AFGE-SSA ARBITRATION PANEL 7

In the Matter of the Arbitration between

AFGE LOCAL 3627,

Union,
Grievance No. AT-2013-E-0001
and

SSA, OFFICE OF DISABILITY

ADJUDICATION AND REVIEW,
Agency.
______________________________/

OPINION OF THE ARBITRATOR

August 31, 2013

After a Hearing Held August 28, 2013

At SSA ODAR Hearing Offices, 1927 Thurmond Mall Boulevard, Columbia, SC

For the Union: For the Agency:

April Lott, Executive Vice President Christopher D. Yarbrough

AFGE Local 3627 Assistant Regional Counsel
122 Westerfield Drive Office of the General Counsel, Region IV
Goose Creek, SC 29445 Social Security Administration
Carl L. Warren, President, Local 3627 61 Forsyth Street, SW, Suite 20T45
5493 Carriage Woods Court Atlanta, GA 30303
Mobile, AL 36618
 Factual Background of Arbitration

As in Akira Kurosawa’s 1950 film, Rashomon, various characters in this case

provide alternative versions of the same incident. On April 30, 2013, Grievant was

given a reprimand that stated in pertinent part:

The repercussions of your [email to the Atlanta Regional Office] were that
numerous employees being interrupted from doing their work to deal with the
email you sent. This resulted in work stoppages at many levels. …

Your behavior shows a history of inappropriately contacting both regional and

central office staff regarding ODAR [Office of Disability Adjudication and
Review of the Social Security Administration (“Agency”)] office policies,
procedures and operations, and personnel issues, in spite of repeated directives
not to do so.

AX B.

No grievance was filed over the reprimand but, on July 26, 2012, Grievant filed

an unfair labor practice (“ULP”) charge against the Agency, with the Federal Labor

Relations Authority (“FLRA”), complaining, inter alia, about the reprimand. AX A,

FLRA Case No. AT-CA-12-0545. At the arbitration hearing, no evidence was

presented as to the status of Grievant’s FLRA case.

In response to Grievant’s ULP charge, the FLRA sent a letter, dated August 3,

2013, and conspicuously addressed to the Associate Commissioner, Office of Labor-

Management and Employee Relations, Social Security Administration, Baltimore,

Maryland, and to Grievant at the Agency’s offices in Columbia, South Carolina. The

letter twice stated in bold that information supporting the charge must be received by

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the FLRA by August 13, 2012. The letter included contact information for the FLRA

Agent assigned to the case and told Grievant to direct any questions to her. The portion

of the letter most pertinent to this arbitration is the last paragraph:

The General Counsel encourages parties to informally resolve unfair labor

practice charges, and the assigned Agent is available to assist the parties in
resolving this matter. I have enclosed a question and answer sheet that gives
information about the General Counsel’s dispute resolution services.

AX A; emphasis supplied.

On the FLRA’s website appear this question and answer:1

I have a filing due tomorrow and I need an extension of time. What can I do?

Requests for an extension of time must be received by the Authority five days
before the date on which the document is due, as explained in section 2429.23
of the Authority’s Regulations. Requests received within five days of the date a
document is due or after the due date of the document may be granted only if
the requesting party can establish extraordinary circumstances for the lateness of
the request itself, as well as good cause for the extension of the deadline. Both
the request for waiving the five-day rule and the request for an extension of time
must be made in writing and include the positions of the other parties. The
request must be served on the other parties.

UX A; emphasis supplied.

On August 8, 2012, Grievant initiated the following sequence of emails, all of

which are included in AX C:

From: Grievant
To: Grievant’s supervisor
Cc: Acting Head of Department

I am requesting time to prepare for FLRA. I just realized that I have until Monday to

1
http://www.flra.gov/cip_faq_8

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submit my information. I am requesting time today and tomorrow to gather my
information, etc.

From: Grievant’s supervisor

To: Grievant
Cc: Acting Head of Department

You are scheduled for front desk back up today and J[] isn’t here, so you are needed at
the front desk today. I will advise you later when you may have time to prepare.

From: Grievant
To: Associate Commissioner, OLMER, SSA, Baltimore
Cc: Acting Head of Department; AFGE Local 3627 Executive Vice President; Chief
Administrative Law Judge, Columbia

I just realized that I have until 8/13/12 to submit my information to FLRA. I have
requested time to prepare for today and tomorrow, just a few hours. I also just realized
that I am scheduled to work the front desk. I have only today and tomorrow to submit
information to FLRA.

Since my letter [AX A] included your name and my name on the request for
information, I am requesting time to submit my information. …

From: Grievant
To: Associate Commissioner, OLMER, SSA, Baltimore
Cc: Acting Head of Department; AFGE Local 3627 Executive Vice President; Chief
Administrative Law Judge, Columbia

CORRECTION:

It should have stated that I am requesting guidance. [My supervisor] asked me about
the amount of time needed.

On August 9, 2012, Grievant sent the following email:

From: Grievant
To: FLRA Agent
Cc: Author of FLRA letter, AX A

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My goal was to get all of the pertinent information to you by August 13, 2012, but the
regulations and/or procedures are within the office and this has been the only day and
time I have had to retrieve documents referenced in my case.

I will need to request an extension, an additional 10 days) to prepare and submit

evidence reference the above subject case. Request permission to provide my response
no later than August 23, 2012. …

The other party to Grievant’s FLRA ULP charge, the Associate Commissioner, was

not copied on Grievant’s request for an extension of time.

On September 18, 2012, Grievant’s supervisor issued a proposal to suspend

Grievant for 3 days:

CHARGE: Failure to follow a directive.

SPECIFICATION: On August 8, 2012, you sent an email to … Associate

Commissioner/OLMER regarding down time to prepare materials for your
FLRA complaint.

DISCUSSION: We had a Weingarten meeting on September 14, 2012,2 with

you and your union representative via phone. The purpose of the meeting was to
ascertain why you failed to follow the chain of command on August 8, 2012, as
directed in the reprimand issued April 30, 2012. You stated that a letter you
received from FLRA had [the Associate Commissioner’s] name next to yours,
so you emailed him and FLRA because you wanted to question [the Associate
Commissioner] about who was to assist you with your FLRA complaint.

JX 2A. The supervisor addressed relevant Douglas factors,3 but concluded that

Grievant’s “potential for rehabilitation is minimal”.

Grievant’s Union, Local 3627 of the American Federation of Government

2
NLRB v Weingarten, 420 US 251 (1975). Footnote by arbitrator.
3
Douglas v Veterans Administration, 5 MSPB 313, 5 MSPR 280 (1981). The arbitrator analyzed Douglas factors at length
in AFGE Local No. 1770 and Dept of the Army, 103 FLRR-2 33, 102 LRP 34100; 103 FLRR-2 81, 103 LRP 812 (Arb
2002); exceptions den, 58 FLRA 156, 103 FLRR-1 14, 102 LRP 31624.

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Employees, responded to the Agency’s proposal on September 27, 2012, claiming that

Grievant simply had made an honest mistake in contacting the SSA Associate

Commissioner named in the FLRA letter, instead of the FLRA Agent assigned to her

case. JX 2B. The Hearing Office Director in Columbia sustained the charge on

October 12, 2012, stating that “[t]he effective date of this suspension will be October

22, 2012.” JX 2C.

The Union filed a grievance on October 15, 2012, JX 2D, alleging violation of

the “just cause” provision in Article 23, Section 1 of the National Agreement between

the American Federation of Government Employees (AFGE) and Social Security

Administration, JX 1. The Union also claimed violation of Article 9, Section 1A,

which “requires the Agency to provide a safe and healthy work environment.” The

Union sought rescission of the 3-day suspension and removal of all documentation

relating to the suspension. The Regional Chief Administrative Law Judge upheld the

suspension on October 29, 2012. JX 2E.

The Stipulated Issue

Whether the Agency violated Article 23 of the 2012 AFGE/SSA National

Agreement or any other law, rule, or regulation when it issued a 3 day suspension

without just cause to [Grievant] for failing to follow a directive? If so, what is the

remedy?

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 Analysis

Grievant is a GS-8, step 7, senior claims technician. There is no evidence that

she has any training or experience with FLRA filings. Under Article 3, Section 2.M of

the 2012 AFGE/SSA Agreement, Grievant had the right to file a ULP charge with the

FLRA. The Union president testified that it is rare for an employee acting alone to

make such a filing.

To the arbitrator, the Agency is drawing too fine a distinction between Grievant

preparing her FLRA case in her SSA office on SSA time, and seeking an extension of

time for filing from the FLRA. The two aspects of the process are too related to

separate. When viewed in context, Grievant was running out of time and needed more.

The FLRA website expressly states that Grievant had to notify the other party of her

request for an extension, so she had to contact the Associate Commissioner of SSA in

the process. The fact that she initially contacted the Associate Commissioner by

mistake, instead of the FLRA Agent, does not provide just cause for suspending her for

3 days.

However, finding Grievant’s suspension improper does not mean that she is

entitled to all the relief requested. She is an employee who wastes a lot of upper

management’s time. Even after counseling and a blunt written reprimand for not first

acting locally, it is unclear that she has gotten the message. If she contacted AFGE

higher-ups with her every complaint, no doubt they would be frustrated too. For these

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reasons, the arbitrator declines to direct that information about her suspension be

removed from her personnel files. If it hangs over her like a sword of Damocles, so be

it.

Award

The grievance is SUSTAINED insofar as the 3-day suspension is concerned.

________________________________
E. Frank Cornelius, PhD, JD, Arbitrator

Dated August 31, 2013