BEFORE ARBITRATOR PATRICK J. HALTER

American Federation of Government

Employees, (AFL-CIO)

Local 2505

(Union)

v.                                                              CASE NUMBER:

Now comes the Union to respectfully move that the arbitrator bar the Agency from raising substantive defenses to this grievance. In support of this motion, the union submits the following:

Article 24, Section 10 of the April 6, 2000 (JX _) contract reads in relevant part:

The grievance in this matter (JX _) was filed on December 28, 2006. SSA failed to issue its grievance decision within 10 days. In accordance with Article 24, Section 10 of the National Agreement, the Union moved this grievance to arbitration 45 days after the grievance was filed (JX _) since SSA had failed to respond substantively to the grievance.

SSA responded to the grievance (JX _) on March 5, 2007.

Article 24, Section 11 of the contract requires:

As you can readily see from SSA’s grievance response, SSA FAILED to provide "…the rationale for the decision."

As a result, the Union is hamstrung in anticipating the Agency’s defenses and preparing a response thereto.

The Agency should not be permitted to bring additional testimony or raise defenses in an attempt to justify its actions because it failed to issue a timely written grievance decision and failed to provide "…the rationale for the decision."

In failing to provide written justification for its action, the Agency has compromised the Union’s ability to address the merits of this case and further, prevented the Union from making an informed decision as to whether to proceed to arbitration at all.

Permitting the Agency to further justify its actions, either through testimony or other new evidence, would constitute unfair surprise. The Union thus asks that the arbitrator limit the Agency’s case to any relevant bargaining history testimony and cross-examination of Union witnesses.

The sanctions requested by the Union in this matter are warranted in the interests of justice. In Hey v. U.S. Postal Service, 57 SMSPR 443, the ruling was that sanctions should be imposed only when a party has failed to exercise due diligence in complying with any order or has exhibited negligence or bad faith in its efforts to so comply. Also see Williams v. Office of Personnel Management, 71 MSPR 597, 603 (1996), aff'd, 119 F.3d 16 (Fed. Cir. 1997).

A single failure to comply with an order is insufficient to show a lack of due diligence, negligence or bad faith in the appellant's compliance with the administrative judge's orders, such as would justify such a drastic sanction. See Carrier v. U.S. Postal Service, 62 MSPR 54, 57 (1994).

The Union’s insistence and this representative’s insistence on compliance with the requirements of the grievance process is well known to SSA. See AFGE Local 2505 and Social Security Administration, Area V, District Office, McAlester, Oklahoma, DF 2005 R 0055, Arbitrator Patrick Halter, 2006.

In fact, this motion is a cut-and-paste of a very similar motion made by this representative and by this Local made to this arbitrator in that case. Given the long-standing, repeated nature of SSA’s obstructionist conduct, the Union believes that the Arbitrator should impose sanctions on the Agency. Failing to sanction the Agency for its repeated failures to observe the agreed upon contractual language does harm to the grievance / arbitration process and gives the Agency a strong upper hand which it did NOT negotiate. Failing to sanction SSA, failing to meaningfully enforce the clearly written language of the contract, is to ignore the clear language, and frankly, would not draw its essence from the agreement.

See, Social Security Administration and AFGE Local 1154, BN-2007-R-0031, Arbitrator Charles T. Schmidt, Jr. Ph.D, 2008 (Attachment 1):

In Carrier, supra, as a consequence of the administrative judge's sanction, the appellant was limited to oral argument. The Union believes that the appropriate sanction in this matter is to preclude Agency defenses and limit its case to argument and cross-examination.

Respectfully Submitted,

Ralph C. de Juliis

For the Union