Agency Whines

Tuesday September 19, 2006

September 18, 2006

Mr. Samuel A. Vitaro
Arbitrator
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xxxxxxxxxxxxxxxx VIA FAX
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Re: INS FLSA

Dear Arbitrator Vitaro:

During the July, 2006 hearing , the Agency was heard, for the first time, that it objected to the “suffer or permit” Arbitration Award (hereinafter referred to as “Award”) dated January 3, 2006, as to Case #311, XXX-XX-8228 (Un/Ex. 319 & 319X; A/Ex. I-309). This is a bizarre objection to make both as to the extraordinarily late date of the objection and as to the content of the objection.

The Union provided the Agency the data that the Union intended to submit at the “suffer or permit” hearings on February 15, 2002. See, Ltr from Goldberg to Dole, February 15, 2002, U/Ex. 4, BNB 00310; see also Sept. 26, 2003, Ltr. from Tsungu to Vitaro, pg. 2 ¶4. U/Ex. 4, BNB 00117. The Agency therefore had the data used by the Union in Case #311 twenty-one (21) months before the December 8, 2003, start of the arbitration hearings on the “suffer or permit” issues. Case #311 was not presented to the arbitrator at the “suffer or permit” hearings until March 30, 2004, over two (2) years since the Agency had been given the data supporting Case #311. At the March 30, 2004, hearing the Agency’s own witness testified that 8,737 hours were claimed via 130 Form B’s in addition to claims for compensation sought under the “duty free lunch” issue.

The total of the Agency’s response to claim #311 for 8,737 (in addition to “duty free lunch” hours) hours in Case #311 is as follows:

The Arbitrator: [W]e are ready to Start. The next Union exhibit will be Exhibit 319.

MR. GOLDBERG: The Union submits for identification and admission Union Exhibit 319. Copies to the Arbitrator, the Agency and the court reporter. [xxx-xx]-8228, pages 3238 through 3369. At this time, we would note that the first two BID’s – BID 373 we will strike. It is duplicative of 378.

THE ARBITRATOR: So it is struck.
MR. GOLDBERG: And there is a combination of duty free lunch and a little overtime activity.
(Union Exhibit 319 was marked for identification and received in evidence.)
THE ARBITRATOR: Mr. Tsungu?
MR. TSUNGU: Mr. Arbitrator, the Agency’s response is category A 2, page 4 of Agency Exhibit J. The Agency submits for identification and requests the admission of Agency Exhibit I-309.
(Agency Exhibit 309 was marked for identification and received in evidence.)
Whereupon,
WAYNE COLEMAN
Was recalled as a witness herein and, having been previously duly sworn, was examined and testified further as follows:
DIRECT EXAMINATION
BY MR. TSUNGU:
Q Mr. Coleman?
A A series of 130 B ID forms claim 8,737 hours for a variety of work performed. Forms 373 and 278 claim time for unpaid meal periods from 6/2/1991 to 8/8/1998. The employee is FLSA law enforcement qualified and pay registers for 1991 through 1998 must be requested. Form 383 is a duplicate of 378 and is rejected. The rest of the forms provide specific dates and times and provide enough information so that the claims may be adjudicated.
A majority of the claims note that they were reviewed at the time they were performed and denied by district management. The employee notes he has documentation to support such claim. Extensive research will be required.
Whereupon,
JOHN EHRBAR
Was recalled as a witness herein and, having been previously duly sworn, was examined and testified further as follows:
DIRECT EXAMINATION
BY MR. TSUNGU:

Q Mr. Ehrbar, do you have anything on this employee?
A The employee was eligible during the entire period.
MR. TSUNGU: Nothing further.
THE ARBITRATOR: Mr. Goldberg?
MR. GOLDBERG: Nothing further.
THE ARBITRATOR: Mr. Coleman, what is meant by extensive research would be required?
MR. COLEMAN: Well, I am assuming since the – I haven’t actually read this particular case and I am not sure what – I don’t know what Fred may have looked at, but if the employee is claiming that there is documentation available, it will take quite a bit of effort to try and find where that – the documentation is.
THE ARBITRATOR: Okay. But the Agency is going to do that?
MR. COLEMAN: I guess.
THE ARBITRATOR: I guess it would be Mr. Goldberg’s question. Is there anything that you are waiting for from the employee?
MR. COLEMAN: Well, it certainly wouldn’t hurt if the employee has the documentation or if he could point us to where it might be located.
MR. GOLDBERG: I think the point was in this case, that the Agency had denied it. Therefore it is part of Agency records.
THE ARBITRATOR: Okay. Why don’t you do this though. I noticed that the employee says throughout these claims that, “I have the original B&B worksheet and “I have the original documentation” and “I have the original documentation” on another one and reference to a couple of others.
Why don’t you get from this employee whatever the employee has. We don’t want to make the employee go out and request from the Union stuff, but whatever the employee has and then submit that to the Agency. Would that be helpful?
MR. COLEMAN: It certainly would, yes.
THE ARBITRATOR: Okay.
MR. COLEMAN: It would speed up the process.
THE ARBITRATOR: Okay.
(Discussion off the record.)
THE ARBITRATOR: Okay. Back on.
MR. GOLDBERG: The union moves for the identification and acceptance of Union Exhibit 320. 462-41-1734, page 3370.
TR. 1725/11-1729/17 (March 30, 2004)(emphasis added).
In response to the Arbitrator’s suggestion to submit further information, the Union submitted “numerous” supplemental materials in support of Case #311 on December 21, 2004. As noted by the Arbitrator (Award 481-82) U/Ex. 319X (a follow-up by the Union including backup information for Claim #311) was admitted into the record on May 21, 2004, TR. 2510-11.

The Agency’s response to U/Ex. 319X was…nothing. The Agency’s total response to Case #311 is set forth above. There was no Agency objection to Claim #311 at all. It is vital to note that during the entire history of this case all of the employment data as to Case #311 was solely within the control of the Agency or one of the Agency’s contractors.

The Arbitrator issued his Award on January 3, 2006. The Agency’s response nothing. Over seven (7) months after the issuance of the Award, the Agency woke up and starts complaining about a claim that it had real or constructive knowledge of for the last forty (40) months.

The Agency did not object to the 8,737 claimed hours that its own witness acknowledged at the March 30, 2004, hearing. The Agency offers no excuse for its incompetence. It merely whines now that if it has bothered to look at the evidence submitted at the hearing (and that it had been provided significantly before the hearing) it should have objected.

The Agency also argues that the Arbitrator was somehow obligated to take upon himself the role of the Agency’s representative and make sua sponte objection to the reasonableness of the hours claimed where the Agency did not. This is patently absurd. A representative is a person working on behalf of a party. See, Shipes v. BIC Corp. 154 FRD 301, 305 (MD. Ga. 1994). It appears that the Agency is of the opinion that not only its designated representative is charged with advocating the position of the Agency, but that the arbitrator is obliged to take-on that role. The Union is unaware of any statute, regulation, or custom which requires an arbitrator to take on the role of an advocate of one of the parties.

There is no question that the Agency submitted no materials before the close of the record in this case to respond to either U/Ex. 319 or U/Ex. 319X (except as specifically noted in TR. 1725-29, above). It is black letter law that new evidence will not be presented after an arbitration hearing without the prior consent of the parties. See, Elkouri & Elkouri, How Arbitration Works, Sixth Edition(1985), pg. 412. In this case the Agency did nothing as to Case #311 before the close of the record in November, 2004.

The next issue that must be brought to the Arbitrator’s attention is the Arbitrator’s injunction to the parties, made shortly after the issuance of the Award, that he would not entertain factual objections to the Award other than for arithmetic errors. The current objections of the Agency (whatever they are on the merits) are clearly not objections based upon any arithmetic error. The Agency merely claims that when it finally did the math for the claimed hours some dim light appeared to suggest that the Agency had grossly erred in its conduct in presenting its case. This is not an arithmetic error on the part of the Arbitrator; rather, it is an error in judgment on the part of Agency in presenting its case.

For the reasons stated above, the Union respectfully suggests that the complaints of the Agency as to Case #311 are both factually and legally baseless, and, further, untimely made. The Union therefore urges the Arbitrator to refuse to reconsider his earlier decision in Case #311 made on January 3, 2006.

Sincerely,

Joe Goldberg
Assistant General Counsel – Litigation

cc: Ilir Tsungu
Jim Bonnette