Unions Arbitration Brief Report

Management-Labor Relations
Cameron University
Joel Barnaby, Instructor
Arbitration Brief Assignment Information and Instructions for Both Employer and Union:
Your individual arbitration brief is due Sunday December 5th by 11:59 pm cst.
You will each create ONE arbitration brief as a member of either management or for the union. I
have assigned each student to be either management or union as follows:
1 DeBartolo, Karissa L.
Management
2 Dufrin, Mitchell R.
Union
3 Durbin, Legend M.
Management
4 Gilbert, Colbie A.
Union
5 Green, Darius R.
Management
6 Griffin, Jonathan C.
Union
7 Howard, Zachary D.
Management
8 Matthews, Quajaneke D.
Union
9 Mayes, Melissa Y.
Management
10 Nix, Derek L.
Union
11 Santos Dias, Maycon
Management
You will prepare your brief representing the side you were appointed above. These were
assigned in alphabetical order and neither side is more difficult than the other. I am also willing
to assist you by email with any difficulties you may have. However, I will not be assisting
students after Friday, December 3. You need to begin work on this assignment well before
then. It is worth up to 100 points.
Finally, I do not expect you to be lawyers. However, please attempt to make your brief format appear as how a
normal arbitration brief should look. I’ve provided a link on the information in the folder.
VERY IMPORTANT TO CAREFULLY READ ALL OF THE FOLLOWING:
Background of grievance to be arbitrated:
1. On April 1 of this year, James J. (J.J.) Toker failed to show up to his shift at the ABC
Manufacturing Co. Later that morning, his supervisor, Bob Lawful, noticed while reading the
local paper that Toker had been arrested for possession of methamphetamine and intent to
distribute, both felony crimes. A clipping of the newspaper article is included. (Exhibit A)
1
2. ABC Manufacturing Company is a governmental contractor who provides military equipment
and services for many federal agencies, including the Central Intelligence Agency and the
Department of Defense. Due to the sensitive nature of the work, the government contracts state
that workers must pass federal background checks and maintain security clearances.
3. Lawful immediately informed the plant manager, Jamie Colbert, of the situation involving
Toker’s being absent for work and his arrest.
4. On April 2, Colbert wrote a letter to Mr. Toker (Exhibit B), wherein he announced that Toker was
suspended without pay until further notice because of the two felony charges against him.
5. On April 3, Mr. Eddie Jones, vice president of Local 345, filed the attached grievance (Step 1—
Exhibit C).
6. On April 4, Jamie Colbert submitted the Company Response (Step 2—Exhibit D) on the
grievance form.
7. On April 4, Eddie Jones, submitted the Union Response (Step 3—Exhibit D, please note it is
included on the same form as Step 2) requesting arbitration.
8. The relevant portion(s) of the Collective Bargaining Agreement are also presented as Exhibit E.
9. Additionally, according to this particular Collective Bargaining Agreement, the parties have
pre-selected Arbitrator Joel W. Barnaby to hear all arbitration matters between the parties.
The CBA also allows for arbitration hearings to be conducted by briefs.
10. Because there is no live witness testimony in this matter, you can assume the following
facts:
A). A witness deposition has been held later in April with Mr. Toker, union representatives,
and company representatives, including Mr. Colbert, all present;
B). Toker admits he has been charged with the two felony crimes;
C). Toker also admits that he will be unable to work often because of the pending charges
(going to court, meeting with his lawyer, etc); and
D). Mr. Colbert also testified at the deposition that ABC Manufacturing Co, has contracts
with governmental agencies (namely the CIA and Department of Defense) which require
ABC employees to maintain current federal security clearances.
11. In this particular instance, both representatives for the company and the union have agreed
to have Arbitrator Barnaby hear this matter via briefs. Also, assume that the grievance
procedures were followed correctly (meaning both management and the union properly
followed the steps contained in the grievance article of the CBA).
****Please review all of the documents and information above. The exhibits are located in
other documents provided.
Please include the following in your individual brief:
 Names of those involved in the case;
 A statement of the issue(s) involved;
 A statement of the facts surrounding the grievance filed to arbitration (what
happened to get the parties into arbitration);
 Citations of pertinent provisions of the labor agreement and discussion of those
provisions and application thereof;
 A brief summary of management and union arguments (what your side seeks and
what you think the other side will seek— basically whether you are management
2







asserting that “just cause” for suspension exists and the grievance should be denied
OR whether you are the union asserting that “just cause” does not exist and the
grievance be upheld and the suspension should be set aside/overturned);
A brief analysis of the evidence and arguments in relation to the contract language
and whether just cause exists for suspension of Toker; think about what we’ve
studied and all the facts and exhibits given to you;
What your side (whether management or union) seeks as the Arbitrator’s ultimate
decision/award.
You should use the materials found in the textbook and power point slides
(especially Unit Six) concerning the arbitration process and what constitutes “just
cause” from the textbook , power points, and the audio lectures as your guide to
develop the arguments for your particular side, whether you are management
asserting that “just cause” for suspension exists and the grievance should be denied
OR whether you are the union asserting that “just cause” does not exist and the
grievance be upheld and the suspension should be set aside/overturned;
Be creative and think! The facts have been purposefully presented so that good
arguments by both management and the union can be made in your specific
individual brief.
Again, this assignment is written in a manner in which BOTH sides can make
credible arguments. There is no difference in difficulty for either side.
Again, I do not expect you to be labor professionals and/or labor lawyers. I’m interested
in your application of the grievance and arbitration process that we’ve studied. However,
do proofread your briefs as I will count off for grammatical, spelling and the like types of
errors.
I’m always happy to answer questions, however everything you need to complete this
assignment should be located in this document, the exhibit documents, and the
text/powerpoints/audio lectures. Please make sure you’ve reviewed all of those. I am
also willing to assist you by email with any difficulties you may have. However, I will not be
assisting students after Friday, December 3. You need to begin work on this assignment well
before then.
3
Relevant Provisions of the Collective Bargaining Agreement
Article 2: Management Rights and Just Cause
The Union agrees that the Company is vested exclusively with the management of the business,
including the direction of the working force; the right to plan, direct, and control all plant operations;
the right to relieve employees from duty because of lack of work or for any other legitimate reason; the
right to establish, change, or introduce new or improved production methods or facilities; and, except as
expressly limited by the other provisions of this Agreement, the right to hire, promote, suspend,
demote, discipline, or discharge employees for just cause.
All authority normally exercised by management is and shall remain the exclusive prerogative of the
Company, except where such authority is expressly limited by the terms of this Agreement.
Article 16: Rules of Conduct
For the purpose of plant discipline, the Company shall have the right to make and, after publication
thereof, to enforce reasonable factory rules, not otherwise inconsistent with the terms of this
Agreement. The purpose of disciplinary action is not to punish, but to discourage repetition of
misbehavior of the offender. The reasonableness of the following factory rules are agreed to by the
parties and shall be subject to the following outlined disciplinary action.
NOTE: The Company does not waive its right to make rules during the term of the labor agreement.
CATEGORIES OF DISCIPLINARY ACTION (note there may be additional categories, however they are not
applicable to this case):
First offense—Resulting in Discharge of Employee:
(1) Conviction of a Felony.
GRIEVANCE FORM 1
IBMF UNION, LOCAL 345
Date:
April 3
Grievant:
James J. Toker
From Union Rep.: Eddie Jones, Vice-President of Local 345
TO:
ABC Manufacturing
Statement of Grievance:
Mr. Toker was suspended indefinitely without pay on April 2. The Union maintains this was done in
violation of Article 2 of the Collective Bargaining Agreement requiring just cause. The Union alleges that
Mr. Toker’s suspension until further notice is an effective discharge for the reason that Toker will be
forced to seek other work until the disposition of the criminal charges; the disposition of which may be
weeks, months, or possibly even a year or more. The Union’s position is that this constitutes an
effective discharge of employment in violation of Article 16, which requires a conviction of a felony.
Therefore, just cause does not exist for this suspension and the Union asks that Mr. Toker be
immediately reinstated and be made whole for all lost wages and benefits.
Signed: Eddie Jones, Vice-President of IBMF, Local 345.
GRIEVANCE FORM 2
To: IBMF LOCAL 345 (Union)
DATE: April 4
From: ABC Manufacturing Company [Response to Union Grievance (Step 2)]:
The Company has an obligation to provide a safe work environment for all employees. It is the
Company’s position that according to Article 2 of the Collective Bargaining Agreement: …”the Company
is vested exclusively with the management of the business, including the direction of the working force;
the right to plan, direct, and control all plant operations; the right to relieve employees from duty
because of lack of work or for any other legitimate reason…and, except as expressly limited by the other
provisions of this Agreement, the right to hire, promote, suspend, demote, discipline, or discharge
employees for just cause”.
As you know, ABC has contracts with governmental agencies which require employees to maintain
security clearances. Further, the company states the grievant presents significant risk to both himself
and his fellow employees and therefore, should not be allowed to work until the felony charges against
him are resolved by a court of law. Article 16 has no bearing in this matter because Mr. Toker’s
employment has NOT been terminated, only suspended. The company maintains that just cause for
suspension of Mr. Toker exists in this situation according to Article 2 of the collective bargaining
agreement with the union.
GRIEVANCE DENIED
Signed: Jamie Colbert, Plant Manager, ABC Manufacturing Company Dated: April 4
_____________________________________________________________________________________
Grievance Form 3
From: IBMF LOCAL 345, [Union Response (Step 3)]
To: ABC Manufacturing Company
The Union rejects the Company’s Response and shall appeal this matter to arbitration.
Signed: Eddie Jones, Vice-President of IBMF Local 345 Union
Dated April 4
ABC MANUFACTURING COMPANY
April 2
James J. Toker
100 XYZ Street
Lawton, OK 73505
Dear Mr. Toker:
This letter is to inform you that you are hereby suspended without pay until further notice
from employment effective this date as a result of your arrest for 1) Intent to Distribute
Methamphetamine and; 2) Possession of Methamphetamine—both felonies in the state of
Oklahoma and also your failure to report to your job because of your arrest. This
suspension is allowed under the Collective Bargaining Agreement with Union Local 345,
specifically Article 2, Management Rights and Just Cause. Your continued employment
status will be determined based upon the disposition of these charges.
Sincerely,
Jamie Colbert
Plant Manager
100 Main Street  Lawton, Oklahoma  Phone: 555.555.0125  [email protected]
Relevant Provisions of the Collective Bargaining Agreement
Article 2: Management Rights and Just Cause
The Union agrees that the Company is vested exclusively with the management of the business,
including the direction of the working force; the right to plan, direct, and control all plant operations;
the right to relieve employees from duty because of lack of work or for any other legitimate reason; the
right to establish, change, or introduce new or improved production methods or facilities; and, except as
expressly limited by the other provisions of this Agreement, the right to hire, promote, suspend,
demote, discipline, or discharge employees for just cause.
All authority normally exercised by management is and shall remain the exclusive prerogative of the
Company, except where such authority is expressly limited by the terms of this Agreement.
Article 16: Rules of Conduct
For the purpose of plant discipline, the Company shall have the right to make and, after publication
thereof, to enforce reasonable factory rules, not otherwise inconsistent with the terms of this
Agreement. The purpose of disciplinary action is not to punish, but to discourage repetition of
misbehavior of the offender. The reasonableness of the following factory rules are agreed to by the
parties and shall be subject to the following outlined disciplinary action.
NOTE: The Company does not waive its right to make rules during the term of the labor agreement.
CATEGORIES OF DISCIPLINARY ACTION (note there may be additional categories, however they are not
applicable to this case):
First offense—Resulting in Discharge of Employee:
(1) Conviction of a Felony.
ABC MANUFACTURING COMPANY
April 2
James J. Toker
100 XYZ Street
Lawton, OK 73505
Dear Mr. Toker:
This letter is to inform you that you are hereby suspended without pay until further notice
from employment effective this date as a result of your arrest for 1) Intent to Distribute
Methamphetamine and; 2) Possession of Methamphetamine—both felonies in the state of
Oklahoma and also your failure to report to your job because of your arrest. This
suspension is allowed under the Collective Bargaining Agreement with Union Local 345,
specifically Article 2, Management Rights and Just Cause. Your continued employment
status will be determined based upon the disposition of these charges.
Sincerely,
Jamie Colbert
Plant Manager
100 Main Street  Lawton, Oklahoma  Phone: 555.555.0125  [email protected]
BusyBee Herald
April 1
Local Resident Arrested
In Methamphetamine U.S. President
Bust
From staff reports
Yesterday, local law enforcement arrested a
local resident after a traffic stop just off Main
Street, at the front of the ABC Manufacturing
facility’s employee parking area. James J.
Toker was arrested for felony possession of
methamphetamine and felony intent to
distribute methamphetamine. Police say that the
SUV registered to Toker contained several
containers of methamphetamine. Toker was
arrested and taken to the county jail. There is
no word on whether bail has been set.
to Meet with
Canadian
Prime Minister
for Talks (see
story on A-2)
More stories:
Story 1 headline…………page xx
Story 2 headline…………page xx
Story 3 headline…………page xx
In other news …
Headline 1.………………page xx
Headline 2……………….page xx
Headline 3………….……page xx
Management-Labor Relations
Cameron University
Joel Barnaby, Instructor
Arbitration Brief Assignment Information and Instructions for Both Employer and Union:
Your individual arbitration brief is due Sunday December 5th by 11:59 pm cst.
You will each create ONE arbitration brief as a member of either management or for the union. I
have assigned each student to be either management or union as follows:
1 DeBartolo, Karissa L.
Management
2 Dufrin, Mitchell R.
Union
3 Durbin, Legend M.
Management
4 Gilbert, Colbie A.
Union
5 Green, Darius R.
Management
6 Griffin, Jonathan C.
Union
7 Howard, Zachary D.
Management
8 Matthews, Quajaneke D.
Union
9 Mayes, Melissa Y.
Management
10 Nix, Derek L.
Union
11 Santos Dias, Maycon
Management
You will prepare your brief representing the side you were appointed above. These were
assigned in alphabetical order and neither side is more difficult than the other. I am also willing
to assist you by email with any difficulties you may have. However, I will not be assisting
students after Friday, December 3. You need to begin work on this assignment well before
then. It is worth up to 100 points.
Finally, I do not expect you to be lawyers. However, please attempt to make your brief format appear as how a
normal arbitration brief should look. I’ve provided a link on the information in the folder.
VERY IMPORTANT TO CAREFULLY READ ALL OF THE FOLLOWING:
Background of grievance to be arbitrated:
1. On April 1 of this year, James J. (J.J.) Toker failed to show up to his shift at the ABC
Manufacturing Co. Later that morning, his supervisor, Bob Lawful, noticed while reading the
local paper that Toker had been arrested for possession of methamphetamine and intent to
distribute, both felony crimes. A clipping of the newspaper article is included. (Exhibit A)
1
2. ABC Manufacturing Company is a governmental contractor who provides military equipment
and services for many federal agencies, including the Central Intelligence Agency and the
Department of Defense. Due to the sensitive nature of the work, the government contracts state
that workers must pass federal background checks and maintain security clearances.
3. Lawful immediately informed the plant manager, Jamie Colbert, of the situation involving
Toker’s being absent for work and his arrest.
4. On April 2, Colbert wrote a letter to Mr. Toker (Exhibit B), wherein he announced that Toker was
suspended without pay until further notice because of the two felony charges against him.
5. On April 3, Mr. Eddie Jones, vice president of Local 345, filed the attached grievance (Step 1—
Exhibit C).
6. On April 4, Jamie Colbert submitted the Company Response (Step 2—Exhibit D) on the
grievance form.
7. On April 4, Eddie Jones, submitted the Union Response (Step 3—Exhibit D, please note it is
included on the same form as Step 2) requesting arbitration.
8. The relevant portion(s) of the Collective Bargaining Agreement are also presented as Exhibit E.
9. Additionally, according to this particular Collective Bargaining Agreement, the parties have
pre-selected Arbitrator Joel W. Barnaby to hear all arbitration matters between the parties.
The CBA also allows for arbitration hearings to be conducted by briefs.
10. Because there is no live witness testimony in this matter, you can assume the following
facts:
A). A witness deposition has been held later in April with Mr. Toker, union representatives,
and company representatives, including Mr. Colbert, all present;
B). Toker admits he has been charged with the two felony crimes;
C). Toker also admits that he will be unable to work often because of the pending charges
(going to court, meeting with his lawyer, etc); and
D). Mr. Colbert also testified at the deposition that ABC Manufacturing Co, has contracts
with governmental agencies (namely the CIA and Department of Defense) which require
ABC employees to maintain current federal security clearances.
11. In this particular instance, both representatives for the company and the union have agreed
to have Arbitrator Barnaby hear this matter via briefs. Also, assume that the grievance
procedures were followed correctly (meaning both management and the union properly
followed the steps contained in the grievance article of the CBA).
****Please review all of the documents and information above. The exhibits are located in
other documents provided.
Please include the following in your individual brief:
 Names of those involved in the case;
 A statement of the issue(s) involved;
 A statement of the facts surrounding the grievance filed to arbitration (what
happened to get the parties into arbitration);
 Citations of pertinent provisions of the labor agreement and discussion of those
provisions and application thereof;
 A brief summary of management and union arguments (what your side seeks and
what you think the other side will seek— basically whether you are management
2







asserting that “just cause” for suspension exists and the grievance should be denied
OR whether you are the union asserting that “just cause” does not exist and the
grievance be upheld and the suspension should be set aside/overturned);
A brief analysis of the evidence and arguments in relation to the contract language
and whether just cause exists for suspension of Toker; think about what we’ve
studied and all the facts and exhibits given to you;
What your side (whether management or union) seeks as the Arbitrator’s ultimate
decision/award.
You should use the materials found in the textbook and power point slides
(especially Unit Six) concerning the arbitration process and what constitutes “just
cause” from the textbook , power points, and the audio lectures as your guide to
develop the arguments for your particular side, whether you are management
asserting that “just cause” for suspension exists and the grievance should be denied
OR whether you are the union asserting that “just cause” does not exist and the
grievance be upheld and the suspension should be set aside/overturned;
Be creative and think! The facts have been purposefully presented so that good
arguments by both management and the union can be made in your specific
individual brief.
Again, this assignment is written in a manner in which BOTH sides can make
credible arguments. There is no difference in difficulty for either side.
Again, I do not expect you to be labor professionals and/or labor lawyers. I’m interested
in your application of the grievance and arbitration process that we’ve studied. However,
do proofread your briefs as I will count off for grammatical, spelling and the like types of
errors.
I’m always happy to answer questions, however everything you need to complete this
assignment should be located in this document, the exhibit documents, and the
text/powerpoints/audio lectures. Please make sure you’ve reviewed all of those. I am
also willing to assist you by email with any difficulties you may have. However, I will not be
assisting students after Friday, December 3. You need to begin work on this assignment well
before then.
3
BusyBee Herald
April 1
Local Resident Arrested
In Methamphetamine U.S. President
Bust
From staff reports
Yesterday, local law enforcement arrested a
local resident after a traffic stop just off Main
Street, at the front of the ABC Manufacturing
facility’s employee parking area. James J.
Toker was arrested for felony possession of
methamphetamine and felony intent to
distribute methamphetamine. Police say that the
SUV registered to Toker contained several
containers of methamphetamine. Toker was
arrested and taken to the county jail. There is
no word on whether bail has been set.
to Meet with
Canadian
Prime Minister
for Talks (see
story on A-2)
More stories:
Story 1 headline…………page xx
Story 2 headline…………page xx
Story 3 headline…………page xx
In other news …
Headline 1.………………page xx
Headline 2……………….page xx
Headline 3………….……page xx
ABC MANUFACTURING COMPANY
April 2
James J. Toker
100 XYZ Street
Lawton, OK 73505
Dear Mr. Toker:
This letter is to inform you that you are hereby suspended without pay until further notice
from employment effective this date as a result of your arrest for 1) Intent to Distribute
Methamphetamine and; 2) Possession of Methamphetamine—both felonies in the state of
Oklahoma and also your failure to report to your job because of your arrest. This
suspension is allowed under the Collective Bargaining Agreement with Union Local 345,
specifically Article 2, Management Rights and Just Cause. Your continued employment
status will be determined based upon the disposition of these charges.
Sincerely,
Jamie Colbert
Plant Manager
100 Main Street  Lawton, Oklahoma  Phone: 555.555.0125  [email protected]
GRIEVANCE FORM 1
IBMF UNION, LOCAL 345
Date:
April 3
Grievant:
James J. Toker
From Union Rep.: Eddie Jones, Vice-President of Local 345
TO:
ABC Manufacturing
Statement of Grievance:
Mr. Toker was suspended indefinitely without pay on April 2. The Union maintains this was done in
violation of Article 2 of the Collective Bargaining Agreement requiring just cause. The Union alleges that
Mr. Toker’s suspension until further notice is an effective discharge for the reason that Toker will be
forced to seek other work until the disposition of the criminal charges; the disposition of which may be
weeks, months, or possibly even a year or more. The Union’s position is that this constitutes an
effective discharge of employment in violation of Article 16, which requires a conviction of a felony.
Therefore, just cause does not exist for this suspension and the Union asks that Mr. Toker be
immediately reinstated and be made whole for all lost wages and benefits.
Signed: Eddie Jones, Vice-President of IBMF, Local 345.
GRIEVANCE FORM 2
To: IBMF LOCAL 345 (Union)
DATE: April 4
From: ABC Manufacturing Company [Response to Union Grievance (Step 2)]:
The Company has an obligation to provide a safe work environment for all employees. It is the
Company’s position that according to Article 2 of the Collective Bargaining Agreement: …”the Company
is vested exclusively with the management of the business, including the direction of the working force;
the right to plan, direct, and control all plant operations; the right to relieve employees from duty
because of lack of work or for any other legitimate reason…and, except as expressly limited by the other
provisions of this Agreement, the right to hire, promote, suspend, demote, discipline, or discharge
employees for just cause”.
As you know, ABC has contracts with governmental agencies which require employees to maintain
security clearances. Further, the company states the grievant presents significant risk to both himself
and his fellow employees and therefore, should not be allowed to work until the felony charges against
him are resolved by a court of law. Article 16 has no bearing in this matter because Mr. Toker’s
employment has NOT been terminated, only suspended. The company maintains that just cause for
suspension of Mr. Toker exists in this situation according to Article 2 of the collective bargaining
agreement with the union.
GRIEVANCE DENIED
Signed: Jamie Colbert, Plant Manager, ABC Manufacturing Company Dated: April 4
_____________________________________________________________________________________
Grievance Form 3
From: IBMF LOCAL 345, [Union Response (Step 3)]
To: ABC Manufacturing Company
The Union rejects the Company’s Response and shall appeal this matter to arbitration.
Signed: Eddie Jones, Vice-President of IBMF Local 345 Union
Dated April 4
Relevant Provisions of the Collective Bargaining Agreement
Article 2: Management Rights and Just Cause
The Union agrees that the Company is vested exclusively with the management of the business,
including the direction of the working force; the right to plan, direct, and control all plant operations;
the right to relieve employees from duty because of lack of work or for any other legitimate reason; the
right to establish, change, or introduce new or improved production methods or facilities; and, except as
expressly limited by the other provisions of this Agreement, the right to hire, promote, suspend,
demote, discipline, or discharge employees for just cause.
All authority normally exercised by management is and shall remain the exclusive prerogative of the
Company, except where such authority is expressly limited by the terms of this Agreement.
Article 16: Rules of Conduct
For the purpose of plant discipline, the Company shall have the right to make and, after publication
thereof, to enforce reasonable factory rules, not otherwise inconsistent with the terms of this
Agreement. The purpose of disciplinary action is not to punish, but to discourage repetition of
misbehavior of the offender. The reasonableness of the following factory rules are agreed to by the
parties and shall be subject to the following outlined disciplinary action.
NOTE: The Company does not waive its right to make rules during the term of the labor agreement.
CATEGORIES OF DISCIPLINARY ACTION (note there may be additional categories, however they are not
applicable to this case):
First offense—Resulting in Discharge of Employee:
(1) Conviction of a Felony.
IN THE MATTER OF ARBITRATION BETWEEN:
________________________________
)
American Federation of Government,
)
Issue: Merits
Employees (AFGE), Council of HUD
)
Locals 222,
)
)
Case No. 03-07743
UNION,
)
)
Remanded at: 59 FLRA 630
v.
)
)
US Department of Housing & Urban
)
Development,
)
)
AGENCY.
)
Arbitrator: Dr. Andree Y. McKissick, Esq.
________________________________)
UNION’S CLOSING BRIEF
The Union, by and through its attorneys, Snider & Associates, LLC, hereby submits its
closing brief in the above captioned matter.
Respectfully Submitted,
_________________________________
Michael J. Snider, Esq.
Ari Taragin, Esq.
Jason I. Weisbrot, Esq.
Jacob Y. Statman, Esq.
Snider & Associates, LLC
104 Church Lane, Suite 100
Baltimore, Maryland 21208
Phone: (410) 653-9060
Fax: (410) 653-9061
Counsel for the Union
IN THE MATTER OF ARBITRATION BETWEEN:
________________________________
)
American Federation of Government,
)
Issue: Merits
Employees (AFGE), Council of HUD
)
Locals 222,
)
)
Case No. 03-07743
UNION,
)
)
Remanded at: 59 FLRA 630
v.
)
)
US Department of Housing & Urban
)
Development,
)
)
AGENCY.
)
Arbitrator: Dr. Andree Y. McKissick, Esq.
________________________________)
UNION’S CLOSING BRIEF – TABLE OF CONTENTS
Issues………………………………………………………………………………………….4
Summary of the Argument……………………………………………………………….…5
Procedural History……………………………………………………………………………6
Argument & Analysis………………………………………………………………………..10
I.
The Union Proved that the Agency Violated the CBA and Other Government
Wide Rules and Regulations when it Failed to Treat Bargaining Unit
Employees Fairly & Equitably with Regard to Vacancy Announcements
Posted Since May 2002……………………………………………………..…10
A. The Union’s witnesses provided ample testimonial evidence that proved
the Agency violated the CBA and other rule or regulation……………..10
i. The Testimony of Ms. Carolyn Federoff………………………….10
ii. The Testimony of Ms. Bonnie Lovorn…………………………….18
iii. The Testimony of Ms. Lynna Schonert……………………………19
iv. The Testimony of Ms. Marcia Randolph Brown………………….20
v. The Testimony of Ms. Victoria Reese Brown……………………..23
2
vi. The Testimony of Ms. Melanie Hertel………………………………24
vii. The Testimony of Ms. Julia A. McGuire…………………………….25
B. Even the Agency witness’ testimonial evidence corroborates the Union’s
position………………………………………………………………………….26
II.
The Union proved that the Agency violated the HUD/AFGE
Agreement, law rule and regulation………………………………………….30
a. Sections 4.01 and 4.06 of the Collective Bargaining Agreement were
violated when the employees were not treated fairly or equitably
concerning conditions of employment……………………………………….30
b. Section 9.01 of the Collective Bargaining Agreement was violated when
classification standards were not applied fairly and equitably to all
positions. ……………………………………………………………………….34
c. Section 13.01 of the Collective Bargaining Agreement was violated when
management did not develop or utilize programs to facilitate career
development of the Department’s employees and did not consider filling
positions within the Department and did not promote the internal
advancement of employees. …………………………………………………36
III.
The Effect of the Arbitrator’s Prior Adverse Inference Ruling Discredits the
Agency Entirely…………………..……………………………………………40
Proposed Remedies…………………………………………………………………….…….46
Conclusion……………………………………………………………………………………..53
Certificate of Service…………………………………………………………………….……54
3
IN THE MATTER OF ARBITRATION BETWEEN:
________________________________
)
American Federation of Government,
)
Issue: Merits
Employees (AFGE), Council of HUD
)
Locals 222,
)
)
Case No. 03-07743
UNION,
)
)
Remanded at: 59 FLRA 630
v.
)
)
US Department of Housing & Urban
)
Development,
)
)
AGENCY.
)
Arbitrator: Dr. Andree Y. McKissick, Esq.
________________________________)
UNION’S CLOSING BRIEF
The Union, by and through its attorneys, Snider & Associates, LLC, hereby
submits its closing brief in the above captioned matter and in support thereof states as
follows:
Issues
I.
Whether the Agency violated the Collective Bargaining Agreement, law, rule,
or other regulation when it failed to treat bargaining unit employee fairly and
equitably in posting vacancy announcements from May 2002 until the
present?
II.
If so, what are the appropriate remedies?
4
Summary of the Argument
On November 13, 2002, Carolyn Federoff, President of Council of HUD 222, filed
a Grievance and Request for Information regarding the Agency’s failure to treat
employees fairly and equitably. In the Grievance, the Union stated that employees were
being harmed and that a remedy was necessary. Specifically, the Union had become
aware that the Agency had advertised a number of positions with a maximum grade
potential to GS-13. Current employees, however, who occupied these exact same
positions had, and have, a maximum grade potential to the GS-12 level.
These positions were usually advertised in two vacancy announcements per
position; one open to current federal employees, and the other to the general public
(internal and external announcements). The Union alleged that for many of these
vacancies, The Agency would hire somebody at the entry level (GS-7, 9 or 11). These
new employees were trained and mentored by other existing employees in the same
position. However, these trainers and mentors only had career ladder potential to the
GS-12 level, and were training employees that would eventually become a GS-13 level
employee.
In at least one of these instances, persons were hired at the GS-9 level only.
Therefore, some GS-12 employees in the same position were required to take a
downgrade to a GS-9 (or even a 7) only to re-climb the ladder to reach the GS-13 level.
Additionally, employees in some offices, but not others, have career ladder potential to
GS-13, even though they occupy the same position and do the same work.
5
The Union alleged violations of the contract, including posting positions at the
Grade-7 level only, posting positions externally only, posting internal or external
vacancy announcements and then canceling the internal vacancy (for which the current
HUD employees were more likely to apply), discouraging employees from applying or
telling them that their applications would be thrown out, telling employees they were not
eligible to apply for vacancies, assigning GS-12 employees to training and mentoring
leapfrog employees who were going to a GS-13 journeyman level, and assigning the
same work to GS-12 and GS-13 employees.
The Union provided live testimony from actual witnesses; the Agency failed to
rebut these allegations so the Union’s testimony stands as unrebutted. The Agency’s
failure to call a single supervisor, manager or other individual that should have been
called as a witness must result in an adverse inference, in addition to the adverse
inference already won by the Union due to the Agency’s failure to provide relevant and
material documents.
The Union has proven that the Agency failed to produce the vast majority of
information that it was ordered to produce. This is information that existed, which the
Agency did not maintain or produce. Many of the documents were shown to Ms.
Federoff in camera, but were not given to her, and were later lost or destroyed. The
Agency’s failure to produce this documentation requires an adverse inference against it
that will be discussed infra.
Procedural History
On November 13, 2002, the Union filed a Grievance regarding “Failure to Treat
Employees Fairly and Equitably.” The Agency denied the Grievance on the ground that
6
it was not arbitrable under § 7121(c)(5) of the Federal Service Labor-Management
Relations Statute. The Grievance was submitted to arbitration on the stipulated issue of
whether or not the Grievance was arbitrable. The Arbitrator found the subject matter of
this Grievance to be arbitrable in an Opinion and Award dated June 23, 2003.
The Agency filed exceptions with the Federal Labor Relations Authority (“FLRA”)
on June 23, 2003. In a Decision dated February 11, 2004, the FLRA remanded the
award to the parties and ordered that it be resubmitted to the Arbitrator for clarification
of the jurisdictional issue. The Union then requested a hearing on the matter to offer
additional evidence and argument. After several postponements, a hearing was held on
June 23, 2006. At the hearing, the Union called Ms. Federoff as its sole witness. The
Agency did not call any witnesses.
The Arbitrator clarified the award on remand in a decision dated January 24,
2007, and found that the Grievance alleged a right to be placed in previously classified
positions, was arbitrable, and that there were several possible remedies. The Arbitrator
also ruled that pursuant to Section 22.11 of the Parties’ CBA, alternative remedies
should be considered as a just form of relief, consistent with the Federal Labor
Relations Authority decision.
On March 1, 2007, the Agency filed exceptions to the January 24, 2007 award
and the Union filed an Opposition to the Agency’s Exceptions on or about March 22,
2007. On April 19, 2007, the FLRA issued an Order to Show Cause as to why the
Agency’s exceptions should not be dismissed as untimely. On August 3, 2007, the
FLRA ruled that the exceptions were untimely and dismissed them.
7
On March 14, 2007, the Union filed a Motion to Compel documents with the
Arbitrator. The Union explained the following history of the request for documents going
back to October 2002:
•
October 19, 2002, Carolyn Federoff, Council 222 President, forwarded a Request for
Information pursuant to 5 USC 7114, drafted on October 3, 2002 by Gary Mongelli,
RVP for the Council of Region VIII.
•
The Union, in a Grievance dated November 13, 2002, alleged that the Agency
advertised or filled certain positions with promotion potential to the GS-13 level
during the fall of 2002.
•
In a December 16, 2002 memo for Priscilla Lewis, Acting Chief, Labor Relations
Branch, from Carolyn Federoff, President, AFGE Council of HUD Locals, 222,
subject: Follow-up to parties meeting of December 12, 2002 regarding Fair and
Equitable Treatment of Employees Grievance of the Parties, the Union stated:
In order to avoid multiple amendments to the Grievance, we will wait for receipt
of the information requested. Because of the holidays and scheduled leave, I do
not anticipate being able to review and respond to the requested information until
after January 13. Please provide the information by that date, and I will amend
the Grievance on or before January 17, 2003.
The Agency failed to provide the information requested. Instead, on January 17,
2003, the Agency denied the Grievance on the ground that it was not arbitrable under §
7121(c)(5) of the Federal Service Labor-Management Relations Statute.
In a memorandum to Norman Mesewicz from Carolyn Federoff dated January
30, 2003 the Union brought up the issue of the information due by the Agency again:
8
“With regard to the request for information, we will forego filing an Unfair Labor
Practice seeking the information until after resolution of the issue of arbitrability. If
the arbitrator agrees that the matter is arbitrable, we reserve our right to seek
either a ruling from the arbitrator to compel Management to provide the
information of file a ULP.”
By March 14, 2008, no response had been received, leading the Union to file a
Motion to Compel. On May 29, 2008, the Arbitrator ruled that the Agency “again is
ordered to fully comply with information request immediately, but no later than June 30,
2008.” The May 2008 order also stated that if the Agency did not fully comply with the
order by the above date that “this Arbitrator is compelled to draw an adverse inference
that the unreleased information must be adverse to the Agency.” As will be explained,
infra, the Agency did provide a small amount of documents, but nowhere near the
amount of documents it was ordered to produce. Therefore, an adverse inference has
been granted on all unproduced documents, which the Union described in a chart at
hearing.
An arbitration hearing was held on July 15, 2008 and was continued and
completed on August 28, 2008.
9
Facts, Argument & Analysis
I.
The Union Has Met Its Burden of Proof that the Agency Violated the
CBA and Other Government-Wide Rule and Regulation when it Failed to
Treat Bargaining Unit Employees Fairly & Equitably with Regard to
Vacancy Announcements Posted Since May 2002.
C. The Union’s witnesses provided ample testimonial and documentary
evidence that proved the Agency violated the CBA and other rule or
regulation.
i. The Testimony of Ms. Carolyn Federoff
Ms. Carolyn Federoff is a HUD employee (attorney advisor) in the Boston Office
of Counsel and was, at the time the Grievance was filed, the President of AFGE
Council; she now serves as Vice-President for AFGE Local 3258. Tr., pp.30-311. As
Council President, she was responsible for representing employees on a national level,
focusing on widespread issues that affected employees in multiple offices and multiple
locals. Tr., p.31. She frequently traveled to offices around the country and discussed
various issues with employee. Id.
The AFGE Council represents over 6,000 employees in HUD offices nationwide.
It represents employees ranging from GS-1 to GS-15 level, but the highest
concentration of represented employees are GS-12 because the journey level was
generally established for most occupational series at the GS-12 level. Tr., p.32-33.
Journey level is the grade at which an employee functions in the position with a
great level of independence, with very little supervisory oversight in order to accomplish
the day-to-day work.
1
Hereinafter, the Union uses the following paradigm when citing to the hearing transcript for July 15,
2008: “Tr., p. X.” When citing to the hearing transcript for August 28, 2008, the Union uses the following
paradigm: “Tr. II, p. X.”
10
Ms. Federoff explained that she filed the instant Grievance since in 2002 the
Union noticed that positions were being advertised, which were identical to positions
encumbered by current HUD employees, at higher graded career ladders. Tr., p.32-33.
Then, between July and September 2002, there was a deluge of higher level
journeyman vacancy announcements. Id. These vacancy announcements posted
positions at various levels, up to GS-13. Tr., p.33-34. The overall reaction of employees
was negative morale because, while the Agency was finally reinforcing the offices,
many of which were working consistently at 60% of necessary staffing levels, the new
employees would quickly “leapfrog” over the GS-level of their trainers and mentors. Tr.,
p.34-36. Ms. Federoff estimates that the Agency practice began in the second quarter
of 2002. Tr., 36 and continues to date.
The Union noticed that many of the vacancy announcements to the higher
graded GS-13 journeyman level were posted at entry level positions, which meant
current employees had to take a demotion in order to get into a career ladder to work
back up to the GS-12 level and then to the new GS-13 journey level. Tr., p.37. The
Union also learned that there were instances in which the internal vacancy
announcements were cancelled, which prevented current employees from competing
for the higher journeyman level vacancies. Tr., p.38. Other employees were told by
recommending and selecting officials that applying for the vacancies was futile because
the Agency intended to hire new employees. Tr., p.38-39.
The practice about which Federoff filed the Grievance persists. Tr., p.38-39. Ms.
Federoff received an e-mail from the Deputy Assistant Secretary for Human Resource
Management, Barbara Edwards, that it was the Agency’s goal to increase its numbers,
11
and that it is therefore the goal of the Agency to hire/promote people mainly from the
outside. Tr., p.40. This statement is in clear violation of the CBA which requires that the
Agency consider internal candidates for promotion first; the practice results in a situation
where current employees are not treated fairly and equitably as compared to each other
and to the general population. Tr., p.40-41. See also JE 1.
If the Agency wanted to increase its workforce, and also comply with the CBA,
Federoff opined that it could have posted the subject positions with a uniform career
ladder of a journey level of GS-12. Additionally, the Agency could also post positions
with a career ladder to a GS-12, and then senior positions that are just GS-13. Tr., p.41.
Ms. Federoff further testified that in the alternative, the Agency could change the career
ladder uniformly for all employees, such as it did in the Office of Departmental of
Operations and Coordination2 (ODOC). Tr., p.41-42. In fact, the CBA specifically
provides a set of criteria for the Agency to implement the latter policy; the incumbent
employee would have to meet three requirements in order to receive a career ladder
promotion: 1) meet time in grade requirements, 2) perform the duties to the satisfaction
of their supervisor, and 3) there is sufficient work available in order to secure the career
ladder promotion. Tr., p.43; see also JE 1, p. 63, Article 13, Section 13.13
The Agency similarly indicated that it was interested in hiring non-retirement
eligible employees, or employees that would not be retirement eligible in the
2
Within one year of filling the higher graded career ladder positions at issue in this case, ODOC changed
the journey level for all employees in the Contract Industrial Relations Specialist series. Tr., p.42.
12
foreseeable future; giving preferential treatment to younger employees, typically under
the age of 403. Tr., p.44-45. This is a violation of the ADEA in and of itself.
Ms. Federoff testified that she personally gave the documents contained in JE 2
to the Agency via pouch mail, the inter-Agency mail system, and electronically. Tr.,
p.46-48. The documents were sent via e-mail to Mr. Norman Mesewicz in October
2002, and contained an Excel spreadsheet listing approximately 400 subject vacancy
announcements. Tr., p.47; see JE 3. In the e-mail, the Union requested a personnel
action document for each individual selected to fill one of the listed vacancy
announcements. Tr., p.48-49; see JE 3, p.4. The Union similarly requested, via Ms.
Federoff, a copy of all vacancy announcements posted with promotion potential to the
GS-13 level or above. Tr., p.52-53. The Union made similar requests for the vacancy
announcements through a separate Grievance, referred to as Supplement 35. See JE
4.
Ultimately, the Agency did not provide copies of the vacancy announcements,
but allowed Ms. Federoff to review some of them in camera. Tr., p.54-56. Ms. Federoff
explained that she was not allowed to review vacancy announcements with the
paradigm of six numbers. Tr., p.56-57. The Agency later claimed those announcements
were intern positions, but was unable to produce copies of the announcements. Id.; see
JE 7G, p.2. The Agency lied. The Union located two copies of one of these vacancy
announcement – one was marked-up – and the vacancy announcements were clearly
not intern positions – they were posted to grade levels higher than GS-12 and were not
3
One employee was denied the opportunity to participate in the Leadership Development Program
because, as he was told by the manager, the program was only for employees that were not retirementeligible. Tr., p.45.
13
temporary positions. Tr., p.56-57. This negatively impacts on the Agency’s credibility in
this case.
Ms. Federoff, the author of the Grievance, had discussions with Agency officials
regarding the Grievance and specifically explained that the Union believed it had
broader scope and breadth, and requested the documents to investigate the scope of
the problem. Tr., p.60-61; see UE 17. Ms. Federoff even sent a follow-up e-mail to Ms.
Priscilla Lewis, Acting Chief of Labor Relations Branch, which stated the Union intended
to revise and edit the fact section of the instant Grievance, but needed the requested
information to fully determine the scope of the violations. Tr., p.62-64; see UE 17.
Specifically, Union Exhibit 17 is a memorandum dated December 16, 2002 from
Ms. Federoff to Ms. Lewis. In that memorandum, the Union explicitly mentioned its
intent to expand the Grievance. The Union never received the requested information,
and as such, was not able to formally amend the Grievance. Tr., p.65. Ms. Federoff
sent UE 17 to Ms. Lewis via fax and discussed the contents of the document thereafter.
Tr., p.101-103.
Pursuant to the Supplement 35 agreement, the Agency agreed to advertise at
least 50% of all vacancy announcements to the GS-13 level and above internally only.
Tr., p.100-101. The Union, however, determined that the Agency did not meet the
terms of the Supplement 35 agreement and requested information on all vacancy
announcements. Tr., p.101. The Agency did not provide a majority of the information
requested by the Union, as evidenced by the demonstrative exhibit created by the
Union. Tr., p.119-121; see UE 1; see also JE 7B. In one case, the Agency certified that
information was being sent to Washington DC from the Chicago regional office in May
14
2008, see JE 7E, but the information was never delivered. Tr., p.127-128. With regard
to Mr. Vick’s assertions, he did send a letter to the Union regarding one of the requests
for information, which is reflected in the demonstrative exhibit. Tr., p.129-131; see JE
7F. The Agency asserted with regard to some vacancy announcements that no
selection was ever made, but never provided the requested information for those
vacancy announcements. Tr., p.131-132; see JE 7I; see also UE 7M.
Ms. Federoff compared the information received from the Supplement 35
Grievance and testified that though she was allowed to review in camera some of the
vacancy announcements requested through the instant Grievance; she was not allowed
to keep copies of any of the information. Tr., p.135-136; see UE 4. Ms. Federoff further
compared all of the vacancy announcements, internal and external, which she received
or reviewed in camera, and determined that those with promotion potential to the GS-13
level were the cause for concern that were at issue. Tr., p.136-137; see UE 5.
It is in response to Ms. Federoff’s e-mail requesting resolution of the pending
Grievances that Ms. Edwards made statements against interest which conceded that
current employees were not treated fairly and equitably with regard to the vacancy
announcements: “…HUD went into a massive hiring initiative. HUD is currently
operating in the same mode. We have to increase the Department’s numbers and
currently the concentration is on external hires. We really need the Union’s support on
this effort.” Tr., p.105-106, 111-113; see UE 10.
In the Grievance, the Union alleged continuing violations between March 2002
and the present based on Agency’s violations of sections 4.01, 9.01 and 13 of the CBA
regarding fair and equal treatment in the administration of policies and practices
15
concerning conditions of employment, classification standards and internal
advancement of employees. Tr., p.115-118; see JE 1; see also JE 2.
The Agency blatantly and falsely asserted that the numbered vacancy
announcements were intern positions. The Union discovered, through its own due
diligence, a copy of a marked-up numbered vacancy announcement, see UE 7G, for a
full-time permanent position, only open at the GS-7 level with promotion potential to the
GS-13 level. Tr., p.138-142; see UE 7G, p.4; see also UE 3. Intern positions, by
contrast, are posted as temporary and cannot be career conditional; intern positions do
not have promotion potential to the GS-13 level and even if converted to career
conditional cannot go higher than the GS-12 career ladder. Tr., p.142-143.
As an example of the Agency’s repeated violations, Ms. Federoff received
documentation from Ms. Lynna Schonert showing that her manager recommended that
she be non-competitively promoted to the GS-13 level through accretion of duties; she
had been “leapfrogged” by a selectee for one of the subject vacancy announcements to
which Ms. Schonert applied. Tr., p.149-151; see UE 11; see also UE 12, 13. The
selectee was placed into a higher graded position despite doing the same level work as
Ms. Schonert. Tr., p.149-150; see UE 11; see also UE 12, 13.
Further, Ms. Federoff received documentation from Ms. Julie McGuire, showing
that the Agency, by and through the Boston regional office, attempted to resolve the
issues outlined in the instant Grievance by creating a uniform career ladder for all
employees in that office, regardless of whether they were a new hire or longtime
employee. Tr., p.153-155; see UE 14. The paradigm utilized by the Boston office does
not require the agency to promote GS-12 employees who do not meet the requirements
16
of the contract and law, i.e. time in grade, satisfactory performance, availability of work
at the next higher grade level and proven ability to perform at the next higher grade
level. Tr., p.154.
There is an incentive to managers to hire external applicants because if they
promote an employee internally, then the vacancy is lost and the manager must go back
in the queue for the Office of Administration to approve a new vacancy announcement.
Tr., p.160-161. Consequently, the Union and Agency entered into an agreement
regarding internal upward mobility whereby a manager could promote a support staff
employee at GS-12 level or below into a higher graded position and then fill the support
staff vacancy without going back in the queue. Tr., p.160-162. Another factor is the FTE
(Full Time Equivalent) ceilings, instituted by Congress, which regulates how many
funded vacant positions can exist in any Agency cylinder. Tr., p.161-163; see UE 9.
While Ms. Federoff is not a staffing or classification specialist, she has
experience with those issues through her long time incumbency in the position as
President of the Council. Tr., p.166. The Union does not contest that Agency classifiers
in the Office of Operations and Office of Administration have the authority to determine
title, series and grade of Agency positions, but maintains that the CBA calls for current
employees to be treated fairly and equitably as compared to external applicants. Tr.,
p.166-167. The posting of positions with career ladder promotion potential to the GS-13
level, while similarly situated current employees are limited to the GS-12 level, is
inherently a violation of the contract and government wide rule and regulation.
17
ii. The Testimony of Ms. Bonnie Lovorn
Ms. Bonnie E. Lovorn is employed at the Jackson Field Office of HUD, where she
works as a Public Housing Revitalization Specialist (PHRS), GS-1101-12; she has been
a GS-12 since 1994. Tr., p.70-71. She has worked at HUD since 1986 and in Public
Housing since 1989. Tr., p.71-72.
Ms. Lovorn applied for both the internal and external vacancy announcement for
the GS-9/13 Public Housing Revitalization Specialist. Tr., p.71-72; See UE 7J. The
same vacancy announcement was open internally to federal government employees
and externally to the general public. Tr., p.72. Ms. Lovorn explained that she was not
selected for the subject position, but performed the identical work as the selectee, Ms.
Gloria Smith, after the selection. Tr., p.73-74.
Ms. Lovorn testified that she did not apply for the GS-7/7 Public Housing
Revitalization Specialist announcement 152702, See UE 7H, which had promotion
potential to the GS-13, because she asked a management official in the Atlanta
Regional Office that she would have to take a downgrade to the GS-7 level in order to
work back up to the GS-12 level, and then to the GS-13 journey level. Tr., p.75-77. The
position was not an intern position, but was instead a career conditional vacancy
posting. Tr., p.76; see UE 7H. The selection was made from the external posting; the
selectee, Ms. Beverly Williams, was trained and mentored by Ms. Lovorn and other
higher graded employees. Tr., p.78-79. Ms. Williams was eventually promoted into the
GS-13 level position, despite having the same EPPES and duties in the job description
as Ms. Lovorn, who has been a GS-12 since 1994. Tr., p.79-81; see UE 15.
18
Ms. Lovorn explained that it was evident from the vacancy announcement that
the Agency intended to hire an employee from outside the federal government, rather
than promote an internal applicant. Tr., p.86-87. Additionally, Ms. Lovorn applied for the
Public Housing Revitalization Specialist GS-9/13 announcement. Tr., p.92; see UE 7J.
Ms. Lovorn was not selected for this job; instead Ms. Gloria Smith was the selectee
hired at the GS-13 level. Id. Ms. Lovorn has suffered financial losses because the
Agency’s policy and practice kept her from receiving a GS-13 position. Tr., p.96-97.
iii. The Testimony of Ms. Lynna Schonert
Ms. Lynna Schonert is a GS-12 Public Housing Revitalization Specialist in the
Arkansas Office of Public Housing; she has been a GS-12 since approximately 1995.
Tr., p.172-173. She received a GS-12 position when the entire staff was upgraded and
rolled into a higher graded career ladder; the prior career ladder was to the GS-11
level4. Tr., p.173. Ms. Schonert applied for two internal vacancies in 2002 for which she
was qualified – Facilities Management Specialist and Financial Analyst but was not
selected for either position. Tr., p.174, 178. The vacancy announcements were posted
internally and externally, as well as in multiple offices. Id.
Prior to, and during the application process, Ms. Schonert spoke to her
supervisor, Mr. Jess Westover. Tr., p.174-175. Her former supervisor, Ms. Catherine
Lamberg previously recommended Ms. Schonert for a promotion to the GS-13 level
based on her performance and job duties, which remain the same even today. Tr.,
p.176-178. In fact, one of the GS-13 selectees inherited one of Ms. Schonert’s primary
4
This is yet another example of how the Agency can do what it claims it cannot do – or is unwilling to do:
create grade parity for employees, recognizing that the new journeyman level of work is now at a higher
grade due to the maturity of the Agency and increasing complexity and volume of the work.
19
GS-12 duties, the Little Rock Housing Authority development project; Ms. Lamberg
stated the project was GS-14 level work. Tr., p.177-178. The EPPES for the GS-12
position and GS-13 position are identical. Tr., p.181-182.
Ms. Schonert explained that two other GS-12 co-workers applied for the subject
vacancies – Ms. Edna Sue Davis and Ms. Jamie Allen. Tr., p.179. Ms. Schonert was
informed by management that it was in the best interests of the Agency to make
external selections, rather than internal. Tr., p.179-180. When Ms. Allen was Acting
Director at the time the selections were made (and was therefore privy to internal
Agency management meetings and discussions), she told Ms. Schonert that the Agency
management stated that HUD management had the choice to promote internal
applicants or “add to the staff” by hiring new hires externally. Tr., p.180-181. This
choice clearly was designed to entice management to “add to the staff” – by hiring
externally – rather than promoting internally and not gaining an FTE. In other words, by
hiring externally the agency would grow – and by promoting internally the Agency would
not grow.
The three applicants, consequently, filed a Grievance that was incorporated into
the instant matter. Id. Ms. Schonert explained that not all five vacancies were filled by
the Agency; her supervisor told her headquarters took back the two unfilled vacancies.
Tr., p.181, 186-187. But for the Agency’s violations, Ms. Schonert would have been a
GS-13 for the last six years and going forward. Tr., p. 183.
iv. The Testimony of Ms. Marcia Randolph-Brown
Ms. Marcia Randolph-Brown is currently retired; prior to her retirement, since
1997, she was a GS-12 Public Housing Revitalization Specialist in the Public and Indian
20
Housing Office in Baltimore, Maryland. Tr., p.194-195. Ms. Randolph-Brown applied for
GS-13 level positions in 2002. Tr., p.195; see UE 7J. Ms. Randolph-Brown explained
that she discussed the vacancy and application with her Director, Ms. Candice S.
Simms, who informed her she should apply to positions outside of Public and Indian
Housing. Tr., p. 198. Ms. Randolph-Brown, who was not selected for the position,
explained that she understood that to mean she would not be selected for the vacancy
because she was retirement-eligible. Tr., p.198-199. This also tended to support the
Union’s belief and argument that intra-cylinder promotions were discouraged since they
would lose an FTE, and that inter-cylinder promotions were discouraged since the
employee could carry the FTE with them, and so the releasing cylinder was reluctant to
have the employee be promoted.
Ms. Randolph-Brown trained the actual selectees. The Agency made three total
selections; two externally to the GS-7 level and one internal selectee at the GS-7 level,
the latter of whom was subsequently promoted to the GS-9 level. Tr., p.199-200. Ms.
Randolph-Brown explained that the Agency did not select the most qualified applicant,
but rather used an alternate method based on “other” factors. Tr., p.201-202. Ms.
Randolph-Brown was fully qualified for the positions, already performed the higher
graded work and received fully successful performance appraisals, yet was the only
GS-12 employee in the office at the time of her retirement. Tr., p.202-204. All of the
others were GS-13s. This tended to support the Union’s observation, supported also by
statistical evidence compiled by Ms. Federoff (Union Exhibit 9), that the distribution of
GS-13 positions vs. GS-12 positions after this hiring initiative was not the normal,
expected, pyramid-shaped distribution (where the journeyperson level is highly
21
populated at the GS-12 and the expert level consists of a few selected GS-13s), but
rather was a seemingly random ratio of GS-12 : GS-13. This chart shows the expected
grade distribution (about 5:1 ratio) in a normal Agency where the GS-12 level is the
journeyman level and the GS-13 is the lead, or expert level:
Sample Expected Grade distribution
30
25
20
GS‐12
15
GS‐13
10
5
0
Office 1
Office 2
Office 3
Office 4
This chart shows the seemingly random and senseless (ie unfair and inequitable)
distribution of positions at the GS-12 and 13 level at HUD after this hiring initiative:
Actual Grade Distribution
GS-12
ity
C
K
an
sa
s
tla
nt
a
A
al
ti
m
or
e
GS-13
B
B
os
to
n
25
20
15
10
5
0
The Union has raised these issues the first day of hearing, raising the inference
that the Agency did not measure the amount of available work at the various GS levels
and post jobs accordingly, but rather carried out this emergency hiring initiative without
forethought, planning or equality (as required by the CBA). The result was a disaster.
Further, the Agency did not put on any testimony or provide any evidence explaining
22
this distribution or showing how it was fair and/or equitable. The Union’s testimony and
evidence shows that the end result, which resulted from the vacancy announcements,
was not fair and equitable.
Ms. Randolph-Brown testified that she would have continued her employment
with the Agency instead of retiring had she rightfully received her GS-13 level position.
Tr., p.204-205. There were other employees that performed similar work as GS-13
employees, but were stuck in limited career ladder positions with promotion potential
maxed out at the GS-12 level. Tr., p.205-206.
v. The Testimony of Ms. Victoria Reese Brown
Ms. Victoria Reese Brown has been a GS-12 Public Housing Revitalization
Specialist in the Nashville Program Center in the Office of Public Housing for thirteen
years. Tr., p.210-211. Ms. Brown was the President of the Local 3980 in Nashville from
2000 to 2006. Tr., p. 212. As President, she was responsible for organizing,
representing, and negotiating on behalf of bargaining unit employees in Nashville. Tr.,
p.212.
Ms. Brown testified that she learned of a hiring initiative in 2002 while canvassing
vacancy announcements on USA Jobs to investigate grade disparity issues. Tr., p.213.
She noticed that the Agency posted a vacancy announcement for a GS-7 Financial
Analyst that had promotion potential to a GS-12 level in Nashville, but the same
announcement had a promotion to a GS-13 level for three or four other offices, despite
identical duties. Id.; see UE 7G. She specifically testified that the vacancy
announcement was not for an intern position. Tr., p.213-214.
23
Ms. Brown provided Ms. Federoff a copy of the vacancy announcement with her
handwritten notes. Tr., p.214-217. One note indicated that the vacancy announcement
discouraged GS-12 employees from applying because they would have to take a
constructive demotion to the GS-7 level with maximum career ladder potential to the
GS-13 level. Tr., p.216-217; see UE 7G, p.4. This was confirmed by Ms. Patty
Whitehouse, an Administrative Officer and management official for HUD, who informed
Ms. Brown that GS-12 employees could not apply for the vacancy. Tr., p.217-218.
Ms. Brown, as part of the group performing public housing revitalization duties,
knew that the GS-12 and GS-13 level work was identical. Tr., p.215-216. Ms. Brown
was qualified for the position and would have applied if it had promotion potential to the
GS-13 level. Tr., p.218-219. There were two other incumbents in the PHRS position;
one GS-12 and one GS-135. Tr., p.219. The GS-12 incumbent was a financial analyst;
the same as the position posted in the vacancy announcement. Tr., p.219-220. Ms.
Brown further explained that the GS-12 and GS-13 financial analyst perform the same
duties; the GS-13 analyst performed the same duties that she performed when she was
a GS-12. Tr., p.220-221.
In her testimony, Ms. Brown explained that the vacancy announcement did not
follow the usual paradigm for Agency postings. Tr., p.221-222. The Agency generally
posts two types of vacancy announcement; one internally, MSH, and one externally,
DEU. Tr., p.221.
vi. The Testimony of Ms. Melanie Hertel
5
The GS-13 financial analyst was promoted to the GS-13 level as a public trust officer and then her title
was changed to PHRS financial analyst. Id.
24
Ms. Melanie Hertel has been a GS-13 Contractor Industrial Relations Specialist
in the Office of Labor Relations (LRS) in Seattle, Washington since 2004. Tr., p.225226. Ms. Hertel testified that there is one other GS-13 LRS incumbent in her office, Mr.
Eugene Harrison, and two GS-13 LRS incumbents in Oregon and Alaska that were
hired as part of the 2002 initiative. Tr., p.226-227.
Ms. Hertel explained that in 2002 the Agency posted her same position in a
vacancy announcement with promotion potential to the GS-13 level, whereas her
position was maxed out at the GS-12 level at that time. Tr., p.227. She even
considered moving to Portland, Oregon to apply for the position, but was discouraged
by her supervisor, Mr. Jim Herald6, during a staff meeting, who stated the purpose of
the announcement was to hire new recruits externally and if current employees applied
for the position it would not be considered. Tr., p.227-228. When she asked if the same
promotion potential to the GS-13 level would be offered in Seattle, Mr. Herald
responded in the negative – stating the GS-13 level was offered to attract the best
candidates from the other program areas and outside the Agency. Tr., p.228-229.
Ms. Hertel did not apply for the subject vacancies because she believed it was
futile; her application would be thrown out and not be considered. Tr., p.230. Ms. Hertel
did eventually receive a non-competitive promotion to the GS-13 level in 2004 due to a
national initiative. Tr., p.230-231. Mr. Herald’s reaction to the news of the promotions
was surprising and curious7. Tr., p.231-232.
6
Mr. Herald is the Regional Labor Relations Officer who supervises all LRS employees in Washington
state, Alaska and Oregon. Tr., p.229. He was also the selecting official for the subject positions. Tr.,
p.230.
7
When Mr. Herald learned from Mr. Harrison about the promotions he asked to see the letter from Mr. Ed
Johnson. Mr. Herald nearly fell into his chair in surprise and proceeded to call Mr. Johnson to check up
on the events. Tr., p.231.
25
Ms. Hertel stated she performed the same job duties and functions as a GS-12
and GS-13 LRS; there was also no difference in the EPPES. Tr., p.232. In fact, for the
year in which she was promoted, the GS-13 performance standards were applied
retroactively to the time period in the beginning of the rating year in which Ms. Brown
was still a GS-12. Tr., p.232-233. This exemplifies the fact that GS-12 BUEs were
performing the exact same duties as those in the subject vacancy announcements with
promotion to the GS-13 level.
vii. The Testimony of Ms. Julia A. McGuire
Ms. Julie A. McGuire retired in June 2007 after 34 years of service for the
Agency. Tr., p.237. Just prior to her retirement, she was employed as a GS-13
Industrial Relations Specialist (CIRS) in the Labor Relations Office; she was promoted
through a nationwide initiative and Agency memorandum, from Mr. Ed Johnson, that
changed the journeyman level of her position in 2003. Tr., p.238-239, 245-246; see UE
14. Her job duties did not change from the GS-12 position to the GS-13 level position.
Tr., p.246.
Ms. McGuire had previously applied for a GS-13 position, but the vacancy
announcement was cancelled. Tr., p.239-240. The position was posted internally; Ms.
McGuire did not believe it was posted externally because if it was then she would have
applied. Tr., p.240-241. Ms. McGuire did not find out her vacancy was cancelled until
after the 0153Z vacancy announcement was closed. Tr., p.242-244. The selectees of
the 0153Z vacancy announcement were hired at the GS-7 and GS-9 level; Ms. McGuire
trained both of the selectees, who also received a GS-13 in 2003. Tr., p.244-245. At the
time the vacancy announcements were posted in 2002, Ms. McGuire had met the time
26
in grade requirement for promotion to the GS-13 level, had performed the duties of her
position satisfactorily and demonstrated the ability to perform GS-13 grade work, yet
was stalled at the GS-12 career ladder. Tr., p.249-250.
D. Even the Agency’s witness’s testimonial evidence corroborates the
Union’s position.
Mr. Gary Lyman has been a Supervisory Human Resources Specialist since
1999; he supervises a staff of seven employees engaged in staffing and classification
nationwide. Tr. II, p.8-9. He was a position classifier with the Agency for approximately
ten years. Tr. II, p.9-10. Mr. Lyman explained that the program area generally decides
to post a vacancy based on someone leaving, new program demands through
legislation and/or volume of work. Tr. II, p.10-12. The subject position must be
classified and most positions use standardized job descriptions and boilerplate
classifications. Tr. II, p.11. The Agency then posts a vacancy announcement that
describes the position, grade levels, salary ranges, job responsibilities and qualifications
and instructions to apply. Tr. II, p.12-13.
Mr. Lyman testified that the majority of posted vacancy announcements result in
a selection; however, some vacancy announcements are not filled. Tr. II, p.14-15. The
vacancy announcement will usually define the promotion potential for the position; it is
the highest grade level for full performance of the position. Tr. II, p.16-18. Mr. Lyman
explained that grade levels are generally based on seniority. Tr. II, p.15-16. The
Agency determines the promotion potential for every position; the Union is not involved
in the decision, though the Agency must comply with Article 13 of the CBA. Tr. II, p.1719.
27
Mr. Lyman explained that even if the job duties differ, the grade levels of two
positions should be the same if the complexities and responsibilities are comparable. Tr.
II, p.20. When an applicant is selected for a subject position with promotion potential,
then the applicant will reach the career ladder promotion grade level, assuming he/she
meets the contract requirements for career advancement, i.e. time in grade, satisfactory
performance and demonstrated ability to perform higher graded work. Tr. II, p. 22-26.
Mr. Lyman testified that the principal way for employees at the maximum career
ladder level to receive promotions is to apply under merit staffing procedures for
competitive positions. Tr. II, p.34-35. Management can also initiate an accretion of
duties promotion, but the policy is not to initiate such action if there is more than one
similarly situated employee8. Tr. II, p.35-37; see AE M1.
Mr. Lyman testified that the 1995 MOU was not an accretion of duties request.
Tr. II, p.64-65; see JE 6A. Mr. Lyman explained that he did not have any direct
knowledge of the actions giving rise to the instant Grievance. Tr. II, p.66-67. Mr.
Lyman’s promotion to the GS-14 level in May 2002 was non-competitive. Tr. II, p.67.
He received an accretion of duty promotion, despite there being similarly situated
incumbents, in violation of the purported policy submitted by the Agency. Tr. II, p.67-69;
see AE M1. Mr. Lyman conceded that the policy regarding accretion of duties does not
apply if there is a reorganization. Tr. II, p.72-74.
Mr. Lyman does have a curriculum vitae or resume in his OPF from the
application for his competitive promotion to the GS-13 level in 1999. Tr. II, p.79-80.
8
Mr. Lyman testified that the policy was issued by the Director of the Office of Human Resources in 1998.
Tr. II, p.42-45. He did not know if it was bargained with the Union, but did state it affected terms and
conditions of bargaining unit employees. Tr. II, p.44-46. He did not know if it was ever incorporated into
the revised merit staffing handbook. Tr. II, p.46-48.
28
Mr. Lyman explained that a vacancy announcement for an intern position will
state so on the announcement. Tr. II, p.87. He further explained that the intern
recruitments are done by headquarters, not regional offices, and the vacancy
announcement will state the full performance level for the intern position. Id.
While Mr. Lyman was familiar with the three pre-requisites for promotion to a
higher graded position, he did not if it was statutorily mandated by the CFR. Tr. II, p.9193. Mr. Lyman is aware of situations where the career ladder level for an entire position
series was raised up a grade level. Tr. II, p.96-97. The Agency violated the contract
when it posted vacancy announcements both internally and externally, and then
cancelled the internal vacancy announcement. Tr. II, p. 98-100.
Mr. Lyman testified that he would never post a vacancy announcement with two
different career ladder promotion potentials. Tr. II, p.104-106. It is inconceivable that
the Agency could determine at the time of the selections which applicants would be
capable of performing the higher graded work years in the future. Tr. II, p.105-106. Yet,
the Agency posted vacancy announcements and made selections of employees who
quickly leapfrogged veteran incumbents of the position who performed the same duties
and even trained the new employees. Even Mr. Lyman found the Agency practice of
posting positions with higher career advancement potential than the current incumbents
at GS-7 or GS-9 levels odd because it discouraged current employees from applying for
positions that would result in constructive demotions. Tr. II, p.109-115. Mr. Lyman,
similarly found fault with the Agency practice of posting vacancy announcements that
are eventually cancelled, but failing to transfer the applicants to alternate vacancy
announcement postings for the same position that were open before the first vacancy
29
was closed. Tr. II, p.119-121. The inequity is clear in that applicants for the first
vacancy will not apply to the same position for which they already applied, but have no
knowledge that the first vacancy will actually be cancelled and the only selection is
made from the second announcement.
II.
The Union proved that the Agency violated the HUD/AFGE
Agreement, law, rule and regulation.
a. Sections 4.01 and 4.06 of the Collective Bargaining Agreement were
violated when the employees were not treated fairly or equitably concerning
conditions of employment.
The Collective Bargaining Agreement is clear that the employees must be treated
fairly and equitably concerning their conditions of employment. As was testified to by
the Union witnesses, the employees were not treated fairly and equitably by the
Agency. Many GS-12 Grievants performed the same work as those GS-13 employees
who were hired and then advanced to the GS-13 position. The Grievant’s career ladder
only rose to the GS-12 level, while the new employees’ ladder rose to the GS-13 level.
1. The Agency assigned the same work to GS-12 Grievants and GS-13
“leapfroggers.”
At the hearing, the Union presented un-rebutted testimony that the Agency
assigned the same work to the GS-12 Grievants and the GS-13 “leapfroggers.” Ms.
Federoff filed the instant Grievance in 2002 when the Union noticed that positions were
being advertised, which were identical to positions encumbered by current HUD
employees, at higher graded career ladders. Tr., p.32-33. Between July and September
2002, there was a deluge of higher level journeyman vacancy announcements and
these vacancy announcements posted positions at various levels, up to GS-13. Tr.,
30
p.33-34. The overall reaction of employees was negative morale because, while the
Agency was finally reinforcing the offices, many of which were working consistently at
60% of necessary staffing levels, the new employees would quickly “leapfrog” over the
GS-level of their trainers and mentors. Tr., p.34-36. Ms. Federoff estimates that the
Agency practice began in the second quarter of 2002. Tr., 36 and continues to date.
Ms. Federoff received documentation from Ms. Lynna Schonert showing that her
manager recommended that she be non-competitively promoted to the GS-13 level
through accretion of duties; she had been “leapfrogged” by a selectee for one of the
subject vacancy announcements to which Ms. Schonert applied. Tr., p.149-151; see UE
11; see also UE 12, 13. The selectee was placed into a higher graded position despite
doing the same level work as Ms. Schonert. Tr., p.149-150; see UE 11; see also UE 12,
13.
Ms. Lovorn applied for both the internal and external vacancy announcement for
the GS-9/13 Public Housing Revitalization Specialist. Tr., p.71-72; See UE 7J. The
same vacancy announcement was open internally to federal government employees
and externally to the general public. Tr., p.72. Ms. Lovorn explained that she was not
selected for the subject position, but performed the identical work as the selectee, Ms.
Gloria Smith, after the selection. Tr., p.73-74.
Ms. Brown, as part of the group performing public housing revitalization duties,
knew that the GS-12 and GS-13 level work was identical. Tr., p.215-216. Ms. Brown
was qualified for the position and would have applied if it had promotion potential to the
GS-13 level. Tr., p.218-219. There were two other incumbents in the PHRS position;
31
one GS-12 and one GS-139. Tr., p.219. The GS-12 incumbent was a financial analyst;
the same as the position posted in the vacancy announcement. Tr., p.219-220. Ms.
Brown further explained that the GS-12 and GS-13 financial analyst perform the same
duties; the GS-13 analyst performed the same duties that she performed when she was
a GS-12. Tr., p.220-221.
Ms. Hertel stated she performed the same job duties and functions as a GS-12
and GS-13 LRS; there was also no difference in the EPPES. Tr., p.232. In fact, for the
year in which she was promoted, the GS-13 performance standards were applied
retroactively to the time period in the beginning of the rating year in which Ms. Brown
was still a GS-12. Tr., p.232-233. This exemplifies the fact that GS-12 BUEs were
performing the exact same duties as those in the subject vacancy announcements with
promotion to the GS-13 level.
Therefore, it is clear that the GS-12 Grievant’s, who’s promotion potential was
limited to the GS-12 level, performed the very same duties as the GS-13 employees,
who’s promotion potential was to a GS-13 position, which is not fair and equitable.
2.
The Agency had GS-12 Grievants train and mentor “leapfrog employees”
who were then promoted to the GS-13 level.
Not only did the GS-12 Grievants perform the same activities as the GS-13
employees, the record was clear and un-rebutted that those GS-12 employees trained
and mentored the GS-13 employees for their jobs.
9
The GS-13 financial analyst was promoted to the GS-13 level as a public trust officer and then her title
was changed to PHRS financial analyst. Id.
32
The Union and Ms. Federoff testified that the new employees would quickly
“leapfrog” over the GS-level of their trainers and mentors. Tr., p.34-36.
Ms. McGuire had previously applied for a GS-13 position, but the vacancy
announcement was cancelled. Tr., p.239-240. The position was posted internally; Ms.
McGuire did not believe it was posted externally because if it was then she would have
applied. Tr., p.240-241. Ms. McGuire trained both of the selectees, who also received a
GS-13 in 2003. Tr., p.244-245. At the time the vacancy announcements were posted in
2002, Ms. McGuire had met the time in grade requirement for promotion to the GS-13
level, had performed the duties of her position satisfactorily and demonstrated the ability
to perform GS-13 grade work, yet was stalled at the GS-12 career ladder. Tr., p.249250.
Ms. Lovorn testified that she did not apply for the GS-7/7 Public Housing
Revitalization Specialist announcement 152702, See UE 7H, which had promotion
potential to the GS-13, because she asked a management official in the Atlanta
Regional Office that she would have to take a downgrade to the GS-7 level in order to
work back up to the GS-12 level, and then to the GS-13 journey level. Tr., p.75-77. The
position was not an intern position, but was instead a career conditional vacancy
posting. Tr., p.76; see UE 7H. The selection was made from the external posting; the
selectee, Ms. Beverly Williams, was trained and mentored by Ms. Lovorn and other
higher graded employees. Tr., p.78-79. Ms. Williams was eventually promoted into the
GS-13 level position, despite having the same EPPES and duties in the job description
as Ms. Lovorn, who has been a GS-12 since 1994. Tr., p.79-81; see UE 15.
33
Therefore, it is clear that the GS-13 employees were trained by the GS-12
employees for whom it was impossible to get a GS-13 unless they took a demotion
from the GS-12 to the GS-7 position and worked their way back up over several years.
This is not fair and not equitable.
b. Section 9.01 of the Collective Bargaining Agreement was violated
when classification standards were not applied fairly and equitably to all
positions.
1. The Agency discouraged employees from applying to positions and told
them that they were not eligible.
The record was clear and un-rebutted that employees were told by
recommending and selecting officials that applying for the vacancies was futile because
the Agency intended to hire new employees. Tr., p.38-39. The Agency called one
witness; Mr. Lyman, and attempted to qualify him as an expert. Due to several
concerns mentioned by the Arbitrator, he was not found to be qualified as an expert but
he was allowed to testify as the Agency’s sole witness in this Arbitration. Tr. II 58-61.
Mr, Lyman found the Agency practice of posting positions with higher career
advancement potential than the current incumbents at GS-7 or GS-9 levels odd
because it discouraged current employees from applying for positions that would
result in constructive demotions. Tr. II, p.109-115.
The Union provided un-rebutted testimony that Ms. Brown provided Ms. Federoff
a copy of the vacancy announcement with her handwritten notes. Tr., p.214-217. One
note indicated that the vacancy announcement discouraged GS-12 employees from
applying because they would have to take a constructive demotion to the GS-7 level
with maximum career ladder potential to the GS-13 level. Tr., p.216-217; see UE 7G,
34
p.4. This was confirmed by Ms. Patty Whitehouse, an Administrative Officer and
management official for HUD, who informed Ms. Brown that GS-12 employees could not
apply for the vacancy. Tr., p.217-218.
The Union also had Ms. Hertel testify who explained that in 2002 the Agency
posted her same position in a vacancy announcement with promotion potential to the
GS-13 level, whereas her position was maxed out at the GS-12 level at that time. Tr.,
p.227. She even considered moving to Portland, Oregon to apply for the position, but
was discouraged by her supervisor, Mr. Jim Herald10, during a staff meeting, who stated
the purpose of the announcement was to hire new recruits externally and if current
employees applied for the position it would not be considered. Tr., p.227-228. When
she asked if the same promotion potential to the GS-13 level would be offered in
Seattle, Mr. Herald responded in the negative – stating the GS-13 level was offered to
attract the best candidates from the other program areas and outside the Agency. Tr.,
p.228-229.
Therefore it is clear that the Agency failed to fairly apply classification standards
fairly and equitably to all positions and in fact discouraged the GS-12 employees from
applying to the GS-7/13 positions.
10
Mr. Herald is the Regional Labor Relations Officer who supervises all LRS employees in Washington
state, Alaska and Oregon. Tr., p.229. He was also the selecting official for the subject positions. Tr.,
p.230.
35
c. Section 13.01 of the Collective Bargaining Agreement was violated
when management did not develop or utilize programs to facilitate
career development of the Department’s employees and did not
consider filling positions within the Department and did not promote the
internal advancement of employees.
1. The Agency posted positions externally only and its goal was to hire
external candidates to the Agency.
Ms. Federoff testified that she received an e-mail from the Deputy Assistant
Secretary for Human Resource Management, Barbara Edwards, that it was the
Agency’s goal to increase its numbers, and that it is therefore the goal of the Agency to
hire/promote people mainly from the outside. Tr., p.40. This statement is in clear
violation of the CBA which requires that the Agency consider internal candidates for
promotion first; the practice results in a situation where current employees are not
treated fairly and equitably as compared to each other and to the general population.
Tr., p.40-41. See also JE 1.
Ms. Schonert also testified that she was informed by management that it was in
the best interests of the Agency to make external selections, rather than internal. Tr.,
p.179-180.
Ms. Hertel testified and explained that in 2002 she considered moving to
Portland, Oregon to apply for the position, but was discouraged by her supervisor, Mr.
Jim Herald11, during a staff meeting, who stated the purpose of the announcement was
to hire new recruits externally and if current employees applied for the position it would
not be considered. Tr., p.227-228. When she asked if the same promotion potential to
the GS-13 level would be offered in Seattle, Mr. Herald responded in the negative –
11
Mr. Herald is the Regional Labor Relations Officer who supervises all LRS employees in Washington
state, Alaska and Oregon. Tr., p.229. He was also the selecting official for the subject positions. Tr.,
p.230.
36
stating the GS-13 level was offered to attract the best candidates from the other
program areas and outside the Agency. Tr., p.228-229. No Agency testimony was
offered to contradict any of this testimony.
Therefore, the Agency violated Section 13.01 of the Collective Bargaining
Agreement when management did not develop or utilize programs to facilitate career
development of the Department’s employees and did not consider filling positions within
the Department and did not promote the internal advancement of employees.
2. The Agency posted positions at grade 7 / entry level only which
discouraged Grievant’s from applying for the positions.
It is not fair or equitable to tell a GS-12 employee that the only way that they can
be promoted to a GS-13 position is to first be demoted to a GS-7 and then work your
way back up to the GS-13 level. The evidence showed that Ms. Brown provided Ms.
Federoff a copy of the vacancy announcement with her handwritten notes. Tr., p.214217. One note indicated that the vacancy announcement discouraged GS-12
employees from applying because they would have to take a constructive demotion to
the GS-7 level with maximum career ladder potential to the GS-13 level. Tr., p.216-217;
see UE 7G, p.4. Ms. Lovorn testified that she did not apply for the GS-7/7 Public
Housing Revitalization Specialist announcement 152702, See UE 7H, which had
promotion potential to the GS-13, because she asked a management official in the
Atlanta Regional Office that she would have to take a downgrade to the GS-7 level in
order to work back up to the GS-12 level, and then to the GS-13 journey level. Tr., p.7577. This was confirmed by Ms. Patty Whitehouse, an Administrative Officer and
management official for HUD, who informed Ms. Brown that GS-12 employees could not
37
apply for the vacancy. Tr., p.217-218. Therefore, announcing the position at a GS-7
level only was not fair to the GS-12 Grievants who had no way of realistically reaching
the GS-13. This is not fair or equitable and violated the CBA.
Mr. Lyman the Agency practice of posting positions with higher career
advancement potential than the current incumbents at GS-7 or GS-9 levels odd
because it discouraged current employees from applying for positions that would result
in constructive demotions. Tr. II, p.109-115.
3. The Agency posted internal and external positions and then cancelled the
internal positions while leaving the external positions only.
The Agency violated the CBA and did not act fair or equitably when they
cancelled internal positions while leaving the external positions open. The Union
learned that there were instances in which the internal vacancy announcements were
cancelled, which prevented current employees from competing for the higher
journeyman level vacancies. Tr., p.38. The Agency violated the contract when it posted
vacancy announcements both internally and externally, and then cancelled the internal
vacancy announcement. Tr. II, p. 98-100. Mr. Lyman, similarly found fault with the
Agency practice of posting vacancy announcements that are eventually cancelled, but
failing to transfer the applicants to alternate vacancy announcement postings for the
same position that were open before the first vacancy was closed. Tr. II, p.119-121.
The Agency violated the contract when it posted vacancy announcements both
internally and externally, and then cancelled the internal vacancy announcement. Tr. II,
p. 98-100. Therefore, the Agency actions violated the CBA.
38
4. The Agency posted vacancy announcements with two different
career ladder promotion potentials.
Posting vacancy announcements with two distinct career ladder potentials
violated the CBA and is not fair or equitable. The Union testified that it did not contest
that Agency classifiers in the Office of Operations and Office of Administration have the
authority to determine title, series and grade of Agency positions, but maintains that the
CBA calls for current employees to be treated fairly and equitably as compared to
external applicants. Tr., p.166-167. The posting of positions with career ladder
promotion potential to the GS-13 level, while similarly situated current employees are
limited to the GS-12 level, is inherently a violation of the contract and government wide
rule and regulation. Even the sole Agency witness, Mr. Lyman, testified that he would
never post a vacancy announcement with two different career ladder promotion
potentials. Tr. II, p.104-106. It is inconceivable that the Agency could determine at the
time of the selections which applicants would be capable of performing the higher
graded work years in the future. Tr. II, p.105-106. Yet, the Agency posted vacancy
announcements and made selections of employees who quickly leapfrogged veteran
incumbents of the position who performed the same duties and even trained the new
employees. Even Mr. Lyman found the Agency practice of posting positions with higher
career advancement potential than the current incumbents at GS-7 or GS-9 levels odd
because it discouraged current employees from applying for positions that would result
in constructive demotions. Tr. II, p.109-115.
Ms. Brown testified that she learned of a hiring initiative in 2002 while canvassing
vacancy announcements on USA Jobs to investigate grade disparity issues. Tr., p.213.
39
She noticed that the Agency posted a vacancy announcement for a GS-7 Financial
Analyst that had promotion potential to a GS-12 level in Nashville, but the same
announcement had a promotion to a GS-13 level for three or four other offices, despite
identical duties. Id.; see UE 7G. She specifically testified that the vacancy
announcement was not for an intern position. Tr., p.213-214.
Therefore the Agency’s actions when posting vacancy announcements with two
distinct career ladder potentials violated the CBA and were not fair or equitable.
III.
The Effect of the Arbitrator’s Prior Adverse Inference Ruling Discredits
the Agency Entirely.
I.
Failure to provide documents.
Courts have long applied, as a sanction to failure to produce documents or
testimony, the use of the adverse inference rule–that if the information had been
provided, it would have been unfavorable to the Agency and favorable to the opposing
party. In 1936, a state court held:
The failure or refusal to produce a relevant document, or the destruction of it, is
evidence from which alone its contents may be inferred to be unfavorable to the
possessor, provided the opponent, when the identity of the document is disputed,
first introduces some evidence tending to show that the document actually
destroyed or withheld is the one as to whose contents it is desired to draw an
inference. In Re: Holmes’ Estate, 98 Colo. 360, 56 P.2d 1333 (Colo. 1936)
The drawing of an adverse inference is an appropriate remedy for an Agency’s failure to
produce properly requested and relevant documents, such as that of the Agency here,
especially where documents routinely are maintained only for a short period of time and
the Agency did not take any steps to preserve the documents upon notice of the
Grievance. In the Zukulake case, the court held:
40
The jury empanelled to hear this case will be given an adverse inference
instruction with respect to e-mails deleted…, and in particular, with respect to
[records] that were irretrievably lost when [the employer’s] backup tapes were
recycled. Zukulake, supra, 229 F.R.D. at 437.
The party seeking an adverse inference instruction based on spoliation must
establish three elements: (1) party having control over evidence had an
obligation to preserve it at the time it was destroyed, (2) records were
destroyed with a “culpable state of mind,” and (3) destroyed evidence was
relevant to party’s claim or defense such that reasonable trier of fact could
find it would support that claim or defense). Zukulake, supra, 229 F.R.D. at
430.
The FLRA further noted in 1987 that unfair labor practice cases in the private
sector have long recognized that an adverse inference may be raised by the failure of a
party to produce available evidence. Bureau of Engraving and Printing, 87 FLRR
1-1421; 28 FLRA 796, 802 (1987). See also Internal Revenue Service, Austin District
Office, Austin, TX, 96 FLRR 1-1034; 51 FLRA No. 95; 51 FLRA 1166 (1996). In that
case, the FLRA held that the documents requested were relevant and necessary and it
was not improper to draw adverse inferences when the Agency refused to provide said
documents, citing National Oceanic Atmospheric Administration, National Weather
Service, Silver Spring, Maryland, 87 FLRR 1-1613; 30 FLRA 127 (1987).
In National Park Service, National Capital Region, U.S. Park Service and PADC,
90 FLRR 1-1643; 38 FLRA No. 86; 38 FLRA 1027 (1990), the FLRA held that proper
sanctions for refusal to produce requested documents include striking testimony by
refusing party on the issue and/or drawing of adverse inferences. The FLRA determined
that if a union requested data … the agency … must either produce the data … or suffer
the inevitable consequences of adverse inferences drawn either as to content or the
purpose, or both, of unseen documents.” Department of Veterans Affairs, Finance
Center, Austin, TX and NFFE, Local 1745, 93 FLRR 1-1204; 48 FLRA No. 21; 48 FLRA
41
247 (1993).
In another case, the FLRA judge held that, absent the presentation of such
witnesses, it was proper to infer that, if called, the testimony of Respondent’s
supervisors would have been adverse to Respondent’s case. Department of Justice,
Immigration and Naturalization Service, Los Angeles District, Los Angeles, CA and
AFGE, Local 505, 94 FLRR 1-4017 (1994). In that case, the FLRA judge noted that it is
well settle…
Purchase answer to see full
attachment