Documents
Resources
Learning Center
Upload
Plans & pricing Sign in
Sign Out

AFL-CIO - DOC

VIEWS: 216 PAGES: 24

  • pg 1
									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: min-ktin@tx.rr.com [min-ktin@tx.rr.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.

								
To top