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SPSE Newsletter #1, March 1995
Editor: Jim Bruner
P.O. Box 1066
Livermore, CA 94551
510-449-4846
As we go to press, we have obtained Director Bruce Tarter's proposed layoff policy. The proposed policy change affects only scientists and engineers. Other job classes are to remain under the existing policy inverse seniority with special exceptions. The proposed policy allows layoffs not only for lack of funds or lack of work but also for (undefined) "programmatic changes." It takes away preferential rehire rights. It says that order of layoff "shall be determined by skills knowledge and abilities necessary for either ongoing or future work." According to a report accompanying the policy, the policy will be put out for employee comment this month. SPSE will vigorously oppose this proposal. There are a number of things we can do and you can do to prevent adoption of this policy. We will keep you informed. Watch your mail for fliers and meeting notices. ~
Many LLNL staff employees are upset by the Lab's ranking and salary management processes. This is the first of a series on what's good and what's bad about the ranking system. We hope to stimulate the staff to demand reform. In preface to this series, I submit an observation: Over a period of many years (38 that I've been here), LLNL's top management has consistently tried to expand its "flexibility" by eliminating or circumventing rules that regulate their conduct and establish a balance between employee rights and employer business necessities. This is a recurring theme at LLNL. Many of the rules are wise: they are based on the experience of persons skilled in personnel management, they protect individual rights, and they avoid litigation. Nevertheless, LLNL's "leaders" are very imaginative in finding ways around them.
In the Beginning
Before 1980, LLNL divided scientist and
engineer (S&E) job classes into 10 subclasses indicated by
a decimal following the job class number. Each subclass had a
corresponding salary range that was adjusted annually for inflation.
New hires entered subclasses consistent with their negotiated starting salaries. They advanced to higher subclasses as they matured, according to how their supervisors perceived their value.
This was a workable system. However, I recall that managers did not often use the system as a management tool. Promotions to a higher subclass usually occurred by the accident that a raise moved a person across a subclass salary boundary.
Some demotions occurred by the converse accident. When this happened, it raised the specter of a formal grievance because a demotion from one job class to another, with a lower salary range, is grieveable under UC/LLNL policy. Though this could be a thorn to managers, I believe it was a reasonable protection for the employees. It was necessary only that the supervisor be able to defend a demotion in a hearing conducted by a neutral hearing officer.
Discrimination Highlighted
The system of job subclasses came to
be viewed as a nuisance rather than a useful tool. It limited
the flexibility of managers to assign salaries according to their
perceptions of worth. It also gave clear evidence of discrimination
on the basis of age, sex, and race. One had only to examine which
employees populated the low-digit subclasses.
SPSE's vigorous insistence that LLNL obey the California Public Records Act made this information available to all employees. Coincidentally, we gained access to computers outside LLNL and thus had the capability of analyzing the data.
In the late 1970s, the Director's office initiated a study of discrimination at LLNL. As it became clear that the data showed gender- based discrimination, the study was stopped. The Director's Office disbanded the study group before it issued a report.
Hiding the Evidence
At about this time, LLNL's Professional
Salary Committee announced a new salary management system that
eliminated S&E job subclasses. A primary motivation for this change
was to hide evidence of discrimination. (Perhaps the architects
of the change wanted to buy time to fix the problems. However,
we know that even a decade later, the Director acknowledged that
the problems were not fixed, but had only been concealed.)
Within a few years, the old system, which normalized salaries to maturity curves that were derived directly from salary surveys and promoted persons through the subclasses, was replaced by the "growth and stack" concepts now used.
Ranking: A Salary Management Tool
Before long, the need for a regulating
concept similar to the sub- classes became evident. For a few
years, some raises fluctuated wildly as persons fell in and out
of favor with their supervision. This led to the idea of ranking.
New salary management guidelines mandated that S&E staff employees
be ranked.
As originally conceived, ranking was a tool for maintaining rational and stable salary management. Division leaders divided the employees into groups (or "bins") of individuals with similar perceived values. An ideal or "target" salary was assigned for each group; individual raises were regulated to move persons toward the target.
After several years, according to theory, people would settle into stable groups of equally valued employees. After this equilibrium was reached, movement between "peer groups" would occur only gradually. Managers could concentrate on the Laboratory's business-which is, after all, science and engineering, not salary management.
"Flexibility" Regained
It did not take long for many managers
to subvert this system. Several departments/divisions discovered
that by annually changing the number of ranking groups, they could
move persons up and down in rank, at will, and thereby defeat
the primary aim of ranking, which was to stabilize salary management.
Some departments played this game of musical peer groups with a vengeance. Thirteen groups one year would be merged to five the next and split into ten the next. The slogan "we manage raises, not salaries" justified actions that, because of the misuse of the system, were arbitrary and capricious. It seemed that any time one raised an objection, it was dismissed by repetition of the slogan.
Greed also subverted the system. The favored were not only placed in the top groups with high salaries, but the salaries for these groups were advanced at a rate one-and-a-half to two times the Lab average. As these top salaries rocketed up, they pushed up with them the salaries of the top management. Guess who vigorously promoted this system?
Corruption Complete
By the late 1980s, the system was thoroughly
corrupted. I worked closely with a middle manager who took seriously
the responsibility of ranking his people to rationally manage
their salaries. He expressed great frustration that once he had
done this, the department head (DH) interfered. The DH arbitrarily
changed rankings to reflect prejudices that had developed some
ten years earlier, although there had been no subsequent contact
between the DH and the employees whose ranks were changed.
My middle manager friend summed up: "they decide the raise they want to give and adjust the rank to fit it." These practices were not limited to a single department but became common throughout LLNL.
Anyone who is unaware of the demoralizing effects of LLNL's ranking and salary management upon the staff is decidedly out of contact. Many LLNL managers are of the opinions that (1) LLNL has a merit salary system and (2) ranking is necessary in connection with a merit salary system. Both of these assumptions are dead wrong. I will expand on this in our next Newsletter. ~ By R. White
[See also a letter to the Laboratory from DOE 7/29/94.]
In August 1992, 12 minority employees of LLNL wrote to UC's Vice- President for Employee Relations, urging an investigation of discriminatory practices at LLNL. Most of the twelve had been frustrated trying to use LLNL's informal and formal grievance processes.
Ethnic Minorities Organize
An LLNL spokesperson publicly responded
to the letter, saying that in an institution with 10,000 workers,
there were bound to be a few who were disgruntled. This ill-advised
response angered the letter signers as well as their colleagues
who had also experienced discrimination at LLNL. Within a few
days, many more signed copies of the letter. By the Fall of 1992,
an organization of nearly 50 LLNL employees formed around the
signers. They adopted the name "Association of Ethnic Minorities"
(AEM).
AEM describes itself as a group of ethnic minority LLNL employees dedicated to eliminating racial discrimination from appraisals, rankings, raises, promotions, job assignments, training opportunities, and participation in professional activities. The association includes African- Americans, Native Americans, Asians, Pacific Islanders, Hispanics, and Asian-Indians. Their jobs span a broad spectrum, including scientists, engineers, technicians, administrators, and clerical workers.
UC Response
The letter to UC arrived at a sensitive
time: during negotiation of the UC/DOE five-year contract for
running LLNL. DOE (then under Secretary Watkins) was very concerned
about accountability for discrimination issues at LLNL. UC's Employee
Relations Office promptly sent a representative to meet with both
AEM and LLNL management. After several meetings, an impasse developed.
UC and LLNL wanted to focus on individual complaints. AEM wanted
to focus on institutional issues. One AEM member summarized as
follows:
"The group's goal is for each member's experience of racial discrimination at LLNL to be a piece of a mosaic so that problem areas and problem managers can be identified and corrected. By holding managers accountable for their discrimination, the group hopes to reduce discrimination at LLNL. We want management to use the same fixed-length yardsticks for everyone, not the current rubber yardsticks."
AEM's leadership feared that quick fixes for individual complaints would deflect attention from enduring institutional problems. It was reluctant to turn the discussion into an airing of individual complaints.
Impasse and Compromise
UC's representative told AEM that they
needed a reality check and should cooperate with the Lab by revealing
the details of their complaints. LLNL proposed to hire an "independent"
third party, selected by Lab management, to review the complaints.
AEM agreed to participate in a review of individual complaints. However, they did not trust a reviewer selected solely by the Laboratory. They wanted a second reviewer of their choosing. Further, they wanted assurances that both reviewers would address institutional issues as well as individual complaints, that they would act independently, and that the findings of the reviewers would be shared with the employees. LLNL agreed to these terms. Two reviewers were selected, both of whom had professional experience in discrimination law.
Agreement on Rules
By February 1, 1993, AEM, the two reviewers,
and AD Phil Coyle's office worked out a list of ground rules for
the review. The reviewers would jointly interview AEM members.
The reviewers were to have complete access to all data and could
interview any LLNL personnel. The reviewers were to provide an
interim report to each employee so that the employee could critique
management's response. Finally, the reviewers were to make a final
report to the employees and the Lab.
AEM wanted to survey LLNL minorities. Jim Evans, Coyle's deputy, did not want a survey; he said he feared it would be inflammatory. The reviewers asked AEM to defer a minority survey until after the review. AEM agreed. Thirty AEM members chose to be interviewed. The interviews took place from February to June of 1993.
Independence Undermined
In the middle of this process, it became
evident that the Lab was not letting the reviewers act independently.
For example, an AEM member who had filed a suit against the Lab
wanted his attorney to attend the interview. The reviewers agreed
to this, but the Lab forbade the attorney's presence. Then the
employee asked that another Lab employee (an SPSE representative)
attend to advise him. The reviewers agreed to this, but, at the
last moment, they canceled the interview because LLNL objected.
Mediation
Upon completion of the interviews, the
reviewers recommended a mediation process. Each AEM member indicated
the terms under which the member would be willing to settle the
complaint without an investigation. The reviewers acted as mediators
between the members and management. Twelve AEM members agreed
to settle via mediation and received monthly salary adjustments
ranging from a few dollars to as much as $500 monthly and back
pay for up to two years, but no adjustments in ranking.
Some managers did not like the mediation process. They felt that the reviewers were too pro-employee. Some AEM members also objected to mediation because those who accepted it were required to forgo any further claims against the Lab, thus diminishing the strength of the AEM in dealing with institutional problems.
Lab Changes the Rules
In May 1993, LLNL unilaterally and abruptly
changed the rules of engagement. Phil Coyle limited investigations
to discrimination events that occurred within 30 days of the date
of AEM's letter to UC; he barred all earlier events from consideration.
The 18 people who interviewed but did not accept mediated settlements were given the option of having their cases investigated either through the Lab's grievance process or by the reviewers. All 18 chose the reviewers. The reviewers stated that all 18 cases were timely even under Coyle's revised rules.
Lab Terminates Investigation
In September 1993, LLNL notified the
AEM that the reviewers' work was complete, even though none of
the 18 cases was investigated. On October 1, 1993, the reviewers
submitted a final report. Despite the fact that Coyle's office
had promised, in writing, that all persons interviewed would receive
individual reports on the disposition of their cases, nothing
was received. When AEM members formally requested the reports
under California's Public Records Act, the request was denied.
In our next Newsletter, we will report on the revival of the investigations that was prompted by not-so-gentle prodding from the DOE and Congress. We will bring you up to date on AEM's successful Public Records Act suit that forced LLNL to turn over hundreds of documents concerning the reviewer's reports.~
Our April and June 1994 Newsletters carried articles about a "displaced" Earth Sciences Division (ESD) employee who was fired, allegedly because of the way he went about looking for a funded assignment. The employee (identified in the articles as "Dr. X") filed a formal grievance; the hearing of that grievance was in process at the time the articles appeared. The arbitrator's decision came to us too late to be discussed in our November 1994 Newsletter.
Dr. X failed to find a funded position during a three-month assign- ment to do so. This formed the basis for his final, unsatisfactory, appraisal. SPSE regarded this as an important test case. We feared that if we did not challenge the dismissal, the Laboratory might regularly assign disfavored employees the job of finding their own jobs, then use lack of success as a basis for unsatisfactory performance ratings. Laboratory policy permits dismissal for unsatisfactory performance.
Dr. X began to appeal the unsatisfactory appraisal via LLNL's administrative review process. Before the review was complete, he received a termination notice. Also, he received information leading him to conclude that his administrative review did not receive fair treatment by the Staff Relations Office. Dr. X withdrew the administrative review and chose to address the alleged unsatisfactory performance via a grievance over his dismissal.
This led to a second important issue in the dismissal grievance. The Lab argued that since Dr. X failed to complete the review process, he had to accept the unsatisfactory performance rating as final. Therefore, they argued, the arbitrator could not review his performance to determine whether it was indeed unsatisfactory.
We believed that this argument posed and unacceptable denial of due process to LLNL employees. The administrative review is not a hearing. There is no opportunity to examine evidence presented by the opposing side. There is no opportunity to cross-examine witnesses. There is no chance to have a disinterested arbitrator review the facts. It is only a review by management to determine if they believe other managers made a mistake. Seldom is it found that a mistake was made.
Through the first four days of Dr. X's six-day-long hearing, the Lab's counsel insisted that the arbitrator had no jurisdiction to review the actual work performance. Finally, at the beginning of the fifth day, the arbitrator stated that he had reviewed the policies and the arguments by the Lab and by SPSE and was prepared to rule on this issue. He rejected the Lab's arguments. He said that the dismissal was for alleged unsatisfactory work performance and that he did not see how he could rule on the dismissal without reviewing the performance. This was a significant victory for SPSE.
We did not fare so well with respect to the other issues. The arbitrator acknowledged that the assignment for Dr. X to find another job was indeed unusual and that, under other circumstances, it might be viewed as an inappropriate assignment. However, as mentioned in our previous articles, there was a long history of disputed less-than-satisfactory performance appraisals given to Dr. X by ESD. Although he did not accept these past appraisals as a basis for dismissal, the arbitrator said that the employment history did justify the unusual "find a job" assignment.
Then, the arbitrator examined Dr. X's attempts to find a funded assignment during a three-month period. He ruled that these efforts were unsatisfactory. ~
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