FEDERAL MEDIATION AND CONCILIATION SERVICE

AFGE/SSA ARBITRATION PANEL

In the Matter of the Arbitration between Grievance No. AT2005E0001

Grievant Faye Smith Scott
AFGE LOCAL 3509,
Union,

and

SOCIAL SECURITY ADMINISTRATION,

Agency.
______________________________________/

OPINION OF THE ARBITRATOR

May 5, 2006

After a Hearing Held April 28, 2006

At the Shepherd Memorial Library in Greenville, North Carolina

For the Union: For the Agency:

Patricia J. McGowan Mary S. Plummer

Attorney at Law Human Resources Specialist
AFGE Council 220 Social Security Administration
PO Box 47638 61 Forsyth Street, Suite 22T64
Baltimore, MD 21244 Atlanta, GA 30303
 I. The Parties And The Nature Of Their Dispute

A claims representative (“Grievant”), employed by the Social Security

Administration (“Employer”, “Agency”, or “SSA”) in Greenville, North

Carolina, and represented by the American Federation of Government

Employees, AFL-CIO, and its Local No. 3509 (“Union”), grieves a 14-day

suspension for unauthorized access of Agency databases. The facts are set forth

so extensively in the exhibits that it suffices to quote from them, particularly

from Grievant’s own written statement regarding the events at issue and the

statement of Dianne Alford, then a Union representative but now a member of

management (“Union Rep” or “Rep”); see JX 2 below.

II. Excerpts From The Exhibits

The parties submitted 3 joint exhibits, and the Agency submitted 7

exhibits, which are summarized or excerpted below; the Union did not submit

any. Unless otherwise indicated, any emphasis is in the original documents.

II.A. Joint Exhibits

JX 1—the collective bargaining agreement. The pivotal provisions of the

collective bargaining agreement are set forth in pertinent part below; others are

referenced as required.

ARTICLE 3, EMPLOYEE RIGHTS

Section 2. Personal Rights

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 A. All employees shall be treated fairly and equitably in all aspects of
personnel management and without regard to political affiliation, race,
color, religion, national origin, sex, sexual orientation, marital status, age
or disabling condition, and with proper regard and protection of their
privacy and constitutional rights.

Article 23, Disciplinary and Adverse Actions

Section 1—Statement of Purpose and Policy

The parties agree that the objective of discipline is to correct and improve
employee behavior so as to promote the efficiency of the service. The
parties agree to the concept of progressive discipline which is designed
primarily to correct and improve employee behavior. A common pattern
of progressive discipline is reprimand, short term suspension, long term
suspension and removal. Any of these steps may be bypassed where
management determines by the severe nature of the behavior that a lesser
form of discipline would not be appropriate.

The parties further agree that normally, discipline should be preceded by

counseling and assistance including oral warnings which are informal in
nature and not recorded. Counseling and warnings will be conducted
privately and in such a manner so as to avoid embarrassment to the
employee. Bargaining unit employees will be subject to disciplinary or
adverse action only for just cause.

Section 5 – Short-Term Suspensions

A. An employee against whom a suspension for 14 days or less is

proposed is entitled to:

1. An advance written notice of fifteen (15) calendar days stating

the specific reasons for the proposed action;

2. The right to review the material which is relied on to support

the reason(s) for the proposed action;

3. Ten (10) calendar days to respond orally and in writing and to

furnish affidavits and other documentary evidence in support of
the response; and

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 4. Be represented.

JX 2—Memorandum, July 29, 2003, to Grievant, from Brenda K. Moore,

manager of the Greenville district (“Manager”), re Proposal to Suspend

(“Proposal”), to which are attached Grievant’s written statement of July 14,

2003 (“Grievant’s statement”), and that of the Union Rep, also dated July 14,

2003 (“Rep’s statement”). First Grievant’s statement, which is set forth in its

entirety:

PER OUR DISCUSSION THIS AFTERNOON, ON THURSDAY,

JULY 3 2003, I WAS ANSWERING THE TELEPHONE DURING
THE MORNING BECAUSE WE WERE VERY SHORT OF
TELEPHONE ANSWERERS. I ANSWERED A RANDOM
TELEPHONE CALL AND A FEMALE SAID THEY NEEDED TO
SET UP AN APPOINTMENT TO FILE FOR RETIREMENT
BENEFITS. I REQUESTED THE NAME AND SOCIAL SECURITY
NUMBER TO PULL QUERIES AND CHECK TO SEE
ENTITLEMENT. I THEN ASKED IF THE CALLER WAS DIANE
[sic] ALFORD, SINCE HER VOICE SOUNDED VERY FAMILIAR.
DIANE LAUGHED AND ASKED WHO I WAS SINCE SHE DID
NOT RECOGNIZE MY VOICE. DIANE DID NOT ASK FOR ME
DIRECTLY, I ANSWERED THE GENERAL TELEPHONE LINE.

I THEN TOLD DIANE I HAD BEEN ANSWERING THE

TELEPHONE BUT IF MR. MITCHELL WAS AVAILABLE I
WOULD GO AHEAD AND TAKE HIS CLAIM. DIANE THEN
TOLD ME IT WAS HER BROTHER AND SHE WAS JUST
CALLING TO GET HIM SET UP BUT HE WAS THERE. MR.
ARTHUR MITCHELL THEN CAME ON THE TELEPHONE AND I
TOOK HIS RETIREMENT CLAIM. I THEN STATED I WOULD
DROP THE CLAIM IN THE MAIL FOR HIS SIGNATURE AND
THAT I WOULD NEED HIS BIRTH CERTIFICATE.

WHEN I HAD FINISHED TALKING TO MR. MITCHELL AND

ADVISED HIM OF THE AMOUNT OF MONEY HE COULD MAKE

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AT AGE 62 AND THE DOCUMENTS I WOULD NEED, HE
STATED HE WANTED ME TO TELL DIANE WHAT I NEEDED.
DIANE CAME BACK ONTO THE PHONE AND TOLD ME TO
MAIL THE CLAIM TO HER BROTHER BUT THAT SHE WOULD
BRING IN THE BIRTH CERTIFICATE ON MONDAY.

I MAILED THE CLAIM TO MR. MITCHELL FOR HIS

SIGNATURE. I WAS ON VACATION WHEN THE CLAIM AND
BIRTH CERTIFICATE CAME IN, SO I DID NOT CLEAR THE
CLAIM OR SEE ANY DOCUMENTS.

I HAVE NEVER MET MR. MITCHELL AND SO DO NOT KNOW

HIM PERSONALLY. I TOOK THE CLAIM OVER THE PHONE
RATHER THAN SET UP AN APPOINTMENT SIMPLY TO HELP
MR. MITCHELL.

The Union Rep’s statement is as follows:

On Thursday, July 3, 2003 I visited my mother and sister to take them to

an appointment. While I was at my mother’s home, my brother who also
lives there, asked if I could assist him in making an appointment to file
for his Social Security benefits. He is not accustomed to using the phone
much and I knew he would not be able to maneuver the recordings to get
through to make his own appointment. My sister refused to assist him
due to longstanding “other” conflicts. I dialed the tollfree number and
pushed the buttons and was cut off at one time and the second time, put
on hold for over 5 minutes and tired of waiting. I finally called the public
line at the local Social Security office. I still had to push buttons for
options and wait and wait and wait. I know I heard the record telling me
to continue to hold on at least 5 times over the intervals I waited. Finally,
I was surprised when someone finally answered the phone and identified
themselves as Faye Scott. I told the person I needed to make an
appointment to file for retirement benefits. She asked for the name and I
said, actually, it’s for my brother. She asked his name and date of birth
and I said, Arthur Mitchell and gave the date of birth. She then said,
Dianne, is this you? I realized she recognized either my maiden name or
voice and said yes. I advised I was just calling for him to make an
appointment; that I had called the 800 number and it was not successful.
She asked if he wanted to file a claim now, as she could take it and that
she was just helping out on the phones as the office was shorthanded. I

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 was taken totally by surprise as I did not expect anyone would know it
was me and secondly, I was only calling to schedule an appointment. I
told my brother that the person stated that they could talk with him now if
he wanted to and said yes, as he knew he had no transportation. She told
me to hold on. She came back to the phone and I gave the phone to him
and she began to ask him the information needed. I told my brother to let
me speak with the representative when he finished. I advised that I would
bring the birth certificate into the office on the following Monday. I did
bring in the birth certificate and submitted it directly to the Office
Manager.

JX 3—Memorandum, October 28, 2003, to Grievant, from A. Leon Rhodes,

assistant commissioner of the Atlanta region (“Assistant Commissioner”), re

Decision to Suspend (“2nd Suspension”), which states in pertinent part:

You previously received a two-day (2-day) suspension for a Category I

violation. You processed a change of address to your former mother-in-
law’s record on January 21, 2003. On October 24, 2002, you
acknowledged that you received and understood SSA’s Sanctions for
Unauthorized System Access Violations. These sanctions require a
minimum of fourteen (14) days suspension for a Second Offense
Category I (Unauthorized Access without Disclosure) Violation. I have
made the determination that you committed a Category I Violation
(Second Offense). …

… Therefore, consistent with the Sanctions for Unauthorized System

Access Violations, it is my decision that you be suspend[ed] for fourteen
(14) calendar days, without pay, from your position of Claims
Representative, GS-105-11, Greenville, NC. …

II.B. Agency Exhibits

AX 1—consisting of Sanctions for Unauthorized System Access Violations,

March 2, 2000 (“Sanctions”); an employee Acknowledgement Statement for

receipt of the Sanctions (“Acknowledgement”); and Guidance For Employees

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On How To Transact Social Security Business That Requires Systems Access,

August 9, 1999 (“Guidance”). The relevant Sanctions are:

Category I – Unauthorized Access Without Disclosure

Where the employee improperly accesses a record that contains sensitive

or protected information or obtains information not related to the
employee’s official duties, but does not disclose the information.
Improper access occurs based on the employee’s relationship with the
requestor or because it is unrelated to the employee’s official duties. For
example, access is improper when the employee knowingly accesses
information about himself/herself or about a relative, a friend or co-
worker of the employee or a friend or relative of a co-worker. Access is
also improper when it is for a purpose unrelated to official duties, such as
“browsing” the records of a celebrity or another member of the public.
The sanctions are:

First Offense – Minimum 2-day suspension

Second Offense – Minimum 14-day suspension

Third Offense – Removal

The relevant Guidance is:

If an interviewer discovers during the course of an interview that an

individual is a co-worker’s relative or friend, the interviewer should
continue to provide service to the individual. Upon completion of the
interview, the interviewer should notify the supervisor or manager.

AX 2—excerpts from Annual Personnel Reminders, SSA Pub. No. 23-067,

August 2001 (“Reminders”). The relevant phrases are “Social Security records

belonging to yourself, your relatives, your friends or coworkers” from page 32

and “Social Security records belonging to yourself, your relatives, friends or

coworkers” from page 33. The Agency representative kindly gave the arbitrator

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her complete document without Union objection. The publication is out of print

so that the complete document will be returned.

AX 3—seven (7) Acknowledgements signed by Grievant since 1998.

AX 4—Notification Of Personnel Action.

AX 5—Memorandum, April 24, 2004, to Grievant, from the Assistant

Commissioner, re Decision to Suspend (“1st Suspension”). The memo states in

pertinent part:

On February 20, 2003, Mrs. Moore discussed this matter with you. You
provided the following information orally and in a written and signed
statement:

“On our Martin Luther King holiday January 20, 2003 I visited my
former mother-in-law, Goldie Scott… While at the nursing home
Mrs. Scott introduced me to her social worker. Mrs. Scott said she
needed to get her address changed for her new address on her
social security record. She gave me her social security number
(Medicare #) and requested no more direct deposit.

On Tuesday, January 21, 2003, I came into work and changed her
address and checks to go to her new address at the nursing home. I
also sent a message on MDW to the New Bern Social Security
office that Mrs. Scott was in a nursing home and to contact her
about her SSI.

I never even thought about a computer/access violation since she

asked me to change it and the address is her own address.”

... To assist employees in this regard, the SSA publicized the following
policy:

“In accordance with Agency policy, in any situation involving the

records of a family member, friend, or relative of a friend, you
should not access any record or take any action without consulting

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 your supervisor, manager, or management designee.”

… Therefore, consistent with the Sanctions for Unauthorized Systems

Access Violations, it is my decision that you be suspended for two (2)
calendar days without pay from your position of Claims Representative,
Greenville, NC. …

AX 6—summary of staff meeting, May 15, 2003. Item 8 states:

LDA [Lillie Dianne Alford; i.e., the Union Rep]

8. Please note that there is a poster on the bulletin board regarding
sanctions. Take it very seriously.

AX 7—Factsheet prepared by the Manager. Because the information contained

goes to the heart of the grievance, the Factsheet is reproduced in its entirety:

1. On Tuesday, 07/08/03, I notified the Union Rep I would be

reviewing the Sanctions memos with the staff in our regularly
scheduled staff meeting on 07/10/03.

2. On this same date, the Union Rep stated this subject was timely
and I should cover Sanctions again as we were not abiding by
them at all times.

3. The Union Rep (Dianne Alford ) then told me the following:

…she had called the 800# on her day off (Thurs. 07/03/03) to
schedule an appointment for her brother. She was placed on hold too
long; several times by the 800#.
…so she called our local office. A CR (Faye Scott) was helping
answer the phones due to lots of leave usage around the holiday.
…Dianne did not give her name; only that she wanted to
schedule an appointment.
…Faye recognized her voice and asked if this was Dianne.
…Dianne stated it was and proceeded to state she wanted to
schedule an appointment for her brother
…Faye stated she had time to take the claim now instead of
scheduling an appointment.
…the brother was placed on the phone and Faye took his

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 retirement claim.

4. Faye took leave on Thursday, 07/03/03, beginning at 1:00 p.m.

through all of the following week, 07/07/03 – 07/11/03.

5. The OS was on leave Thursday, 07/03/03. Faye never mentioned

this event to management before going on leave.

AX 8—Atlanta Regional Memorandum, February 13, 2001, to which the

Guidance is attached.

IV. Cases Submitted By The Parties

The parties submitted a relatively large number of cases for the

arbitrator’s consideration, which he summarizes below.

IV.A. Cases Submitted By The Union

AFGE and SSA, No. FL-99-E-0001 (Sergent Arb 1999) (“Louis”):

In sustaining an employee’s grievance over a 2-day suspension for

accessing her own records in the SSA system, the arbitrator opined:

[A]lthough the sanctions specify a minimum penalty of a two-day

suspension for a first offense, mindless adherence to that penalty without
any consideration whatsoever of the Douglas factors is wholly improper.
As a matter of reasonableness and fair play, any reasonable person
analyzing the facts and circumstances of this case in the light of the
Douglas factors would have readily discerned that, based on the
grievant’s exemplary record during her eight years of service with the
Agency, stigmatizing her with a two-day suspension for a relatively
minor offense clearly would not promote the efficiency of the service.
Instead, the more likely result of such action would be to create feelings
of resentment, betrayal, and bitterness in the grievant. Moreover,
shortsighted, bureaucratic decisions, like that which was made in the
present case, which wholly ignore issues of fairness, progressive
discipline, and mitigating circumstances are the antithesis of what the

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 concept of just cause is all about.

SSA and AFGE Local 3438, Gr. Elizabeth McKinley (Nicholas Arb 2001)
(“McKinley”):

The grievant accessed SSA’s database to obtain her granddaughter’s

Social Security number so that she could purchase a savings bond for the child,

during an agency bond drive. After reciting the facts, the arbitrator concluded:

With all things considered, I agree with the Union that the mode of
discipline meted out (2-day suspension) was not fair and proper under the
reported circumstances. With it being virtually undisputed that Grievant’s
actions were in Agency and her granddaughter’s best interests, and no
information in her granddaughter’s file was revealed or taken for her
(Grievant’s) own use, I hold that Grievant was unduly disciplined. …
(Emphasis in original.)

SSA and AFGE Local 3937, No. SP 2000-3-E-0001, 103 FLRR-2 55, 102 LRP
34207 (Tinning Arb 2002) (“Gift”):

The arbitrator noted the disparate treatments meted out for unauthorized

access to SSA databases and reduced to one day the employee’s 2-day

suspension for accessing his own records.

AFGE Local 1164 and SSA, No. BN-2202-E-0004, 103 FLRR-2 115, 103 LRP
15947 (Dorr Arb 2003) (“Moldonado”):

The arbitrator reduced to a reprimand an otherwise trusted employee’s 2-

day suspension for accessing SSA’s database to obtain information to help

protect herself and her minor daughter from threats of physical harm. In

reaching his decision, he balanced agency policy and just cause considerations,

citing AFGE and SSA, 101 FLRR 2-1063 (Sharnoff Arb 2000), and Douglas v

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Veterans Administration, 5 MSPB 313 (1981) (“Douglas”).

SSA and AFGE Local 3129, No. CH-02-E-0006, 103 LRP 50303 (Jacobowski
Arb 2003) (“Wiefenbach”):

Because the instant case bears so many similarities to Wiefenbach,

Arbitrator Jacobowski’s findings and conclusions are set forth in full:

1. There is no question that the general policy of the agency prohibiting

employees from handling matters where members of the family, relatives or
friends without permission of the supervisor is a proper valid policy, as well
as unauthorized access and disclosure under the TOP sanctions.

2. While the grievant has been charged with the two violations, in reality both
were part of the same transaction of processing the claim for the stepfather-
in-law, which is the main substance of the dispute. The access to the record
of the deceased mother-in-law was part of the main transaction of processing
his claim.

3. The evidence is clear that the grievant violated the policy in handling the
claim of her stepfather-in-law without first having secured the permission of
her manager which the evidence and circumstances indicate would readily
have been given. She was well advised and aware of this general policy over
the years and should have recognized its applicability in the incident at issue.
A discipline to her was appropriate. However, the 14-day suspension was
excessive and failed to meet the test of just cause for the following reasons.

4. Article 23 is a contract obligation and requires the test of just cause for
discipline, along with recognition of the principles of progressive discipline,
to protect and improve employee behavior, and to promote service
efficiency. As recognized in a number of decisions, the TOP sanctions are to
be considered and applied within these requirements.

5. The evidence does not support as serious a violation as the agency claimed.
Aside from the fact that it was for her stepfather-in-law, the claim the
grievant processed was a normal function and duty of a claims representative
and was processed by her in a correct and accurate manner. She did not
initiate it and he did not request it of her. It was a normal assignment from
the receptionist. The day was busy, the staff was small, and there was

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 emphasis to promptly serve the public. He was not close family, the mother-
in-law was already deceased, and he had a proper claim to file. This was not
a matter inherently unauthorized and outside the normal function of a claims
representative.

6. The testimony of Mukogawa indicates that she felt obligated to apply the
TOP penalty without reconciling it with the Article 23 standards. Further,
her testimony indicates that she did not take into consideration the standards
of progressive discipline and just cause with respect to either violation, or the
substantive transaction. While she was aware of the good record and
achievements of the grievant she did not appear to give them the
consideration required by these standards as mitigating factors.

7. The charts of the agency listing violations and the penalties administered had
a number of inconsistencies showing instances where lesser penalties were
given or reduced.

8. There was no showing that a lesser discipline would not have had the same
effect upon the grievant, and there was no showing that it promoted the
efficiency of the service. Rather it was the opposite in that the office was
deprived of her service for the 14 days and the others had to pick up on her
duties. Also Ms. Mukogawa apparently had an additional purpose in
applying the discipline, to deter others from similar violations.

9. For the above reasons, I feel that the 14-day suspension was excessive and
failed to meet the test of just cause. However, since a discipline was
appropriate, the evidence indicates that a letter of reprimand would have
been sufficient and justified. Accordingly, an award is appropriate.

In addition to reducing the penalty to a reprimand and awarding the grievant

backpay with interest, the arbitrator awarded the union reasonable attorney fees.

SSA Region 4 and AFGE Local 2014, No. FL 2004-R-0007 (Phillips Arb 2004)
(“Kaplan”):

The case is significant because the deciding SSA officer in the case was

the Assistant Commissioner here, who is the sole deciding officer for the entire

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Atlanta region. In the instant case, he testified that all disciplinary decisions are

referred to him in an effort to achieve consistency throughout the region.

In Kaplan, the SSA terminated an employee for unauthorized access,

during a dispute over child support, of his ex-wife’s records in SSA’s computer

system. The arbitrator cited this authority:

“Arbitrators analyze situations where employees receive different

disciplinary treatment for similar offenses by examining whether the
employer had a valid reason for treating employees differently…when
disciplinary distinctions cannot be accounted for, just cause is lacking.”
Brand, DISCIPLINE AND DISCHARGE IN ARBITRATION 83
(1999).

After reviewing various cases and the penalties imposed, including cases

in which the Assistant Commissioner here was involved, the arbitrator

concluded:

… I understand the Agency’s genuine concern for confidentiality and

security of computer records and “zero tolerance” for violations. I believe
a 20 day suspension reinforces these laudable goals. I will order interest
on back pay, as 5 U.S.C. Sec. 5596 provides. As requested by the Union,
I will retain jurisdiction in case the parties have remedy issues.

AFGE and SSA, No. CL-2005-E-0005, 106 LRP 302 (Smith Arb 2005)
(“Craig”):

To a complex factual situation involving multiple alleged unauthorized

accesses of SSA’s computer system by an employee, at least indirectly on

behalf of her con-man boyfriend, the arbitrator applied the preponderance

standard of evidence, found that the agency “did not meet its burden of proof

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and therefore had no just cause for disciplining the Grievant,” and overturned

her 2-day suspension. He denied a request attorney’s fees “as there was no

showing of bad faith, gross procedural error or other Agency action that would

warrant such an award” and retained jurisdiction for remedial purposes.

IV.B. Cases Submitted By The Agency

SSA and AFGE, No. PT-00-E-0001 (Sedwick Arb 2001) (“Byard”):

The arbitrator denied a grievance over an employee’s 2-day suspension

for accessing the SSA’s computer system to verify her brother-in-law’s Social

Security number for employment purposes.

SSA and AFGE Local 1336, No. KC-2001-E-0001 (Baker Arb 2001)
(“Moore”):

The arbitrator applied the preponderance of evidence standard in denying

a grievance over an employee’s 2-day suspension for accessing her sister-in-

law’s records in the SSA’s computer system.

AFGE Local 3342 and SSA, 58 FLRA 448, 103 FLRR-1 108, 103 LRP 13350
(2003) (“Buffalo”); den exceptions to 102 FLRR 2-1048 (Stevens Arb):

The Federal Labor Relations Authority (“FLRA”) denied the union’s

exceptions to an arbitrator’s award finding just cause for a 2-day suspension of

an employee for unauthorized access of his own records in the SSA’s computer

system. The FLRA reiterated its long held ruling “that arbitration awards are

neither precedential nor binding upon arbitrators,” citing AFGE Local 3615, 54

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FLRA 494, 501 (1998).

SSA and AFGE Local 220, 61 FLRA 92, 105 LRP 34117 (2005) (“St. Paul”):

The FLRA set aside an arbitrator’s award when he found the employee’s

disputed conduct to be “serious”, yet reduced the 2-day suspension imposed by

the SSA.

IV.C. Principles Gleaned From These Cases

Establishment of a table of penalties (“TOP”) or Sanctions is a valid

exercise of management’s rights. However, their application must be tempered

by the just cause provision of the collective bargaining agreement, and rigid

application may prove counterproductive. Consideration of the Douglas factors

is appropriate, if not compelled. Penalties are not always applied consistently,

and an unduly harsh penalty may be reduced in a proper case. The burden of

proof in a disciplinary action is on the Agency, and the appropriate standard of

proof usually is a preponderance of the evidence. Upon a finding of a

miscarriage of justice, attorney’s fees may be awarded pursuant to 5 USC §

5596(b)(1)(A)(ii).

V. Discussion

V.A. The Agency failed to prove by a preponderance of the evidence that

Grievant engaged in unauthorized access of SSA’s database.

The Agency seems to have taken Grievant’s guilt as a given, without

analyzing the factual circumstances in sufficient detail to justify disciplining

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her. First, Grievant did not initiate the telephone call; the Union Rep did, and

Grievant’s receipt of the call was a random event. While it is true that Grievant

offered to take the brother’s claim, taking claims was her job—she was a claims

representative. Based upon Grievant’s statement, the Union Rep’s statement,

and their testimony given at the arbitration hearing, it is clear that the Union

Rep had provided her brother’s name, date of birth, and Social Security number

to Grievant before Grievant recognized the Rep’s voice and learned that the call

concerned the Rep’s brother.

The Agency’s own Guidance advises:

If an interviewer discovers during the course of an interview that an

individual is a co-worker’s relative or friend, the interviewer should
continue to provide service to the individual. Upon completion of the
interview, the interviewer should notify the supervisor or manager.
(Emphasis supplied.)

The arbitrator finds that, by the time Grievant learned that she was providing

services for her co-worker’s brother, the “interview” within the meaning of the

Guidance had already begun, as the co-worker already had furnished all key

information—name, DOB, and SSN. Thus, under the Guidance, Grievant was

justified in completing the interview.

The Agency’s contention, that Grievant was at fault for taking the

brother’s claim instead of merely making an appointment for him to come into

the office and file it in person, overlooks the fact that he obviously was a person

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with special needs. At almost age 62, he was living with his mother and not

working. He was not accustomed to using the telephone and was unable to

maneuver through the SSA’s automated answering service to schedule an

appointment for himself. Moreover, even if he had an appointment, he had no

transportation of his own and might not have been able to keep it. The Agency’s

further contention that his claim did not need to be taken right away because he

was not immediately eligible for benefits ignores the obvious fact that if a claim

is not filed in well advance of the eligibility date, then the initial benefit

payments are delayed.

There remains the issue of Grievant’s failure to “notify the supervisor or

manager.” On this issue, the Agency failed to carry its burden of proof that

Grievant had a reasonable opportunity to do so under the circumstances. It was

the day before the 4th of July holiday, and the Greenville office was short-

handed because staff members were taking additional time off for the holiday.

The supervisor was on leave. Grievant was performing extra duties to help out.

In the midst of all this, she received a call from her doctor, informing her that

she had a medical condition which required immediate treatment. She left work

on the advice of her doctor and did not return until July 14. By the time she

returned, the matter already had been reported to management. There was

nothing more that she could do.

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 The Agency insists that it considered the Douglas factors. If it did so, it at

best gave them lip service. Neither the Manager’s Proposal nor the Assistant

Commissioner’s 2nd Sanction mentions Douglas and neither reflects the detail

and depth of analysis found in Lieutenant Colonel Kenneth B. Batts’

memorandum discussed in AFGE Local No. 1770 and Department of the Army,

XVIII Airborne Corps and Fort Bragg, 103 FLRR-2 33, 102 LRP 34100 (Arb

2002). To the contrary, in the instant case, much pertinent information was

overlooked or omitted.

The Union Rep’s brother was a stranger to Grievant. Grievant did the

man a favor. She took his claim. He wanted her to. He needed her help. It was

her job. Her actions were in furtherance of the Agency’s primary mission of

taking claims and paying benefits to eligible persons. She promoted the

efficiency of the service. Unfortunately for Grievant, no good deed goes

unpunished.

V.B. In addition to punishing Grievant without just cause, the Agency

treated her in a discriminatory manner, in violation of her contractual
and constitutional rights.

It is difficult to say who was more stunned at the arbitration hearing—

Grievant or the arbitrator—upon learning of the Agency’s disclosure, for the

first time, that the individual who reported Grievant while she was off work

undergoing medical treatment was none other than the Union Rep, a 30-year

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SSA veteran, the very individual who precipitated the events at issue. The

arbitrator found the Rep’s testimony quite unsatisfactory. When the arbitrator

requested that she be recalled to explain why she had sought to keep her identity

secret when she called her office on behalf of her brother, she said only that

“nobody needed to know.”

The arbitrator concludes that the Union Rep realized that her actions on

behalf of her brother might violate Agency policy and accordingly wanted to

conceal her identity. Indeed, it was she who brought up the issue of Sanctions at

a staff meeting less than two months earlier (AX 6). Nevertheless, she concurred

in Grievant’s claim-taking, handed the phone to her brother for that specific

purpose, spoke with Grievant about the claim after he finished, and never

uttered a single word about Agency policy or Sanctions. Afterward the Rep

brought in her brother’s birth certificate to finalize his claim, which was

processed by someone other than Grievant. The arbitrator concludes that the

Union Rep realized that a violation may have occurred and decided to make

Grievant the culprit, using the strategy that the best defense is good offense.

The Union Rep’s silence for all these years, that she was the one who

fingered Grievant, provides convincing evidence of the Rep’s feelings of guilt

and wrongdoing. Before this revelation at the arbitration hearing, Grievant

referred to the Rep as “a friend”. But the truth will out, and it came out at the

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hearing. Ironically, the Rep now heads Grievant’s department.

At the hearing, the Manager admitted that the Union Rep should not have

done what she did. Nevertheless, absolutely nothing has ever been done to the

Union Rep, not even a letter of reprimand. To the contrary, she has been

promoted to management, which helped her keep her little secret, that she

betrayed her friend and co-worker. The Union Rep has gotten off scot-free.

Under these circumstances, it would be inequitable, if not

unconscionable, for the arbitrator to uphold punishment of Grievant. The Union

Rep has been rewarded and Grievant has been severely disciplined for virtually

identical behavior. The Agency’s glib explanation, that it was Grievant who

actually accessed the SSA database, does violence to the concepts of suborning,

inducing, conspiring, and aiding and abetting. Article 3, Section 2 of the

collective bargaining agreement clearly calls for fair and equitable treatment “in

all aspects of personnel management” and further prohibits discrimination on

numerous grounds. The Agency has been neither fair nor equitable in its

handling of this matter and has discriminated against Grievant.

V.C. While the arbitrator has no authority to set aside Grievant’s 1st
Sanction, he is justified in considering its unreasonableness in formulating
a remedy.

This is not the first time that the Agency has treated Grievant unjustly.

Grievant is a Magna-Cum-Laude college graduate, with a major in family

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development and a minor in gerontology. She is trained to help the elderly. She

has been with SSA for fifteen (15) years. The Manager describes her as “an

excellent employee” and “a high producer”. Grievant is “good at public

service.” Yet the Agency treats her shabbily.

When Grievant’s ex mother-in-law, who was confined to a nursing home,

sought assistance with changing address and halting direct deposit of SSA

checks, Grievant was more than happy to help. This request for assistance was

made in the presence of the former relative’s social worker. The nursing home

director provided Grievant with the new address. The ex relative handed

Grievant her Medicare card. The elderly woman waived whatever right to

confidentiality she may have had under SSA’s privacy policy and did so in the

presence of her caregivers. Grievant made the requested changes and notified

the nearest SSA office of them.

Suspension for this type of conduct would not pass muster under Craig,

Louis, McKinley, Moldonado, and Wiefenbach, supra. It does not even comport

with common sense. Grievant, inexperienced in legal matters, did not know to

obtain Union or other representation and did not appeal the 2-day suspension

imposed upon her. Thus, there is nothing this arbitrator can do about the 1st

Suspension (AX 5). However, because the Agency has made it an issue with

respect to the 2nd Suspension, the arbitrator most certainly can take it into

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account in formulating a remedy.

V.D. The 2nd Sanction, coming on the heels of the 1st Sanction, was
devastating to Grievant.

Grievant testified that she was so distraught over the 2nd Suspension that

she had to be hospitalized. Her uninsured hospital costs exceeded $100,000, a

medical bill on which she expects to be paying for the rest of her life. She has

missed a great deal of work as a result of her illness. Her doctor suggested that

she take permanent medical leave. She now dreads coming into work.

In the absence of competent medical evidence, the arbitrator cannot, of

course, make a finding that the Agency’s unjustified and unjust personnel action

proximately caused Grievant’s illness. He is convinced, however, that it was a

precipitating factor. Since the record contains evidence of other possible factors,

there is nothing more that the arbitrator can say on the subject.

The end result of the Agency’s treatment of Grievant is that the Agency

has demoralized one of its brightest and best employees and lost the benefit of

her services for extended periods of time. It all stems from a slavish devotion to

Sanctions, which are disciplinary guidelines, not holy writ. This arbitrator

cannot express the problem better than did Arbitrator Sergent in Louis, supra, so

the arbitrator merely endorses what Mr. Sergent said there.

VI. The Remedy

In a written opening statement, the Union urged that Grievant’s 14-day

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suspension be expunged, requested that she receive back pay with interest under

the Backpay Act, and prayed for “any other relief deemed equitable.” Because

the arbitrator finds that Grievant did not commit a violation of the Agency’s

systems access policy so that the Agency did not have just cause to discipline

her, she is entitled to backpay with interest under 5 USC § 5596.

Because the arbitrator further finds that the Agency’s treatment of

Grievant “was clearly without merit,” the Union is entitled to reasonable

attorney’s fees for successfully defending her, in accordance with standards

established under 5 USC § 7701(g). See 5 USC § 5596(b)(1)(A)(ii). The

prerequisites for an award of attorney’s fees are set forth at length in FDIC and

NTEU Ch 242, 45 FLRA 437 (1992). Under the standards discussed there, the

Union is entitled to such an award. Payment by the Agency is warranted in the

interest of justice and hopefully will discourage further abuse of Grievant.

VII. Award

For all the foregoing reasons, the grievance is SUSTAINED. Grievant

is awarded backpay and statutory interest. The Union is awarded reasonable

attorney’s fees for her successful defense. Grievant’s personnel records shall

be expunged accordingly. The arbitrator retains jurisdiction to resolve any

disputes arising with respect to this award.

Dated May 5, 2006 _____________________________

E. Frank Cornelius, Arbitrator

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