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
Lakes Region, where bargaining unit employees represented by the Union are located, copies
of the attached Notice on forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the Regional Commissioner, Social
Security Administration, Region 5, and shall be posted and maintained for 60 consecutive
days thereafter, in conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be taken to ensure that
such Notices are not altered, defaced, or covered by any other material.
12
(c)
Pursuant to section 2423.41(e) of the Authority's Rules and
Regulations, notify the Regional Director, Chicago Region, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order, as to what steps have been
taken to comply herewith.
Issued, Washington, D.C., October 20, 2010.
RICHARD A. PEARSON
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Social Security Administration
violated the Federal Service Labor-Management Relations Statute (the Statute), and has
ordered us to post and abide by this Notice.
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to proceed to arbitration concerning the grievance filed by the
American Federation of Government Employees, Local 1395, AFL-CIO, on behalf of Denise
Canfield.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our
employees in the exercise of their rights assured by the Statute.
WE WILL proceed to arbitration concerning the grievance filed by the American Federation
of Government Employees, Local 1395, AFL-CIO, on behalf of Denise Canfield.
(Agency/Activity)
Dated: ___________________
By:_____________________________________
(Signature)
(Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must
not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director, Chicago Region,
Federal Labor Relations Authority, whose address is: 55 W. Monroe Street, Suite 1150,
Chicago, IL 60603, and whose telephone number is: (312)886-3465.
CERTIFICATE OF SERVICE
I hereby certify that copies of this DECISION, issued by RICHARD A. PEARSON,
Administrative Law Judge, in Case No. CH-CA-10-0091, were sent to the following parties:
CERTIFIED MAIL & RETURN RECEIPT
CERTIFIED NOS:
Susanne S. Matlin, Esq.
Counsel for the General Counsel
Federal Labor Relations Authority
55 W. Monroe Street, Suite 1150
Chicago, IL 60603
7004-1350-0003-5175-4052
Catherine M. Six, Esq.
Management Representative
Social Security Administration, OLMER
2170 Annex Building
6401 Security Boulevard
Baltimore, MD 21235
7004-1350-0003-5175-4069
Charlotte Lewis
Administrative Field Office Director
AFGE, Local 1395
c/o Social Security Administration
104 S. Halsted Street
Chicago Heights, IL 60411
7004-1350-0003-5175-4076
REGULAR MAIL:
President
AFGE, AFL-CIO
80 F Street, N.W.
Washington, DC 20001
__________________________
Catherine Turner
Office of Administrative Law Judges
Federal Labor Relations Authority
Dated: October 20, 2010
Washington, DC