AFGE-SSA ARBITRATION PANEL 7

In the Matter of the Arbitration between

Grievance No. AT2012E0001

AFGE LOCAL 3509,

Union,
and
SOCIAL SECURITY ADMINISTRATION,
Agency.
______________________________________/

FINAL DECISION OF THE ARBITRATOR ON

VIDEO CONFERENCING AND WITNESS AS REPRESENTATIVE
November 6, 2012

For the Union:

For the Agency:

Carl L. Warren
President
AFGE Local 3627
550 Government Street, Suite 200
Mobile, AL 36602-2010

Christopher D. Yarbrough
Assistant Regional Counsel
Office of the General Counsel, Region IV
Social Security Administration
61 Forsyth Street, SW, Suite 20T45
Atlanta, GA 30303

Video Conferencing
In an email dated October 3, 2012, the Agency inquired about the permissibility
of having a witness who is now located in the Baltimore area testify by video
conference or by phone. The Union replied that it objects to any electronic testimony,
urging that the credibility of a witness can only be judged by direct observation by the
arbitrator.
In a follow-up email to the arbitrator, dated October 11, 2012, the Agency made
its case for allowing electronic testimony as follows:
I wanted to clarify your position on the matter of either video conference or
phone testimony by one of the agencys witness in this arbitration so that the
agency can make arrangements as needed. Given that the suspension in this case
is for two days, the cost to the agency of producing a witness from Baltimore for
these short proceedings seems disproportionately high. Therefore, unless you
believe that you will be unable to effectively judge the witnesss credibility by
electronic communication, the agency asks that you approve video or telephonic
testimony.
The Union responded with further objection:
Because this is an adverse action case, the Union strongly believes that in
fairness to the grievant all witnesses should be present at the hearing so their
credibility and demeanor can be assessed by [the arbitrator]. The Union finds it
quite disturbing that the Agency pleads monetary reasons for wanting a
television or telephone presentation when it has cost this employee money
during the period she was suspended. The grievant and the Union deserve a full
and fair hearing that can only be obtained with in-person testimony.
In an email dated October 12, 2012, the arbitrator wrote the parties as follows:
Rule 9.2(C) of the Georgia Uniform Superior Court Rules provides:

Witnesses. In any pending matter, a witness may testify via video

conference. Any party desiring to call a witness by video conference shall
file a notice of intention to present testimony by video conference at least
thirty (30) days prior to the date scheduled for such testimony. Any other
party may file an objection to the testimony of a witness by video
conference within ten (10) days of the filing of the notice of intention. In
civil matters, the discretion to allow testimony via video conference shall
rest with the trial judge. In any criminal matter, a timely objection shall
be sustained; however, such objection shall act as a motion for
continuance and a waiver of any speedy trial demand.
Rule 43(a) of the Federal Rules of Civil Procedure provides:
For good cause in compelling circumstances and with appropriate
safeguards, the court may permit testimony in open court by
contemporaneous transmission from a different location.
It thus appears that the trend is to take advantage of modern technology. Unless
something in the collective bargaining agreement provides otherwise, I am
inclined to authorize video testimony. It will be the Agencys responsibility to
make all arrangements.
Of course, the Union will have ample opportunity to cross-examine the witness.
If the witness is to be questioned by either party about documents, make sure
that copies of the documents are exchanged by October 31, 2012.
If the Union continues to have objections, please state them to me in writing,
with reference to provisions of the CBA or other law that prohibit the practice.
On October 11 and 12, 2012, the Union responded to the arbitrators email:
The Union opposes any video or telephonic testimony. The Agency has no
good cause in compelling circumstances in this case.
I sought assistance from AFGE Council 215 concerning the issue of
telephone/video testimony. I was advised that the issue is not specifically
covered in the contract but there is a longstanding past practice that such
testimony must be mutually agreed to by both the Union and the Agency. In this
case, the Union does not agree and if the Agency desires such testimony that
should be considered a threshold issue at the hearing.
3

With respect to exchanging documents, that has never been a practice in our
arbitration process. In this particular situation, the Union has no idea what
documents might possibly be relevant with respect to the proposed off-site
witness.
This hearing should last no longer than four hours because it is under the
expedited procedures, which provide each party with two hours to examine
witnesses and to make opening and closing statements.
The Agency is responsible for providing a copy of the CBA, and for setting the
time and location of the hearing.
Following the arbitrators email of October 12, 2012, he consulted two
additional references regarding video conferencing, both of which support the practice.
Section 6 of Chapter 10 of the Merit Systems Protection Board Judges Handbook1 has
this to say:
Board precedent for many years was that an appellant has a fundamental right to
an in-person hearing on the merits if there is a genuine dispute as to any material
fact, and that when the appellant has such a right, the AJ has no authority to
order a telephonic hearing over the appellant's objection. See, e.g., McGrath v.
Department of Defense, 64 M.S.P.R. 112, 115-17 (1994); Evono v. Department
of Justice, 69 M.S.P.R. 541, 545 (1996). The same rule was later applied to
hearings held by videoconference. Relying in part on Rule 43(a) of the Federal
Rules of Civil Procedure, the Board held that when an appellant in an appeal
requiring the AJ to make credibility determinations requests an in-person
hearing, that request may not be denied in the absence of a showing of good
cause. Crickard v. Department of Veterans Affairs, 92 M.S.P.R. 625 (2002).
However, Crickard and similar cases were overruled in Koehler v. Department
of the Air Force, DA-0752-03-0530-I-2 (June 28, 2005). There, the Board held
that while 5 U.S.C. 7701(a)(1) gives appellants before the Board "the right ...
to a hearing for which a transcript will be kept," nonetheless "there is no
statutory mandate for an unlimited entitlement to an in-person hearing." Id.,
10. The Board set forth its holding as follows:
1

Available at
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=241913&version=242182&application=ACROBAT.
4

We therefore hold today that, in conjunction with the broad discretion

afforded them to control proceedings at which they officiate, 5 C.F.R.
1201.41(b), AJs may hold videoconference hearings in any case,
regardless of whether the appellant objects. [Footnote omitted.] To the
extent that Crickard and other such cases hold that, in an appeal where
the AJ is required to make credibility determinations, he may not
convene a videoconference hearing over the appellant's objection in the
absence of a showing of good cause, those cases are hereby overruled.
[Footnote omitted.]
Id., 13.
The rules of the United States Arbitration Association similarly provide for video
conferencing.2
The National Agreement between the American Federation of Government
Employees (AFGE) and Social Security Administration, July 16, 2012 (CBA),
provides that [t]he procedures used to conduct the arbitration shall be determined by
the arbitrator. Article 25, 6.B. Given this contractual authority and the authoritative
references previously cited, there is no doubt that the arbitrator is empowered to allow
video conferencing, and he does so in this case.
The arbitrator agrees with the Agency that it would be unduly expensive to
bring a witness from Baltimore to Atlanta for a brief hearing when the witness
testimony can be obtained far more economically via electronic means. Cost is an
especially compelling factor at a time of economic stagnation and crushing national
debt. While not unsympathetic to the Unions concern over past practice, the CBA
2

Available at http://www.usadr.com/reference/arbitration-rules-and-procedures#Rule%20A2.%20Governing%20Law,%20Designation%20of%20Rules,%20USADR%20Case%20Administration.

grants the arbitrator the authority to determine procedure. This may be an opportune
time and case to establish a new normal.
This is so not only with respect to witness testimony but also with respect to an
exchange of documents. Article 25, 8.A of the Expedited Arbitration Procedures
provides:
The parties agree that the primary purpose of this supplemental arbitration
procedure is to provide a swift and economical method for the resolution of
identified disputes. The parties agree to take positive action to see that this
purpose is fulfilled; and, in addition the arbitrator shall have the authority to
take steps necessary to see that the purpose is fulfilled. (Emphasis supplied.)
Given the Unions insistence that the hearing is to be limited to four (4) hours
per Article 25, 8.B, an exchange of documents will expedite the hearing because
witnesses will not need to take time out from testifying to review the contents of
documents and refresh their memories about them. Their time on the witness stand
thus can be spent giving testimony, not reading documents. The parties should
exchange documents by the close of business, Friday, November 9, 2012.
Witness as Representative
On October 11, 2012, the Union emailed the Agency about its proposed
witnesses:
The Union witnesses in this case will be the grievant, me, and April Lott.
When the Agency identifies its witnesses, the Union may need to call a rebuttal
witness.
Ms. Lott and I will need travel order information as soon as possible so we may
make our arrangements.
6

The next day, the Agency emailed the Union and the arbitrator with these
concerns:
To the extent that an individual proposed as a witness (e.g., Ms. Lott or Mr.
Warren) will also [serve as Grievants] representative, the agency objects. The
agencys position is that these proposed witnesses cannot properly serve as both
a witness and a representative. To allow such crossover of roles would violate
the general rule against having a witness as a representative. See e.g. Merit
Systems Protection Board, Judges Handbook, Ch. 10, 7(a) (found at
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=241913version=24
2182&application=ACROBAT) (noting that parties should be discouraged from
assigning a prospective witness as the representative and if allowed, the judge
should arrange for the witness to testify first and generally disallow rebuttal
testimony).
Thus, barring some compelling reason to allow [Grievants] representative to
act as a witness, the agency objects. To the extent that such dual roles are to be
allowed, the agency asks that any such witness be required to testify first, before
the agency is required to put on its evidence. Because the agency bears the
burden in discipline cases, it would be unfair to the agency to allow a
representative to sit through the entirety of the agencys case in chief and then
formulate his or her testimony. The agency would have a similar objection to
allowing one of the above-named individuals to testify to the extent that they
will alternatively be a technical advisor. See id at Ch. 10
Section 7(a) of Chapter 10 of the MSPB Judges Handbook states:
7. HEARING PARTICIPANTS.
a. A Witness as Representative. Parties should be discouraged from assigning a
prospective witness as the representative, although there is no specific
prohibition against this practice. The AJ should arrange for this witness to testify
first and explain that the witness generally will not be permitted to provide
rebuttal testimony.
The arbitrator will allow a witness to serve as Grievants representative, but will follow
the Judges Handbook. That witness will be required to testify first and will not be

permitted to provide rebuttal testimony.

Summary
1.

The Agencys Baltimore witness may testify via video conference.

2.

The parties are to exchange documents by November 9, 2012.

3.

A witness may serve as Grievants representative but must testify first and may
not be used as a rebuttal witness.

Dated November 6, 2012

________________________________
E. Frank Cornelius, PhD, JD, Arbitrator