Initially, maintenance closed a valve to stop the leaking. On or about April 13, 2010, building maintenance replaced the valve and ceiling tile. Furniture, boxes and files were moved by the maintenance workers and piled up in the office in order to obtain access to the HVAC system in the ceiling. On or About April 2, 2010, the private attorney representing Steward Alma Flores withdrew from representing her in her EEO case, and Steward Flores designated the me as her representative in this case. This is a consolidated case of approximately six complaints alleging TSC management’s reprisal against Steward Flores for engaging in EEO activities. Attachment 7 Events On April 15, 2010, Complainants representative was served a document signed by Deputy Director Barrows, one of the responding management officials, “directing” that the Union “clear and organize” the Union office. Attached were pictures showing the disarray of the office while the maintenance workers were repairing the HVAC system in the ceiling. A response was served on April 21, 2010 at approximately 12:30 PM. On April 21, 2010, another letter was served on the Complainants Representative “directing” that a key to the Union office be turned over to the Administrative Director of Texas Service Center. I requested to be released on official time to research and respond to this letter. After being released for official time, I called AFGE National Representative Harry Dawson and informed him of the directive to turn over a key to the Union office. He informed me that the Building Manager designated by GSA had a right to the key in order to ensure compliance with fire and safety regulations. Please note that previously, the person I believed to be the Building Manager had declined a copy of a key to the Union office in 2004. On April 21, 2010, while a response to the letter demanding a key to the Union office served on April 21, 2010 was being researched, at approximately 1 PM, a representative of the Agency (Cheryl Robinson), accompanied by a maintenance employee (“Sammy”) of the building’s owner and another person unknown to me, who turned out to be a locksmith, came to the Union office and knocked on the door. Ms. Robinson demanded access to the Union office for a locksmith to change the lock, so that a key to the Union office could be maintained by the texas Service Center director. I refused, telling Ms. Robinson that they had no right to the sensitive documents that were not otherwise secured in the union office, that I had already responded to deputy barrows that we needed a larger office in order, and that I would need to be able to secure the documents before I turned over a key. After a few minutes, they returned, accompanied by a security guard, and demanded access, stating that Director Roark was directing the Union President to grant access to the Union office so that management could have a key to the Union office. This office contains sensitive documents concerning the grievances, complaints and appeals of several employees, sensitive documents pertaining to bargaining and unfair labor practice charges as well as internal Union documents. I did raise his voice and state that Director Roark had no right to direct access to these sensitive documents, that I needed time to secure them, slammed the door and walked towards the elevators. I then turned around and came back to the Union office door and found that it was jammed and could not be opened. I called Steward Alma Flores, told her what was happening and stated that I needed help. Soon afterwards, Steward Crispin Perez arrived. Federal Protective Services (FPS) were called. The FPS officer told me that they (management) wanted me out of the building. He asked me to call my wife to pick me up. He escorted me downstairs to the lobby. My supervisor, David Badger, informed me that I was on administrative leave for the rest of the day, and that he would call me to inform me of my status for the next day. While I was waiting for my wife, the locksmith was able to open the Union office door. Steward Perez was given a key. Upon learning that the Union office door had been opened, I asked if I could recover some items from the office. I was escorted to the Union office, but everyone had left. I called Steward Attachment 7 Perez and asked him to return and open the door to the Union office so that I could recover some items. However, he did not return before my wife arrived. I was escorted outside and was at the entrance to Building 7701 when Steward Perez arrived. I told him which items I wanted to recover from the office and he recovered them for me as I was waiting by my wife’s car. Later that afternoon, Supervisor Badger called me on my cell phone and told me that I was on administrative leave until further notice. Subsequent communications: While on Administrative Leave/Excused Absence, I completed a demand to bargain on the movement of employees, invoked arbitration and wrote a letter to the Director. I sent them to Local 3377 stewards and asked them to serve the documents on management. On Tuesday, April 27, 2010, I received an e-mail from Supervisor Badger stating that if I am performing union activities, then this time must be accounted for on G 1161’s. Referring to the appropriate section of the statute (5 U.S.C. 7131) I respond ended that G-1161s would only be required if I were in a duty status, and asked if I were on a duty status. There has been no further response to that question. As of Wednesday, April 28, 2010, I have not been notified if and when my absence on Administrative leave will end, nor have I been notified of any possible actions being proposed. I have read and have had an opportunity to correct, this declaration consisting of 2 pages and affirm that the facts asserted are true and correct to the best of my knowledge and belief. April 28, 2010 Attachment 8 Attachment 9 Texas Service Center 8001 N. Stemmons Freeway Dallas, TX 75247 April 29, 2010 To: Kevin Tinker, President, AFGE Local 3377 From: David Badger, SISO Texas Service Center 8001 N. Stemmons Freeway Dallas, TX 75247 Re: Notice of Placement on Administrative Leave On April 21, 2010, you were escorted from the USCIS facility located at 7701 N. Stemmons Freeway, Dallas, TX, and verbally placed on administrative leave. This memorandum is being issued to document that action and provide instructions you must follow while on administrative leave. You are barred from entering the premises of all USCIS facilities until further notice. Your pay and duty status are unaffected by this notice. Beginning the day after you receive this memo, you are required to call-in to me, your supervisor at 214 962 2668 or Assistant Center Director Wyvette Covington 214 962 1044 between 9:30 a.m. and 10:00 am CT (or right before your shift normally starts under the maxiflex agreement keeping in mind that three core days are required per week) on each of your normally scheduled work days. If neither your supervisor, nor ACD are available at the time you call-in, you will satisfy this requirement by leaving a voicemail at both numbers between 9:30 a.m. and 10:00 a.m. In addition to failing to follow this instruction, you may be considered absent without leave (AWOL) if you do not call-in by 9:30 a.m. and 10:00a.m. or right before your shift starts on non core days and you are not on approved leave or official time. Because you will be in a paid leave status, you may be required to report to the Texas Service Center with a two (2) hour notice. You are required to request leave in accordance with (IAW) Article 33 of Agreement 2010; official time IAW Article 7 of Agreement 2010 and Form G-1161; and, Title VII official time in accordance with established procedures. If you have any questions regarding this memorandum, you may contact John F. Dymond, Special Assistant, TSC, at (214) 962-2629. ______________________________________________________________________________ ___ Attachment 9 Receipt Acknowledgement Acknowledgement in no way constitutes concurrence or non-concurrence with the contents of this memorandum. __________________________________ ____________________________ Signature Date of Receipt This is an inappropriate order. I am either excused for duty or on duty. From Cyberfeds; "Administrative leave is the term commonly used to refer to the granting of **absence from duty** without charge to leave or loss of pay." If you desire me to call in every day to verify that I am still alive, OK. But if I am "absent from duty", there is no reason for me to request leave or official time. 5 U.S.C. 7131 defines “official time” as time "during the time the employee otherwise would be in a duty status". If I am in a duty status, I will submit G-1161s. If I am not in a duty status, I do not need to request or submit G-1161s. And yes, this is negotiable. From Cyberfeds: Administrative leave involves conditions of employment without regard to the purpose for which the leave is granted. Internal Revenue Service, 62 FLRA 411 (FLRA 2008); AFGE Local 2761 v. FLRA, 89 FLRR 1-8002, 866 F.2d 1443 (D.C. Cir. 1989). Other administrative leave proposals that were ruled negotiable For employees prevented from performing their duties because of circumstances beyond their control. Fort A.P. Hill, 44 FLRA 3 (FLRA 1992). I am prevented from performing my duties by circumstances beyond my control. i.e.; being escorted from the union office and barred from the TSC buildings for engaging in robust debate. If you desire to place me in a duty status, but still prohibit me from the TSC buildings, then place me on the telework program, and deliver work to me. Otherwise I am not in a duty status. Attachment 9 If not in a duty status, I do not need to request official time, nor do I need to request leave. This is nothing less than a further restraint on the Union and retaliation for engaging in union activities. This is a violation of 5 U.S.C. 7116(a) (1), (2) and (5). Kevin M Tinker President AFGE Local 3377 Attachment 10 RE: After the fact slips OK 4/21-29 Thursday, May 13, 2010 11:15 AM ---- "Badger wrote: ============= Kevin On April 29, 2010, you were provided with an instruction memo to follow as you were placed on administrative leave until further notice on April 21, 2010. Part of the April 29, 2010, instruction memo states, "You are required to request leave in accordance with (IAW) Article 33 of Agreement 2010; official time IAW Article 7 of Agreement 2010 and Form G-1161; and, Title VII official time in accordance with established procedures. " You submitted a T & A on May 7, 2010, where you only claimed 15 minutes of official time on 5/3/2010, for all of pay period 9. I am again affording you the opportunity as I previously did on April 29, 2010, in the below e-mail, to submit all leave requests and G 1161's for that entire pay period since you were placed on administrative leave. I am willing to back date them by approving them today for any time taken from April 21, 2010, through May 7, 2010. The Service is aware that you have been conducting union activities while on administrative leave and you have not followed the procedures contained in the April 29, 2010, instruction memo (requesting annual leave to represent ICE employees and requesting official time through G 1161's to represent CIS employees). You may fax the leave slip and G 1161's to 214 962 1453 or send them to me as e-mail attachments. Thank you David Badger SISO Texas Service Center Attachment 11 RE: After the fact slips OK 4/21-29 Thursday, May 13, 2010 3:23 PM ============= All my CIS union representational work has been done after 6 PM or on the weekend I attended the ICE All hands meeting on my own time (Flexed) The Conference with the EEO judge was last minute and only took 15 minutes -- Kevin M Tinker President AFGE Local 3377 Attachment 12 -----Original Message----- From: firstname.lastname@example.org [email@example.com] Sent: Monday, May 24, 2010 3:43 PM To: Badger, David P Subject: Pay period 9-2010 question Importance: High Why was I charged 1.5 hrs AWOL for PP 9? -- Kevin M Tinker President AFGE Local 3377 Attachment 13 ---- "Badger wrote: ============= Kevin It was for attending the meeting with ICE. No annual leave slip was received. David Badger Attachment 14 Attachment 15 Retaliatory actions President of Local 3377 (Kevin Tinker) August 2007 Desk drop during weekend – WAH settlement rejected by members– proposed suspension (dropped). November2008 - April 2009 PWP ULP Filed – Left BUE alone in Copy room – proposed suspension – suspended November 2008 – to present (same) PWP ULP Filed – official time no longer routinely approved – charged AWOL on many occasions. ~November - December 2009 Requested leave before taking leave – leave request not seen by supervisor until after the fact – leave denied – charged ~November - December 2009 Talked to FLRA on telephone concerning ULP – request admin time – denied – charged AWOL. December 2009 Represented Local before FLRA on negotiability appeal – official time initially approved, then withdrawn and charged to LWOP. ~ January 2010 Proposed suspension for not working assigned work in August and September 2009, while not given access to all required computer systems and no official time approved. – pending ~ December 2009 – January 2010 Represented employee in meeting at last minute request – official time denied – charged AWOL. March 2010 Requested official time for meeting – meeting occurred before supervisor saw official time request – denied – threatened AWOL. March 2010 Sent e-mail as Local president to another supervisor and to employees concerning new procedure/assignment of work – threatened with not following official time request procedures March 2010 Encountered 2nd line supervisor bypassing union, confronted 2nd line – threatened with not following official time request procedures. Attachment 15 Union members February 2009 - present PWP ULP settled – 7 union members investigated for improper conduct related to PWP – 1 counseling statement, 1 letter of reprimand, 1 2-week suspension, 3 removals (2 settled – 1 for clean paper, 1 for return to work – 1 to arbitration awaiting decision) 1 still pending. Former steward/former VP/ current steward June 2007 to present Filed EEO – forwarded e-mail at LPs request – suspended – filed EEO – requested leave after taking – suspended – filed EEO – talked to co-worker about immigration cases on telephone – improper management inquiry - suspended. Union member June 2008-present Talked to former steward on telephone concerning immigration cases – improper management inquiry – letter of reprimand – pending EEO. Health and Safety Steward March 2010 Noticed safety hazard – reported to LP, requested official time – denied – charged AWOL Steward March 2010 Sent e-mails concerning potential grievance while on break/lunch time – signed as steward – counseled and threatened with AWOL.
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