Statement Before The Joint Informational Hearing (5/8/98)

Distinguished Members of the New Mexican and California Legislatures, I am honored to appear before you on behalf of my fellow members of Citizens For LANL Employee Rights (CLER). We welcome the interest of both Legislatures in the New Mexico oversight activities of the University of California (UC). UC "oversight" of Los Alamos National Laboratory (LANL) is a misnomer, UC's historical role has been to block effective oversight. This oversight failure has been detailed in four thoughtful UC Academic Senate reports (Zinner (1970), Gerberding (1978), Jendresen (1989), Gold (1996)). This very lack of oversight explains why Lab management clings desperately to UC where, "The labs enjoy a delightful autonomy within the protective shelter of the University, so delightful as to border on the licentious" (Zinner). An understanding of the problems suggests a range of solutions, some of which are legislative solutions. For instance, extension of California's Higher Education Employer-Employee Relations Act (HEERA) coverage to LANL employees would address their (unique) current lack of coverage under any state or federal labor legislation. UC's departure from New Mexico would leave LANL employees covered under the provisions of the National Labor Relations Act. Whatever the solution, it is time that New Mexican citizens stop being treated as Second Class Citizens of the University of California.

Employee Rights Problems At LANL

Beyond dispute there are problems with employee rights at LANL. The depth of these problems were demonstrated during the 1995 Reduction In Force (RIF) which showed the full suite of LANL personnel policy abuses. The evidence and conclusions presented here are drawn from my experience in six grievance hearings and information presented in those hearings. Full records of the grievance hearings exist to support these conclusions.

The two 1995 LANL RIFs (May and November) were, unlike past RIFs, conducted pursuant to Section 3161 of the 1993 National Defense Authorization Act. The intent of this act is to minimize the impact on the DOE Nuclear Weapons Complex employees of downsizing and budget reductions resulting from the end of the Cold War. 3161 expressly mandates preferential treatment to employees of record on September 27, 1991. These employees are to be preferentially retained, through retraining if necessary. If retention proves impossible, they are to be given generous severance packages and preference in rehiring. The funding ($14,011,836 in FY95) for 3161 was from a separate DOE allocation, not part of the LANL operating budget. This fact is very important as the LANL incentive actually became to maximize the number of UC regulars terminated, thus turning 3161 on its head. Following are conclusions about the extremely corrupt process used in the November, 1995 RIF:

There was no budget short fall justifying the November, 1995 RIF;

The wrong people were RIF'd. Prior to the May RIF (~55 people) LANL management had identified 363 "excess skills" at LANL of which 280 were technical. The top "excess skill" at LANL was Physicist (67) followed by Chemist (40). In spite of this knowledge the November RIF targeted the support staff, who are heavily Hispanic;

UC employees were not preferentially retained. Though they have job rights they were directly compared against limited term employees and contractors for retention. Staff with long service records were directly compared against newly hired contractors. In all six cases a valid option existed to retain the UC employee and release a term/contractor employee. LANL directly violated the intent of 3161, and UC personnel practices, and wasted our money;

LANL management front loaded to prepare for the November RIF. In FY95 they hired (218) Limited Term employees to perform the jobs of the UC employees they intended to RIF. The (218) compares to (33) in FY96 and (31) in FY97. Limited Term employees were later converted to Regular status, largely in the fall of 1996, without advertising the jobs, thus denying RIF'd employees access to those jobs, and violating normal UC practice;

The RIF'd employees were denied the Displaced Worker Medical Benefit, a right under 3161, until they brought Congressional pressure to bear;

The preferential rehire provision, a right under 3161 was ignored until August, 1996, when pressure from Congressional members and DOE resulted in a grudging rehire program. Instead of rehire, LANL engages in back filling of jobs. For instance, in Occurrence Reporting, seven new Occurrence Investigators are observed, yet the RIF'd employee was not rehired;

Many RIF'd employees were, in effect, black listed. They were not simply denied rehire preference, their due under 3161, they were blocked from subcontractor employment;

The employees were denied their right to pre-termination due process. Division Leaders made no provision for spot check or appeal of the RIF selections. We were told that RIF selections were to be examined via the grievance process, after termination;

The grievance process denied their right to post termination due process, a right enjoyed at all other UC campuses, as detailed later in this paper. Instead of the 90 days called out in UC policy, some of these hearings took 2 years, denying the right of timely due process;

For the few who prevailed in the grievance process the usual result was that the award would he overturned, by Deputy Director Jim Jackson. Dr. Jackson was the central figure in designing and implementing the RIF and he will not accept that it was wrong;

LANL has hired over 1,000 UC employees since the RIF, yet continues to deny effective rehire preference, the norm in the UC system, to the RIF'd employees. Black listing continues.

At the root of the problems which surfaced during the RIF is the fact that LANL employees are not accorded the rights of their fellows at Lawrence Livermore National Laboratory (LLNL) and Lawrence Berkeley National Laboratory (LBNL), in spite of the fact that all three Labs are covered by the same contract between the Department of Energy (DOE) and the University of California (UC). This is not to suggest that the policies at those Labs are perfect, simply that they agree with the policies of the University of California. A direct approach to the problem, and simple equity, suggests that, unless substantial reasons exist, the policies of LANL should be immediately brought into agreement with those in use at LLNL and LBNL. In fact, some key LANL policies were closely aligned with other UC campuses until May, 1983. The front loading, back filling, black listing, and due process violations all stem from a failure to follow normal UC personnel policies.

 

A Review of UC/LANL History

LANL personnel policies dating from 1948 were rather loosely tied to University policy, under agreements made between Norris Bradbury (LANL Director 1946-1970) and UC's Robert Sproul. The employees of all three Labs were treated as "staff" and covered under "approved modifications of University policies under the meaning of Staff Personnel Policy 100.I.a" (Catalano, 1988). However, until very recently, LANL policies were not sent to UC for approval. The effect of California labor laws affecting University employees, Meyers-Milias-Brown Act and the George Brown Act, were never felt at Los Alamos. While LANL management was no doubt aware of these laws the employees were not. In the late 1970's a number of California actions began to affect LANL:

A September 19, 1977 letter from Archie Kleingartner, UC Vice President, Academic and Staff Personnel Relations, resulted directly from negotiations between UC Office of the President, CSEA, and the U.S. Congress. This letter, to UC President Saxon, Chancellors, and Laboratory Directors established a set of guidelines concerning 1) The Use of Mediation in Dispute Settlement; 2) The Use of Binding Arbitration in Grievance Settlement and; 3) The Matter of Reducing Agreements Reached with Employee Organizations to Writing. This resulted in the establishment at Los Alamos of Supervisors Manual SM-1-17, which contained binding outcomes in grievances concerning job loss, and SM-1-18, which allowed for the establishment of employee organizations. These policies governed Los Alamos until 1983 when a new Administration Manual replaced the Supervisor's Manual and these policies were eliminated. Their elimination was unwise and illegitimate as their origins were in the 1977 agreement between UC and their employees.

UC employees were declared to have property rights to their jobs by a court decision (Mendoza v. Regents (1978), 144 Cal Rptr 117) which directly affected UC policy. Subsequent to Mendoza, UC employees, including LANL employees, have a legal right to pre-termination and post-termination due process when being deprived of their job.

The (1979) Higher Education Employer-Employee Relations Act (HEERA) marked a major watershed in California labor laws covering UC. HEERA, much closer to the terms of the NLRA, allowed for recognized bargaining units (labor unions) who have the right to bargain with management as to terms and conditions of employment. LANL coverage under California labor law ended when a HEERA clause (3562t) defined "employee" as those "whose employment is principally within the State of California" and the George Brown Act was modified to eliminate coverage of UC employees. HEERA covered UC but excluded LANL employees. From July 1, 1979 to the present LANL employees, uniquely within California and New Mexico, are not covered by any labor laws.

The HEERA definition of employees as those "whose employment is principally within the State of California" was probably not due to legislative intent. The Dill's Act, passed in 1977, contained a similar exclusion, which was removed in 1978. The Dill's Act, unlike HEERA, carefully assured that the excluded parties continued to be covered under the George Brown Act. It seems that HEERA picked up the exclusionary language without understanding the full implications. Within a two week period in August, 1978, HEERA incorporated the exclusionary language from the Dill's Act while the Dill's Act was modified to eliminate the: same exclusionary language. After blocking HEERA passage in 1977, UC supported it in 1978, after inserting a number of modifications that they desired.

Then, in 1983, LANL management, led by LANL Deputy Director Jim Jackson (then head of Personnel) attacked UC employee rights, at LANL. Did someone in Lab Legal Counsel advise them that HEERA exempted LANL employees? In May, 1983 LANL Management directly violated the 1977 agreement with the U.S. Congress by eliminating the right of their employees to binding outcomes in grievance procedures and the right to form employee organizations to discuss terms and conditions of employment. Furthermore, they attacked their employees' (post Mendoza) property rights to their jobs, by modification of the grievance policy provisions which secured those rights, thus violating their rights under the U.S. Constitution. The University was not aware of, and did not approve, these changes until 1988, 5 years later!

 

The LANL/UC Management Position

Upon discovering this history we made approaches to LANL management (Browne, 12/97) and UC management (since 1995) with very limited success in addressing the problems. Our current understanding of their position is as follows:

Denial that the problem exists; An April 1, 1998 letter I received from UC's Robert VanNess (Lab Administration Office) states, "The Department of Energy asked that University in the course of the contract negotiations whether we would establish a voluntary program for collective bargaining in New Mexico." The letter excerpts the UC response tot he Department of Energy (DOE) request, including, "It has been alleged by some of our critics that University employees in New Mexico do not have parity with their colleagues in California in employee rights. Nothing can be further from the truth. There are a wide range of employment practices that are comparable". This excerpt confuses rights with practices, and seems intentionally misleading. In fact LANL employees have no rights.

Failure to acknowledge the LANL employees' need and right to be represented by an independent employee organization of their own choosing, a right they had (1961-1979) without realizing it. Another UC/DOE excerpt from the VanNess letter; "On the other hand, the rules surrounding collective bargaining have been used on occasion to restrict employeesWe believe that on balance the collegial model for the employment relationship is preferable to the industrial trade union model." This "collegial" argument was made by the California State University Trustees in opposing the passage of HEERA in 1977. It failed.

They offer unworkable alternatives to employee organizations (VanNess letter) i.e.:

1) Equating the Employee Advisory Council to employee organizations when, in fact, it is similar in design/function to the UC Staff Assembly;

2) Employee comment on policy changes, intended for implementation 04/01/97, announced on 12/15/97, still bogged down in confusion over what to do with the comments;

3) The new grievance policy with binding arbitration, bogged down for a year, still with no employee "stakeholder" input, contains unacceptable deviations from UC Policy.

No answer, when asked whether the 1977 UC Agreement with Congress has been abrogated.


Remedies

With the demonstrated lack of effective UC oversight at LANL, dating back 50 years, it seems imperative that the employees of LANL be given the tools to monitor their personnel policies and seek relief when their rights are attacked. The tools are at hand in the UC system model:

The same rights their UC peers possess under HEERA, including the right to have independent employee organizations which have a right to input policy changes. The right to contest unfair labor practices with the PERB and in the courts.

The right to grieve, under UC policy, all the issues grievable at LLNL and LBNL. This specifically includes "alleged improper implementation of Staff Personnel Policy or of the Chancellor's implementing procedures." This right could have precluded the 1983 attack on employee rights at LANL.

Re-affirmation of UC obligations to their LANL employees under their 1977 agreement with Congress, which also covered the two preceding points.

Alignment of LANL personnel policies with those at their "sister" Labs. This will serve to restore their lost UC Employee Rights to LANL employees. LANL independent employee organization(s) should have input to this process.

Continued interest/involvement and follow-up by the New Mexico and California Legislatures in implementing the remedies and assuring their success.

The end of "Second Class Citizenship" for the UC employees at Los Alamos. Henceforth, the LANL employees must have the same rights as their peers in the California system.

 

The Failure of Due Process At Los Alamos

A separate issue from the rights of LANL employees under UC oversight is the utter failure of due process at Los Alamos. This failure is exemplified by a recent American Arbitration Association (AAA) decision to decline further participation at LANL. AAA's (National Rules for the Resolution of Employment Disputes) states: "If the Association determines that a dispute resolution program on its face substantially and materially deviates from the minimum due process standardsthe Association may decline to administer cases under that program." Having represented six of our members in grievance hearings involving their 1995 RIF selection I experienced, and protested, the following LANL departures from the Code of Civil Procedure due process standards.

Violation of Rules of Evidence: Specifically, the failure to provide a document to the plaintiff, although the defense witness was reading excerpts from the document during testimony.

Violation of Witness Procedure: Insistence by LANL Counsel on taking telephone testimony of witnesses, in spite of plaintiff objections. LANL Counsel's insistence on their presence at plaintiffs interviews of witnesses during work hours. Leading witnesses during testimony.

Violation of Discovery Rules: LANL Counsel, making no timely objection to providing a set of discovery documents at some agreed date, would not produce the documents on schedule and furthermore would then reuse to provide some requested documents, although the time for such objections was long passed. Typically only requests for hearing postponement would produce partial discovery documents, within days of the hearing.

Lack of hearing panel/officer independence: In five hearings where the hearing official(s) had no legal background LANL Counsel seized the opportunity to interpret/create legal opinions at their convenience. In effect Counsel for the Defense was also Counsel for the hearing official(s). The HR/ER personnel responsible for the conduct of the hearings refused any involvement in due process concerns, leaving LANL Counsel to define due process as they wished.

Lack of Equal Treatment: Denial of precedent. Discovery documents provided for one hearing denied at the next. Witness protocols used at one hearing changed at the next. HR/ER personnel refused all entreaties concerning equal treatment. No standard for hearings, other than the consistent failure to adhere to the Code of Civil Procedure, was evident. Each hearing was conducted on ad hoc rules provided/created by LANL Counsel, who represented the defendant.

These essential due process issues must be addressed if new grievance policies and procedures are to succeed. UC has been unwilling to intervene in the matter of due process, another case of New Mexicans being treated as "Second Class Citizens" by UC. Please help us bring due process and justice to the employees of LANL. Thank you very much for your kind attention, and that you for coming.

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