GLOUCESTER, Massachusetts โ Sept. 28, 2010 โ The National Weather Service Employees Organization has written to NOAA General Counsel Lois Schiffer and Department of Commerce General Counsel Elise Steinberg.
The union is demanding to bargain over the implementation of the Special Master to conduct a retroactive review of the enforcement cases. They claim the procedure is unprecedented and changes the conditions of employment for the attorneys who will be required to defend their work retroactively. They "demand" that the Special Master's investigation into the work of the GCEL attorneys be stayed.
Also at issue are the restrictions placed on the use of the Asset Forfeiture Fund. NWSEO is demanding the restrictions to be lifted until the union is fully and formally notified and has the opportunity to bargain over the impact of the loss of this funding on salaries, awards and training of the attorneys represented.
They object to NOAA's establishing a "hotline" through which members of the fishing industry can lodge additional complaints against the enforcement work of bargaining unit attorneys. However, hotlines are not new to NOAA Enforcement. NOAA Enforcement has had a 24 hour "hotline" at 1-800-853-1964, which is prominently promoted on their website , through which violations can be reported to Enforcement for some time.
The union suggests that the actions were taken our of "desperation" as a result of "the serious political trouble that Democratic officeholders are facing in their re-election efforts in Massachusetts." The request for the investigation pre-dates the Democrats current troubles, and has been both bipartisan and multi-state.
In February 2009, shortly after the Inauguration of President Obama, when his popularity was at an all-time high, a bipartisan group of 19 Massachusetts state legislators, including the Speaker of the Massachusetts House and President of the State Senate wrote to Senators Kennedy and Kerry, and to Congressmen Frank, Tierney and Delahunt asking for an investigation of NOAA Enforcement practices. The two senators and three congressman made that request to NOAA Director Dr. Jane Lubchenco, who agreed to request an Inspector General investigation of NOAA Enforcement on June 3, 2009 .
Nine legislators from North Carolina, five Republicans and four Democrats, including both wrote to Dr. Lubchenco on June 25, 2009, noting that allegations of excessive penalties and retaliatory actions were "by no means limited to the northeast", and asked the the Inspector General examine "the Department's enforcement operations in Massachusetts, North Carolina, and elsewhere." In May of 2009, 14 North Carolina state legislators wrote to the North Carolina delegation in Washignton , asking for a formal review of NOAA Enforcement in North Carolina.
The appeal for action to redress claims of unfairness oulined in the Inspector Generals report have been notable for their bipartisanship. Since the release of the report, Republicans including Sen. Scott Brown (R-Massachusetts), Sen. Olympia Snowe (R-Maine), and Rep. Walter Jones (R-North Carolina) have been especially vocal in expressing their concerns.
The text of the letter follows:
It has come to our attention that the agency has implemented two significant changes in conditions of employment of NOAA attorneys without prior notice to the National Weather Service Employees Organization, and without providing NWSEO with an opportunity to negotiate over the impact and implementation of changes to conditions of employment. This constitutes an unfair labor practice within the meaning of the Federal Service Labor Management Relations Statute, 5 U.S.C. section 7116(b)(1) and (5), as well as a violation of Article 11, section 2 of the parties' collective bargaining agreement. While this email is not a formal grievance, we are writing to demand that these changes be rescinded or stayed pending proper notice to the union and pre-implementation bargaining as required by the FSLMR Statute and the collective bargaining agreement. As a courtesy, we are notifying you that we intend to file an unfair labor practice charge with the Federal Labor Relations Authority should the agency proceed with implementation without bargaining.
According to press reports, the agency has retained a Special Master to conduct a retroactive review of certain enforcement cases handled by bargaining unit employees in the Northeast Region and elsewhere. According to the Secretary, NOAA has established a "hotline" through which members of the fishing industry can lodge additional complaints against the enforcement work of bargaining unit attorneys. Further, according to the Secretary, unit employees will be required to cooperate with the Special Master in reviewing these complaints as well as the spurious allegations made against them by the Inspector General. This procedure is unprecedented. It changes the conditions of employment for bargaining unit employees because it requires them to defend their work retroactively; establishes a procedure by which they have to defend themselves against public complaints; exposes them to serious risk of disciplinary action and a destruction of their professional reputation by anonymous sources; and will impose on their working hours and increase their workload by having to participate with Special Master's proceedings and interviews.
Thus, we demand that the Special Master's investigation into the work of the GCEL attorneys be stayed until we bargaining over the impact and implementation of this review. As a first step in that process, we demand that you provide the union with a full and detailed explanation of how this review will be conducted; copies of any and all ground rules or procedures which the Special Master will use; and a copy of any and all written engagements or contracts with the Special Master that outline his scope of work and authority.
Second, we have learned from both press reports and from reviewing an email sent to all managers last week by Mary Beth Ward, who is the supervisor of GCEL attorney managers and staff (and has been for nearly 10 years) that the uses of the Asset Forfeiture Fund has been restricted. According to the Secretary's website, these funds can no longer be used for "funding for any NOAA employee labor, benefits or awards" and there have been restrictions placed on the use of these funds for training of bargaining unit employees. Instead, we understand, that half of the remaining funds will be distributed to the fishing community in New England in some form of last minute, pre-election slush fund. (According to press reports, yesterday "Locke offered . . . half the remaining money from the fines in the NOAA Asset Forfeiture Fund . . for uses to be determined by the fishing community." We demand that the restrictions placed on the use of the Asset Forfeiture Fund be lifted until such time as the union is fully and formally notified of these restrictions and we have the opportunity to bargain over the impact of the loss of this funding on salaries, awards and training of the attorneys we represent.
NWSEO is keenly aware of the serious political trouble that Democratic officeholders are facing in their re-election efforts in Massachusetts. This desperation does not give the agency an excuse to engage in serious and blatant violations of Federal labor law.