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May 5, 2006
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
from Grievant’s own written statement regarding the events at issue and the
exhibits, which are summarized or excerpted below; the Union did not submit
collective bargaining agreement are set forth in pertinent part below; others are
referenced as required.
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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.
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.
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4. Be represented.
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:
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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.
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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.
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On How To Transact Social Security Business That Requires Systems Access,
August 2001 (“Reminders”). The relevant phrases are “Social Security records
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
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.
... To assist employees in this regard, the SSA publicized the following
policy:
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your supervisor, manager, or management designee.”
goes to the heart of the grievance, the Factsheet is reproduced in its entirety:
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.
…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.
Guidance is attached.
accessing her own records in the SSA system, the arbitrator opined:
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concept of just cause is all about.
SSA and AFGE Local 3438, Gr. Elizabeth McKinley (Nicholas Arb 2001)
(“McKinley”):
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
AFGE Local 1164 and SSA, No. BN-2202-E-0004, 103 FLRR-2 115, 103 LRP
15947 (Dorr Arb 2003) (“Moldonado”):
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”):
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.
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
during a dispute over child support, of his ex-wife’s records in SSA’s computer
After reviewing various cases and the penalties imposed, including cases
concluded:
AFGE and SSA, No. CL-2005-E-0005, 106 LRP 302 (Smith Arb 2005)
(“Craig”):
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
for accessing the SSA’s computer system to verify her brother-in-law’s Social
SSA and AFGE Local 1336, No. KC-2001-E-0001 (Baker Arb 2001)
(“Moore”):
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):
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
the SSA.
by the just cause provision of the collective bargaining agreement, and rigid
and an unduly harsh penalty may be reduced in a proper case. The burden of
5596(b)(1)(A)(ii).
V. Discussion
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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
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
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
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
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
manager.” On this issue, the Agency failed to carry its burden of proof that
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
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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
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
unpunished.
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
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
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.
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,
collective bargaining agreement clearly calls for fair and equitable treatment “in
numerous grounds. The Agency has been neither fair nor equitable in its
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.
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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
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
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
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.
course, make a finding that the Agency’s unjustified and unjust personnel action
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
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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
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
VII. Award
attorney’s fees for her successful defense. Grievant’s personnel records shall
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