There are a few things that separate an average union representational effort from a super one, and one of them is whether its reps are creative, e.g., they do things, even risky things, the agency did not anticipate.  A new decision out of the Federal Circuit Court of Appeals highlights a very gutsy move AFGE’s Social Security Council took to defend a fired employee. Other unions can learn from it and ER/LR reps can see another reason not to jump to conclusions based on surface evidence.

Ms. Miskill was employed by the Social Security Administration for more than 14 years. On August 16, 2013, her first-line supervisor, proposed to remove her for violations of time and attendance policy between July 1, 2011 and June 28, 2013. He charged Miskill with: 1) Extending Lunch Period and Break Periods; 2) Failure to Accurately Record Arrival Times; 3) Failure to Accurately Record Departure Times; and 4) Receiving Overtime Pay or Compensatory Time Off When Ineligible. The proposed termination was upheld by SSA management on September 25, 2013.

In preparation for the arbitration hearing, Ms. Miskill’s union rep requested the turnstile records and time reports of the eight other individuals within Miskill’s Division between July 1, 2011 and June 28, 2013. The Agency provided the records to her in August and November 2014. That kind of deep research into original records is to the enormous union’s credit.

The union then brought in Candace Dayton, a Certified Public Accountant, Certified Product Examiner, and Certified Information Technology professional to analyze the records.  Ms. Dayton concluded that the eight other employees had committed the same or similar violations as Ms. Miskill, yet not one of these eight employees was investigated or charged with misconduct. Specifically, Ms. Dayton found that: (1) six Division employees had more error minutes than Ms. Miskill for inaccurately recording lunch and break periods; (2) four had more error minutes than Ms. Miskill for inaccurately recording their arrival time; (3) four had more error minutes than Ms. Miskill for inaccurately recording their exit time; and (4) one had more error minutes than Ms. Miskill for inaccurately recording overtime. Ms. Dayton concluded that five employees had more overall error minutes than Ms. Miskill.

To our enormous surprise, given this particular arbitrator’s experience, he decided the eight employees were not similarly situated with the grievant because they were under investigation.  He wrote, “I did not find that the eight comparators were similarly situated to the Grievant because, based on a stipulation of the parties, the possible disciplinary action regarding these other employees is still pending an investigation. Therefore, I did not know whether or not the Grievant was treated more harshly.”  He did not cite a single precedential case to support that conclusion.  Apparently, he just thought that was the right thing to do and thereupon upheld her removal.

Fortunately, the court found that was wrong-headed thinking.  It held that the fact some comparators are still under investigation cannot be a complete bar (or categorical exclusion) to considering how management treated them.  Indeed, showing that it could see through all the smoke the agency put up to hide its disingenuous, if not dishonest, behavior related to investigating the other employees, the court wrote the following: “Less than two months had elapsed from receipt of that tip [About Miskill] until completion of an investigation and the issuance of a Notice of Proposed Removal. But the investigation into the other eight employees had not finished by the time the Arbitrator issued his opinion, which was more than six months after Ms. Miskill submitted her evidence regarding the time and attendance violations of the other employees to the Agency in June 2015.” Although it declined to make a formal finding on the agency’s motives, it wrote that the “Agency’s timing could be read to suggest that it placed—and kept—the comparators under investigation for the sole purpose of evading Ms. Miskill’s disparate treatment allegation.”  So much for SSA management integrity. Is this becoming a SSA executive habit?  See “SSA Schemes to Screw Seniors.”

The court overturned the arbitrator’s decision, remanding it to him with the instructions that although Douglas factor “penalty decisions have generally looked backward [in time] to determine if the penalty selected by the agency is consistent with those which have been historically imposed by the agency,” under certain circumstances, the consideration of post-removal evidence is appropriate.   It also advised that “Given the Agency’s conduct in this case, if the Arbitrator determines that any or all of the eight other employees are comparators, the Arbitrator should reopen the record to compare the penalties imposed upon the comparators with Ms. Miskill’s penalty of removal.”

If you are wondering what happened to the eight employees the union exposed, don’t.  At oral argument before the court the agency announced that it did not discipline six of the employees and merely counseled the remaining two.  As we said at the outset, the really good union reps do the unexpected for members in trouble, taking risks supported by good judgment.   It certainly was a gutsy move to put the other 8 employees in harm’s way to save one employee, but then again isn’t that what solidarity is about?  If you want to read this decision, check it out here. Congrats, AFGE.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
This entry was posted in Discipline/Adverse Action and tagged . Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.