MOONEY, GREEN, BAKER & SAINDON, p.e.

JOHN R. MOONEY· SUITE 400 TELEPHONE (202) 783-0010 PAUL A. GREENt , 920 L STREET, N.W.ELIZABETH A. SAINDON FACSIMILE (202) 783-6088 MARK J. MURPHyt WASHINGTON, DC 20036

INTERN ET: www.mooneygreen.comDOUGLAS L. pARKER· RICHARD C. WELCH 1lI>~61'S EUGENE K. AHN° MAYOUNG NHAM"

MARILYN L. BAKERt ROSERT H. STROPP, JR OF COUN5EL

• ADMITTED IN DC AND VA t ADMITTED IN DC AND MD • ADMI"TED IN NEW YORK • ADMITTED IN VA

June 12, 2009

Mr. John Pannozzo, Esquire Federal Labor Relations Authority San Francisco Regional Office 901 Market Street, Suite 220 San Francisco, CA 94103-1791

RE: Case No. WA-RP-09-0057, Association of Administrative Law Judges, IFPTE, AFLCIO, and Social Security Administration

STATEMENT OF POSITION ON BEHALF OF THE ASSOCIATION OF ADMINISTRATIVE LAW JUDGES

This brief constitutes Association of Administrative Law Judge, IFPTE, AFL-

CIO's (hereafter "AALJ" or "the Union") response to the Social Security

Administration's (hereafter "SSA" or "the Agency") April 20, 2009 Unit Clarification

Petition.

Central Question Before the Authority

The principal question at issue in the dispute between the AALJ and the SSA is

whether the Agency committed an unfair labor practice ("ULP") by opening its National

Hearing Centers ("NHC"). The Union argues that the Agency committed an ULP by

breaching its collective bargaining agreement ("CBA") and violating the Federal Service

Labor-Management Relations Statute ("FSLMRS").

During the arbitration, the Agency contended that the NHCs differed from the

existing hearing centers because the administrative law judges ("ALl") assigned to the

NHC were supervisors, and thus not members of the bargaining unit. Furthermore, the

Agency asserted that since the NHC administrative law judges were not members of the

bargaining unit, this dispute was not arbitrable.

While the Agency may try to focus the issue on the supervisory status of the ALJs

assigned to the NHC, the true issue is whether or not the Agency committed an ULP by

creating the NHC for anti-union reasons and without bargaining with the Union, thereby

altering the scope of the bargaining unit and circumventing the terms of the CBA

between the parties.

Synopsis of Union's Position and Response

This unit clarification petition was improperly filed by the Agency. The issue at

the core of this dispute - whether or not the Agency committed an ULP and breached the

CBA by creating the NHC - has already been decided by Arbitrator Michael Murphy,

pursuant to a valid arbitration. The Agency's filing of a unit clarification petition after

the issuance of Arbitrator Murphy's award is their attempt to avoid enforcement of his

award. Therefore, the Union requests that this unit clarification proceeding be held in

abeyance pending the outcome of the Authority's decision regarding the Agency's

Exceptions to Arbitrator Murphy's award ("Exceptions").

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The Agency is seeking to circumvent the Federal Labor Relations Authority's

(hereafter "FLRA" or "the Authority") established dispute resolution procedures by

submitting the dispute between the parties to the FLRA's grievance procedure and its

representation procedures. The Union properly filed a grievance against the Agency

based on the Union's belief that the Agency violated its CBA with the Union and

committed an ULP by creating the NHCs. During the arbitration, the Agency tried to re

frame the central issue of the dispute - changing it from a determination of whether or

not the Agency committed an ULP by breaching its CBA with the Union to a

detennination ofwhether or not the NHC ALJs held supervisory status. However, the

Agency did not file a unit clarification petition to stay the arbitration proceedings until

the resolution of the Agency's perceived dispute about supervisory duties. Rather, the

Agency chose to submit to the arbitration and was thus afforded ample opportunity to

provide evidence that the work of the NHC ALJs differed from the work of ALJs at

existing hearing centers. Only after an adverse decision was issued, did the Agency file a

unit clarification petition in its attempt to re-litigate the matter between the parties.

Additionally, the new evidence submitted by the Agency to demonstrate that the

NHC ALJs perform supervisory duties is merely a sham attempt at showing that these

ALJs had been exercising supervisory duties since the inception of the NHCs. The

Agency curiously failed to present any of this evidence during the arbitration. This

strongly suggests that the Agency has hastily given these ALJs some semblance of

supervisory work after the adverse decision issued by Arbitrator Murphy. This evidence

should not be considered in the resolution of this dispute because the Agency was already

afforded an opportunity to demonstrate supervisory duties during the arbitration.

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The Union asserts that the Agency's impetus for the establishment ofNHCs was

tainted by the Agency's, particularly Commissioner Michael Astrue's, anti-union

sentiments. Commissioner Astrue's anti-union animus is evident from his behavior

during a meeting with the officers of the Union on October 10, 2007 and from his refusal

to bargain with the Union regarding the NHCs.

Background

Events of October 2007 that Gave Rise to the Grievance

On October 5,2007, the Agency sent an email to all Federal ALJs which

announced the creation of the National Hearing Center in Falls Church, Virginia. The

email also solicited applicants for vacancies at the NHC. Although there had been

rumors of the Agency's creation ofNHCs staffed by AUs designated as management,

the October 5, 2007 email was the first official notification that the AALJ received of the

proposed NHC ALJ staffing.

Several days later, on October to, 2007, the officers of the Union met with

Michael J. Astrue, Commissioner of the Social Security Administration. At that meeting,

Commissioner Astrue informed the Union's officers about the details pertaining to the

operation ofthe NHC, including the Agency's intent to use the AUs in the NHC to

adjudicate claims throughout the country through video teleconferencing. Commissioner

Astrue stated during the meeting that he wanted to close as many remote hearing sites as

possible, while expanding the NHCs to other locations. The Union officers voiced their

concerns regarding compliance with regulatory requirements and compromised hearing

standards. Commissioner Astrue stated that the CBA prevented him from expanding

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electronic operations as quickly as he desired, and that he could not operate under all of

the restrictions that were imposed upon him by the Office of Personnel Management

(OPM). This meeting was the Union's first notification regarding the details of the

operation of the NHC and of Commissioner Astrue's intention to transfer AALJ

bargaining unit work to AUs who SSA would designate as supervisors.

It is undisputed that the NRC AUs perform AAU bargaining unit work. Holding

hearings and adjudicating claims is the work of bargaining unit members. All AUs

assigned to hearing offices throughout the country perform such work; these duties are

not unique to NHC AUs. In fact, the Position Description ofNHC AUs is identical to

that of bargaining unit AUs, except for the statement that NHC ALJs "may" supervise

one or more employees. The use ofvideo teleconferencing equipment to hear cases is

also not novel. Bargaining unit members hear electronic cases by video teleconferencing,

including cases from outside of their geographic service areas. The use of video

teleconferencing equipment during hearings has been a subject of collective bargaining

between the parties since entering into the CBA in 2001. I

November 13, 2008 Arbitration Before Arbitrator Michael Murphy

In November 2007, the Union filed a grievance against the Agency, arguing that

the Agency violated the CBA and the FSLMRS. In its grievance, the Union stated,

among other things, that the Agency violated Article 2, Section 2 of the CBA, which

states that the SSA agrees not to unilaterally establish or change any condition of

employment that terminates or conflicts with the specific terms of the agreement.

I The parties entered into a CBA on August 30, 2001. The eBA was thereafter extended to 2006, and then again until January 2010.

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The parties were unable to successfully resolve the matter and therefore submitted

the matter to arbitration. A hearing was held on November 13, 2008, before Arbitrator

Michael A. Murphy. After considering all the evidence submitted to him, Arbitrator

Murphy concluded that the Agency breached the CBA and the FSLMRS by failing to

provide the Union with reasonable notice of its intentions to establish the NHCs, by

expanding the use of video teleconferencing, and by removing bargaining unit work.

(Award 37-38.) Furthermore, the Arbitrator found that the Agency committed an ULP by

establishing the NHCs and staffing them with AUs without bargaining with the Union,

and by displaying anti-union animus in its interactions with the Union with respect to the

NHCs. (Award 38.) Arbitrator Murphy ordered the Agency and Commissioner Astrue to

cease and desist from refusing to recognize the Union as the bargaining representative of

the NHC AUs, from refusing to bargain with the Union regarding the tenns and

conditions of the AUs working at the NHC, and from displaying anti-union animus in

any of its dealings with the Union. (Award 38-39.) A true and correct copy of Arbitrator

Murphy's award is attached hereto as Exhibit 1.

Union's Argument

I. The Issue in Dispute Between the Parties Was Already Resolved Through a Valid Arbitration.

The question at issue here has already been settled in a valid arbitration. Rather

than abide by Arbitrator Murphy's award, the Agency filed Exceptions to Arbitrator's

Murphy's Award on May 4, 2009 and is now attempting to further circumvent

enforcement of the award by filing this unit clarification petition. A true and correct copy

of the Exceptions is attached hereto as Exhibit 2. The Union requests that since these

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issues have already been litigated in the arbitration proceedings between the parties and

are currently at issue in the Exceptions, that this unit clarification petition be held in

abeyance pending the resolution of the Exceptions.

The Union believes that the Agency's actions in creating the National Hearing

Center constituted an ULP and a breach of the CBA. The Union asserted that the Agency

changed the scope of bargaining unit work, thereby violating 5 U.S.c. § 71 16(a)(I), (2)

and (5i; the National Labor Relations Act; and the CBA between the Union and the

Agency. Therefore, the Union filed a timely grievance. The matter was grieved without

success, and thus submitted to arbitration.3

During the arbitration, the Agency alleged that there was a difference in the work

performed by the ALJs at the NHC and those at the already established hearing centers-

namely that the National Hearing Center ALJs performed supervisory duties. Moreover,

the Agency contended that this matter was not arbitrable because the ALJs at the NHC

are not part of the bargaining unit due to their supervisory status. The Agency, however,

2 Title 5 U.S.c. § 71 I(a) provides in part:

(a) For the purpose of this chapter [5 USCS §§7101 et seq.], it shall be an unfair labor practice for an agency

(1) to interfere with restrain or coerece any employee in the exercise by the employee of any right under this chapter [5 USCS §§ 7101 et seq.];

(2) to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment;

(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter;

3 The FRLA has recognized the Statute's policy of favoring the resolution of employee grievances through arbitration. See Headquarters. XVIII Airborne Corps and Fort Bragg. Fort Bragg, North Carolina, 34 F.L.R.A. 21, 25 (1989).

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failed to present any evidence that these AUs exercised supervisory duties. Therefore,

the Arbitrator concluded that the work performed by the NHC AUs was the same as the

work performed by AUs in the Union's bargaining unit. (Award 14.)

Now, subsequent to the resolution of the arbitration, the Agency is once again

raising the issue of supervisory duties in this unit clarification petition. Not only is this

improper and violative of 5 U.S.C. § 7ll6(d), the Agency is clearly using this unit

clarification petition to evade enforcement ofArbitrator Murphy's award. If the Agency

truly believed there was a unit clarification issue, it could have filed a unit clarification

petition at the time of the arbitration, which would have held the arbitration in abeyance

pending the resolution of the petition. Us. Small Business Administration and American

Federation o/Government Employees, Local 2532, AFL-CIO, 32 F.L.R.A. 847, 854

(1988) (Small Business Administration) ("When parties to a grievance are faced with

such a grievability question, they can place the grievance in abeyance pending the filing

of a clarification of unit petition.'). Instead, the Agency chose to wait until after the

resolution of the arbitration and the issuance of the award to file its unit clarification

petition. Furthermore, the Agency did not submit any evidence of the alleged

supervisory duties performed by the NHC AUs until after the conclusion of the

arbitration.

The Agency is trying to re-litigate an issue that has already been decided by the

Arbitrator. In effect the Agency is seeking to get "two bites at the apple." This is

contrary to the spirit of the FLRA which, at bottom in ULP cases, requires an election of

remedies:

... [A]n employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a

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grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.

5 U.S.C. § 7116(d). Thus, the statute says that a party may elect to resolve its dispute

either through a grievance or through an unfair labor practice, but not under both

procedures. By raising the issue of supervisory duties during arbitration and by

submitting to arbitration rather than filing a unit clarification petition to hold the

arbitration in abeyance, the Agency effectively waived its right to have this issue resolved

through a unit clarification petition. The Agency clearly chose to submit this matter to

arbitration, rather than file a unit clarification petition. In the conclusion of its own post-

arbitration hearing brief, the Agency wrote: " ... the Agency respectfully requests that the

Arbitrator find that the NHC AUs are supervisors and thus excluded from the bargaining

uniL." (The Agency's Closing Statement 22.) Thus, the Agency clearly chose to submit

this issue to arbitration and is now trying to re-litigate the issue of whether or not the

NHC AUs performed duties that differ from those of AUs at existing hearing centers by

raising the issue again as the subject of the present unit clarification petition, thereby

getting "two bites at the apple."

The Union acknowledges that only the FLRA may decide issues regarding

bargaining unit status. Small Business Administration, 32 F.L.R.A. 847 (1988), on

reconsideration 34 F.L.R.A. 392 (1990); Headquarters, XVIII Airborne Corps and Fort

Bragg, Fort Bragg, North Carolina, 34 F.L.R.A. 21,25 (1989) (Fort Bragg). In Small

Business Administration, the Authority held that the Arbitrator did not have the authority

to make determinations regarding the bargaining unit status of a grievant. In this case,

however, the Union was not attempting to determine that bargaining unit status of a

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grievant. The Union's dispute with the Agency was related to its establishment of the

NHCs, which was an ULP. The Union did not initially seek to determine whether or not

the NHC AUs were part of its bargaining unit. Rather, the Union simply asserted that

the Agency violated its CBA with the Union by establishing the NHCs. It was the

Agency that raised the issue of supervisory status and the arbitrability of the dispute.

Thus, it was incumbent on the Agency to file a unit clarification petition to hold the

arbitration in abeyance.

In Fort Bragg, the unit clarification issue arose when an employee grieved his

discharge from the agency. When the grievance was not resolved, the union invoked

arbitration. Prior to the arbitration hearing, the agency asserted that the grievant was not

included in the bargaining unit. To resolve the issue of the grievant's bargaining unit

status, the agency filed a petition for clarification of the bargaining unit status of the

grievant. The Arbitrator stayed the arbitration proceedings pending the Authority's

decision on the unit clarification petition. In this case, the Agency simply raised the issue

during arbitration and then failed to submit any evidence that the NHC AUs exercised

supervisory status. At no time did it attempt to stay the proceedings with a unit

clarification petition. The Agency was afforded every opportunity to present evidence of

the NHC AUs' supervisory duties, but failed to provide any evidence during the

arbitration.

Only now, after the Arbitrator's unfavorable decision, has the Agency produced

affidavits and other evidence attesting to the alleged supervisory status of these AUs.

Thus, the Agency once again seeks to get a second chance at disputing an issue that has

already been resolved by submitting post-arbitral evidence of supervisory duties.

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This is a blatant attempt by the Agency to circumvent the Authority's established

procedures for the resolution of disputes. While it is true that the Authority, and not an

arbitrator, must decide bargaining unit issues, the law also states that a party may not

submit the same issue to both types of FLRA resolution procedures. Since the Agency

raised the issue of supervisory duties during the arbitration, but then failed to file a unit

clarification petition to stay the arbitration proceedings, the Agency therefore submitted

to the decision of the Arbitrator. Therefore, it is improper for the Agency to re-litigate

this matter after the Arbitrator issued his award.

II. The ALJs of the National Hearing Center Perform the Same Duties as Those of the Existing Bargaining Unit.

In support of its claim that the work performed by the ALJs at the NRC differed

from the work performed by the ALJs in the Union's bargaining unit, the Agency

submitted evidence during the arbitration proceedings. Arbitrator Murphy found this

evidence to be insufficient proof of any difference between the duties performed by NHC

ALJs and the ALJs assigned to already established hearing centers. (Award 14.) Based

on this evidence, the Arbitrator concluded that the Agency had in fact committed an

Unfair Labor Practice by creating the NHCs. (Award 15.)

Now, in the Agency's improper attempt to re-litigate this matter in a

representation proceeding, the Agency submits new evidence of supervisory duties. This

evidence is highly suspect and should not be considered because the Agency is

submitting it after this matter was already resolved by the Arbitrator. Only after the

Arbitrator pointed out the insufficiency of all of the evidence in showing that NHC ALJs

performed supervisory duties, did the Agency produce affidavits, which allege

supervisory duties. If this evidence had existed during the arbitration proceedings when

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the Agency first raised the issue of supervisory duties, then why did the Agency fail to

submit it? Furthermore, why did the Agency fail to file a unit clarification petition with

this supporting evidence at that time, thereby staying the arbitration proceedings?

If the NHC ALJs had truly performed supervisory duties from the inception of the

NHCs, then this evidence should have been available and should have been presented

prior to this juncture. Instead the Agency either (l) failed to present the evidence,

thereby wasting the time and resources of both the Union, the Arbitrator, the Authority,

and the Agency itself by permitting the arbitration to continue, all the while knowing that

the Agency had allegedly conclusive evidence of supervisory duties; or (2) the Agency

fabricated this information after the issuance of Arbitrator Murphy's award in an attempt

to show that the arbitration was improper. Either possibility suggests that the Agency

acted improperly - either by withholding material information or by concocting new

evidence.

III. The Agency Has Not Established Supervisory Status.

There is little evidence that the NHC judges operate significantly differently than

other SSA administrative law judges. The Position Descriptions for the NHC judges and

the other SSAjudges are nearly identical. (Award 20-21.) The affidavits submitted by

the SSA simply reinforces that the NHC judges act like all other judges. Title 5, Section

7103(a)(lO) of the United States Code states:

"[S]upervisor" means an individual employed by an agency having authority in the interest of the agency to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise ofindependentjudgment, except that, with respect to any unit which includes firefighters or nurses, the term "supervisor" includes only

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those individuals who devote a preponderance of their employment time to exercising such authority.

In this case, the Agency has not sufficiently demonstrated that the NHC judges

are supervisors within the criteria listed in 5 U.S.C. § 71 03(a)(1 0).

It is evident that the affidavits submitted by the Agency were tailored to match the

criteria enumerated in 5 U.S.C. § 7103(a)(10). However, simply stating that ajudge

exercises independent judgment is not sufficient to demonstrate supervisory status. The

affidavits submitted by the Agency show nothing which indicates that the NHC ALJs

perform duties that are any different from other AUs. The NHC attorney-advisors serve

the same role as opinion writers. All judges provide the opinion writers with instructions

from drafting the opinions. Without such instructions, the opinion writers would not be

able to perform their duties. The Agency attempts to differentiate the NHC judges'

duties by stating that some of these judges "personally hand" the instructions to the

opinion writers. This certainly does not show supervisory status. See Fort Knox

Dependent Schools and Fort Knox Teachers Association, 5 F.L.R.A. 33 (1981)

(determining that librarians were not supervisors even though they monitored library

aides because the direction given to the aides was merely routine). Arbitrator Murphy

aptly noted the Fifth Circuit's decision in NLRB v. Security Guard Service, 382 F.2d 143,

151 (1967), which states: "If any authority over someone else, no matter how

insignificant or infrequent, made an employee a supervisor our industrial composite

would be predominantly supervisory. Every order-giver is not a supervisor. Even the

traffic director tells the president of the company where to park his car." (Award 26.)

Furthermore, aU judges must review the work of the opinion writers and edit the opinion,

when necessary, before they sign the opinion; all judges also review the Case Processing

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and Management System to keep appraised of the status of their cases. These are not

duties that are unique to the NHC AUs, nor are these duties indicia of supervisory status.

Moreover, there is no evidence that any ofthe judges that submitted affidavits

exercised power to hire or fire other employees. Most of the judges admit in their

affidavits that they have never imposed any discipline. At most, these judges "select"

recently hired opinion writers to work with them and make recommendations as to

whether or not an attorney-advisor should be retained, promoted, etc. Although the NHC

AUs state that their recommendations are the main determining factor, there is nothing to

indicate what factors are considered by upper management. With regard with the

evaluations, there is no evidence that these evaluations have been followed by

management. The affidavits reflect that these judges do not any final decisions whether

to "retain, promote, reward or uphold discipline against employees." (Aff. of Gill, ~1 0

(etc.).) The authority to hire, discipline, or discharge employees ultimately rests with

upper management - not with the NHC ALJs. As Arbitrator Murphy held, there is not

little evidence that the NHC judges' duties differ significantly from other SSA judges,

nor is there evidence that these judges were exercising independent judgment on behalf

ofmanagement. (Award 23-26.)

IV. The Agency's Actions Were Motivated by Anti-Union Animus.

The Agency breach of the CBA between the parties was motivated by Social

Security Commissioner Michael 1. Astrue's anti-ooion animus, which was demonstrated

during his dealings with the Union with regards to the NHCs. The Agency committed an

ULP by establishing the NHCs, and the Agency's anti-union animus was the impetus for

this ULP. The testimony of Judge Ronald Bemoski, AALJ President, and Judge Randall

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Frye, AALJ Executive Vice President, reveals Commissioner Astrue's anti-union

motivations in establishing NHCs and designating NHC AUs as supervisors. Arbitrator

Murphy found this testimony to be credible. (Award 35.)

In late September 2007, as rumors circulated regarding the establishment of the

NHCs, Judge Bemoski, on behalf of the union, contacted Mr. David Foster, Chief of

Staff for Commission Astrue, to inquire about the veracity of these rumors. (Tr. 61;

Award 12.) Mr. Foster indicated that he was unaware of the details regarding the NHC

plan, but that he would look into it. (Ir. 61-62; Award 12.) Judge Bemoski then

requested an opportunity to meet with Commission Astrue before the plan was

implemented; a meeting was scheduled for October 10,2007. (Tr. 62; Award 12.) On

October 10,2007, the Union's leaders met with Commissioner Astrue and his associates:

David Foster, Chief of Staff; Lisa de Soto, Deputy Commissioner, ODAR; Milt Beever,

Associate Commissioner, Office of Labor Management Relations (OLMER); and Judge

Frank Cristaudo, Chief Administrative Law Judge, ODAR.4 However, five (5) days prior

to this meeting, the Agency went ahead with its plan to implement the NHCs and mailed

a solicitation indicating that the NHC had been established and seeking applications to

fill the advertised vacancies. (Tr. 63; Award 12.)

During the October 10th meeting, Commissioner Astrue was abrupt, abusive and

unyielding; and the atmosphere of the meeting was tense and hostile. He asserted that he

was going to do what he wanted - emphasize electronic hearings and close as many

remote hearing sites as possible. Furthermore, Commissioner Astrue stated that the

4 This meeting was requested by Judge Bemoski in late September 2007. Judge Bernoski's request was motivated by his concerns regarding rumors that the Agency was going to create NHCs.

15

CBAs and the restrictions imposed upon him by the Office of Personnel Management

prevented him from expanding electronic hearings as quickly as he would like and

prevented him from expanding the NHCs. The Union officers present at the meeting

interpreted Commissioner Astrue's statements as meaning that he did not want to be

inhibited by CBA provisions that required impact and implementation bargaining under

the law when a new office is opened. Judge Bemoski testified that AALJ officials told

Commissioner Astrue that he was attempting to bust the Union by establishing the NHC

and avoiding the CBA. Commissioner Astrue did not deny this statement.

Judge Bemoski characterized the atmosphere and attitudes at this meeting as

follows:

I have been active in this Association as an officer since the mid-1980s, when we were a professional organization. And I have met with many commissioners starting with Gwendolyn King, down forward and I can say in my opinion this was the most hostile and difficult meeting that I ever attended with a commissioner of the Social Security Administration.

(Tr. 72.) Judge Frye, who also attended the October 10th meeting, testified that he "will

never forget [the meeting) as long as I live." (Tr. 123.) According to Judge Frye, this

was "perhaps the most difficult meeting I have been in, and believe me I have been in

some difficult meetings living in labor most of my life." (Tr. 124.) Judge Frye stated:

I had never been treated as discourteous in any meeting I have ever been in. It was unfortunate because we were there to try to set things straight, but, Ron [Bemoski] and the Commissioner basically were the principal folks who spoke, and what is most, what is of most concern to me because it brought back vivid memories of affidavits I had read and testimony I had heard, was the statement by the Commissioner that one of the reasons he was creating new type of hearing center was that our collective bargaining agreement did not give him the flexibility that he needed. In essence, he was avoiding our agreement. And that to me was as chilling as any statement that I had read in cases over the years. And even the way he said it, trust me, it was a hostile, angry report

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coming from the Commissioner. It wasn't, this is one of my reasons kind of conversation. It was a hostile statement.

(Tr. 124-125.) At the end of the meeting, the Commissioner simply got up and

walked out of the room and did not shake hands with anyone, as he had not

when the meeting began. (Tr. 125-126).

Since the October 10, 2007 meeting, Commissioner Astrue has refused to meet

with any AALJ officers or representatives. even ignoring the entreaties of the Staff

Director of the Social Security Subcommittee of the U.S. Senate Finance Committee. (Tr.

51; 84-85; 113-116).

The Agency has displayed clear anti-union animus towards the AALJ with

regards to the establishment of the NHCs. Firstly, despite the Union's request to meet

with the Agency prior to the implementation of the NHC plan and despite the fact that a

meeting had indeed been scheduled, the Agency went forth with its plan by mailing out a

solicitation on October 5, 2007 - a mere five days before its meeting with the Union.

This indicates the Agency had no intention of conferring with the Union. The Agency's

promise to meet with the Union prior to moving forward with the NBC plan was "an

empty promise." (Award 32.) Arbitrator Murphy found that this was evidence of the

Agency's anti-union animus. Id. Secondly, Commissioner Astrue's words and behavior

clearly demonstrate that anti-union animus was the motivating factor prompting the

creation of the NHCs and the so-called "supervisory" ALJs. (Award 34-36.) During the

meeting, Commissioner Astrue did not rebut the Union's statement that the Agency was

trying to bust the Union by creating the NHCs. Furthennore, during the arbitration, the

Agency did rebut in any way the sworn testimony of Judge Bemoski and Judge Frye

regarding what transpired during the October 10, 2007 meeting, where Commissioner

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Astrue displayed his anti-union motivations, and their characterizations ofthe tone of the

meeting and of Commissioner Astrue'S behavior.

Conclusion

The Agency is attempting to abuse the Authority's dispute resolution procedures

by attempting to litigate this issue through both arbitration and this unit clarification

petition. Thus, the Union requests that the Authority hold this unit clarification petition

in abeyance pending the resolution of the Exceptions to Arbitration Award.

Alternatively, if the Authority proceeds with the unit clarification petition, the

Union asks that the Authority find that the NHC ALJs do not exercise supervisory

powers, and are therefore not supervisors pursuant to 5 U.S.C. § 7103(a)(l0). The

Agency's establishment of the NHCs and its designation ofthe NHC ALJs as supervisors

is motivated by Commissioner Astrue's demonstrated desire to evade the terms of the

CBA between the Agency and the Union and his clear anti-union animus. Therefore, the

Union asks that the NHC ALJs be included in its bargaining unit.

Respectfully Submitted,

~~ Robert H. Stropp, Esquire Richard C. Welch, Esquire Mayoung Nham, Esquire Mooney, Green, Baker & Saindon, P.C. 1920 L Street, N.W., Suite 400 Washington, D.C. 20036 Telephone: (202) 783-0010 Facsimile: (202) 783-6088

On behalfofthe Association of Administrative Law Judges

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