SPSE Newsletter #4, November 1997
Editor: G. Craig
P.O. Box 1066, Livermore, CA 94551
510-449-4846
To understand the point of this question, try comparing the UC and LLNL personnel policies. The simple fact is that they differ by page, section, and intent.
Where is the UC Connection?
In September, the UC Regents voted to extend its contract to manage LLNL, LBNL and LANL for another five years. In preparation for this vote, the UC Office of the President sent out Regents' Agenda Packets. One of them contained a report from the Regents, dated September 15, 1997, which listed the essential University requirements in the proposed contracts.
Do UC Personnel Policies Apply to the Labs?
The report said, "Preservation of the academic atmosphere at the Laboratories...continues to be a cornerstone of the contract, is set forth as a principle of operation, and has a become routine provision in DOE contracts with educational institutions. Key to this atmosphere is the continued linkage between the University's comprehensive personnel policies and procedures and personnel policies applicable to Laboratory employees."
Why is LLNL Drifting Away From the UC?
In the last two years, LLNL has made major changes to its Personnel Policies and Procedure Manual increasingly departing from the UC model. In 1997, it proposed the six year contract for Restricted-Status employees which guts many UC employee rights. In 1996, it stripped seniority from the UC layoff policy.
Our Human Resources Department maintains that we have never been under UC Personnel Policies. This gives them the freedom to maximize management flexibility so they can do what they damn well please. Why do they ask for employee input? It satisfies the letter of the law, but in the end, it is ignored. HR then has the UC rubber-stamp the changes for the Livermore campus.
Should LLNL Follow UC Personnel Policies?
Most of us work here because we value being UC employees. Therefore,
SPSE hopes that you will support our effort to reverse our drift
away from the UC. Last April, we filed an Unfair Labor Practice
with Public Employee Relations Board (PERB) on a technicality
that can help us reset our policies to those of the University.
A hearing has been scheduled for January 20-21, 1998. Stay tuned.
/George Craig
The next article documents management trying to do what they damn well please. The employee filed a grievance to protect herself. Richard White, from our Grievance Committee represented the employee, an SPSE member. Beverly Thomas, of our Human Resources Department, represented management. The whole process develops like a court trial with witnesses and cross-examinations.
Following two days of hearings, with testimony from five witnesses, an arbitrator from the American Arbitration Association has found a memorandum criticizing a Health Services Department (HSD) physician to be "substantially inaccurate and unsupported by facts." The arbitrator's final and binding decision orders LLNL to collect and accountably destroy all copies of the memo that are in their control.
The disputed memo alleged there were irregularities in the physician's handling of an employee's return to work after an illness. As a result, the physician was threatened with being fired. However, SPSE filed a grievance on her behalf and paid her share of the costs to have the grievance arbitrated. According to the arbitrator, the evidence showed that the charges in the memorandum were false.
Ulterior Motives
The memo was issued in 1996, during LLNL's "restructuring," when HSD's quota was to eliminate between 1 and 3 physicians. The arbitrator's decision states: "There are...strong indications that...(the memo) was motivated to a considerable extent by the Laboratory's perception of its need...to reduce the number of physicians in HSD. I find that with that goal in mind, the (memo) was designed in part to pressure Grievant to resign voluntarily...."
Sex Discrimination
According to the arbitrator, testimony and evidence indicated also that HSD targeted its female employees for unequal treatment. The testimony indicated that, males who showed lapses in medical judgment as serious or more serious than those falsely alleged in the disputed memo, were given no memos or letters of warning concerning such lapses. The arbitrator found that the issuance of the memo, therefore, discriminated against the Grievant on the basis of gender. He added: "In determining whether the (memo) discriminated against Grievant on the basis of her gender, I have also given consideration to the evidence of past sex-based discrimination against female physicians at HSD. That consideration leads me to conclude that the sex-discriminatory character of the (memo) is also reflective of sex-discriminatory attitudes and actions that have adversely affected female physicians in HSD for a number of years."
Other Violations
The arbitrator also found that the memorandum violated LLNL's corrective disciplinary action policies and the policies requiring maintenance of accurate records. The records violation (in addition to the finding of discrimination) may lead to a lawsuit. California's Information Practices Act requires LLNL to maintain accurate records and permits recovery of damages, including mental suffering and legal expenses, if an employee's employment is adversely affected by false records.
The Laboratory agrees to remove the memo from the physician's
file. However, there is no indication that action will be taken
against the supervisor who issued the memo, or the department
head. /Richard White
Here Comes Restricted-Status
Many Lab employees are rightly disturbed by the announced intentions to make a new category of LLNL employees. (See Newsline, August 15, 1997) "Restricted-Status" employees will be hired for terms up to 6 years. Their employment is not renewable until after a 6-month break in service (unless, of course, an extension is granted by the Lab Director).
They may be terminated at any time during their employment. They are eligible for vacation, sick leave, holiday pay, pension, and health insurance benefits. However, they are not subject to some key personnel policies. Significantly they would not be permitted to file grievances or administrative reviews.
This denial of access to grievance procedures may seem only somewhat unfair but it has a deep nefarious significance. To understand, one needs to know a bit of UC/LLNL legal history. Here it is:
Grievance Policies
In the early 1970's, under urging and pressure from the California State Employees' Association (CSEA) and other UC employee organizations, the University adopted a grievance policy. (Note: from 1973 to 1984, SPSE was affiliated with CSEA.) This policy set forth procedures for resolving disputes between employees and their supervisors. These procedures included hearings in cases involving violation of UC policies and dismissals. LLNL, as a campus of the University, came under these grievance policies.
The Mayonnaise Lady
In about 1975, a UC Davis kitchen worker was summarily dismissed. No reason was given for her dismissal. CSEA argued in court that she was entitled tobe told the reasons for dismissal and to have an opportunity to respond and have a fair hearing of her response before she was dismissed. It was later alleged that she failed to properly spread mayonnaise on bread.
This case, known as Mendoza v. Regents of UC, went all the way to the California Supreme Court. SPSE's attorney, Thomas Sinclair, argued as amicus curiae (friend of the court), on behalf of Mendoza, in addition to the arguments made by CSEA. Sinclair's arguments influenced the court's decision.
Due Process
The court ruled that prior to the establishment of a grievance procedure, the University could hire and fire employees at will. However, they said that once the grievance procedures were in place, UC employees acquired a property interest in continued employment and could not be deprived of this property without due process, pursuant to the 5th and 14th amendments of the U.S. Constitution.
What does "due process" mean? In this case it means you can be fired only for reasonable cause. Reasonable cause may include poor performance, insubordination, habitual tardiness, or graver offenses such as theft or other dishonesty. But it can't be "I don't like the shape of your nose" or "I just decided we don't need you anymore." Due process means you are entitled to a fair hearing to determine whether the dismissal was for cause and was reasonable under the circumstances.
Final and Binding Arbitration
Around the same time as the Mendoza decision, SPSE initiated some actions, including legislation in the U.S. Congress, aimed at firming up the rights of Lab employees. The story is too long to tell here, but the end result was that the University agreed to give final and binding arbitration rights to all UC employees in grievances concerning dismissals, corrective disciplinary actions, and order of layoff. This strengthened the Mendoza rights by subjecting dismissals to the scrutiny of a neutral professional arbitrator and making the arbitrator's decision binding upon the Lab's Director. (Previously, grievance decisions were only advisory to the Director.)
LLNL Gutting UC Personnel Policies
Now are you beginning to get an idea of what "Restricted-Status" is about? That nearly unnoticeable clause "not subject to grievance policies" is really the most pernicious part of the entire plan. It gives supervisors the authority to fire without any cause and without recourse in the courts by the employee. Your job can be terminated for no reason whatever.
If you need convincing as to the value of grievances and binding arbitration, or if you think that they may be valuable to those in trouble but you'll never get there, read the article in this Newsletter about a recent grievance decision. It tells of a case where a supervisor made up some charges against an employee and was backed by the department head. The phony charges did not stand the scrutiny of a grievance hearing.
Bye-bye Terms
Not only will the proposed policy create a new class of slave employees, it will eliminate the Term Appointee category. What does this mean for the current generation of "Terms" who have been lured into tentative employment by the carrot on stick ploy? (Be good and we'll make you into a "Career Indefinite" sometime in the future.)
Guess what happens to most of you Terms once your term is up. Oops, we no longer have Term Appointees. However, we'd be pleased to offer you a Restricted-Status position.
Bye-bye Career Indefinites?
Guess what happens to the remaining Career Indefinites (now a majority of the Lab's workers) once the Restricted-Status policy is in place. Hint: did you notice that Restricted-Status employees are not subject to the layoff policies?
L(ockheed)LNL?
The Restricted-Status category is only the most recent of a series of LLNL deviations from UC policies. These deviations aim to reduce management's accountability. The creation of 5 year term positions was a first move in this direction. This was followed by the brave new world layoff policy introduced two years ago. Now comes Restricted-Status.
We ask: what is wrong with a public sector employer having to have some reasonable cause to dismiss an employee? What is wrong with their having to account for their actions, at least to the point of being able to show they were reasonable under the circumstances? Why should LLNL managers be permitted to avoid such accountability?
Where Do You Stand?
It should not escape you, dear reader, that some of your fellow employees united and contributed their time, effort, and money to establishing the rights to grieve, to have due process, and to have final and binding arbitration. It is because of their efforts and financial support that you enjoy some protection from arbitrary management actions. The rights won in the past, are now under assault.
United, employees can put an end to management's drift away
from UC's personnel policies. The SPSE Executive Board recently
committed considerable funds to a plan which, if successful, will
temporarily halt LLNL's headlong rush into irresponsibility. But,
in the long term, accountability will vanish from the Lab unless
you give SPSE your support. There is strength in union. If you
are not a member, take the time to fill out and mail the enclosed
membership application. If you are a member, convince a non-member
peer to join. Your survival in this workplace depends upon it.
[Webmaster's Note: Because of the space limitations in our printed Newsletter, articles are often edited for length, now you can check out the uncut version of this article. (What follows is how it appears in the printed version.)]
Gratitude is Strength
"I am so grateful,...it is a privilege to be able to do the work that I do." Jody Williams, 1997 Nobel Peace Prize Laureate (recollected from a televised interview on 10 October 1997).
What a liberating sense of gratitude. Isn't this actually true for all of us? Ours is one of the few occupations with the potential for technical creativity and participation in nationally significant and socially beneficial projects.
Athens vs. Sparta
Participation is the key to a dynamic organization. Consider the contrast between Athens and Sparta in the Greece of 2500 years ago. Both were powerful military and trading centers, Athens with a growing sea empire, and Sparta holding sway over much of the Peloponnese peninsula. Athens was a democracy, and participation in government was both passionate and widespread. In this buoyant and stimulating environment many fresh ideas ignited exciting developments in trade, all the arts, architecture, social organization, government, and even individual freedom. Sparta, on the other hand, was a tightly held oligarchy, only a few thousand heads of families were citizens, called Spartiates. Most of the people under Spartan control were serfs tied to the land, and the men among them were called helots. The helots were conscripted foot soldiers in armies commanded by Spartiate "knights" (only the rich owned horses). Spartan society was efficient and stagnant. The only acceptable ideas came from the Spartiate class, and they exercised complete control over a workforce required to implement their designs. The legacy of those times, what we call the beginnings of Western Civilization, are essentially Athenian. In Sparta, a small class consumed, controlled, and eventually faded. The value of the inclusiveness of Athenian society, what in today's lingo we might call open, diverse, and democratic, was demonstrated by the genius of that community in uniting to fight off an oligarchic coup and to expand its democracy in about 505 BC, and then later in brilliant action to defeat the invasion of the Persians in 480 BC. Herodotos commented:
It shows how splendid a thing is political equality; The Athenians under the tyrants were no better soldiers than their neighbors, but once they were rid of them they were far the best of all.... Once they were free, every man was zealous, in his own interest.
Permanent Status For All Term Employees
Our Lab is the size of a small Greek polis, and I think, like ancient Athens or Syracuse in Sicily, we would benefit from an egalitarian form of participation in the life of the Lab. I believe the Lab should immediately promote all term employees to career indefinite ("permanent") status, and eliminate term employment and abandon Restricted-Status employment. My reasons are as follows.
First, this ensures that managers hire people who have depth beyond the immediate need--no disposable employees. Infusing new blood into an organization (especially a stodgy one like ours) is always good, but Restricted-Status employment is the exploitation of young workers by a vampire organization: a place where vision is dead.
Second, if you want employees committed to your long term goals you must be committed to theirs. Our security, safety, and programmatic goals are most stringent and can be compromised by a worker's employment insecurity (reread the quote from Herodotos). I have met people here who have not reported illegal incidents because of the fear of job loss (for the record: chance provided a happy ending).
And, third, if the Lab is to be no more than a low-bid defense contractor with an expendable workforce, then it undercuts its rationale for existing. If long term research can be done with people on short term contracts, why have this Lab? In that case Lockheed-Martin or Rockwell International can marshal the necessary teams of temporary workers to dispose of DOE programmatic chores at much less cost. If AVLIS can be done by a private entity why not NIF? The point is that even as we become more "businesslike" we must always cost more than a business if we continue to provide that most valued rarity: long-term committed scientific thought to the technology of our nation's energy and defense. Good ideas do not emanate from small oligarchies controlling many expendable serfs: think Athens, not Sparta.
The Community of Science
We are all lucky to be able to work in a technically advanced environment. I believe that those of us who have indefinite ("permanent") status should express our gratitude by working to keep the same opportunities open to future employees. I base my belief on the concepts of "the community of science" and "generational responsibility." I urge you to act in any of three ways:
1) Write a letter to Lab management opposing Restricted-Status employment. You can do this without having any connection to SPSE whatsoever (some people actually don't like us).
2) Join SPSE. We need dues for attorney advice, expert witness fees, at least one half of the arbitration fee, and office expenses to prepare briefs, obtain data by public records request, make phone calls and do research in order to fund grievance representatives and mount legal challenges to the anti-employee trend of LLNL employment policy. Whether you think we are good, bad, or indifferent, we are committed to getting people a fairer shake in this Lab, and you know it. Whether by guile or fumble, our efforts do more good for your work situation than all the carping of the privileged uninvolved.
3) Sign an authorization card so we can organize the American way. Those of you ready for this step share a very special vision, one that Pericles, Jefferson, and Lincoln would understand.
A Message to Old Timers and Term Employees
During my term, as the Themistokles of unionization (leader of Athens in 480 BC), I have developed views on segments of the Lab population that I offer below.
To anyone who is just hanging on till retirement: Shame on you. You have a responsibility to the next generation of problem-solvers. Voice your support for them to have the same opportunity you did: a decent full-time job, and not exploitation. Stop counting the days till the cash-out of your 403(b) and put some fire into those letters to the Lab, the University, and any civil authority you think will listen. Also, whether they pay attention to you or not, you are an example to younger workers. So practice your craft with gusto, with pride in your hard-won experience. Demonstrate that real achievement emanates from self-motivation, and is not dimmed or diverted by performance evaluations and merit raises which are simply a distraction for the gullible.
To term employees too fearful of losing their jobs to act:
You lose courage as you grow older. If you are willing to accept
being exploited today, you will never be free of it. The pipe
dream in many ghettos is that if you shoot enough hoops you'll
break into the NBA (National Basketball Association). Restricted-Status
employment is the same kind of pipe dream--for the few selected,
many will be discarded. Just as the older generation has the responsibility
to pass on a vigorous science environment with decent jobs, so
you have a responsibility to take on the challenge of maintaining
those standards. Do not depreciate yourself as a short term expedient.
Break out of the cage that fear holds you in, join SPSE, write
letters, speak out, act! This Lab's future is only as good as
the commitment it makes to you. /Manuel Garcia
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