71 FLRA No. 122                                                                                                                                                                              

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS OPERATIONS

(Agency)

and

ASSOCIATION OF

ADMINISTRATIVE LAW JUDGES

INTERNATIONAL FEDERATION

OF PROFESSIONAL AND

TECHNICAL ENGINEERS

(Union)

0‑AR‑5514

_____

DECISION

March 30, 2020

_____

Before the Authority:  Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

(Member DuBester dissenting)

Decision by Member Abbott for the Authority

1. Statement of the Case

    

   This case is another chapter in the chronicle between the Agency and the Union over the telework provision in the parties’ collective‑bargaining agreement.^[1]  While this chapter varies somewhat from its predecessors, the story ends the same.

    

   Arbitrator Lise Gelernter found that the Agency violated the parties’ agreement when it denied the grievant’s telework request.  The Agency argues that the award fails to draw its essence from the parties’ agreement, the Arbitrator exceeded her authority, the award is incomplete, ambiguous, or contradictory, and the award is contrary to law.  Applying the standard adopted in U.S. DOJ, Federal BOP (DOJ),^[2] we find that the award is contrary to law, in part, because it excessively interferes with management’s rights to direct employees and assign work.

    

2. Background and Arbitrator’s Award

    

   Like SSA I^[3] and SSA II,^[4] this case involves the denial of the grievant’s telework request for failure to schedule a “reasonably attainable” number of cases for hearing per month.  The parties’ collective bargaining agreement contains a provision for telework.  As relevant here, Article 15, Section 7.L.3 provides:

    

   If, the [Agency] determines that a Judge has not scheduled a reasonably attainable number of cases for hearing, then after advising the Judge of that determination and further advising the Judge that his or her ability to telework may be restricted, the [Agency] may limit the ability of the Judge to telework until a reasonably attainable number of cases are scheduled.  The Parties agree that any dispute as to whether the [Agency] has properly restricted the ability to telework under this paragraph is to be resolved pursuant to the negotiated grievance and arbitration procedures.^[5]

    

   On February 18, 2014, the Agency issued a memorandum clarifying Section 7.L.3, which stated “scheduling an average of at least fifty cases for hearing per month will generally signify a reasonably attainable number for the purposes of this contractual provision.”^[6]  The Agency issued another memorandum on February 15, 2017, maintaining that an average of fifty scheduled hearings per month is a “reasonably attainable” number of hearings for the telework period of April 1, 2017 to September 30, 2017 and instructing supervisors that “[b]efore removing an [administrative law judge (Judge)] from telework, please have a collegial conversation.”^[7]

    

    

    

    

    

    

    

    

    

    

    

    

   Thereafter, the grievant submitted a telework request for the April 2017 to September 2017 telework period indicating that he would schedule an average of forty to forty‑five cases for hearing per month, except in months when he would be on leave.^[8]  The Agency met with the grievant, informed him that he had not scheduled a reasonably attainable number of cases for hearing, and that he did not provide extenuating circumstances that would justify scheduling fewer than fifty cases for hearing per month.  The grievant asserted his proposed hearing schedule was appropriate when considering his scheduled leave, and the fact that the number of hearings he had scheduled required him to work more than forty hours per week.  The grievant did not schedule additional cases for hearing, and the Agency subsequently denied the grievant’s telework request.  In the grievance, the grievant also asserted that the proposed number of hearings was reasonable given the large size of the case files, lack of sufficient support staff due to a hiring freeze, deficient work of some support staff, the amount of time required to be spent on non‑adjudicatory work, the use of interpreters, the use of medical and vocational expert witnesses, his past experience of issuing cases outside the Agency’s time limits after scheduling too many cases, and the need to fulfill obligations of due process.  The Agency denied the grievance and the Union invoked arbitration.^[9]

    

   The Arbitrator found that the grievance was substantively arbitrable because the language from Article 15, Section 7.L.3 and 7.L.4 explicitly provided for arbitration of “any dispute as to whether the [Agency] has properly restricted the ability to telework.”^[10]  As to the merits, the Arbitrator found that the Agency violated the parties’ agreement by denying the grievant’s telework request because it “conditioned his ability to telework on a scheduling goal that was not ‘reasonably attainable.’”^[11]  The Arbitrator also found that scheduling forty to forty‑five cases for hearing per month was reasonable. 

    

   The Arbitrator instructed the Agency to allow the grievant to telework two days per week for up to thirty months,^[12] provided he scheduled forty to forty‑five cases for hearing per “non‑holiday, non‑leave month.”^[13]  For the grievant’s telework requests after the thirty‑month period, the Arbitrator directed the Agency to make an individualized assessment of whether the grievant has scheduled a reasonably attainable number of hearings, and engage in a collegial conversation with the grievant if he is not able to schedule a reasonably attainable number of hearings per month.  The award also instructed the Agency to “have a valid basis for determining what would be a ‘reasonably attainable’ number of scheduled hearings.”^[14]

    

   On June 10, 2019, the Agency filed exceptions to the award.  The Union filed its opposition to the exceptions on July 8, 2019.

    

3. Analysis and Conclusions

    

   1. We uphold the award, in part.

       

      The Agency claims the award fails to draw its essence from the parties’ agreement.^[15] Specifically, the Agency argues that the requirement of an individualized assessment of what is reasonably attainable for each judge fails to draw its essence from the parties’ agreement because it is not required by the parties’ agreement.^[16]  The Authority will not find an award deficient on essence grounds when the arbitrator’s interpretation is a plausible interpretation of the parties’ agreement.^[17]  Here, the Arbitrator’s interpretation that Section 7.L.3 required the Agency to make an individualized assessment of what is a reasonably attainable number of hearings is a plausible interpretation of the parties’ agreement because the provision allows for the restriction of an individual’s ability to telework.^[18]  Therefore, the Agency has failed to demonstrate how the award is not a plausible interpretation of the parties’ agreement.  Accordingly, we deny the Agency’s essence exceptions.

       

      The Agency also argues that the Arbitrator exceeded her authority^[19] by disregarding the express limitation that she could not alter the terms of the parties’ agreement,^[20] because she altered the terms of the parties’ agreement to require:  an individualized assessment for what is reasonably attainable for the grievant, a collegial conversation with the grievant if he is unable to schedule a reasonably attainable number of hearings per month, and a valid basis for what is reasonably attainable.^[21]  This argument is nearly identical to the exceeds‑authority exception in SSA II.^[22]  For the same reasons we stated in SSA II, we deny the Agency’s exceeds exception challenging the “collegial conversation,” individual assessment, and valid basis remedies.^{[23], [24]}

       

      Finally, the Agency argues the Arbitrator exceeded her authority by awarding relief to individuals other than the grievant.^[25]  Specifically, the Agency complains about the following statements from the Arbitrator:

       

      But the Agency’s data, on its own, is sufficient to prove the Union’s contention that the scheduling goals were not reasonably attainable for most ALJs;^[26] [t]he Agency violated the [parties’ agreement] . . . because it conditioned [the grievant’s] ability to telework on a scheduling goal that was not ‘reasonably attainable’ for him or most other judges;^[27] [and] [i]t is not clear that I have the jurisdiction to give the remainder of the relief that the Union has requested . . . [h]owever, in order to comply with the CBA with respect to [the grievant], the Agency will necessarily have to take steps that will also have an impact on other judges.^[28]

       

      The Authority has held that statements that are not essential to the Arbitrator’s decision are dicta, and dicta does not provide a basis for finding an award deficient.^[29]  These statements are not essential to the decision, and therefore, are dicta.  As such, the Agency has failed to demonstrate how the award is deficient.  Furthermore, the Agency acknowledges that these statements are dicta,^[30] and the Union concedes that the award is limited to the grievant.^[31]  Therefore, the Agency fails to demonstrate how the Arbitrator exceeded her authority.^[32]

   2. The award is contrary to law, in part.

       

      The Agency argues that the Arbitrator’s substantive arbitrability determination is contrary to law^[33] because it excessively interferes with management’s rights.^[34]  The Agency’s argument is based on a claim that anything that implicates management rights cannot be subject to arbitration.  However, the Authority has held that the management rights provisions of 5 U.S.C. § 7106 do not provide a basis for finding grievances non‑arbitrable.^[35]  As such, we deny the exception.^[36]

       

      The Agency also argues that the remedy—defining an average of forty to forty‑five cases for hearing per non‑holiday, non‑leave month as reasonably attainable for the grievant and allowing the grievant to telework two days per week for thirty months^[37]—is contrary to law because it excessively interferes with management’s rights to direct employees and assign work.^[38]

       

      Under the management rights analysis established in DOJ,^[39] in order to determine whether a remedy is contrary to a management right, the first question that must be answered is whether the arbitrator found a violation of the parties’ agreement.^[40]  Here, like in SSA I and SSA II, the Arbitrator found that the Agency violated the parties’ agreement when it did not make an individualized determination of what constitutes a reasonably attainable number of hearings for the grievant prior to denying his telework request.^[41]  Therefore, the answer to the first question is yes.  The second question is whether the arbitrator’s remedy reasonably and proportionally relates to that violation.^[42]  Here, the remedy—that the Agency define an average of forty to forty‑five case for hearing per non‑holiday, non‑leave month as “reasonably attainable” for the grievant and allow him to telework two days per week for up to thirty months^[43]—is reasonably and proportionally related to the found violation because it corresponds with the grievant’s missed telework opportunities.^[44]

       

      The final question is whether the arbitrator’s interpretation of the parties’ agreement excessively interferes with a management right.^[45]  The Authority has long held that management’s rights to direct employees and assign work include the right to establish performance standards in order to supervise and determine the quantity, quality, and timeliness of work required of employees.^[46]  Furthermore, management’s right to assign work includes the right to establish quotas for assessing employee performance.^[47]  Here, the awarded remedy prohibits management from enforcing the standard quota—an average of fifty scheduled hearings per month—which applies to all judges, and imposes an entirely different standard of forty to forty‑five per non‑holiday, non‑leave month that applies only to this grievant.^[48]  Because the Arbitrator substituted her own judgement regarding how much work the Agency could direct from a judge, the remedy excessively interferes with the Agency’s exercise of a management right.  Therefore, the answer to the last question is yes, the remedy excessively interferes with management’s rights, and we vacate the portion of the award requiring the Agency to define reasonably attainable for the grievant as an average of forty to forty‑five cases for hearing per non‑holiday, non‑leave month, and therefore, the portion of the remedy allowing the grievant to telework two days per week for up to thirty months also falls.^[49]

       

4. Order

    

   Because we find that the award is contrary to law, in part, we vacate the award, in part.

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

   Member DuBester, dissenting:

    

                   I agree with the majority’s decision in Part A to deny the Agency’s exceptions.  I also agree with the majority’s decision in Part B to deny the Agency’s contrary‑to‑law exception challenging the Arbitrator’s finding that the grievance was arbitrable.  However, for reasons expressed in dissenting opinions addressing similar grievances, I strongly disagree with the majority’s conclusion that the awarded remedy is contrary to law.1