News Update from the

 

AFGE National Citizenship & Immigration Services Council 119 (NCISC)

  

 

The National CIS Council of the American Federation of Government Employees is comprised of the 30 local unions that represent USCIS bargaining unit employees.

 

Fall Issue 2008

 

Table of Contents                                                                 

Bargaining on Master Labor Contract

Grievance Filed on Telework

Background on Telework

Grievance Filed on Time Restraints for New N-400 Testing

GAO Study of U.S. Asylum System 

 

 

Bargaining on Master Labor Contract

 

From October 2007 to August 2008, the National CIS Council bargaining team and Management met for ten bargaining sessions. Between October 2007 and May 2008, the parties have tentatively agreed to 28 articles. Two of these articles have combined eight articles from Agreement 2000. There are approximately 23 articles remaining. Many of these articles concern issues vitally affecting working conditions for CIS employees.

 

At the bargaining session held from August 19 through August 28, 2008, the Union bargaining team presented its new, proposed hardship transfer article.  The Agency team countered with a measly six line paragraph as a counter proposal.  The Agency’s response merely expressed current law regarding competitive hiring practices.  Indignant, our team accused Management of engaging in surface bargaining.  Our Union team then re-countered with our original proposal.  Management’s response was then to table our proposal.

 

The Agency’s team stated that they believed that our hardship proposal would violate merit system hiring principles.  When the Union team challenged Management with examples of other federal agencies which allow hardship transfers, their response was that such other agencies must be acting illegally.  Though Management’s team stated objection was “illegality,” they were unable to articulate what law, precedent, or OPM regulation established such illegality.  Most importantly, however, Management waffled and flimflammed when asked if they were making a “non-negotiability” argument!

 

The trouble now is that Agency Management has tabled numerous articles with little more than a token exchange of proposals. The Union bargaining team has made requests for information so that they can assess the Agency’s proposals and intelligently bargain. Management has either refused to provide, or provided only superficial response, to the Union’s requests for essential information on these articles. The Union requested a break in September from bargaining; the Agency then requested a pause in bargaining for October since the final death of the Department of Homeland Security’s discredited personnel system known as “Max HR.”  We expect to resume bargaining in the near future, within the greatly-improved labor-management climate that is expected with the incoming Administration.  #

 

National CIS Council files National Grievance on Illegal Telework Moratorium

On Thursday, November 6, 2008, the National CIS Council filed a National Grievance over the refusal of USCIS to lift the Service Center Operations Telework Moratorium that an arbitrator had found to be contrary to law.  The grievance seeks the lifting of the illegal moratorium and the expansion of all existing Telework programs to include all eligible employees.  

There have been several successful Telework programs in USCIS, and its predecessor, USINS, over the past nine years.  These have not been limited to the four Service Centers, but have included many offices and programs, such as the Administrative Appeals Office, the “professional” employees represented by Local 511 and various district and field offices across the country.

In 2004, Arbitrator Kaplan, ruling on a grievance filed by Local 38, found that the unilateral termination of Telework privileges at the Providence, Rhode Island Sub-office violated Agreement 2000 and ordered the Telework privileges restored

Also in 2004, the Director of Service Center Operations placed a “moratorium” on new entrants to the various Telework programs at the four Service Centers until certain “Management controls” were implemented.   However, even after these “Management controls” were implemented, the moratorium remained in place.

After several employees at Texas Service Center were denied Telework privileges because of this moratorium, AFGE Local 3377 grieved these denials and took the grievance to arbitration.  Arbitrator Vitaro sustained the grievance, finding that the unilateral moratorium violated law and contract and ordered that the grievant’ applications be accepted and processed.  Arbitrator Vitaro stated that he knew “of no authority that would permit a directive negating the negotiated telecommuting agreement because it lacked “internal controls”.  He was “unconvinced by the apparent defenses raised by the Agency – Ms. Ohata’s July 20 directive to cease expanding the WAHP and the purported preparation of a national Management directive on telecommuting.”

A few days after Arbitrator Vitaro’s decision, Council President Michael Knowles gave USCIS Director Scharfen a letter citing these two decisions and requesting that the moratorium be lifted.  However, as shown by evidence provided by employees at the Texas and Vermont Service Centers, the unwarranted and illegal moratorium is still in effect.  We would like to thank those employees who provided us with that evidence, permitting a national grievance to move forward.

In the meantime, negotiations on the impact and implementation of the USCIS Telework Management directive have stalled.  The only obstacle to an agreement is Management’s insistence that we agree to require the employees to waive their constitutional and statutory rights before they are permitted to Telework.  Specifically, Management is insisting that the employee waive their 4th amendment right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, the employee’s right to Union representation during an examination by a representative of the agency if the employee reasonably believes that the examination may result in disciplinary action and requests representation, and the Union’s right to be represented in a formal discussion between the employer and the employee.  Management is insisting that it have the unfettered ability to show up at any time during the duty day, unannounced, to conduct a home invasion worksite inspection.

We will not waive any constitutional or statutory rights of the employees or the Union. 

To debunk some misinformation that has been going around, it is not the Union that is holding up Telework. We are not waiting for Telework -- we have already had it for 9 years in the four service centers and in several other offices.  The only thing holding up the expansion of the program to all eligible service center workers is Management's unwarranted and illegal "moratorium" and freeze on the program.  The national grievance calls on Management to lift the freeze and allow enrollment.  It is Management that is holding the programs hostage at the bargaining table, over their unreasonable demand that they have unfettered access to unannounced home inspections. #

Background on Telework

      Starting in 1999, the four CIS Service Centers and some offices have enjoyed the benefits of working at a Telework site.

 

      In 2004, Management at the Service Centers imposed a moratorium on Telework.  If you came to work at CIS Service Center after the 2004 moratorium, you were prohibited from volunteering to work Telework and may have watched only some of your fellow workers spend up to four days a week working out of their home Telework office. However, if you worked in another area of CIS, such as Headquarters, your supervisor could have approved a Telework arrangement with you.

 

This past August, after a four year hiatus and after consistent Union “push” and a successful local Union grievance, the CIS agency finally came up with a Management Directive on a national Telework

program for all CIS workers. When the National CIS Council Union sat down with Management in September, the Union did not envision there being a problem in reaching agreement on a Memorandum of Understanding.

 

The Union bargaining team actually took most of the language for the Memorandum of Understanding directly from the Management Directive. When Management resisted some of the language, the Union asked them to read their own Management Directive. The Union was not making the language or rules up, the Union was simply restating in plain English what was in the Management Directive.

 

The major sticking point has been over the question of notification to the employees and/or the Union when Management intends to conduct a visit/inspection of the employee’s home Telework site. Under the pilot Telework programs and since 1999, there was always notification and the local Union was allowed to be present during Telework site visit/inspection. Depending upon local Union agreements, Management either had to notify the Union and the employee 24 to 48 hours in advance.  The draft Management Directive indicated that specific arrangements for notification would be the subject of local bargaining between offices and local unions. 

    

In an attempt to avoid confusion in the field, the Union wanted to clarify the question of notification in the Memorandum of Understanding.  Our bargaining team wanted to make it clear that although specific arrangements for notification would be left to local bargaining, the Union was not giving up its right to be notified when Management was going to conduct a home visit. Again, this notification and participation has been an integral part of the “pilot” Telework projects within CIS since 1999.

 

Though the Union has concerns about home visits (such as to possible invasion of privacy, etc) our bargaining position has been that, since home visits were part of the pilots that the Union could agree as long as the Union was notified in advance and given an opportunity to participate. There was discussion that home visits constituted formal meetings under federal labor relations law, since they met more than one of the eight criteria for a formal meeting. The Union also holds that if a Health & Safety inspection was part of the home visit, the Union would exercise its right to be present and participate, as provided for currently when agency facilities have said inspections.

 

As of October 7, 2008, CIS Management has rejected the Union proposal regarding notification. Management has also refused to agree to any local bargaining on the matter of notification.  The Union finds Management’s position to be unreasonable and regressive. The Union cannot find any federal law that requires home inspection of alternate work sites; or any federal OSHA law that allows that an untrained and unqualified supervisor to conduct a health and safety inspection of an employee’s home.

 

The Union has gone so far as to survey the 55 federal agencies that participate in Telework, and found that the majority of federal agencies do not require home visits as part of an employee’s participation. In the rare cases where an agency has home visits in their Telework agreements, they don’t exercise this option unless they have reasonable belief of some wrong doing on the employee’s part.  Those agencies deemed the costs and potential liabilities to the employer and to the supervisor charged with the home visit to be too great.   The few agencies that conduct home visits give advance notification to the affected employees.# 

 

 

Grievance Filed on Time Restraints for New N-400 Testing

 

On October 21, 2008 the National Council filed a grievance on the new USCIS testing procedures for naturalization (N-400) adjudications. Immigration officers who do the testing on all N-400s on or after October 1, 2008, have reported the new N-400 test “options” and test procedures are having more than a de minimis adverse impact on them and their fellow employees/officers as it relates to the “time” it takes the officer to provide the options to the applicant, explain the differences between the old and new tests and to give the new test utilizing all the new procedures the agency has tasked them to perform.

 

The national adverse impact on the “time” bargaining unit employees/officers spend on each N-400 appointment directly and adversely impacts them as to agency performance expectations applied to them, their future performance reviews and their eventual performance appraisals this FY 2009 rating period. Officers are being “forced” to skip lunch, miss timely breaks, come in early, stay late and generally “donate” their time to meet the demands of the new testing procedures. This disturbing situation has a decidedly adverse impact on bargaining unit employees and is negotiable.  Where we establish that Management is requiring or permitting work to be performed without compensation, the Union will take appropriate legal action. #

 

 

DHS Agrees with GAO Recommendation to Reassess Time Taken to Adjudicate Asylum Claims

 

The September 2008 U.S. Government Accountability Office Study U.S. ASYLUM SYSTEM; Agencies Have Taken Actions to Help Ensure Quality in the Asylum Adjudication Process, but Challenges Remain makes five recommendations, including that the Chief of the Asylum Division  “…develop a cost–effective way to collect empirical data on the time it takes asylum officers to thoroughly complete the steps in the adjudication process and revise productivity standards, if warranted.”  The GAO received e-mails on September 12, 2008 from DHS and USCIS liaisons that DHS concurs with the GAO recommendations.

 

The study also recommends that the Chief of the Asylum Division:

 

1. Explore ways to provide additional opportunities for asylum officers to
observe skilled interviewers;

 

2. Develop a framework for soliciting information in a structured and
consistent manner on asylum officers’ and supervisors’ respective training
needs, including, at a minimum, training needs discussed in the report;

 

3. Ensure that the information collected on training needs is used to provide
training to asylum officers and supervisory asylum officers at the offices
where the information shows it is needed or nationally, when training
needs are common; and

 

4. Develop a plan to more fully implement the quality review framework—
and complement existing supervisory and headquarters reviews—to
include, among other things, how to ensure that in each Asylum Office a
sample of decisions of asylum officers are reviewed for quality and
consistency and interviews conducted by asylum officers are observed. 

       

The study is based on a survey of immigration judges, and of all 256 asylum officers and of all 56 supervisory asylum officers, who were on duty as of September 30, 2006.  65% of the asylum officers and 73% of the supervisors indicated that the time asylum officers have available -- given the productivity standard they are to meet as part of their performance work plan -- is insufficient to conduct adjudications in a manner consistent with procedures and training.  73% of the asylum officers reported insufficient time to prepare and conduct research prior to the interview.  The study points out those adjudication requirements such as added identity and security checks have greatly increased while the productivity standard has remained unchanged since the Asylum Division established it in 1999

without empirical data.  #