UNITED STATES OF AMERICA
BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY
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Local 2505, American Federation of Government Employees, AFL-CIO
(AFGE, Local, Union)
PETITIONER
And
Social Security Administration,
District Office
Bartlesville, Oklahoma
(SSA, AGENCY)
FLRA No. O-AR-____
Grievance /Arbitration Case No. DF-2007-R-0005
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THE UNION’S EXCEPTIONS TO THE
AWARD OF ARBITRATOR PATRICK HALTER
DATED JULY 1, 2008
Respectfully submitted,
_____________ _________________________
DATED Ralph C. de Juliis, President
AFGE Local 2505
c/o Social Security Administration
4750 South Garnett Road
Tulsa, OK 74146-5233
Tel. No.: 918-781-3063
Fax No.: 918-641-2466
I. JURISDICTION
Pursuant to the regulations of the Federal Labor Relations Authority (or, Authority) at 5 C.F.R. § 2425.1 and § 2425.3, Local 2505 of the American Federation of Government Employees (AFL-CIO) submits the following exceptions to the Opinion and Award of Arbitrator Patrick Halter dated July 1, 2008. (Attachment A.)
II. STATEMENT OF THE CASE / BACKGROUND
This case concerns the Arbitrator’s Award on a Union-Management Grievance filed by Local 2505 of the American Federation of Government Employees (AFL-CIO) concerning the dues withholding of Union member Peggy H. Hutcherson who transferred from Houston, Texas into the jurisdiction of Local 2505.
Local 2505 filed the Union-Management grievance on December 28, 2006 (Attachment B) under Article 24, Section 10, of the National Agreement between American Federation of Government Employees, AFL-CIO and Social Security Administration dated August 15, 2005 (Attachment C). Local 2505 claimed that
(1) SSA failed to provide the Union with contractually required notice of an employee transferring into the jurisdiction of Local 2505, a violation of Article 6,[1]
(2) SSA failed to provide the Union with contractually required notice of a formal meeting (orientation) with an employee transferring into the jurisdiction of Local 2505, a violation of Article 11, and
(3) SSA committed an Unfair Labor Practice, a violation of 5 USC 71 and a violation of Articles 1 and 2 by failing to give the Union advanced notice of the formal meeting (orientation) which SSA in Bartlesville, OK had with Ms Hutcherson upon her reporting for duty in Bartlesville.
Local 2505 invoked arbitration on February 16, 2007. Arbitrator Halter was assigned to hear this case on February 21, 2007. The hearing was held in Tulsa, Oklahoma on June 25, 2008. There were no arbitrability issues. The parties made closing arguments and did not submit post-hearing briefs. There was no transcript.
The parties did not agree on the issue. Arbitrator Halter framed the issue as follows:
Did the Agency violate Articles 1, 2, 6 and 11 in the 2005 National Agreement? If so, what is the appropriate remedy?
On July 1, 2008, Arbitrator Halter mailed his “Award: The grievance is denied.”
III. ISSUES BEFORE THE AUTHORITY
A. Arbitrator Halter’s Award fails to draw its essence from the agreement.
B. Arbitrator Halter’s Award is based on a nonfact.
IV. ARGUMENT
A. In United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990), the Authority wrote:
The Authority will find an award deficient as failing to draw its essence from a collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
Arbitrator Halter wrote in Findings and Conclusions, page 5:
By meeting with employees as the Agency did prior to this grievance, SSA engaged in activity that violated Article 11 and resulted in derivative violations of Article 1 and Article 2.
Arbitrator Halter, having framed the issue: “Did the Agency violate Articles 1, 2, 6 and 11 in the 2005 National Agreement?” and having found in his Findings and Conclusions that SSA violated Articles 11 and Article 1 and 2, the Arbitrator’s findings were tantamount to a conclusion that SSA had violated Articles 1, 2 and 11. This result does not comport with the Arbitrator’s subsequent “Award: The grievance is denied.”
Therefore, the Arbitrator’s award is deficient insofar as it fails to draw its essence from the agreement and the award must be set aside.
This is the basis and rationale used by the Authority in Dept. of Justice, INS, Del Rio Border Patrol Sector and AFGE Nat'l Border Patrol Council, Local 2366, 45 FLRA 926 (1992) to set that award aside:
The Arbitrator framed the issue as follows: "Was the disciplinary action taken against the grievant for just and sufficient cause and only for such reasons as will promote the efficiency of the [S]ervice? If not, what shall be the appropriate remedy?"
As we stated above, the Arbitrator's findings were tantamount to a conclusion that there was just and sufficient cause under the parties' agreement to sustain the grievant's suspension. This result does not comport with the Arbitrator's subsequent decision to set aside the discipline based on what the Arbitrator viewed as an inappropriate charge. In our view, the award setting aside the discipline cannot be derived rationally from the parties' agreement and evidences a disregard for the agreement. Therefore, we conclude that the award is deficient insofar as it fails to draw its essence from the agreement and the award must be set aside....
B. In Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Local 362, 58 FLRA 405, (March 31, 2003), the Authority wrote:
Arbitrator Halter, having framed the issue: “Did the Agency violate Articles 1, 2, 6 and 11 in the 2005 National Agreement?”
FACT # 1 from Arbitrator Halters” Findings and Conclusions, on page 5: “…SSA engaged in activity that violated Article 11…”
FACT # 2 from Arbitrator Halters” Findings and Conclusions, on page 5: “SSA engaged in activity that … resulted in derivative violations of Article 1 …”
FACT # 3 from Arbitrator Halters” Findings and Conclusions, on page 5: “SSA engaged in activity that … resulted in derivative violations of … Article 2 …”
FACT # 4 from Arbitrator Halters” Findings and Conclusions, on page 5:
Finally, [Article 6] § 3 states that “within five working days, Management at an employee’s new work location will inform the appropriate Union Local President that a bargaining-unit employee has changed duty stations[.] Recently SSA has complied in good faith with this notice and prior failure to do so was not designed to bypass the exclusive representative or otherwise undermine its status. Continued adherence by SSA to the 5-day notification should enhance the ability of the Local to know about the arrival of newcomers into the district and monitor dues withholding.
Since Arbitrator Halter clearly stated that the compliance was only RECENT, it is obvious that even he found that SSA had also violated Article 6, § 3.
Based on the Arbitrator’s factual findings that SSA had indeed violated Articles 1, 2, 6 and 11, which clearly addressed the issue before him:
Did the Agency violate Articles 1, 2, 6 and 11 in the 2005 National Agreement? If so, what is the appropriate remedy?
One would expect the following Award: The grievance is sustained.
Instead, the Arbitrator wrote: “Award: The grievance is denied.”
There are no facts in the Arbitrator’s Findings and Conclusions to support such an award. Had the Award been based on his own findings, he would have reached a different result, i.e., the Arbitrator would have found that based on the evidence and his own findings, the Union had proven a violation of the Articles in the issue before the Arbitrator; and, the Arbitrator would have sustained the grievance. Ergo, it is based on nonfact.
VI. CONCLUSION
Assuming, in arguendo, the Arbitrator really meant: The grievance is sustained because the Union proved that management violated Articles 1, 2, 6 and 11. The remedy is nothing more than this written decision and a bill from me, the Arbitrator, for each of the Parties for $1500 plus; THAT IS ALL.
Well, to fix and make sense of the Arbitrator’s Award which is not supported by his Findings and Conclusions has us going into the Arbitrator’s mind to divine what he meant. That is beyond the purview of the exception process. That is not one of the standards used by courts in the private sector when the courts review arbitral awards.
We must limit our analysis to what the Arbitrator wrote as the Issues, in his Findings and Conclusions and Award.
The Arbitrator’s Findings and Conclusions that management had violated Article 1, 2, 6 and 11 does not comport with the Arbitrator’s subsequent denial of the grievance. The Union urges the Authority to direct that the Arbitrator’s Award be set aside. As written by the Arbitrator, the Award is so totally divorced by the facts in Findings and Conclusions that it must be set aside because it fails to draw its essence from the agreement and is based on nonfact.
The Union further requests that the Authority remand the Award to the Arbitrator with instructions to reissue the award with remedies as the Authority has found appropriate to Agency violations of 5 USC 71, which were the matters giving rise to this Union grievance: (1) failure to give the Union advanced notice and an opportunity to attend an orientation session / formal discussion (2) failure to properly withhold and remit Union member dues.
The failure to give the Union advanced notice and an opportunity to attend an orientation session / formal discussion is properly remedied with a posting, as in Department of Health and Human Services, Region 4, Atlanta, GA and National Treasury Employees Union, 5 FLRA No. 58; 5 FLRA 458 (No 58) April 14, 1981.
The failure to properly withhold dues, even if inadvertent and in the absence of management bad-faith and malice, has resulted in the Authority ordering a posting and ordering the Agency to pay the Union an amount equal to what it would have received if the dues allotments had been honored in a timely manner. Department of Health and Human Services, Social Security Administration, Chicago, IL and AFGE, Local 1346, 13 FLRA 264 (No. 45) September 30, 1983.
Respectfully submitted
__________________ _____________________________
DATE Ralph C de Juliis, President
AFGE Local 2505
c/o Social Security Administration
4750 South Garnett Road
Tulsa, OK 74146-5233
LIST OF ATTACHMENTS
A. Opinion and Award of Arbitrator Patrick Halter dated July 1, 2008
B. Union-Management Grievance dated December 28, 2006
C. The National Agreement between American Federation of Government Employees, AFL-CIO and Social Security Administration dated August 15, 2005
I CERTIFY THAT A COPY OF LOCAL 2505’S (UNION’S) EXCEPTIONS AND ATTACHMENTS THERETO TO THE AWARD OF ARBITRATOR PATRICK HALTHER IN ARBITRATION CASE NO. DF-2007-R-0005 (Local 2505, American Federation of Government Employees, AFL-CIO (AFGE, Local, Union) and Social Security Administration, District Office, Bartlesville, Oklahoma (SSA, AGENCY)
HAS BEEN SERVED THIS DAY UPON THE FOLLOWING PERSONS IN THE MANNER INDICATED:
BY CERTIFIED MAIL, RETURN RECEIPT
Chief
Case Intake and Publication
Federal Labor Relations Authority
Docket Room, Suite 201
1400 K Street, NW.
Washington, D.C. 20424-0001
Mr. Brian C. Linden, Esq.
Assistant Regional Counsel
Agency Representative
Social Security Administration
Office of the General Counsel
1301 Young Street
Suite A 702
Dallas, Texas 75202
Mr. Patrick Halter, Esq.
Arbitrator
4209 Chinlee Avenue, NE
Albuquerque, NM 87100-5711
_________________ ________________________________
DATE Ralph C. de Juliis, President
AFGE Local 2505
c/o Social Security Administration
4750 South Garnett Road
Tulsa, OK 74146-5233[1] As a result of SSA failing to notify the Union as required by Article 6 of Ms
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(continued from prior page)
Hutcherson’s transfer, Local 2505 didn’t discover that Ms Hutcherson was in the
jurisdiction of Local 2505 and didn’t receive the correct amount of Union dues, or
in this case, any Union dues at all for eight months, from April 2006 through
December 2006, when Local 2505 discovered Ms Hutcherson’s transfer in December 2006 and filed the instant grievance.