SUMMATION OF ORAL GRIEVANCE PRESENTATION

HELD ON MAY 28, 2009

REGARDING UNION-MANAGEMENT GRIEVANCE

(GC-UMG-09-02-AWARDS FY 08)

FACTS:

On May 19, 2009, AFGE General Committee Spokesperson James E. Marshall filed a Union-Management grievance with SSA Commissioner Michael Astrue regarding violations by the Agency of a Memorandum of Understanding (MOU) dated February 26, 2008 which set forth the allocation for awards as well as how award funds will be allocated and reallocated and the maintaining of records for the unspent funds and the reallocation of such unspent funds.

At the outset, the Union submits that it first became aware of the totality of the violations of the February 26, 2008 MOU on April 29, 2009, when it received the data it had requested from the Agency by a memorandum on April 20, 2009.  In addition, the Union submits that the February 26, 2008 MOU made null and void the Letter of Intent regarding the Award Program dated March 16, 2005, signed by Michael W. Grochowski for FY 2008 only.  Further, the Union, by this submission, corrects a typographical error in the grievance in item 1 to reflect that the MOU date is February 26, 2008 instead of 2009.

With respect to the overall grievance, the Union notes there were 14,017 ROC award eligible employees and that only 11,026 were granted cash awards for a total amount paid of $12,699,863.  In addition, the record showed that 571 employees were approved a ROC award QSI with a cost factor of less than $300,000.  The data reflects approximately 20% of the ROC eligible employees were not approved an award for reasons unknown, notwithstanding the fact that some of these employees had appraisal averages higher than other award recipients.  In reviewing the data further, the Union notes many employees were significantly disadvantaged by the cash award amount approved for various specific positions.  In fact, employees with lower appraisal element averages were approved higher awards than employees with higher element averages.  While the Agency informed the Union that $2,908,758 of unspent 2008 ROC award funds were transferred to the ECSA award fund, the overall data indicates that approximately $4,300,000 was reallocated, thereby creating a discrepancy of over one and a quarter million dollars.  Such unspent ROC award funds were not reallocated for the same group of employees to their ECSA award funds in accordance with the Memorandum of Understanding.  In fact, the Agency stated it could not provide the Union with information as to where such unspent ROC funds were allocated. 

In addition, the Union notes that of the $6,279,720 ERA funds, only $419,913 was spent to grant awards to 169 employees.  The Agency unilaterally stated it transferred the unspent ERA funding of $5,859,807 to the ECSA, presumably asserting the PPM dated October 1, 2006, authorized such reallocation of funds.  Here, the Union asserts that the PPM was not negotiated with the Union and/or cited or referenced in Article 17 of the AFGE/SSA National Agreement for the Agency to even make such a blatant assertion that it gave the Agency authority to reallocate such funding.  The Union notes that the MOU was negotiated and dated approximately 1 1/2 years after the PPM and that the Agency could have incorporated and/or addressed such reallocation of ERA funds in connection with the MOU and it did not, thereby waiving any such argument at this time.  Since the MOU was negotiated during the term of the National Agreement, it became part of the National Agreement.  Here, the Union has defined the award money that should have encompassed each allocation of funds as indicated in the MOU:

            55% for ROC awards = $17,269,230

            25% for ECSA = $7,849,650

            20% for ERA = $6,279.720

Based on the data provided by the Agency, the ECSA award fund was increased to $18,278,814 and 31,478 employees were granted ECSA awards in a total amount of $17,133,715.  As such, at least a million dollars of ECSA funds were unspent for reasons unknown. Also, there is no explanation regarding what happened to the approximately $1,000,000 of additional unspent ROC funding that was not reallocated to the ECSA fund.

Although the Agency was mandated by the negotiated February 2008 MOU to maintain specific records of reallocation of ROC award funds to the ECSA award fund and provide such information to the Union, it did not keep such records and cannot provide the Union with specific information as to how such funds were reallocated. Such fact is established by Mr. Patinella’s statement in his e-mail dated April 29, 2009 that “the agency is unable to provide the specific information AFGE requested on item #3”.  Likewise, the Agency cannot provide any breakdown regarding the reallocation of ERA award funds as to the methods and means of how the funds were reallocated to groups of employees, offices, etc., nor the contractual basis to do so.

A thorough review of the Agency’s data clearly demonstrates that the negotiated purpose for the ERA awards was not utilized within components and that some components did not give any employees ERA awards. The Agency has not provided any justification why $5,859,807 of negotiated ERA funding was reallocated. The Agency’s actions regarding the ERA award process and reallocation demonstrates a disparity of treatment of bargaining unit employees.

During the grievance presentation, the Union included as an issue discrimination of numerous employees based on sex, race and national origin, as well as other factors, noting the Agency has not provided any EEO breakdown for award recipients to the Union.  This issue was included in the grievance to preserve the right to litigate such issue if the case proceeds to arbitration.   

The Union submits the above as a supplemental statement in support of its grievance.