SOCIAL SECURITY ADMINISTRATION and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1395, AFL-CIO

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

MEMORANDUM

DATE: October 20, 2010

TO:

The Federal Labor Relations Authority

FROM:

RICHARD A. PEARSON

Administrative Law Judge

SUBJECT:

SOCIAL SECURITY ADMINISTRATION

RESPONDENT

AND

Case No. CH-CA-10-0091

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

LOCAL 1395, AFL-CIO

CHARGING PARTY

Pursuant to section 2423.34(b) of the Rules and Regulations 5 C.F.R. §2423.34(b),

I am hereby transferring the above case to the Authority. Enclosed are copies of my

Decision, the service sheet, and the transmittal form sent to the parties. Also enclosed are

the transcript, exhibits and any briefs and motions filed by the parties.

Enclosures


UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

SOCIAL SECURITY ADMINISTRATION

RESPONDENT

AND

Case No. CH-CA-10-0091

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1395, AFL-CIO

CHARGING PARTY

NOTICE OF TRANSMITTAL OF DECISION

The above-entitled case having been heard by the undersigned Administrative Law

Judge pursuant to the Statute and the Rules and Regulations of the Authority, the undersigned

herein serves his Decision, a copy of which is attached hereto, on all parties to the proceeding

on this date and this case is hereby transferred to the Federal Labor Relations Authority

pursuant to 5 C.F.R. §2423.34(b).

PLEASE BE ADVISED that the filing of exceptions to the attached Decision is

governed by 5 C.F.R. §§2423.40-41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and

2429.27.

Any such exceptions must be filed on or before NOVEMBER 22, 2010, and addressed

to:

Office of Case Intake & Publication

Federal Labor Relations Authority

1400 K Street, NW., 2nd Floor

Washington, DC 20424-0001

_______________________________

RICHARD A. PEARSON

Administrative Law Judge

Dated: October 20, 2010

Washington, D.C.


OALJ 11-01

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C.

SOCIAL SECURITY ADMINISTRATION

RESPONDENT

Case No. CH-CA-10-0091

AND

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1395, AFL-CIO

CHARGING PARTY

Susanne S. Matlin

For the General Counsel

Catherine M. Six

Eric Garcia

For the Respondent

Loretta Fleming

For the Charging Party

Before:

RICHARD A. PEARSON

Administrative Law Judge

DECISION

STATEMENT OF THE CASE

This is an unfair labor practice proceeding under the Federal Service LaborManagement Relations Statute, 5 U.S.C. §§ 7101-7135 (the Statute), and the Rules and

Regulations of the Federal Labor Relations Authority (the Authority), 5 C.F.R. part 2423.

On November 17, 2009, the American Federation of Government Employees, Local

1395, AFL-CIO (the Union or the Charging Party) filed an unfair labor practice charge

against the Social Security Administration (the Agency or the Respondent). After

investigating the charges, the Regional Director of the Chicago Region of the Authority


2

issued a Complaint and Notice of Hearing on March 29, 2010, alleging that the Respondent

had refused to proceed to arbitration on a grievance in violation of section 7116(a)(1) and (8)

of the Statute. The Respondent filed its Answer to the Complaint on April 23, 2010, denying

that it committed an unfair labor practice.

The General Counsel (GC) filed a Motion for Summary Judgment that the

Respondent opposed. On May 18, 2010, I issued an order denying the motion.

A hearing was held in this matter on May 25, 2010, in Chicago, Illinois. All parties

were represented and afforded the opportunity to be heard, to introduce evidence, and to

examine witnesses. The GC and the Respondent filed post-hearing briefs, which I have fully

considered.

Based on the entire record, 1 including my observation of the witnesses and their

demeanor, I make the following findings of fact, conclusions of law and recommendations.

FINDINGS OF FACT

The Respondent is an agency within the meaning of section 7103(a)(3) of the Statute.

G.C. Ex. 1(c). The American Federation of Government Employees, AFL-CIO (AFGE), is

the certified collective bargaining representative of a nationwide unit of employees of the

Respondent, and the Union is the agent of AFGE for the purpose of representing those unit

employees assigned to Respondent's Region 5. Id. As relevant to this case, there was a

National Agreement between AFGE and the Respondent that became effective on August 15,

2005, and which, in Article 25, provided for the referral of unresolved grievances to

arbitration. Resp. Ex. 1. AFGE and the Respondent also entered into a "Side Bar"

1

After the hearing, the GC filed a Motion to Correct the Transcript, which the Respondent did not

oppose. Upon my own review of the transcript, I grant the GC's motion, except with respect to

page 31. Accordingly, the transcript is hereby corrected as follows:

P.12, l.25 is changed from "Cortsmith (ph.)" to "Portsmouth";

P.14, l.1 is changed from "-" to "Canteen";

P.14, l.22 is changed from "essence" to "sense";

P.15, l.5 is changed from "part of the hearing" to "at the prehearing";

P.18, l.24 is changed from "eligibility" to "arbitrability";

P.23, l.21 is changed from "in the tele-service" to "and the teleservice";

P.100, l.3 is changed from "exclusively" to "exactly".


3

agreement with respect to Article 25 that, among other things, established time limits for

specified actions pertaining to arbitration and provided that if the time limits were not met,

the grievance involved was "withdrawn." 2 Resp. Ex. 2.

In February 2008, the Union filed a grievance on behalf of employee Denise Canfield.

Tr. 24; G.C. Ex. 2. The grievance was not resolved, and by memorandum dated June 30,

2008, the Union invoked arbitration. Tr. 25; G.C. Ex. 3. By memorandum dated July 2,

2008, the Union requested that an arbitrator be assigned. Tr. 26; G.C. Exh. 4. When a

significant period of time went by and the Union representative handling the Canfield

grievance, Charlotte Lewis, heard nothing regarding the assignment of the arbitrator, she sent

an email dated March 12, 2009, to the Union's arbitration committee chair, Stanley

Birnbaum, to inquire about the status of the case. Tr. 27-28; G.C. Ex. 5. By email of the

same date, Birnbaum responded that arbitrator Steven Rutzick had been assigned on July 16,

2008. G.C. Ex. 5.

By emails dated March 17 and 20, 2009, Lewis asked the Agency to provide her with

contact information for the Agency representative assigned to the Canfield case, and was

advised that the representative was Mary Thorson. G.C. Ex. 6. Lewis testified she tried

2

The Side Bar agreement (Resp. Ex. 2) provides, in relevant part:

The Parties agree to the following sunset provisions for arbitration:

...

Invocations after the effective date of the new agreement-1 year to schedule

from the assignment of the arbitrator and heard within 1 year thereafter or

grievance is withdrawn.

The timeframes are not applicable if the parties mutually agreed to extend the timeframes or

due to circumstances beyond the parties' control (i.e., illness of the arbitrator, weather-related

problems).

If a hearing is delayed by:

a. the Agency's failure to participate in the timely scheduling of the hearing, the

Union may proceed in accordance with Section 4 of Article 25 with an

additional six months to do so.

b. the Agency's failure to present its case on the scheduled date, the parties

agree that the case will be rescheduled and heard within one year.

Section 4 of Article 25 (Resp. Ex. 1) provides:

Should either party refuse to participate in arbitration, the other party may present the case to

the next arbitrator in the rotation, who shall have authority to render a decision.


4

unsuccessfully to contact Thorson by telephone twice, once in late March when she left no

message and once in late April when she left a voice mail message consisting of her name

and telephone number and few, if any, other details. Tr. 34-36, 65-66. Lewis heard nothing

from Thorson, and her next attempt to reach Thorson consisted of an email dated June 29,

2009, in which she informed Thorson she wanted to coordinate dates for the arbitration in the

Canfield case. Tr. 37, 66; G.C. Ex. 7. In response to her June 29 email, Lewis received an

"out of office" response identifying two individuals who could be contacted for assistance

during Thorson's absence. G.C. Ex 7 at 2. On or about July 6 or 7, Lewis telephoned David

Skidmore, one of the alternative contacts for Thorson, and left a message for him to call her.

Tr. 39-40. Lewis was then out of the office for a period, and when she returned on July 22

there was a message awaiting her that Skidmore had returned her call. Tr. 43-44. Lewis

called Skidmore and learned that Thorson's absence was being extended because of medical

reasons and her case load might have to be reassigned. Tr. 44-45. During this telephone

conversation, Lewis made known to Skidmore that she was trying to schedule the Canfield

case for hearing. Tr. 45. Lewis sent an email dated July 23, 2009, to Skidmore that she

characterized as confirming her discussion with him. G.C. Ex. 8.

By email dated July 27, Lewis was contacted by Michael Feinstein, who identified

himself as the person covering Thorson's workload until her return to the office, which was

expected to occur by the end of August. G.C. Ex. 9. An email exchange between Lewis and

Feinstein followed in which they discussed the possibility of settlement negotiations

regarding the Canfield grievance. G.C. Ex. 9, 10.

In an email dated August 11, 2009, Ruth Bless, a Team Leader in the Agency's Labor

and Employee Relations office informed Lewis that because an arbitrator had been assigned

to the Canfield case on July 16, 2008, and no hearing was yet scheduled, the case had "sunset

and the grievance has been closed." G.C. Ex. 11. According to Lewis's unrebutted

testimony, she had an exchange of emails with Bless in which she disagreed with Bless's

view regarding the continued existence of the grievance. Tr. 51-52.

In early September 2009, Lewis renewed email communication with Thorson, who

had returned to the office, requesting to discuss possible dates for the arbitration hearing.

Tr. 53-54; G.C. Ex. 12. Thorson responded by email dated September 10, 2009, asserting

that pursuant to the Side Bar agreement to Article 25, scheduling of the arbitration hearing

should have occurred by July 16, 2009, and because it didn't the grievance was withdrawn.

G.C. Ex. 13. Lewis responded, contending that in view of her efforts prior to July 16 to

schedule a date for the arbitration hearing, she did not agree the case had "sunset." G.C.

Ex. 14. When Thorson refused to change her position, Lewis emailed Donna Calvert, whom

she identified as either the director or deputy director of the Office of General Counsel at the


5

Agency, and sought her assistance in scheduling a hearing. Tr. 57; G.C. Ex. 16. Calvert,

however, supported Thorson's position that the arbitration hearing in the Canfield grievance

had not been timely scheduled. G.C. Ex. 17, 19.

Lewis's next step was to contact Steven Rutzick, the arbitrator assigned to the

Canfield grievance, by email dated October 1, 2009, and request a list of dates on which he

would be available to conduct the hearing. G.C. Ex. 20. Rutzick responded, providing a list

of possible hearing dates. Id. Lewis then emailed Thorson, informing her of the contact with

Rutzick and asserting that although the Union believed the arbitrability of the case was

not in question, any threshold issue could be decided at the onset of the hearing. G.C. Ex. 21.

Lewis then contacted Rutzick and informed him that although she wanted to set a hearing

date, the Agency was refusing to participate. G.C. Ex. 22. Lewis sent a copy of this email to

Thorson. Id.

Lewis testified that following this email to Rutzick she had a telephone conversation

with Thorson, in which they went "back and forth about the merits of the case[.]" Lewis took

the position that "we should be able to let the arbitrator decide whether or not there is an

issue of timeliness," while she described Thorson's position as that "she didn't agree and

that she was drafting a letter in response to the arguments that I have raised and basically to

reaffirm the Agency's position." Tr. 64. Lewis never received a letter from Thorson, and the

Union did not take any further action to schedule the arbitration. Tr. 65, 79-80.

The Side Bar agreement to Article 25, which lies at the heart of the Agency's defense

in this case, originated in conjunction with the negotiations on a National Agreement between

the Agency and AFGE that became effective in August 2005. Tr. 88-90; 104-06. Both an

Agency witness, Ralph Patinella, and a Union witness, Agatha Joseph, who were involved in

the negotiation of that Side Bar agreement, testified that it was negotiated in response to the

existence of a backlog of grievances, some of which had been pending arbitration for a

considerable period of time -- over 25 years according to Patinella and "maybe 10 years or

more" according to Joseph. Tr. 90, 106. According to Patinella, the Agency's intent in

seeking what became the Side Bar agreement was to establish a limit on the length of time a

grievance could continue to exist without going through an arbitration hearing. Tr. 90.

Joseph portrayed the Side Bar as an effort to reduce the number of grievances pending

arbitration as well as move cases "through the pipeline." Tr. 105-06. Patinella characterized

the Side Bar as a "sunset" provision and asserted the parties understood the phrase "or the

grievance is withdrawn" to mean that the grievance was "gone" and arbitration was

effectively waived. Tr. 90, 92-93. Joseph did not provide any testimony regarding the

parties' understanding of the effect a failure to meet the time frames established in the Side

Bar agreement would have on the continued viability of the grievance or arbitration.


6

DISCUSSION AND CONCLUSIONS

Positions of the Parties

General Counsel

The GC alleges the Respondent failed to proceed to arbitration on the Canfield

grievance as it was required to do under the Statute and, consequently, violated section

7116(a)(1) and (8) of the Statute.

The GC argues that pursuant to section 7121 of the Statute, questions of abitrability

must be submitted to an arbitrator for resolution, unless the parties to the collective

bargaining agreement involved mutually agree otherwise. Dep't of the Navy, Portsmouth

Naval Shipyard, Portsmouth, N.H., 11 FLRA 456, 457 (1983)(Navy, Portsmouth); U.S.

Environmental Protection Agency, Region IV, Atlanta, Ga., 5 FLRA 277, 279 (1981). The

GC contends that the issue of whether the Union timely pursued arbitration of the Canfield

grievance is one of procedural arbitrability: under the Statute, parties are not permitted to

unilaterally decide such issues, but rather they must submit them to an arbitrator for

resolution.

The GC disputes the Respondent's claim that there was no statutory violation because

(1) it cooperated in the arbitration proceedings until the point at which it contends the

grievance ceased to exist, and (2) the Union could have proceeded to arbitration ex parte.

With respect to the first point, the GC argues that the Agency's statutory obligations under

section 7121 are not satisfied by partial cooperation in the arbitration process; rather, it must

cooperate through the arbitration hearing itself. With respect to the second point, the GC

contends that under the Statute both parties are required to proceed to arbitration on

arbitrability questions, regardless of whether either party has the option of proceeding ex

parte.

As a remedy, the GC seeks an order requiring the Respondent to proceed to

arbitration in the Canfield grievance and post a notice to employees.

Respondent

The Respondent contends that it had no obligation to participate in the arbitration

hearing, because the grievance had been withdrawn by operation of the Side Bar agreement.

In support of this contention, the Respondent submits that the Union's failure to schedule the

arbitration hearing in the Canfield grievance within the time limit established by the Side Bar

agreement resulted in the automatic withdrawal of the grievance. The Respondent maintains

that it participated in the arbitration process up until the grievance was withdrawn, but once

withdrawal occurred, it had no obligation to participate further. The Respondent also asserts


7

that, in any event, its failure to participate in the arbitration hearing did not hinder the

arbitration process, because the Union retained the ability to schedule and hold the arbitration

hearing unilaterally.

While the Respondent acknowledges there is case law requiring parties to submit

questions of arbitrability to arbitration, it argues that case law is not applicable in

circumstances where the grievance involved has been withdrawn. Relying on the use of the

term "withdrawn" rather than "non-arbitrable" in the Side Bar, the Respondent argues that

the grievance ceased to exist, and accordingly it had no duty to process it further. The

Respondent asserts that the Union waived any right it had to pursue arbitration of the

Canfield grievance, both by its agreement to the Side Bar language regarding "withdrawal"

and by its failure to meet the time limits specified in the Side Bar for scheduling the hearing.

The Respondent maintains that the waiver is clear under the terms of the Side Bar agreement,

and that both parties negotiating it understood that failure to meet the established timeframes

would mean the grievance was withdrawn and arbitration waived.

The Respondent also argues that requiring it to go to arbitration on a case that has

been withdrawn, or has "sunset," would defeat the purpose of that agreement and be a waste

of government funds. The high cost of arbitrations was a significant reason for negotiating

the Side Bar, and in order to effectuate the agreement, the delaying party must lose the right

to even have a hearing.

Analysis

Section 7121(a) of the Statute requires that collective bargaining agreements contain

"procedures for the settlement of grievances, including questions of arbitrability." Section

7121(b)(1)(C)(iii) requires all negotiated grievance procedures to include procedures that

"provide that any grievance not satisfactorily settled under the negotiated grievance

procedure shall be subject to binding arbitration which may be invoked by either the

exclusive representative or the agency." Virtually from its inception, the Authority has

interpreted these provisions as requiring all questions of arbitrability not otherwise resolved

to be submitted to arbitration. See, e.g., Interpretation and Guidance, 2 FLRA 274, 278-79

n.7 (1979). Moreover, since its decision in Dep't of Labor, Employment Standards

Admin./Wage and Hour Div., Washington, D.C., 10 FLRA 316 (1982)(Labor, ESA), the

Authority has repeatedly held that a party refusing to participate in procedures for the

resolution of grievances, including questions of arbitrability, violates section 7116(a)(1) and

(8) of the Statute. See, e.g., Dep't of the Air Force, Langley AFB, Hampton, Va., 39 FLRA

966, 969 (1991)(Langley AFB).


8

With one exception not relevant here, 3 the Authority consistently has rejected

attempts by parties to carve out exclusions from the rule that parties must submit all

questions of arbitrability to arbitration and participate in the arbitration proceedings. See,

e.g, Langley AFB, 39 FLRA at 969; Navy, Portsmouth, 11 FLRA at 456-57. In applying this

rule, the Authority has rejected arguments that a matter is so clearly nonarbitrable that it

would be a waste of everyone's time and money to arbitrate a grievance; to the contrary, the

Authority has said that a refusal to proceed to arbitration may not be justified by a party's

contention, "however arguable or reasonable, that the parties intended . . . the grievance to be

excluded from the coverage of the . . . arbitration procedures." Langley AFB, 39 FLRA

at 969. Moreover, it is error for an Administrative Law Judge to usurp the role of the

arbitrator and resolve a question of arbitrability. See Navy, Portsmouth, 11 FLRA at 457.

In this case, the question of whether the Canfield grievance was, as the Agency

claims, effectively withdrawn as a consequence of the arbitration hearing not being scheduled

in the prescribed time is one of procedural arbitrability that should be resolved by the

arbitrator. See Labor, ESA, 10 FLRA at 321 (dispute over whether the request for arbitration

was untimely was an arbitrability question that could properly be placed before an arbitrator);

see also Harry S. Truman Memorial Veterans Hospital, Columbia, Mo., 6 FLRA 565

(1981)(Harry Truman Hospital). That is, consistent with the general rule described above,

and under section 7121 of the Statute, the effect of the Union's actions in pursuing the

Canfield grievance was an arbitrability question that should be submitted to arbitration,

regardless of how reasonable or obvious the Agency's position may seem. See Navy,

Portsmouth. The use of the word "withdrawn" does not convey an automatic presumption of

nonarbitrability. For instance, in Harry Truman Hospital, 6 FLRA at 566-67, an arbitrator

held that the agency was entitled to pursue a grievance to a hearing even after the union had

withdrawn it, and the Authority held that the arbitrator acted properly in doing so.

The evidence establishes that the Agency initially participated in the Union's efforts

to arrange for arbitration of the Canfield grievance. There came a point, however, when the

Agency took the position that the grievance had been withdrawn. This generated a debate

between the Agency and the Union over who was at fault for the delay in scheduling the

arbitration hearing, and the consequences of the delay under the Side Bar agreement.

Although no Agency representative stated, in so many words, that they refused to schedule or

participate in an arbitration hearing, it is clear from the Agency's communications with

Ms. Lewis beginning in August 2009 that it considered the grievance "closed" and that it

3

That exception involves matters that are excluded from arbitration by statute. See Director of

Admin., Headquarters, U.S. Air Force, 17 FLRA 372 (1985), involving the termination of a

probationary employee, and Veterans Admin. Central Office, Washington, D.C., 27 FLRA 835 (1987),

involving an adverse action against a Title 38 nurse. In the former decision, the Authority stated that

the "case presents no threshold question or any other question of interpretation or statutory

construction which can legitimately be resolved by an arbitrator." 17 FLRA at 375.


9

would take no further action to resolve the matter. G.C. Ex. 11, 13, 15, 17, 19. The Union

offered to have the arbitrator decide the arbitrability issue as a threshold matter (G.C. Ex. 22,

23), but the Agency failed to respond to that offer. The Respondent does not deny that it

refused to arbitrate: indeed, it argues in its pleadings that it "had no obligation to participate

in the arbitration" and that "it would be improper for the agency to submit the issue of

whether the grievance was withdrawn to an arbitrator as that would defeat the intent of the

agreement." Resp. Post-Hearing Brief at 9.

In its defense, the Respondent essentially argues that the terms of the Side Bar

permitted the action it took in refusing to participate further in the arbitration of the Canfield

grievance once the deadline for holding an arbitration hearing passed. In this regard, the

Respondent asserts that when the terms of the Side Bar are applied, the Union's failure to

timely schedule a hearing constituted a waiver of its right to take the Canfield grievance to

hearing. In Internal Revenue Serv., Washington, D.C., 47 FLRA 1091 (1993)(IRS), the

Authority adopted a framework for resolving unfair labor practices in which the "underlying

dispute is governed by the interpretation and application of specific provisions of the parties'

collective bargaining agreement[.]" 47 FLRA at 1103. In IRS, the Authority stated that

when a respondent claims that a specific provision of the collective bargaining agreement

permits its actions alleged to constitute an unfair labor practice, the Authority, and its

Administrative Law Judges, will determine the meaning of the parties' collective bargaining

agreement and resolve the unfair labor practice complaint accordingly. Id. The Authority

further stated in IRS that, in such cases, once the General Counsel makes a prima facie

showing that a respondent's actions violate the Statute, the respondent may rebut the GC's

showing by establishing by a preponderance of the evidence that the collective bargaining

agreement allowed the respondent's actions. Id. at 1110. Further, we apply "the same

standards and principles in interpreting collective bargaining agreements as applied by

arbitrators in both the Federal and private sectors and the Federal courts . . . ." Id. at 1110-11.

I find that the GC has made a prima facie showing that the Respondent unlawfully

refused to participate in arbitration of the Canfield grievance, which would have included the

question of the arbitrability of the grievance. As discussed above, the record as a whole

shows the Agency rebuffed efforts the Union made with respect to submitting the grievance,

including the arbitrability question, to arbitration. Also, as discussed above, parties are

generally required to submit unresolved arbitrability questions to arbitration. The

Respondent's actions thus violated the Statute, unless the Respondent can demonstrate that

the collective bargaining agreement permitted it to do so.

In asserting that the Side Bar to Article 25 permitted its refusal to proceed to

arbitration, the Respondent cites what it characterizes as the "clear language" of the Side Bar

and testimony regarding the bargaining history of that provision. While the Side Bar may be

clear in stating that a grievance is withdrawn if it is not scheduled within a year of the


10

assignment of the arbitrator, it also gives the Union additional time if the delay is due to the

"Agency's failure to participate in the timely scheduling of the hearing[.]" Resp. Ex. 2.

Ms. Lewis argued that Agency officials contributed to the delay by failing to answer her

messages and requests for hearing dates in a timely manner. G.C. Ex. 14, 16, 18. The parties

disagreed as to whether the grievance remained timely, but the Side Bar itself offers no clue

as to how a timeliness dispute such as this should be resolved. Or, to phrase it in terms of the

Respondent's argument, the Side Bar does not describe the consequences of the alleged

withdrawal of a grievance. Neither explicitly nor implicitly does it provide that the Agency

may unilaterally cease participating in a grievance it believes to have been withdrawn. In

other words, while the Side Bar agreement sets out a one-year time limit for scheduling an

arbitration hearing, it does not provide a means of resolving a timeliness dispute. Instead, it

is Article 25 itself, and section 7121 of the Statute, which establish arbitration as the means

of resolving such a dispute.

Accordingly, while the Side Bar to Article 25 provides the Agency a basis for arguing

that the grievance is no longer arbitrable, it does not provide a basis for distinguishing such

an arbitrability issue from any other arbitrability dispute that might arise. Nothing in Mr.

Patinella's testimony sheds any light on the actual intent of the negotiating parties concerning

how a dispute regarding the application of the Side Bar's time deadlines would be resolved.

While Patinella testified that the Union negotiators agreed with his interpretation of the term

"withdrawn," his conclusion was not supported in any way, either from the contents of the

agreement or any extrinsic evidence. The Agency has provided no evidence, let alone a

preponderance of the evidence, to establish that the collective bargaining agreement allowed

it to refuse to arbitrate the Canfield grievance.

My review of the contractual language in the above paragraphs is not intended as a

comment in any way on the merits of either party's position as to whether the Canfield

grievance is arbitrable. That issue is not before me, and indeed it can only be resolved by the

arbitrator chosen by the parties. Even if the Agency is correct in its interpretation of the Side

Bar language, it offers no mechanism for resolving the disputed language other than

unilateral refusal to participate further. That is not a method of resolution, but instead an

imposition of fiat. This is incompatible with the language of section 7121 of the Statute and

its case law. Moreover, the evidence does not demonstrate that the parties' dispute over the

meaning of the term "withdrawn" is any different from other disputes in interpreting

collective bargaining agreements. Frequently, each party considers its own reading of the

agreement to be "clear" or "obvious," and feels that a drawn-out arbitration process will be

needlessly expensive. But it is by means of arbitration that the Statute requires parties to

resolve their disputes, including disputes over arbitrability. The only proper method for the

Agency to pursue its understanding of the "sunset" rules of the Side Bar agreement is to

argue before the chosen arbitrator that the grievance is no longer arbitrable. This is equally

true, regardless of whether the dispute is over subject matter arbitrability or procedural

arbitrability.


11

Finally, it is irrelevant that the Union could have proceeded to arbitration even

without the Respondent. Since its decision in Labor, ESA, 10 FLRA at 320-21, the Authority

has consistently held that a party's refusal to participate in the procedures for settlement of

grievances violates section 7116(a)(1) and (8), even if the other party had the right to proceed

to arbitration ex parte.

For all of these reasons, I find the Respondent refused to proceed to arbitration

concerning the Canfield grievance, and thereby violated section 7116(a)(1) and (8) of the

Statute.

Accordingly, I recommend that the Authority issue the following Order:

ORDER

Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section

7118 of the Federal Service Labor-Management Relations Statute (the Statute), it is hereby

ordered that the Social Security Administration (the Respondent) shall:

1.

Cease and desist from:

(a) Failing or refusing to proceed to arbitration concerning the grievance filed

by the American Federation of Government Employees, Local 1395, AFL-CIO (the Union)

on behalf of Denise Canfield.

(b) In any like or related manner, interfering with, restraining, or coercing its

employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and

policies of the Statute:

(a)

Upon request of the Union, proceed to arbitration concerning the grievance

filed on behalf of Denise Canfield.

(b)

Post at its facilities throughout the Social Security Administration Great