71 FLRA No. 89                                                                                                                                                                                

 

SOCIAL SECURITY ADMINISTRATION

(Agency)

 

and

 

ASSOCIATION OF

ADMINISTRATIVE LAW JUDGES

(Union)

 

0‑AR‑5449

 

_____

 

DECISION

 

December 18, 2019

 

_____

 

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

(Member DuBester dissenting in part)

 

1. Statement of the Case

    

   In this case, we further define the circumstances in which an award excessively interferes with management’s rights to direct employees and assign work under § 7106(a)(2) of the Federal Service Labor-Management Relations Statute (Statute).^[1]  This case involves an alleged violation of the telework provision in the parties’ agreement.  Arbitrator Ira Cure found that the Agency violated the parties’ agreement when it denied the grievant’s telework request.  The Agency argues that the award is contrary to law, the Arbitrator exceeded his authority, and the award fails to draw its essence from the parties’ agreement.  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

    

   The parties’ agreement contains a provision for telework.  As relevant here, Article 15, section 7, provision 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.^[3]

    

   On February 18, 2014, the Agency issued a memorandum clarifying provision L(3), which stated “scheduling an average of at least fifty (50) cases for hearing per month will generally signify a reasonably attainable number for the purposes of this contractual provision.”^[4]  The Agency issued another memorandum on February 15, 2017, instructing supervisors that “[b]efore removing an [administrative law judge] from telework, please have a collegial conversation.”^[5]

    

   The grievant submitted a telework request that included a schedule for an average of thirty-seven cases for hearing each month.  The Agency informed the grievant that she had not scheduled a reasonably attainable number of cases for hearing as required by the parties’ agreement.  The grievant insisted that she could not schedule more than an average of thirty-seven cases because she would not have time to prepare for hearings, the case files were larger than those in her previous office, she was having issues with the Agency’s computers and with the decision writers, and she would not be able to take her earned leave.  The Agency subsequently denied the grievant’s telework request, and asserted that the reasons provided by the grievant are common to all judges.  The Union filed a grievance and invoked arbitration.

    

   During the seven-day hearing before the Arbitrator, the parties presented in-depth statistical comparisons of judges’ outputs from various regional offices of the Agency and expert testimony regarding work productivity within the Agency.

    

   The Arbitrator found that the Agency violated the parties’ agreement by failing to make an individualized determination on what was reasonably attainable for the grievant, and by denying the grievant’s telework request without first having a collegial conversation with her.  The Arbitrator also found that scheduling fifty cases for hearing was unreasonable, but thirty-seven cases were too few.  In reaching this conclusion, the Arbitrator found that the Agency failed to justify the fifty-case requirement.  The Arbitrator instructed the Agency to allow the grievant to telework from January 1, 2019 through September 30, 2019, provided she scheduled on average forty‑five cases for hearing per month.  The award instructed that after September 30, 2019, the grievant follow the guidance and schedule fifty cases for hearing, and the Agency make an individualized determination of the grievant’s telework request.  The award also instructed the Agency to follow the requirements of the February 2017 memorandum and engage in a collegial conversation with the grievant if she were not able to schedule fifty cases for hearing             per month.^[6]  

    

   On December 19, 2018, the Agency filed exceptions to the award.  The Union filed its opposition to the exceptions on January 14, 2019.

    

3. Analysis and Conclusion

    

   1. The award draws its essence from the parties’ agreement, in part.^[7]

       

      The Agency argues that the Arbitrator’s arbitrability determination fails to draw its essence from the parties’ agreement because the parties’ agreement does not allow a judge to grieve the Agency’s determination of whether a judge has scheduled a reasonably attainable number of hearings.^[8]  The Agency also argues that part of the award—requiring that the Agency engage in a collegial conversation with the grievant in the event she is unable to schedule the requisite number of cases for hearing^[9]—fails to draw its essence from the parties’ agreement, because it cannot rationally be derived from the agreement, and therefore, is not a plausible interpretation of the agreement.^[10]  In this regard, the Agency argues that the 2017 Memorandum that mentions “collegial” conversations   “is not incorporated into” the parties’ agreement.^[11]

       

      The Agency’s essence exception to the arbitrability of the grievance lacks merit.  The Authority has held that an arbitrator’s determination of substantive arbitrability under the terms of the parties’ agreement is subject to deference.^[12]  The parties’ agreement expressly provides for arbitration of disputes involving the telework provision.^[13]  Therefore, the Agency has failed to show how the Arbitrator’s determination, which is consistent with the plain language of the parties’ agreement, fails to draw its essence from the parties’ agreement.

       

      The Agency’s essence exception to the portion of the award that requires a collegial conversation also lacks merit.  The Authority has held that an arbitrator has wide discretion to fashion a remedy.^[14]  Therefore, we need not reach the question of whether the                  2017 Memorandum is an “agreement” between the parties because we find the remedy—to have a    “collegial conversation”—is not deficient.

       

      As such, the Agency has failed to demonstrate how the arbitrability determination or the award are implausible interpretations of the parties’ agreement.  Accordingly, we deny the Agency’s essence exceptions.

       

   2. The award is contrary to law, in part.^[15]

       

      The Agency argues that the remedy—defining an average of forty-five cases for hearing per month as reasonably attainable for the grievant^[16]—is contrary to law because it excessively interferes with management’s rights to direct employees and assign work.^[17]

       

      Under the management rights analysis established in DOJ, 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.^[18]  Here, 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 her telework request.^[19]  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.^[20]  Here, the remedy—that the Agency provide the grievant with an individualized determination and allow the grievant to telework from January 2019 to September 2019 provided she schedules an average of forty-five cases for hearing per month^[21]—is reasonably and proportionally related to the found violation.^[22]  Therefore, the answer to the second question is yes.

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      The final question is whether the arbitrator’s interpretation of the parties’ agreement excessively interferes with a management right.^[23]  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.^[24]  Furthermore, management’s right to assign work includes the right to establish quotas for assessing employee performance.^[25]  Here, the award prohibits management from setting a standard quota—an average of fifty per month—for the number of hearings an employee must schedule in order to be eligible for telework.^[26]  In U.S. DOJ, Federal BOP,                 Federal Correctional Institution, Big Spring, Texas, the Authority found that an award excessively interfered with management’s right to assign work because it prevented the agency from determining the appropriate number of employees per shift.^[27]  Similarly, the award here excessively interferes with management’s right to assign work here because it prevents the Agency from determining the appropriate number of hearings for its judges to schedule per month.  Because the answer to the last question is yes, the award excessively interferes with management’s rights, and we vacate the portion of the award requiring the Agency to conduct an individualized determination for the grievant and allow the grievant to telework if she schedules an average of forty-five cases for hearing per month.^[28]

       

4. Order

    

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

 

 

 

Member DuBester, dissenting in part:       

 

                I agree with the majority’s conclusion that the award draws its essence from the parties’ agreement.  However, I disagree with the majority’s conclusion that the award violates management’s rights to direct employees and assign work.  The majority’s application of the three-part test adopted in U.S. DOJ, Federal BOP1 once again demonstrates the arbitrary nature of that analysis.2

 

                The facts of this case are not complicated.  The parties agreed to an article in their bargaining agreement setting forth conditions judges must meet “to be eligible to participate in telework.”3  The article includes a provision allowing the Agency to restrict a judge’s ability to telework if the judge “has not scheduled a reasonably attainable number of cases for hearing.”4  Notably, the parties also agreed that “any dispute as to whether the Agency has properly restricted the ability to telework” under this provision “is to be resolved pursuant to the [parties’] negotiated grievance and arbitration procedures.”5  After the Agency denied the grievant’s telework request because she had not, in the Agency’s view, scheduled a reasonably attainable number of cases, the Union utilized the grievance procedure to resolve the dispute.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                The Arbitrator found that the Agency violated the parties’ agreement by failing to make an individualized determination regarding what was reasonably attainable for the grievant.6  Applying the agreement, and considering the extensive record developed by the parties, the Arbitrator concluded that the Agency’s requirement that the grievant schedule     fifty cases per month to be eligible for telework          “was not reasonably attainable.”7  The Arbitrator also found, however, that the grievant could have reasonably scheduled forty-five cases per month, and therefore directed the Agency to permit the grievant to telework if she met this condition.8

 

                Notably, neither the Agency nor the majority challenges the portion of the award requiring the Agency to make an individualized determination regarding the grievant’s telework request.9  Instead, the majority vacates the award’s remedy because it             “excessively interferes” with management’s rights to direct employees and assign work.10

 

                The majority’s conclusion reflects a basic misunderstanding of the Authority precedent upon which it is based.  The majority notes 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 the work required of employees.”11  To support this conclusion, the majority relies exclusively upon decisions in which the Authority has found proposals                  non-negotiable because they interfered with the agency’s right to “establish the qualifications and skills” required for a position;12 to determine “the content of a performance standard”;13 to “establish the particular levels of performance required to achieve a particular summary rating for overall performance”;14 to establish customer service standards expected of employees;15 and to “hold[] an employee responsible for his or her performance expectations if those expectations have not been communicated to the employee in writing.”16

 

                But neither the Arbitrator’s award nor the contract provision it enforces has any effect on the Agency’s ability to establish the content of the judges’ performance standards, or its ability to require the judges to schedule a particular number of cases as a condition of receiving a particular performance rating.  And the majority’s conclusion that the award offends the Agency’s right to assign work because it             “prohibits management from setting a standard quota . . . for the number of hearings an employee must schedule” to avoid telework restrictions is similarly flawed.17  Indeed, the primary case upon which the majority relies for this conclusion – NTEU, Chapter 2218 – stands for an entirely separate principle – namely, that a proposal which would preclude the agency from requiring that employees on detail maintain a production standard or quota was non‑negotiable because it interfered with the agency’s ability to evaluate their performance.19

 

                Nothing in the Arbitrator’s award affects the Agency’s ability to evaluate the judges’ performance.  The award simply enforces a contract provision governing the conditions under which the judges may be allowed to telework.  And the Authority has consistently rejected arguments that awards enforcing similar contractual provisions violate management’s rights.^[29]

 

Accordingly, I dissent in part, and would deny the Agency’s contrary-to-law exception.