SAMPLE MATTERS HANDLED ADMINISTRATIVE CASES AND DECISIONS
US Merit Systems Protection Board Cases Handled
John B. Westover, Appellant, v. DEPARTMENT OF AGRICULTURE, Agency,
U.S. Merit Systems Protection Board, Denver Field Office DE-3443-05-0035-I-1, 105 LRP 28930, 05/09/05
George Rosch, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency
U.S. Merit Systems Protection Board, Northeastern Regional Office PH-0752-04-0472-A-1, 04/22/05
Leroy Abrams, Appellant, v. DEPARTMENT OF STATE, Agency, U.S. Merit Systems Protection Board, New York Field Office, NY-0731-05-0122-I-1, 03/04/05
George Rosch, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency. U.S. Merit Systems Protection Board, Northeastern Regional Office, PH-0752-04-0472-I-1, , 01/21/05
EARL K. WILSON, Appellant, v. DEPARTMENT OF THE NAVY, Agency., U.S. Merit Systems Protection Board, Washington Regional Office, DC-0752-03-0810-I-2, 05/26/04
DELORES LAMBERT, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency., U.S. Merit Systems Protection Board, DA-0752-01-0525-I-2, , 03/11/04
EARL K. WILSON, Appellant, v. DEPARTMENT OF THE NAVY, Agency., U.S. Merit Systems Protection Board, Washington Regional Office, DC-0752-03-0810-I-1, 11/06/03
Weaver v. Social Security Administration, U.S. Merit Systems Protection Board, 94 MSPR 447, CB-7121-03-0002-V-1, 09/25/03
Elaine Rio v. Social Security Administration, 92 MSPR 198, AT-0752-00-0819-I-1, 08/14/02
Edna PEACE vs. EEOC, U.S. Merit Systems Protection Board, Northeastern Regional Office, PH-0752-01-0410-I-1, 01/03/02
RUDOLPH MURRAY, Jr. v. DEPARTMENT OF DEFENSE, U.S. Merit Systems Protection Board, Washington Regional Office, DC-0752-00-0795-B-1, DC-0351-02-0817-I-1, 11/14/02
US Federal Labor Relations Authority Decisions
Social Security Administration and American Federation of Government Employees, Local 1923, 60 FLRA 150 (August 18, 2004)(Click Here; Also Found at http://www.flra.gov/decisions/v60/60-036.html)(The Grievant, a member of the agency's records management team, requested overtime to complete records management projects and to work on projects assigned to the agency's library services and history office teams. The Arbitrator awarded overtime backpay and interest, but the Authority – with a strong dissent from Member Pope – overturned the Award).
American Federation of Government Employees Local 2006 and Social Security Administration, 59 FLRA No. 169 (May 13, 2004) (Click Here; Also Found at http://www.flra.gov/decisions/v59/59-169.html)(The Arbitrator sustained a grievance claiming that the Grievant's suggestion for lowering the Agency's energy costs was improperly evaluated under the Agency's Employee Suggestion Program (ESP), and that the Agency violated the parties' agreement by denying the Grievant's request for a monetary award. Pursuant to the ESP, the Arbitrator ordered the Agency to pay the grievant $8,995. The Agency had to pay attorney fees.).
Social Security Administration, Baltimore, MD and American Federation of Government Employees, Local 1923, 58 FLRA 592 (June 12, 2003)(Click Here; Also Found at http://www.flra.gov/decisions/v58/58-149.html)(Following remand from the Authority, Social Security Administration, Baltimore, Md., 57 FLRA 690 (2002) (SSA I)(Click Here; Also Found at ), the Arbitrator clarified his previous award and found that even in the absence of discrimination, the Agency nonetheless violated Article 18 of the parties' collective bargaining agreement. Accordingly, the Arbitrator reaffirmed his original decision that the grievant was entitled to an award of a priority consideration. The Agency filed another Exception and the Authority denied the Agency's exceptions).
United States Department of the Navy, Naval Surface Warfare Center, Indian Head Division, Indian Head, MD and American Federation of Government Employees, Local 1923, 58 FLRA 498 (April 30, 2003) (Click Here; Also Found at http://www.flra.gov/decisions/v58/58-123.html)(The agency filed an exception regarding an arbitration award. The award stated the grievant performed higher-graded duties and the agency failed to properly compensate her. The grievant, a GS-303-7 personnel certification assistant, was regularly assigned the higher-graded duties of a GS-343-9 program analyst, the union alleged. The agency violated the master collective bargaining agreement, rule or regulation and law by not paying her more while she was in the higher-graded position. The union requested the grievant receive a retroactive temporary promotion and backpay. It noted that the agency did this in a prior similar grievance. The grievance was timely filed and arbitrable, the arbitrator stated. The grievant performed the higher-graded duties approximately 25 percent of the time. She was entitled to the temporary promotion, the arbitrator decided. The arbitrator relied on a settlement by the agency regarding a similar case. The grievance did not satisfy OPM's requirements, the agency alleged. The grievant needed one year of experience in the GS-343 series to receive the promotion. Additionally, an employee must have been entitled to a promotion to receive backpay. This was not the case. She did not meet the "minimum qualification requirements." The award is not contrary to the Back Pay Act or OPM regulations, the FLRA stated. Arbitrators may award backpay when an employee was denied a temporary promotion he was entitled to under the CBA for performing the higher-graded duties for an extended period of time. However, the employee must meet OPM's minimum qualification requirements. The OPM regulation did not require experience in that particular job series, as the agency alleged. An employee must demonstrate "the particular knowledge, skills, and abilities to perform successfully the duties of the position." the FLRA explained. The grievant demonstrated this ability. The agency's exception was denied.).
American Federation of Government Employees, Local 1923, AFL-CIO and Social Security Administration, Baltimore, MD, 58 FLRA 376 (March 21, 2003)(Click Here; Also Found at http://www.flra.gov/decisions/v58/58-091.html)(The agency suspended three employees for alleged unauthorized access of its computer system. One employee was suspended for 14 days, the other two received two-day suspensions. Each employee filed a Grievance, which were consolidated. The arbitrator decided the agency failed to give due consideration to the Douglas factors. The arbitrator explained that "... in the selection of an appropriate disciplinary penalty, agencies exercise responsible judgment in each case based on individual considerations rather than acting automatically on the basis of generalizations unrelated to the individual situation." The arbitrator remanded the case to the Agency, which was to give the discipline of each employee further consideration, taking into account the Douglas factors. The union filed exceptions to the Arbitrator's award, claiming he did not provide a remedy. The Authority refused to agree, and upon remand the Arbitrator expunged each of the suspensions, awarded backpay, interest and attorney fees).
Social Security Administration, Baltimore, MD and AFGE, Local 1923, 57 FLRA 690 (February 8, 2002)( (Click Here; Also Found at http://www.flra.gov/decisions/v57/57-690.html)( The grievant applied for two supervisory positions within the Social Security Administration. She was placed on the best qualified list for both positions. However, the agency determined other individuals were more qualified. An arbitrator found no merit in the grievant's subsequent claim she was subjected to discrimination on the basis of sex, race or protected activity. However, he found that, under the parties' CBA, the grievant was entitled to priority consideration for a supervisory position. He cited the parties' EEO and Merit Promotion articles as the basis for his decision. Furthermore, the arbitrator found the grievant was entitled, under the parties' agreement, to a retroactive temporary promotion with back pay and interest because she had been performing higher-graded work. The Agency filed exceptions and the Authority ordered the Arbitrator to address an apparent conflict in his Award. Upon remand, the Arbitrator found again in favor of the Union; the Agency filed Exceptions again, in which the Union prevailed (See Social Security Administration, Baltimore, MD and American Federation of Government Employees, Local 1923, 58 FLRA 592 (June 12, 2003)(Click Here; Also Found at http://www.flra.gov/decisions/v58/58-149.html), above).
Social Security Administration, Baltimore, MD and AFGE, Local 1923, 57 FLRA 538 (September 28, 2001)(Click Here; Also Found at http://www.flra.gov/decisions/v57/57-094.html)(The agency had a shortage of Benefits Authorizers and offered BA work as overtime for higher-level Claims Authorizers. The union was not notified of the CABA overtime project and demanded to bargain. The union and the agency reached an agreement on the CABA overtime. The grievant filed a grievance that he had been improperly denied the opportunity to work CABA overtime. The agency denied the grievance saying the grievant was not qualified for CABA overtime. The grievance went to arbitration. The union argued that CABA overtime should have been offered and given in a fair and equitable manner under the agreement. The agency stipulated that the grievant was qualified for CABA overtime, but that he did not volunteer for CABA overtime. The arbitrator found the grievant was not given the chance to participate in the CABA overtime project. The arbitrator ordered the parties to estimate the average time worked by other CABA overtime participants and to pay the grievant back pay of that averaged amount. The arbitrator also granted reasonable attorney's fees to the union. The agency excepted to the award, arguing that it was based on a nonfact, was contrary to management's right to assign work, was based on faulty credibility determinations and was contrary to the Back Pay Act. The agency's stipulation that it would have allowed the grievant to work overtime had he volunteered was not a nonfact and the exception was denied. Because of the agency's stipulation, the Authority found the award did not affect management's right to assign work. The Authority rejected the agency's exception regarding credibility determinations because it was mere disagreement with the arbitrator's evaluation of evidence and testimony and not a basis for finding the award deficient. The Authority then found that arbitrator made the proper findings for an award under the Back Pay Act and rejected the agency's exception).
Social Security Administration and AFGE, Local 1923, 57 FLRA 530 (September 27, 2001)( (Click Here; Also Found at http://www.flra.gov/decisions/v57/57-093.html)( The union filed a grievance that the agency violated the parties' collective bargaining agreement in its filling of Benefits Authorizer positions (GS-5 to GS-7). The grievance went to arbitration. The union argued that the agency promoted external selectees to a GS-7 position after 52 weeks instead of three months and that internal hires were not promoted at the beginning of the first pay period after selection as required by the CBA. The union also argued that the agency did not provide written explanations for non-selection to employees who exercised their priority consideration rights. The arbitrator found the agency violated the CBA. The arbitrator ordered the agency to make whole those external selectees who had not been promoted to GS-7 after three months, make whole internal hires who had not been promoted to their appropriate grade at the beginning of the first pay period after selection, provide written reasons for non-selection of those employees who exercised their priority consideration rights and to reinstate the priority consideration rights to those employees (101 FLRR 2-1004). The agency excepted to the award, arguing that the award was based on a nonfact, the award was contrary to law, the arbitrator exceeded his authority, and the award did not draw its essence from the agreement. The agency also argued that the union's opposition was not timely filed. The authority found the agency hand delivered a copy of its exceptions to the union. The authority noted that the first copy of the exceptions was slid under the union's office door and not handed to any union personnel until five days later. The Authority held that the agency's first delivery was not proper and the union's opposition was timely filed. The Authority found the agency's nonfact exception challenged facts in dispute before the Arbitrator and therefore the exception was denied. The Authority reviewed the contrary to law exception de novo and found the arbitrator's legal conclusions did not violate any law, rule or regulation. The exception was denied. The Authority also rejected the agency's exceeds authority exception. Finally, the Authority determined that the award was consistent with the parties' agreement and denied the agency's essence argument).
Department of the Navy, Naval Surface Warfare Center, Indian Head Division, Indian Head, MD and AFGE, Local 1923, 57 FLRA 417 (July 23, 2001)(Click Here; Also Found at http://www.flra.gov/decisions/v57/57-075.html) (The Authority found the Arbitrator had jurisdiction over the dispute and could award attorney's fees without awarding back pay where the Agency had already awarded back pay for an admitted unwarranted and unjustified personnel practice).
Social Security Administration, Baltimore, MD and AFGE, Local 1923, 57 FLRA 181 (May 24, 2001) (Click Here; Also Found at http://www.flra.gov/decisions/v57/57-044.html)(The Authority Upheld The Arbitrator's Award finding the Agency had not given the Grievant bona fide consideration for a supervisory position when he had invoked his priority consideration in his application)
U.S. Department of the Navy, Naval Surface Warfare Center, Indian Head Division, Indian Head, Maryland and AFGE, Local 1923, 56 FLRA 848 (September 29, 2000) (Click Here; Also Found at http://www.flra.gov/decisions/v56/56-141.html) (The Union filed a number of grievances over several issues. The parties entered into two settlement agreements over these grievances, which included a binding arbitration clause in each. Some grievances went to arbitration, under the provisions in the SA's, and the arbitrator issued five awards. In Award I, the Agency stipulated that it had failed to comply with one of the settlement agreements, and the Arbitrator issued several remedies. In Award II, the Arbitration found that the Agency remained in noncompliance, and, among other things, he directed the Agency to post a notice to employees and to comply with its previous agreement to issue an apology to a Union steward. In Award III, the arbitrator found continued noncompliance by the Agency, and he offered additional remedies including additional notice postings and an all-hands meeting. In Award IV, the Arbitrator found continued violations by the Agency and granted the Union three separate awards of attorney's fees for the three previous awards. The Agency timely excepted to the fourth award, challenging only the attorney's fees awards. The Arbitrator held another hearing, at which the Agency contested jurisdiction and withdrew from the hearing when the Union called the Agency's counsel to testify. The Arbitrator found he had jurisdiction. In Award V, the Arbitrator modified Award I, directed the Agency to post notices, conduct the all-hands meeting, pay attorney's fees to the Union, pay the costs of the arbitration and court reporter and issue a report to the Office of Personnel Management regarding the Agency's partnership efforts. The Agency excepted to Award V also. The Authority remanded the case to the parties for resubmission to determine which issues in Award V directly relate to compliance with Award IV. The Authority also remanded the issue of attorney's fees for the Arbitrator to clarify the requirements for attorney's fees under the BPA. The Authority rejected the Agency's compliance/enforcement, exceeds authority, and essence arguments. The award was remanded to the parties to resubmit to the Arbitrator).
Arbitration Decisions
American Federation of Government Employees, Local 1923 and Department of Defense, Navy, Indian Head Division, Naval Surface Warfare Center (October 19, 1999)(Hugh D. Jascourt, Arbitrator)(Click Here to View This Document)(This arbitration began with a stipulated arbitration agreement by the arbitrator in April 13, 1999. Since then the arbitrator issued three compliance decisions and awards. The union filed a motion for compliance on the last decision, but this was withdrawn at the urging of the arbitrator. Since then a new motion for compliance was filed. The agency had been ordered to post the notice and to take diligent and appropriate actions against anyone who participated in the removal or defacing of the notice during a specified period. The arbitrator noted that the agency, among other things, claimed that it did not view the language of the award as requiring it to commence investigations when repetitious removal occurred. The arbitrator imposed various remedies for the noncompliance of the agency, in the instant matter. The arbitrator said that some of these remedies were ones that he never even contemplated or considered in the past. The arbitrator also said that given what has occurred he was compelled to take measures he was otherwise loath to take. Among the measure was an apology to be delivered within three business days from the date of this decision from the grievant's supervisor to the grievant. The agency was ordered to investigate the conduct of the grievant's supervisor. Also, the parties were ordered to reach agreement on all places where the notice was to be posted. And, a statement to all employees was to be drafted that said that anyone who defaced, removed or otherwise engages in activity to interfere with the legitimate posting of labor relations materials will be immediately suspended.) (Click Here to View This Document)
Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 1923, BW-01-E-0006, 0-AR-3544 (April 3, 2002) (Federal Arbitration, S. Jesse Reuben) (Click Here to View This Document) (Three Social Security Administration employees were given suspensions for inappropriately accessing the agency's computer to obtain information for nonwork-related reasons. The penalties for "unauthorized system access violations" were detailed in a memorandum sent by the commissioner. Also, all employees were asked to sign an acknowledgment statement. The union filed grievances, claiming the suspensions violated the collective bargaining agreement. The union alleged the disciplinary actions were inconsistent with the concept of progressive discipline in the CBA. The union claimed the grievants were not aware they were doing anything inappropriate. Also, the suspensions were not consistent with the principles explained in the Douglas Factors, the union claimed. The Douglas Factors state: "Selection of an appropriate penalty must ... involve a responsible balancing of the relevant factors in the individual case. ... In considering whether the agency's judgment was reasonably exercised, it must be borne in mind that the relevant factors are not to be evaluated mechanistically by any preordained formula." The arbitrator opined that the discipline was based on the penalties outlined in the commissioner's memo and did not rely on or give due consideration to the Douglas Factors. The arbitrator ordered the grievance to be "remanded to the parties in order to afford the agency the opportunity to fully consider and apply the Douglas Factors in assessing the penalties in each of the cases."). (Click Here to View This Document)
American Federation of Government Employees, Local 1923 and Department of Defense, Navy, 102 FLRR 2-1052 (January 30, 2002); Appealed (O-AR-3517)(Arbitrator Irwin R. Kaplan)(The Arbitrator Ordered A Retroactive Promotion Since The Grievant Performed The Grade Controlling Duties Of A Higher Grade At Least Twenty-Five Percent Of The Time. The grievance was sustained and the arbitrator found that the grievant was entitled to a retroactive temporary promotion with back pay since grievant performed the grade controlling duties of a higher grade position at least twenty-five percent of the time).
American Federation of Government Employees, Local 1923 and Department of the Navy, Naval Sea Logistics Center, Detachment Atlantic, Indian Head, MD, 101 FLRR 2-1196 (July 16, 2001) (Click Here to View This Document) (Appealed (O-AR-3441))(The Arbitrator found the grievance was a classification matter and beyond the scope of arbitration, but did find the Agency violated the CBA by not providing the grievant with an accurate position description).
American Federation of Government Employees, Local 1923 and Social Security Administration, 101 FLRR 2-1146 (January 29, 2001)(Arbitrator: Irwin R. Kaplan)(Appealed (O-AR-3401)) (Click Here to View This Document) (The Arbitrator denied the grievant's charges of racial and sexual discrimination, but found the agency's error in the selection process entitled the grievant to priority consideration. The arbitrator also found the grievant had performed higher-grade duties and was entitled to a retroactive temporary promotion. The grievant filed three grievances alleging the Agency created a hostile work environment through racial and sexual discrimination, the Agency's removal of the grievant was arbitrary and capricious, the Agency discriminated against the grievant by not selecting her for two different vacancies she had applied for, and the Agency did not properly compensate the grievant for performing higher-graded work. The Agency denied the grievances. The grievances were consolidated at arbitration. The Union argued that the grievant had been discriminated against due to her gender (female) and race (African-American) in the Agency's actions to remove her from the project she managed and in her non-selection for two GS-13 positions. The Union pointed out that due to the discriminatory actions of co-workers and supervisors, the Agency created a hostile work environment towards the grievant. The Union further argued that the grievant had performed higher-grade duties since 1996 without being compensated. The Agency argued that the best-qualified candidate was chosen for each of the two positions and race and gender were not a factor in those selections. The Arbitrator found the grievant failed to prove the Agency discriminated against the grievant due to her gender or race or protected activities in regard to her non-selection, removal from the 1996 project, or creating a hostile work environment. The Arbitrator further found that due to the Agency's inability to produce a signed a dated copy of the application by the selectee for the building manager position, the grievant should be provided with priority consideration for the building manager or equal position. Finally, the Arbitrator found the grievant had performed higher-graded duties and should be given a temporary retroactive promotion with back pay and interest for the time period she performed higher-grade duties).
American Federation of Government Employees, Local 1923 and Social Security Administration, 101 FLRR 2-1033 (August 31, 2000)(Appealed (O-AR-3358))(The Arbitrator found the grievant was not given a chance to participate in an overtime project and ordered the agency to estimate the average overtime worked by others on the project and pay the grievant back pay in that amount). (Click Here to View This Document)
American Federation of Government Employees, Local 1923 and Social Security Administration, Baltimore, MD, 101 FLRR 2-1021 (July 7, 2000)(Appealed (O-AR-3346)) (Click Here to View This Document) (The Arbitrator found the agency violated the parties' agreement when it compared the grievant to other applications in contravention to his priority consideration status. The grievant applied for a GS-13 position and invoked his priority consideration he received as part of an EEO complaint settlement from 1996. The grievant was not selected for the GS-13 position. The Union filed a grievance that the Agency breached the parties' agreement because it did not grant the grievant priority consideration. The Arbitrator found that priority consideration meant that the grievant would be considered separate and apart from any other applicant and not be compared with other applicants. The Arbitrator found the Agency violated the CBA because it considered the grievant along with other applicants in contravention to his priority consideration status. The Arbitrator ordered the Agency to place the grievant in a GS-13 position for which he is qualified, to pay the grievant back pay and interest from the date of his non-selection and reasonable attorney's fees).
American Federation of Government Employees, Local 1923 and Social Security Administration, CASE No. BW-99-R-0031, 101 FLRR 2-1004 (May 31, 2000)(Arbitrator: Irwin R. Kaplan) (Click Here to View This Document) (The Arbitrator Found The Agency Violated The Parties' Agreement In Its Selection And Promotion Processes. The Union filed a grievance that the Agency had "violated the internal and external hiring provisions as well as certain promotion practices of the [1996] National Agreement." The Agency argued it was following Office of Personnel Management regulations and the merit promotion principles of the 1993 National Agreement, since no agreement had been reached between the parties about assessment criteria for the 1996 NA. The Arbitrator found the Agency wrongfully delayed an employee's promotion, failed to promote an employee at the first pay period after selection, did not inform employees who exercised priority consideration of the bona fide reason for their non-selection for a vacancy, and used additional criteria in the selection process. The Arbitrator found the Union did not prove the Agency "violated the National Agreement, law, rule, or regulation, in its hiring, selection and/or promotion in the Benefits Authorization position.").
American Federation of Government Employees, Local 1923 and Social Security Administration, Baltimore, MD, 100 FLRR 2-1079 (February 2, 2000) (Arbitrator: Laurence M. Evans) (Click Here to View This Document) (The grievant claimed that she had been performing higher graded duties since at least 1994 and had not been properly compensated for that work. The agency argued that the claim was not grievable under the agreement because it concerned the classification of a position. The arbitrator concluded that the matter was arbitrable, but denied the grievance on the merits. Back in the early 1990s the grievant began to be given certain work assignments not specifically enumerated in her paralegal position description. Over the years, these assignments gradually expanded in volume and complexity. First, on the issue of arbitrablity, the arbitrator did not agree with the agency argument that the grievance was a pure position classification masquerading as a temporary promotion and back pay case. The arbitrator noted that the union was seeking nothing more for the grievant than appropriate compensation for her claim that she should have been temporarily promoted. Authority precedent dictates that such grievances are grievable. Regarding the merits, the arbitrator found two flaws in the union's case. First, the union failed to establish that the grievant performed the grade-controlling duties of the higher position when she reviewed and analyzed requests for disclosure of information. Second, the arbitrator found that the evidence suggested that the grievant did not perform functions that were inconsistent with the paralegal specialist position).
American Federation of Government Employees, Local 1923 and Department of Defense, Navy, Indian Head Division, Naval Surface Warfare Center, 100 FLRR 2-1082 (February 1, 2000)(Appealed (O-AR-3285))(Arbitrator: Hugh D. Jascourt) (Click Here to View This Document) (The issue at arbitration was whether the union was entitled to reasonable attorney fees for a grievance in which the agency agreed it did not provide the grievant a timely within grade increase. The agency also agreed to provide back pay with interest to the grievant. The arbitrator concluded that payment of attorney fees was due the union because withholding of the grievant's within grade increase and interest on his retroactive back pay constituted an unjustified and unwarranted personnel action. The union and the grievant were the prevailing party and in pursuing the grievance attorney fees were incurred. Also, agency payment of the attorney fees was within the interests of justice and met all relevant statutory criteria. Finally, the arbitrator determined that the services of a paralegal in connection with the grievance were allowable as attorney fees).
American Federation of Government Employees, Local 1923 and Department of Defense, Navy, Indian Head Division, Naval Surface Warfare Center, 100 FLRR 2-1084 (January 31, 2000)(Arbitrator: Hugh D. Jascourt) (Appealed (O-AR-3287)) (Click Here to View This Document) (This arbitration was the fifth proceeding regarding non-compliance in this matter. The parties had reached an agreement where the agency acknowledged wrongdoing. However, this arbitration resulted after continued efforts by the union to get the agency to comply with the agreement failed. The arbitrator, in the present matter, first addressed the issue of jurisdiction. The agency argued that by virtue of filing exceptions to an award, the entirety of the award is stayed. The arbitrator noted that allowing the agency to block enforcement of prior awards by filing exceptions to the award of attorney fees would violate the interests of justice. The agency also argued that the jurisdiction of this arbitrator ended with a prior proceeding. However, the arbitrator found this to be disingenuous because the parties had agreed that this arbitrator would retain jurisdiction. The arbitrator said based on these and other jurisdictional arguments "the agency's conduct and meritless arguments" were viewed by the arbitrator as the agency "engaging in cynical delay to frustrate the rights of the union and those it represents." Next, the arbitrator addressed the merits of the claim. The arbitrator noted that the grievant did not receive by May 13, 1999, an accurate job description as promised by the agreement. Accordingly, the compliance proceeding resulted in the agency being ordered to reclassify her to a higher position. She was to receive retroactive back pay, with interest to that date. She was finally reclassified on September 26. The union alleged, in the present matter, the grievant did not receive back pay and interest and that new evidence revealed she should have been promoted at an earlier date. The arbitrator found that the union was correct and the grievant should have been promoted in January. Therefore, her back pay, with interest should be backdated to January. Next, the arbitrator pointed out the delay by the agency of posting notice of the previous order. Also, the arbitrator noted that there were problems in regard to posting of notice of an All-Hands Forum to be held to reduce the chilling effect of the non-compliance. In compliance proceeding III, the agency agreed that it would address at an All-Hands Forum the non-compliance. The arbitrator, in the instant matter, concluded that there was compliance by the agency in postings but that its implementation was carried out in a manner intended to reduce its intended effect. Finally, the arbitrator addressed the issue of remedies. The arbitrator noted that the Authority has sanctioned the use of non-traditional remedies. The arbitrator ordered, among other things, posting of the notice of this order and with each posting a videotape recording should be made showing the posting. The tape should be time and date stamped.). (Click Here to View This Document)
American Federation of Government Employees, Local 3729 and US Army Corps of Engineers, Huntington District, 104 FLRR-2 27, 103 LRP 50329, 0-AR-3751 (September 18, 2003)(The union's grievance was sustained. The agency denied accommodations for the grievant and did not act on her complaint of a hostile work environment. The grievant was a qualified individual with a disability and entitled to reasonable accommodations)(Click Here to View This Document).
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