Appearances: For the Union: William A. Wenzel, Esq. AALJ Vice President, Region 5

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1 In the Matter of Arbitration ] Arbitrator: Stanley Kravit ] Between ] FMCS Case No ] & T ASSOCIATION OF ADMINISTRATIVE ] LAW JUDGES, IFPTE, AFL-CIO ] Issue: Pre-hearing discovery ] And ] Date of Submissions: February 28, 2010 ] SOCIAL SECURITY ADMINISTRATION ] Date of Award: March 13, 2012 ] ] Appearances: For the Union: William A. Wenzel, Esq. AALJ Vice President, Region 5 For the Agency: Mary Senoo, Esq. Senior Counsel Office of the Reg. Chief Counsel, Reg. 5 On February 28, 2012 the parties made submissions to the Arbitrator regarding the need for a ruling on the Union s requests for pre-hearing discovery before the issues are heard on the merits on May 8-9, In making the following findings of fact I am relying on relevant evidence contained in the submissions. Matters not related to a ruling on the issue of pre-hearing discovery were not considered in the following. OPINION AND AWARD OF THE ARBITRATOR 1. Findings of Fact The combined grievances arise out of two denials by the Agency of requests for transfer by the Grievant, XXXX, ALJ. The first denial, of a request for transfer to the St. Petersburg office, was made on February 26, 2010, and a Step three Grievance was filed on 1

2 March 19, Since this grievance involved two other ALJs with a similar issue, and their grievances were subsequently resolved, the grievance was not formally denied regarding Mr. XXXX (hereinafter Grievant ), until February 25, In her letter of denial Deputy Chief ALJ Anderson upheld the rejection of the transfer request based on the Grievant s low productivity from Fiscal year 2008 into fiscal Year As to the allegation that the denial was retaliation for the Greivant s Union activity, Anderson concluded that the Union had provided no evidence establishing that his protected activity was a motivating factor for the agency s non-selection of him for reassignment. Also on February 25, 2011, the Agency denied the Grievant s request for transfer to the Tampa office. Ms. Anderson again stated low productivity as the reason, stating: In fiscal year 2009, you issued an average of.85 dispositions per day. The national average for the fiscal year was In the fiscal year 2010, you issued an average of.76 dispositions per day. The national average for fiscal year 2010 was Thus far in fiscal year 2011, you have issued an average of.71 dispositions per day. the national average, thus far, for fiscal year 2011 is I note that in its Step 3 Response denying transfer to Tampa, dated June 10, 2011 (UN Sub.. App. H), the Agency not only repeats the statistical comparisons quoted above, but provides additional detail in the form of a table summarizing for the period from FY 2009 through the end of April 2011 reporting month of FY 2011 (1) the approximate percentages of decisions and dismissals issued by Grievant, as compared to those for the average ALJ; (2) the approximate percentages of Grievant s decisions that were favorable, partially favorable, or denial decisions, as compared to those for the average ALJ; and (3) the approximate percentage of Grievant s decisions that were OTRs; as compared to that for the average ALJ. The Union, having filed separate grievances, requested arbitration for the respective grievances on March 24, 2011 (St. Petersburg) and June 17, 2011 (Tampa). The grievances 2

3 were consolidated on August 23, In September the parties selected the previous Arbitrator who resigned from the case in January, Thereafter the parties reached an impasse on the Union s request for pre-hearing discovery. They agree that on November 30, 2011, the Union made a detailed request for discovery in two formats. First, it attached to its request a PROPOSED DRAFT DISCOVERY ORDER containing 24 categories of information necessary to support the grievance in terms of refuting the statistical comparisons upon which the Agency relied in denying the transfers. Second, it attached a PROPOSED SUBPOENA DUCES TECUM with an attachment that mirrors but is not identical to the proposed discovery order. Citing SSA v. Goodman, 19 M.S.P.R. 321 (1984), provided to the Arbitrator), the Union summarized its request as follows: Where, as here, the agency s entire case rests upon comparative statistics, proof of their validity is an essential element of the agency s case. (Emphasis added in UN Sub. App. K) In its November 30 th letter to the former Arbitrator the Union states that The Agency s apparent position is that the only information or data the AALJ is entitled to would be evidence introduced by the Agency during the actual arbitration. I find that the Agency has consistently maintained a dual position as to pre-hearing discovery. On the one hand it argues that there is no support in law or in the contract for the Arbitrator to compel discovery or issue subpoenas for that purpose. In addition, it points out that 5 USC 7114 (b)(4) (hereinafter (b)(4) ) provides the exclusive means by which the Union may seek pre-hearing discovery by making it the duty (4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extend not prohibited by law, data 3

4 (A) which is normally maintained by the agency in the regular course of business; (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining 1 The Union has made several responses to the Agency s insistence upon Subsection. (b)(4). In its November 30, 2011 memo it expressed grave doubts as to whether such request would be honored. If it were not, the Union stated it would have to initiate ULP proceedings through the FLRA which would result in extensive delay under such procedures. Never-the-less, and albeit in the form of a footnote, the Union stated that its requests had satisfied the requirements of (b)(4) and Thus, I would simply request that the Agency also treat this letter as request for the information pursuant to 5 USC 7114(b)(4). In its present submission the Agency makes clear that it does not consider the Union to have made a formal or correct request under (b)(4) and states its apprehension that, in insisting upon prehearing discovery, the Union may be trying to circumvent the provisions of the Statute. The Union s Submission repeats its apprehension that denial would have to be followed by a lengthy ULP process. (UN Sub. pp.4-5) Both parties refer to the law and the contract to support their arguments. 5 USC Grievance procedures, states, in relevant part: (a) (1) Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide for the settlement of grievances, including questions of arbitrability. Except as provided in subsections (d), (e), and (g) of this subsection, the procedures shall be the exclusive administrative procedures for 1 Although the Statute is framed in terms of the mutual duty to negotiate in good faith, neither party disputes the application of Section 7114(b)(4) to the grievance procedure. 4

5 resolving grievances which fall within its coverage. Turning to the contract, Article 11 Arbitration, Sec. 5, states: The Arbitrator is bound by applicable law. The contract also provides as follows: Article 10 Grievance Procedure, Section 2, A., 4. The AALJ has the right to file, as a grievance under this contract, any alleged unfair labor practice. When it does so, however, it waives its right to file an unfair labor practice charge over the same4 issue with the appropriate authorities under law and regulation. (Emphasis added) 2 Article 10, Section 9. At the option of the AALJ, a grievance may be stayed after the third step grievance decision is issued if the following two conditions are met: A. The Agency has refused to provide information requested under 5 U. S. C. 7114(b)(4) in connection with the grievance; and B. The AALJ has filed a ULP [including as a grievance under 2. A. 4.] for failure to provide the requested information within 25 workdays after receipt of the third step decision, or if no decision is issued, within 25 workdays from the date the third step grievance decision was due. This stay shall remain in effect until 35 days after resolution of the unfair labor practice charge or 35 days from the date of receipt of the information. According to its memo of November 29, 2011 to the previous Arbitrator, the Union beginning on September 16, 2011, made a number of requests for information from the Agency. On October 17, 2011, the Agency took the position that all requests for information in this grievance need to be made through 5 USC 7114(b)(4). The memo cited the Agency s position that the Arbitrator has no authority to issue a subpoena duces tecum to the Agency or order it to produce information. Thus the Union acknowledged the Agency s position on the crucial points in dispute. The Union s footnote request that its memo be treated as a (b)(4) request has not been responded to. 2 See 5 USC 7121(d). 5

6 2. Decision of the Arbitrator The Agency s position has been succinctly summarized in its recent Submission: Even construing the Union s discovery requests as information requests under 5 U.S.C. 7114(b)(4), the Agency has not and does not concede that any dispute regarding the Union s information requests are properly before the Arbitrator in this matter. The Union has failed to establish or even allege that the parties negotiated arbitration procedures permits the Arbitrator to resolve disputes over section 5 U.S.C. 7114(b)(4) information requests where such disputes were not at issue in the underlying grievance. (AG Sub. p. 5. Emphasis added) Although the Union can file, as a grievance, any unfair labor practice, the Agency avers, the contract sets forth the procedure for resolving a grievance and makes explicitly clear that the parties can only refer unresolved grievances to arbitration. (Ag. Sub. at 5) The Union has not grieved the issue it now raises., and the Arbitrator has no authority to resolve an issue not properly submitted to arbitration. (Id. at 6) I agree with the Agency to the extent that the Statute requires a negotiated grievance procedure and the only reference in the contract to the providing of information is in Article 10, Section 9 and that requires compliance with (b)(4). It is not a question of the value of providing information relevant to grievances. Arbitrators are virtually unanimous in holding: [However,] unless there are contractual prohibitions, both parties should make a complete disclosure of all the facts, positions taken, and provisions of the agreement relied upon at the earliest possible steps of the grievance procedure. 3 The rationale behind this principle is that such disclosure is necessary for a grievance procedure to succeed in maximizing the possibility of resolution of the dispute and to guarantee due process, especially in discipline or adverse personnel action cases. Even 3 See the discussion in Elkouri & Elkouri, How Arbitration Works, 5 th edit., p. 218; citations omitted. 6

7 where grievances go to arbitration, effective discovery enables the parties to present their cases thoroughly and rationally and assists the arbitrator in making a fair decision that may not only resolve a particular dispute but contribute to a more positive relationship between the parties. However, when a contract specifies a process the Arbitrator is bound by it. Where parties negotiate on a particular subject and set out a procedure it should be inferred, in the absence of evidence to the contrary, that they intended the subject to be resolved by the process and language they have chosen. Here, there are two reasons to conclude that the parties intended (b)(4) to be the exclusive pre-hearing discovery process. First, the direct reference to that procedure in Art. 10, Sec. 9., A. 4 Second, the provision in Art. 10, Sec. 2. A. 4. that disputes over providing information could be grieved and resolved by the Arbitrator hearing the basic grievance on its merits. Thus, the Union had the option of filing a (b)(4) request, and a ULP/grievance when it was apparent that discovery was a crucial issue and its requests were denied. 5 The remaining issue is whether that opportunity has been foreclosed, as the Agency believes, or whether the Union has a present opportunity to amend the grievance and have the issue decided before the hearing on the merits. I believe that the Union has the right to amend the consolidated grievance to include its demand for discovery for the following reasons. Grievances are not pleadings; unless prohibited by the contract, a grievance may be amended to reflect continued investigation, 4 5 It might briefly be added that the issue of discovery has been the subject of extensive consideration by federal parties. If the parties here had intended to provide other means of discovery it must be presumed they would have done so expressly. Subsection 2., A., 4. should alleviate much of the Union s concern that a (b)(4) request would inevitably result in a considerable loss of time before a grievance could be heard on its merits. 7

8 discussion during the steps or in response to issues raised by parties. In fact, the Tampa grievance, filed April 17, 2011, was amended May 8, 2011 without objection. relevant facts. A primary objective of grievance procedure is the earliest possible disclosure of [S]sound collective bargaining requires frank and candid disclosure at the earliest opportunity of all the facts known to each party. There will undoubtedly be times when facts are not discovered, and therefore not disclosed, until after the grievance has been partially processed, and problem enough is created by those instances. There is not a scintilla of justification for the withholding of information by either party from and after the time it is discovered. 6 In the absence of a statutory provision, contract clause or rule such as those of the American Arbitration Association, the Arbitrator may rule on discovery issues as a facet of his implied authority to resolve procedural issues. For example, in disciplinary cases an employee is entitled to know in advance of a hearing the charges and specifications against him so that he may prepare a defense. This may include documents and the names of witnesses. If a union alleges a violation of the contract, an employer is entitled to a statement of exactly when and how the contract has been violated. Discovery cuts both ways in order to ensure due process and the integrity of the grievance/arbitration process. There are sound reasons to hold that invoking arbitration does not cut off a party s right to discovery. Additional information at this point could lead either party to alter its theory of the case and lead to settlement. Of course, information requests may not be overly broad, but rather must be relevant and pertinent to the issues raised by the grievance. Disputes regarding this issue are to be resolved by the Arbitrator. The standards are set out in 7114(b)(4) and include information (B) which is reasonably available and necessary for 6 General Motors Corp. Umpire Dec. No. F-97 (Alexander, 1950), cited in Fairweather s Practice and Procedure in Labor Arbitration, 3 rd Edit., Ray J. Schoonhoven, Editor in Chief, BNA,

9 full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining; This includes the negotiation of grievances. Therefore, I reject the Agency s argument that the Union lost its opportunity to seek discovery because this issue was not part of the original grievance(s). Doubts about the interpretation of contractual time limits should be resolved against forfeiture of the right to grieve. There is also evidence before me that the parties have not held to strict enforcement of the time limits in their grievance procedure; e.g., the St. Petersburg grievance, which was filed on March 19, 2010 and not answered until February 25, In their submissions the parties have raised a number of other issues, such as whether, in a case under 5 USC an arbitrator may exercise authority to order discovery and issue subpoena under state law. I have refrained from delving into these issues for the reason that where an issue can be resolved under directly applicable law and the contract, it should be. That is the case here, as I have explained. Second, a hearing on the merits is scheduled for May 8-9, 2012 and the parties will have my award on the limited issue of pre-hearing discovery in time to make the best use of it; or otherwise react as they see fit. 3. Award For the reasons stated above, (A) the Union is entitled to make a specific discovery request that complies with 7114(b)(4) within ten working days after receipt of this award. [March 27] (B) The Agency has ten additional working days within which to respond. [April 10] (C) If the parties cannot agree as to the content of the discovery request, the Union has an additional ten working days within which to amend its grievance under Article 10, Sec. 2. A. 4. of the contract to contest the denial by filing a ULP/grievance. [April 24] 9

10 (D) The documents representing these steps should be forwarded to me for consideration in advance of May 8 th. May 8 th, to the extent necessary, will be a day of hearing on the grievance/ulp. Of course, it would be desirable for the parties to resolve the information issues so that the hearing dates could be used for taking evidence on the merits. The parties have been able to reach partial agreement after our original discussion by telephone. I believe this timetable is realistic given all of the discussion that has taken place over the past two years, and against the background of the Goodman decision. The parties are fully knowledgeable about each other s position on the issue, and, if unable to reach agreement, will be fully prepared to argue their respective positions. March 13, 2012 Stanley Kravit Arbitrator 10

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