Free Response to Motion - District Court of Federal Claims - federal

Case 1:06-cv-00111-CCM

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Filed 10/03/2006

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DECLARATION I, Walter J. Folger, declare as follows: I am employed as a civilian attorney (GS-0905-14) by the Department of the Army. i am assigned to the Administrative Law Division, Office of the Judge Advocate, United States Forces Korea/Eighth United States Army. My place of duty is Yongsan Army Garrison, Seoul, Republic of Korea. In this capacity, I function as the labor counselor for Eighth U.S. Army and provide legal advice and services on labor and employment issues to USFK and Eighth Army management officials as well as other Army activities located in Korea. Beginning in late September 2004, USFK issued a series of orders that implemented curfew measures applicable to personnel assigned to USFK. Department of Defense civilian employees working in Korea were included within the scope of these orders. The inclusion of civilian employees within the scope of these orders generated a number of issues that required extensive review and work by myself, other attorneys within USFK, and Labor Relations personnel assigned to USFK. The following information provides an overview of work that I performed in connection with this issue. The National Federation of Federal Employees (NFFE), Local 1363, represents a bargaining unit of approximately 1,000 Department of Army civilians working in Korea. In approximately mid-October 2004, NFFE requested impact and implementation negotiations with the command over issues associated with the curfew. I met with management officials in advance of these discussions. I also participated in the actual discussions with the union along with several other command representatives. In February 2005, NFFE initiated an effort to obtain compensation for civilian employees affected by the curfew. On February 25, 2005, a union steward assigned to the Army Corps of Engineers Far East District presented a "Request for Payment of Earned Standby Time" on behalf of himself and eight other Corps of Engineers employees working in Korea. The request was presented to Colonel Janice Dombi, the Commander of the Corps of Engineers Far East District office and was accompanied by a "Petition for Standby Pay" signed by the nine employees. Altogether, the employees requested payment for more than 7,000 hours of overtime work that they allegedly performed while the curfew orders were in effect. I was actively involved in advising and assisting COL Dombi in responding to the union request, along with two attorneys from the Corps of Eng~neers Far East District Counsel's office (Mr. Michael Feighny and Mr. Lawrence Vogan) and Mr. John McCrarey, the Chief of Labor-Management Employee Relations in the USFK/Eighth Army Directorate of Human Resource Management. Because the union request had obvious implications for the entire USFK workforce, it generated considerable attention within the command. Reviewing and assisting in developing the management response to this request was my top work priority during that time. On March 11,2005, Colonel

Case 1:06-cv-00111-CCM

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Filed 10/03/2006

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Dombi replied to the request for compensation, advising the union that the request did not provide a sufficient basis for standby pay. On March 23, 2005, the president of local 1363 presented a grievance to Colonel Dombi under the provisions of the collective bargaining agreement. The grievance requested overtime compensation in connection with the curfew on behalf of the same nine employees who had signed the earlier petition. Again, I was actively involved in advising COL Dombi on the response to the grievance along with Mr. Feighny, Mr. Vogan, and Mr. McCrarey. We met with Colonel Dombi personally to discuss the grievance and to prepare her for a meeting w~th the union which was required by the collective bargaining agreement. After the meeting between Colonel Dombi and the union, we prepared the decision letter for her review and signature. Preparing the letter also entailed considerable additional research on timeliness issues because management's position was that the employees had not filed the grievance in a timely manner. Although Colonel Dombi was the decision maker with respect to the grievance filed by the nine employees within her organization, there was significant interest in the outcome of the grievance within USFK and Eighth Army. The grievance challenged a policy issued by the USFK commander. In addition, in media interviews, the union alluded to plans to eventually expand the compensation claim to include all Army employees in Korea. As a result, we had to spend significant time keeping USFK and Eighth Army staff apprised of the status of the grievance. This required preparation of information papers and attending meetings to ensure that anyone with a potential stake in the outcome of the grievance was kept informed of developments. Colonel Dombi denied the grievance on April 29, 2005. Colonel Dombi denied the grievance on the merits of the claim for standby pay. She also denied the grievance on the basis that it was untimely under the terms of the collective bargaining agreement. On May 20, 2005, the union invoked arbitration in accordance with the collective bargaining agreement. Mr. McCrarey and I assumed the lead roles in preparing the management case for arbitration. In anticipation of arbitration, we conducted interviews of eight of the nfne empIoyees who filed the grievance. Mr. Vogan also attended the interviews as did the local union president. The interviews were conducted over two days on September 8 and 9, 2005. After the local union invoked arbitration, the NFFE national office took over lead responsibility for the union case. The Federal Mediation and Conciliation Service provided a list of arbitrators. Mr. McCrarey and i researched the backgrounds of the arbitrators and went through the process with NFFE of alternately striking names from the FMCS list. Both sides eventually agreed on an arbitrator. The arbitrator was contacted and a hearing was scheduled for March 8, 2006 to review the issue of whether the grievance was timely. On February 21,2006, NFFE contacted the arbitrator and informed him that they were withdrawing the grievance. The stated reason for the withdrawal was that a class action

Case 1:06-cv-00111-CCM

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Filed 10/03/2006

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lawsuit on behalf of affected employees had been filed in the Court of Federal Claims. Based on the union's withdrawal of the grievance, the scheduled arbitration hearing was cancelled. After the lawsuit was filed, the Headquarters, Department of the Army, Litigation Division contacted me to request that I submit a litigation report concerning the lawsuit. ! prepared a memo along with a detailed factual summary and legal research about the case. In addition to the memo, I compiled an extensive amount of documentary evidence to accompany the titigation report. I dectare under penalty of perjury under the taws of the United States of America that the foregoing statement is true and correct.