11-18-2015 vol ii
TRANSCRIPT
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EXECUTIVE COURT REPORTERS, INC.
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IN THE MATTER OF ARBITRATION BETWEEN
ASSOCIATION OF )ADMINISTRATIVE LAW ) FMCS Case No.JUDGES, IFPTE, AFL-CIO ) 14-56295
)Union, )
)and ) Issue:
) Telework MemoSOCIAL SECURITY )ADMINISTRATION, )
)Agency. )
_________________________)
SOCIAL SECURITY ADMINISTRATION5107 Leesburg PikeConference Room 1606Falls Church, VA 22041
Wednesday,November 18, 2015,
The above-entitled matter came on for
arbitration, pursuant to Notice, at 9:12 a.m.,
BEFORE: JEROME H. ROSSARBITRATOR
VOLUME II
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APPEARANCES:
For the Agency:
MARY L. SENOO, SENIOR COUNSELSOCIAL SECURITY ADMINISTRATION200 West Adams StreetChicago, Illinois 60606Phone: (877) 800-7578, ext: 19117E-mail: [email protected]
AMINAH COLLICK, ESQUIREOFFICE OF THE GENERAL COUNSELSOCIAL SECURITY ADMINISTRATION61 Forsyth Street, S.W.,Suite 20T45Atlanta, Georgia 30303Phone: (404) 562-1439E-mail: [email protected]
For the Union:
JUDGE MARILYN J. ZAHM, EXECUTIVE VICE PRESIDENTJUDGE RITA S. EPPLER
ASSOCIATION OF ADMINISTRATIVE LAW JUDGES277 Parker AvenueBuffalo, NY 14214Phone: (716) 830-4056E-mail: [email protected]: [email protected]
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INDEX
***CONTINUING EXAMINATION***
OF JUDGE FRYE:
CROSS BY MS. SENOO PAGE 8
REDIRECT BY JUDGE ZAHM PAGE 24
OF LEAETTA MARIE HOUGH:
DIRECT BY JUDGE EPPLER PAGE 68
OF JUDGE MARK BROWN:
DIRECT BY JUDGE ZAHM PAGE 186
CROSS BY MS. COLLICK PAGE 242
REDIRECT BY JUDGE ZAHM PAGE 270
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***JOINT EXHIBITS***
JOINT EXHIBIT 8 PAGE 268(Article 10 of the parties CollectiveBargaining Agreement)
JOINT EXHIBIT 9 PAGE 268(Article 11 of theparties Collective BargainingAgreement)
***UNION EXHIBITS***
RECEIVED
UNION EXHIBIT 21 PAGE 60 206(Provision for theNew Contract)
UNION EXHIBIT 22 PAGE 70 242(Curriculum Vitae)
UNION EXHIBIT 23 PAGE 91 242(Project Report)
UNION EXHIBIT 24 PAGE 94 242(The Policy Directive)
UNION EXHIBIT 25 PAGE 199 --(Mechanical AgreementWith The Agency)
UNION EXHIBIT 26 PAGE 201 --(Management's OpeningProposal)
UNION EXHIBIT 27 PAGE 203 206(Telework EnhancementAct of 2010)
UNION EXHIBIT 28 PAGE 206 209(OPM's Guide to Teleworkin the Federal Government)
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--Union Exhibits continued--
RECEIVED
UNION EXHIBIT 29 PAGE 212 220(E-mail from Ira Jaffe)
UNION EXHIBIT 30 PAGE 238 238(E-mail issued byA Judge Bice onJanuary 22nd of 2014)
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PROCEEDINGS
(9:12 a.m.)
ARBITRATOR ROSS: We're on the record. The
parties have agreed to the following issues in this
matter. The first issue is whether the Union's April
2nd, 2014, grievance fails to raise an arbitral issue
because Chief Administrative Law Judge Debra Bice's
February 18th, 2014, telework memorandum to all Agency
administrative law judges constitutes the Agency's
exercise of the Agency's retained right under 5 USC's
7106 A, and Articles 3 and 15 of the parties national
agreement to set the parameters or guidelines for
completion of the Agency work.
Let's go off the record for just a minute.
(Whereupon, an off-the-record discussion was
held.)
ARBITRATOR ROSS: Back on the record. And
the remaining issues on the merits are whether the
number of hearings for scheduling by CALJ Bice's memo
of February 18th, 2014, sets out a reasonably
attainable number of cases pursuant to Article 15,
Section 7.L.3 in light of the Agency's requirements and
policies for adjudicating cases and the time periods
for case processing listed in the above-referenced memo
issued by CALJ Bice in connection with Article 15,
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Section 7.L.4. And the second -- well, just asking --
does that read?
MR. EPPLER: Yes.
ARBITRATOR ROSS: Okay. Okay. All right.
And the second merits issue is whether the time periods
for case processing required by CALJ Bice's memo of
February 18th, 2014, constitutes seriously delinquent
periods and complies with the requirements of Article
15, Section 7.L.C and Article 15 --
JUDGE EPPLER: It was 7.L.3.
ARBITRATOR ROSS. 3. Did I say 3? Did I say
C? I may have said C. Section 7.L.3 in Article 15,
Section 7.L.4.
JUDGE EPPLER: Correct.
ADMINISTRATOR ROSS: Okay? Parties agree to
those three issues?
JUDGE EPPLER: And our objection is noted
with regard to issue 1 as being.
ARBITRATOR ROSS: Well, it's an arbitrability
issue.
JUDGE EPPLER: Correct.
ARBITRATOR ROSS: Okay. Are we ready to
continue? I know you haven't finished direct.
JUDGE EPPLER: Well, I'm not --
ARBITRATOR ROSS: Are we on cross?
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JUDGE EPPLER: On cross, yes.
ARBITRATOR ROSS: Okay. All right. This is
cross.
(Witness entering.)
MS. SENOO: The court reporter asked that the
witness sit next to her.
THE WITNESS: I would be delighted to.
ARBITRATOR ROSS: Okay. Ready to continue?
You're still under oath.
THE WITNESS: Thank you.
CROSS EXAMINATION BY MS. SENOO:
Q Mr. Frye, yesterday we talked at length about
the telework memo that was issued on February 18th of
2014.
A The Judge Bice memo.
Q Yes. The Judge Bice memo of February 2014.
Now, at the time that memo had been issued, no ALJs had
had their telework restricted. Is that correct?
A I'm not aware of any.
Q Had any ALJs filed grievances?
A I'm not sure. I don't know that we would
even know that at -- at our level because they're filed
at the first step and that's at a hearing office. I
wouldn't -- I mean grievances are filed every day that
I wouldn't know about.
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Q When does the Union become aware?
A The Union would be involved, but it would be
at our local level, okay. That doesn't mean the
president gets a copy of the grievance. I don't, in
fact. And I'm not aware of most grievances filed at
the first step, even at the second step.
Q At the time the memo was issued, had you
asked around to --
A No.
Q -- see if anybody --
A Not -- no --
Q -- had their telework --
A No.
Q -- restricted?
A I was not aware of it.
Q You didn't make any inquiries yourself?
A No.
Q Did anybody at the national level make any
inquiries on that issue?
A You know, that's a year and a half ago.
ARBITRATOR ROSS: This is a Union person?
It's unclear.
MS. SENOO: Yes.
ARBITRATOR ROSS: We're just talking about a
Union --
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MS. SENOO: A Union --
ARBITRATOR ROSS: -- person at the national
level.
MS. SENOO: Right.
BY MS. SENOO:
Q Make any inquiries about whether ALJs had
their telework restricted?
A I have no idea. That's a year and a half ago
and I have trouble with last month sometimes.
ARBITRATOR ROSS: Wait until last day comes
to you.
BY MS. SENOO:
Q Union grieves the Agency's issuance of that
memo on April 2nd in 2014. Is that correct?
A I'm sorry?
Q The Agency -- I'm sorry. I'm having trouble
getting started.
A I'm confused enough, now.
Q Okay. The Union grieves the Agency's
issuance of that article -- of that -- I'm sorry. Let
me start again. Let me try again.
The Union grieves the issuance of the Judge
Bice memo on April 2nd of 2014. Is that correct?
A If you're asking about the date it was
grieved, I'm not sure what date it was grieved.
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Q What --
A What we grieved --
JUDGE EPPLER: -- in Joint 1 and --
MS. SENOO: Well, I'm asking him a question
and --
THE WITNESS: I don't know what date it was
grieved. I'm sorry, I don't know. And, actually, it
wasn't necessarily the fact that a memo was issued. It
was the contents of the memo.
BY MS. SENOO:
Q I understand.
A Okay.
ARBITRATOR ROSS: Can I stop you for just a
minute? Is there a date on this grievance memo?
JUDGE ZAHM: Right at the end. Under the
very last -- under the signature, last page.
ARBITRATOR ROSS: Oh. Okay.
MS. SENOO: Correct.
ARBITRATOR ROSS: April 7, 2014.
JUDGE ZAHM: Correct.
ARBITRATOR ROSS: April 2nd, 2014.
JUDGE ZAHM: Under my signature, yes.
BY MS. SENOO:
Q So, Mr. Frye, would you take a look at
Joint Exhibit 1?
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A The grievance?
Q If you turn it over to page 5 --
A That's --
Q 4 --
ARBITRATOR ROSS: Page 4.
THE WITNESS: 4?
BY MS. SENOO:
Q Page 4. Does that tell you when the
grievance was filed?
A It's dated April the 2nd, 2014.
Q So on April the 2nd -- there's no need to
continue looking at that. April the 2nd, 2014, had --
no ALJs had had their telework restricted, had they?
A I was not aware of any.
Q And the Union hadn't made any inquiries as to
whether any ALJs --
A Again, I -- I have no idea. I did not make
any inquiries, if you're asking me.
Q You did not --
A I did not make any.
Q And did any of the Union officials at the
national level make any inquiries?
A I do not know. What I do know is that I was
getting tons of e-mails from judges complaining about
the Bice memo.
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Q They were complaining about the memo?
A About the requirements of the memo and the
pressure it placed on them. And the impossibility of
accomplishing the guidelines set forth in the memo.
Q But they weren't complaining about being --
having the telework restricted at that point?
A Well, they were very concerned about having
-- you don't understand how important telework is to
employees if you think they were not concerned about a
memo coming out from headquarters that would
potentially restrict them. They were absolutely
concerned about it.
Q So they were concerned about the memo?
A They were concerned about having their
telework terminated. Yes.
Q And does the memo say their telework would be
terminated?
A No.
Q Were they concerned -- I understand they were
concerned that the memo may affect them. Did any of
them articulate to you that their telework had been
restricted?
A What they communicated to me at the time was
that they were concerned that if they were going to be
required to comply with the Bice memo, that their
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telework would be terminated. That's what they
communicated.
Q At the time, did any of them communicate to
you that they had been placed on any type of telework
restriction?
A I don't recall that anyone had been placed on
telework restrictions nor anyone telling me that they
had been placed on telework restrictions at the time.
Q In fact, on April 2nd, 2014, the telework
memo and the guidelines set forth therein had only been
in effect for two days. Isn't that correct?
A Well, it's -- the dates are on the -- on the
letter. I assume that's correct.
Q Even today, you don't know how many ALJs have
had their telework restricted, do you?
A I do not know.
Q You don't know how many judges received
notices of seriously delinquent matters, do you?
A I can tell you there are a lot of them.
ARBITRATOR ROSS: Can I just ask where did we
come up with the two days since it had been in effect?
From when to when?
MS. SENOO: Well, the memo was -- well, this
is -- we talked about memo being issued on February
18th.
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ARBITRATOR ROSS: Yes.
MS. SENOO: But within the memo it sets forth
when it was going to go into effect.
ARBITRATOR ROSS: It says it in the memo?
MS. SENOO: In the memo.
ARBITRATOR ROSS: What number is that?
MS. SENOO: J 5.
ARBITRATOR ROSS: And where would that be?
MS. SENOO: I would direct your attention to
page 4. There's a chart in the middle of the page and
it says telework period April 2014 to September 2014,
start-up period.
ARBITRATOR ROSS: Start-up period. Okay. So
we can assume April means April 1st. Is that fair? Is
that --
MS. SENOO: Oh, yes. Let's ask the Union if
that's --
ARBITRATOR ROSS: Okay.
THE WITNESS: That was my understanding.
ARBITRATOR ROSS: Okay.
BY MS. SENOO:
Q And then if you look on page 5, you'll see
another chart. And that talks about guidelines for
seriously delinquent cases. And on the left-hand
column, it talks about telework period, April 2014 to
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September 2014.
ARBITRATOR ROSS: Okay.
JUDGE EPPLER: I believe the witness was in
the middle of answering that question when the --
ARBITRATOR ROSS: Okay. Did you have
anything else that you wanted to respond to?
THE WITNESS: I didn't --
JUDGE EPPLER: You were responding to the
information you'd received in response to seriously
delinquent cases.
MS. SENOO: Okay. So I'll repeat the
question.
MR. EPPLER: Very good.
BY MS. SENOO:
Q You don't know how many judges received
notices of seriously delinquent matters?
A I do know that there were quite a number of
judges. I do not know the number. You have to
understand how the ALJ operates. I am not on the front
line with grievances. We have a grievance chair and,
quite frankly, Judge Zahm is kind of the executive
officer that handles our litigation, including
arbitrations.
I don't even want to see to the first and
second step grievances. There are too many other
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things to do, so I don't know. But I do know I get a
lot of e-mails from judges who complain. And they
complain bitterly about this memo.
Q Okay. So my question though wasn't about
grievances. My question was, you still don't know how
many judges --
A I do not know.
Q -- received notices --
A No. I do not know. I do not know.
Q Okay. And you don't know how many people had
their telework restricted to date, do you?
A I do not know, no. Nor would I in the normal
course of my --
Q That's not something you ask?
A -- responsibility. No.
Q So if I wanted to ask someone in the Union
what they know about that, who should I be asking?
A You'd be asking Judge Eppler or Judge Zahm.
Q And so you didn't in preparation for this
proceeding --
A Never discussed it.
Q -- seek to inform yourself --
A Never discussed it.
Q -- what was going on with your members?
A Oh, I knew what was going on with my members.
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I knew what their concerns were and I knew we had to
correct the -- the ill-advised interpretation of our
contract -- the incorrect interpretation. I knew we
had to address that. I negotiated that contract so and
I knew exactly what it meant. It didn't mean what
Judge Bice -- how she defined it in that memo.
Q So let me -- let me ask you, though, you knew
you were coming to this hearing. And you knew you were
going to be asked to testify, yes?
A Of course.
Q And you knew that you were going to testify
that many, many, many of your members were going to be
affected or were affected --
A No.
Q -- by this telework memo?
A No. It could be one member's -- from my
perspective, one person is enough if there's a contract
violation. You don't need a class action.
Q Okay. Some --
A But here we do have that.
Q Absolutely, you don't need a class action and
one person is enough. And actually the contract does
allow --
A Absolutely.
Q -- for that one person to bring a grievance
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separately.
A Individually, yes.
Q Yes, it does. We're talking over each other.
A Sorry.
Q So we haven't heard a lot from you about
contract negotiations. And I -- I don't want to delve
too deeply into that, but we talked yesterday about a
memo that Judge Cristaudo had issued in 2007.
A Yes.
Q And that asked ALJs to draft 5- to 700
dispositions a year. Is that correct?
A Yes. Request -- it was a request.
Q It was a request. And the Agency did not
bargain -- ask to bargain these goals with the Union,
did it?
A No.
Q And the Agency did not ask to bargain the
number of -- what number should be considered?
ARBITRATOR ROSS: The Union did not ask?
JUDGE ZAHM: The Agency.
BY MS. SENOO:
Q The Agency did not ask to bargain --
A No.
Q -- what should be considered a reasonably
attainable number of hearings, did it?
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A No. No.
Q And the Agency did not ask to bargain what
should be considered a seriously delinquent matter, did
it?
A No. And shame on them.
Q Yesterday you talked about a labor committee
-- Labor Management Committee meeting?
A Yes.
Q Okay. And you said that that -- that meeting
occurs every other month. Is that correct?
A No. No. The Labor Management community --
Committee meetings meet quarterly.
Q Quarterly.
A And they meet in Falls Church here. The
forum -- maybe that's what you're referring to, but the
Labor Management Forum meets in Baltimore and sometimes
in Falls Church. And they meet every other month.
Q Okay. So Labor Management Committee meetings
meet in Falls Church on a quarterly basis?
A Yes.
Q I've got that right. Okay. And one of the
things you talked -- you said that the Labor Management
Committee talks about or gets discussed at the meeting
-- I'm sorry, let me start that question over.
One of the things that gets that discussed at
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the committee meeting is work issues. Is that correct?
A Could -- yes, could include work issues.
Q And it also could include problems in the
hearing office. Is that correct?
A Yes.
ARBITRATOR ROSS: Problems in the?
MS. SENOO: Hearing office.
BY MS. SENOO:
Q And was there a Labor Management Committee
meeting in September of 2015?
A I think -- we -- we had one. Let's see,
we'll have another in December, so it was probably in
September. Yes.
Q Was it September 16th, 2015?
A Possibly.
Q And that was here in Falls Church?
A Yes.
Q And you were there?
A I was there for -- yes, I was there both
days.
Q Oh, it was a two day meeting?
A Usually two -- two days, yes.
Q Judge Eppler was there?
A That's my recollection, yes.
Q And was Judge Zahm there?
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A Yes.
Q And there were also Agency officials at that
meeting. Is that correct?
A Yes, indeed.
Q And one of those was Judge Bice?
A I don't think so.
Q And the Associate Deputy Commissioner Donna
Calvert? Was she there?
A Donna attended part of the meeting by phone.
ARBITRATOR ROSS: Who is she?
THE WITNESS: She is the Assistant Deputy
Commissioner for ODAR.
ARBITRATOR ROSS: O-D?
THE WITNESS: O-D-A-R, Office of Disability
Adjudication and Review.
BY MS. SENOO:
Q Do you want to tell the arbitrator who Joan
Parks Saunders is?
A Yes. Joan Parks Saunders is the regional
chief judge management official. And she is in the
Dallas region. I think that's Region 6.
Q Yes. Dallas is probably Region 6. You said
she is the regional management official?
A She is the regional chief judge which is a
management official.
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Q Okay. I'm trying to get that clear. She's
the regional chief judge from the Dallas region. Now,
at that meeting, Judge Zahm complained that the HOCALJs
in Oklahoma City asked the ALJs to schedule more than
40 hearings per month in order to be approved for
telework. Is that correct?
A That's possible, yes.
Q And other -- in response, Joan Parks Saunders
promised to make certain that the HOCALJ is in
compliance with the chief judge memo. Did she not?
A She did.
ARBITRATOR ROSS: And the what was in
compliance?
MS. SENOO: HOCALJ.
THE WITNESS: Hearing office chief
administrative law judge.
JUDGE ZAHM: H-O-C-A-L-J.
BY MS. SENOO:
Q And the hearing office chief ALJ is the
management judge in a particular hearing office?
A That is correct, yes.
Q So in essence, Joan Parks Saunders promised
to make sure that that management judge was acting in
compliance with the chief judge memo. Is that correct?
A You know, I did not have the conversation
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with her. I think it was Judge Zahm. But it is my
understanding that she agreed if he was requiring the
scheduling of more than 40 cases, she would correct
that to be sure that he was in compliance with the
chief judge's memo. And I think she did and I think it
was correct.
MS. SENOO: Can I take five minutes? I think
we are close.
ARBITRATOR ROSS: Sure. Sure.
(Whereupon, an off-the-record discussion was
held.)
MS. SENOO: We'll pass the witness.
ARBITRATOR ROSS: Okay.
REDIRECT EXAMINATION BY JUDGE ZAHM:
Q I have a few questions. Let me direct your
attention to Joint Exhibit 5, the February 2015 memo of
Judge Bice. And are the teleworking requirements in
this memo applied to non-teleworkers?
A This is a -- this is applicable to telework.
Q Okay. And do non-teleworkers --
ARBITRATOR ROSS: The answer is no?
THE WITNESS: The answer is no.
BY JUDGE ZAHM:
Q Okay. Let me direct your attention to page 4
and the second paragraph starting with "the data."
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A Yes.
Q Wait a minute. Sorry. Start on page 3 which
is actually page 1.
A You're confusing me.
Q I don't want to say this is indicative of
what the Agency does, but it is.
MS. SENOO: Well, this is what we sent you,
and it is because the e-mail is --
JUDGE ZAHM: No. I'm not criticizing you.
MR. EPPLER: A bit of levity.
BY JUDGE ZAHM:
Q Could you start reading the very last
paragraph on that page starting with "considering"?
A "Considering the necessity for quality,
timely and policy compliant hearings and decisions and
historical data, scheduling an average of at least 50
cases for hearing per month will generally signify a
reasonably attainable number for the purposes of this
contractual provision.
"Want to emphasize that this provision
concerns the number of hearings scheduled, not cases
heard or dispositions issued. Accordingly, if you
schedule at least 50 cases for hearing per month during
a 12-month rolling cycle, then management generally
will determine you have scheduled a reasonably
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attainable number of cases for hearing for the purposes
of this contractual provision.
"Conversely, if you schedule fewer than an
average of 50 cases for hearing per month during a
12-month rolling cycle, then management likely will
determine you have not scheduled a reasonably
attainable number of cases for hearing, unless there
are extenuating circumstances.
"For example, management may consider whether
the ALJ is on a learning curve or training program or
whether the ALJ has been on extended leave. Management
also may consider postponement of heard-to-schedule
ratios."
Q Okay. Now, let me stop you and go to the
chart below that. And what does it say that -- for the
telework period of April through September 2014?
A This is the start-up period.
Q And --
ARBITRATOR ROSS: Wait a minute. Wait a
minute, that's page --
JUDGE ZAHM: It's the same page, page 4.
ARBITRATOR ROSS: Page 4. And it's April
2014 --
JUDGE ZAHM: Right --
ARBITRATOR ROSS: -- to September 2014.
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JUDGE ZAHM: -- to September 2014.
BY JUDGE ZAHM:
Q And so the start-up period is pursuant to the
paragraph you just read, the 12-month period, the
12-month rolling cycle. Is that correct?
A Yes, yes.
Q Okay. And for clarity's sake, let me make
sure I understand this. On page 5, there's a chart for
seriously delinquent cases?
A Yes.
Q And when do those benchmarks, those time
periods start? What's the --
A April 1st, 2014.
Q Okay. Thank you. You -- there was redirect
-- I'm sorry. There was cross-examination regarding
quotas, Commissioner Astrue, did the AALJ consider
during Judge -- during Commissioner Astrue's reign that
the 5- to 700 was a de facto quota?
A Yes.
Q Okay. Is that because it would be applied as
a quota even though the Agency refused to acknowledge
it was a quota?
A Absolutely.
Q You also testified on cross-examination about
amount of support in an office. And does the amount of
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staff support vary from office to office?
A It does indeed.
Q And the amount of support any particular
clerk or scheduler gives a judge, does that vary from
office to office?
A Always.
Q Okay. And if you get a bad clerk, what
happens?
MS. SENOO: I'm going to object to the
question as vague.
BY JUDGE ZAHM:
Q If you get a clerk who doesn't know his or
her job very well and continually makes mistakes, what
happens?
A Well, it certainly slows a judge down in
adjudicating cases.
Q And if you get a clerk who doesn't do what
you ask the clerk to do in a timely manner, what
happens?
A It slows the judge down.
Q Can you issue -- can you hold as many
hearings?
A You cannot.
Q Can you adjudicate as many cases?
A You cannot.
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Q Now, you also talked about interrogatories.
Isn't it true that judges issue interrogatories to
expert witnesses such as vocational experts and medical
experts?
A Absolutely.
Q Does the agency have enough vocational
experts and medical experts to appear at hearings in
person?
MS. SENOO: I'm going to object to that as
compound.
BY JUDGE ZAHM:
Q Does the Agency have enough vocational
experts to appear at hearings in person when a judge
needs them?
A No.
Q And so then what happens?
A You -- you either -- you either have to delay
hearings or you have to have the testimony of the VE by
telephone.
Q Are there problems that occur when you have
testimony by telephone?
A Yes. Technical and -- well, mostly technical
problems.
Q The vocational expert can't hear the --
A Yes.
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Q -- questions from the representative?
A Absolutely. The problem is one of
communication and the ability to engage in -- in the
kind of examination that is important of a vocational
expert. And it's typically related to the ability to
hear and understand the -- the communication.
Q So what happens to the ability of the judge
to hold a hearing and adjudicate cases when you have
experts by telephone?
A Well, it's certainly impaired but it would --
it would require a longer hearing.
Q Now, does the Agency have enough medical
experts to appear in person at a hearing?
A No.
Q And so how do they appear?
A Typically, they appear by telephone.
Q And have complaints about this process been
brought to management's attention at these various
labor management meetings?
A Yes.
Q And what specifically has been the problem
with medical experts by phone?
A Well, the huge problem with medical experts
is the problem with medical evidence received on the
day of the hearing. And, as I testified yesterday, in
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cases that I recently heard, I had medical evidence
received in all five cases.
Now, I did not have a medical expert, but if
I had a medical expert on the telephone, I would have
to postpone the hearing or I would have to fax -- find
someone to fax the medical evidence to the doctor,
assuming he or she had a fax. And they are required to
have a fax.
And if it worked, then you would have to
delay the hearing so that the medical expert could read
the additional medical evidence and provide testimony
based on that and the other evidence in the file. It's
almost an impossible task.
Q So what happens to the judge's ability to
hold hearings when you have to have medical experts by
telephone?
A It -- it certainly requires more time and a
lot of patience. And you're going to schedule fewer
hearings if you use a lot of medical experts by
telephone.
Q What's the age range of medical experts in
general?
MS. SENOO: Objection.
THE WITNESS: Most --
MS. SENOO: Irrelevant.
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JUDGE ZAHM: Well, I -- I'm going to --
MS. SENOO: Well, if you discriminate against
the experts based their age?
JUDGE ZAHM: No. This is my offer of proof.
If the witness is allowed to testify, he will testify
that our medical experts are old. Some into their 80s,
possibly 90s, and because we don't pay enough money to
hire people who are younger.
And as a result, there's a particular problem
with medical experts on the telephone because they
can't hear.
And judges have complained bitterly about the
fact that it takes much longer to have hearings with
medical experts on the telephone because they can't
hear the questions in -- from the courtroom. And it is
-- it's something that's been brought to the national
level.
MS. SENOO: I'm going to object.
ARBITRATOR ROSS: For that limited purpose
and it takes longer for older -- that's basically the
testimony. That's what she's -- that's what he's
submitted.
MS. SENOO: Okay. Well, I mean -- and the
suggestion that the Agency consider --
ARBITRATOR ROSS: It may be a meeting, but
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it's --
MS. SENOO: -- an experts age.
JUDGE ZAHM: No. I'm not suggesting that
they consider -- absolutely not. I'm suggesting that
the Agency has a program where either medical experts
have appropriate communication equipment so they can
hear what's going on and we can hear them or that they
have sufficient medical experts that they appear in
person so they don't hold up hearings.
The Agency does plenty of stuff, and I don't
want to get into it exactly, to impede our ability to
do the work -- plenty of things.
MS. SENOO: Mr. Arbitrator, I believe this is
well outside the scope on the issues and I also -- I
mean, I don't think that it -- I don't think that this
is -- I mean to suggest that we hire experts who are
old in order to impede the judges --
JUDGE ZAHM: Oh, no --
MS. SENOO: -- order is ridiculous.
JUDGE ZAHM: No, no, no, no, no, no. I'm not
suggesting that.
ARBITRATOR ROSS: She's talking about the
results --
JUDGE ZAHM: Right.
ARBITRATOR ROSS: -- of hiring them. I'm
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going to give minimal weight to it. I understand the
small point. Let's move on.
JUDGE ZAHM: Okay.
JUDGE EPPLER: Still need the testimony?
JUDGE ZAHM: I think I just testified.
ARBITRATOR ROSS: If you want me to rule on
it, I would rule by the witness here to give his
response.
MR. EPPLER: I'm sorry, I couldn't hear the
arbitrator's answer.
ARBITRATOR ROSS: I think we ought to have
the witness testify.
BY JUDGE ZAHM:
Q What's the problem with medical experts
testifying by telephone?
A The problems are -- and I guess it is an
issue of pay, primarily, but most of our medical
experts -- probably 95 percent of them are retired.
And some of them have been retired for many years and
it is -- the problem is one of communication.
It goes to the issue of the technology
involved, the equipment used, but oftentimes they have
difficulty hearing when they are on the telephone
rather than in person. And it delays -- prolongs the
hearing process and makes a very inefficient hearing.
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Q Does that affect the judges ability to
schedule cases?
A It certainly would reduce the number one
schedules if your -- if you know your medical expert is
going to always be by telephone, yes.
ARBITRATOR ROSS: What are the number one
schedules?
THE WITNESS: I'm sorry?
ARBITRATOR ROSS: You said reduce the number
one schedules.
THE WITNESS: The number of --
ARBITRATOR ROSS: Oh, the number --
THE WITNESS: The number of cases scheduled.
JUDGE ZAHM: The "one" meaning judge. The
number of cases the judge schedules.
BY JUDGE ZAHM:
Q Let me ask about interpreters. Are there
offices where a lot of interpreters are used?
A Yes.
Q And can you just name a few?
A Well, actually, they're used in a lot of
offices, more than one would think. But the heavy uses
are around the border areas of the country. Florida is
a heavy area for interrupters, the Texas area, Arizona
area, California, New York, Philadelphia and, actually,
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we have quite a few in Charlotte of Asian different --
different even dialects of Asian languages.
Q And any time that the claimant wants to have
an interpreter, is it the Agency policy that the judge
has to provide the interpreter at the hearings?
A It is.
Q And what affect does that have on the length
of the hearing?
A Well, it -- it increases the length the
hearing rather significantly because the -- you're
basically giving the testimony twice. The claimant
testifies and then the interpreter has to make the
interpretation and relay, for the purpose of the record
and the parties and the judge, the testimony in
English. And that's true of every witness because the
claimant has to understand the testimony as well.
Q And everything the judge says, does the
interpreter have to interpret for the claimant?
A Yes. Every aspect of the hearing.
Q Okay. And if you are in an office where a
lot of claimants need interpreters, what affect will
that have on your ability to schedule numbers of
hearings?
A You will have to schedule fewer hearings.
Q Now, you testified about claimant's work
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activity and that at Step 1 of this sequential
evaluation, if the claimant is working and earning a
certain level of money, which we call substantial
gainful activity, he or she will not be eligible for
benefits and, in fact, you would deny the case at that
step?
A That is correct.
Q Okay. How many -- you -- are there people --
claimants who are working and earning money below
substantial gainful activity levels eligible for
benefits?
A No.
Q If their earnings are below SGA?
A Oh, yes. Yes. Yes.
Q Okay. So you have to make inquiries as to
what the work activity is?
A Of course.
Q How long it's going on?
A Yes.
Q That's correct? And what the earnings are.
Is that correct?
A Yes.
Q Okay. Now, how many times, in your 21 years
as a judge. Have you seen a claimant who has work
activity at the substantial gainful activity level from
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the alleged onset date, which is the date the claimant
says he became disabled, to the date of the hearing?
That entire period of time?
A Rarely.
Q Okay.
A I can't say how many, but it's rare. It has
happened, but it's rare.
Q Now, is the normal situation when a claimant
works that there is work? First of all, how long
between the claimant's onset date and the date of the
hearing, how long can that be? What period of time are
we talking about?
A Unfortunately, it can be as much as two
years.
Q Well, that's from when they filed the claim.
Is that correct?
A No. When they file the request for hearing.
We have recently had in some offices as much as two
years go by. In Charlotte, we are about a year --
Q Okay.
A -- from a request for hearing to the actual
hearing date.
Q But the day they apply for benefits is prior
to the request --
A Yes.
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Q -- for hearing?
A Yes.
Q And when they apply for benefits, do they say
what date they became disabled?
A The date is on the application and it's not
always the claimant who says it. It's one that's
recommended by the district office.
Q Okay. And how long a -- what's the usual
period of -- that you're looking back to find the date
that the claimant said he became disabled?
A Usually in a Title 2 cases, it's the date
last worked.
Q Okay. It could go back --
A Two years.
Q Ten years?
A Ten years.
Q Have you seen a case gone back 20 years?
A No. But I've seen multiple years.
Q Okay. So it's not usual that you're
adjudicating a period of time that's 2, 4, 5, 6 years
long.
A Absolutely.
Q And during that period of time, sometimes do
claimants start work and then stop work a year later?
A Yes.
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Q Start work, stop work six months later?
A Absolutely.
Q Start work up again two years after that?
A Absolutely.
Q And then stop work after three or four
months?
A Absolutely.
Q Do you have to adjudicate all periods where
the complaint isn't working?
A Yes.
Q And are there rules about throwing out some
work activity?
A Yes.
Q And what are those rules?
A Well, it's unsuccessful work attempts. And
it's actually kind of a regulatory encouragement for --
for claimants to try to go back to work. But if it's a
period of time that they cannot continue doing that
work, then it's excluded as SGA, basically.
Q So you're going to have to look to see
whether or not periods of work are unsuccessful work
attempts?
A Absolutely.
Q And if they are unsuccessful work attempts,
do you have to adjudicate that period for disability?
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A Yes.
Q Now, earnings records. When you go into a
hearing, do you have up-to-date earnings records?
A It will vary from office to office. And,
generally, in Charlotte, you have up-to-date earnings
records. But I know that other judges do not have --
I've heard bitter complaints from judges that it's just
not done.
Q Okay. Now, the earnings record, is that
going to show any work activity that the claimant did
last week?
A No, it will not.
Q Last month?
A No.
Q Even maybe four to six months ago?
A That is correct. It will not show that.
Q Okay. Because what is this earnings record?
Where does it come from?
A It comes from the Social Security Office and
it requires the information to be transmitted by
employer to SSA. And then staff has to input those
records into the computer system so that they are
recorded. So, I mean, there's going to be a lag of
earnings reports.
Q Okay. Maybe as long as six months?
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A Could be longer than six months. Yes.
Q Okay. So if you just looked at an earnings
record, would you be able to tell whether or not the
claimant had been working?
A No. And I never rely on those as the only
source of information.
Q Okay. And what kind of earnings don't show
up on earnings records?
A Well, it's the kind of earnings that many of
the claimants engage in. It's the earnings they do
from odd jobs, cash jobs -- I mean jobs in which they
are paid cash. Typically, they're unskilled type of
jobs. Although I have heard of, in the technical
world, some programming work being done at rather high
rates of pay, but paid in cash.
So it's -- I mean there's a multitude of work
activity that goes on for many of our claimants. And
actually it goes -- it really -- and their testimony
when you get those that will be honest and tell you
about it, it's a mode of survival. It's like I've got
to feed my children so I had to go out and do this kind
of work. And, yes, I got paid in cash and, no, I
didn't report it to Social Security.
Q And this is work, as we call it, under the
table, off the books?
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A Off the books, under the table work, yes.
Q Now let me ask about -- Step 2 is severe
impairment.
A Yes.
Q If you -- if the claimant does not have a
severe impairment, you stop the inquiry right now?
A Case is over.
Q Right. Do you have to read the whole medical
file though?
A Absolutely.
Q Okay. And what's the definition of a severe
impairment?
A It's an impairment -- actually, it's kind of
a liberal definition. An impairment that -- that has
impact on the functional ability of an individual.
Q Okay. So --
ARBITRATOR ROSS: Let me just ask this now.
What was Number 1? I know it's in here somewhere.
JUDGE ZAHM: Work activity. Number 1 is work
activity.
THE WITNESS: Whether you're engaged in work
activity.
JUDGE ZAHM: What we call substantial gainful
activity, which is earnings at a certain level.
THE WITNESS: It's about 1,000 a month.
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JUDGE ZAHM: Yes. If you're earning under
1,000 a month, you're still eligible.
ARBITRATOR ROSS: Okay.
BY JUDGE ZAHM:
Q What percentage of cases are denied at Step
2, would you estimate?
A I have never decided a case at Step 2, ever.
I've never seen a case that wasn't some level of
impairment that would meet the Agency's definition.
Q Isn't the Agency's definition more than a
minimal impact on --
A Yes.
Q -- the ability to --
A Yes.
Q -- do work?
A Yes.
Q And so it could be a sprained ankle?
A Absolutely.
Q Meeting listing cases. What percentage of
cases are thrown out or denied or approved -- approved
at Step 3, which is whether or not the claimants
impairments meet a listed impairment?
A You know, I'm sure the Agency has national
figures on that subject, but I can't -- I have paid a
few at that step of the process, but they're rare. In
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fact, if you meet a listing that's a case that should
be decided and I think is being decided by -- at many
of the DDS levels.
Q Yeah. So we don't get to see those cases.
A No. We -- we rarely see that kind of case.
Q Yeah. Now, can a judge find that a -- and
pay a case on the record without a hearing and without
the testimony of a medical expert if the claimant
equals a listing?
A No. They must have a medical expert to
testify.
Q What's equal a listing mean?
A Well, it's --
Q It's also Step 3 determination.
A You almost have to know what the listings are
to fully understand it. But, basically, when there's
-- there's more than one impairment involved and
looking at the impairments together, although the
listing doesn't precisely identify or precisely require
you to award benefits, a medical doctor can -- can look
at the medical evidence and provide testimony that will
say, well, yeah, there's deficits in this impairment
and that impairment.
And if you look at these two listings
together, they equal the listings requirements. And
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you award benefits based -- based on the testimony of
the medical doctor.
Q Okay. So --
ARBITRATOR ROSS: This is at what step?
JUDGE ZAHM: Step 3.
BY JUDGE ZAHM:
Q So even at Step 3, you may have to hold a
hearing?
A Oh, absolutely. You couldn't decide a case
without a hearing using that listing.
Q Okay. Equally, in other words?
A Right.
Q And does the Agency have a policy on the
judge reviewing the case file?
A The Agency policy and the statute is that you
review all of the evidence in the file.
Q Are judges supposed to review the file before
the hearing?
A Yes.
Q If you make a mistake, apply the law wrongly,
ignore some evidence, don't address medical opinions in
your decision, can the Agency do anything to that
judge?
A Not to the judge. At least, I think our view
is that the case would be appealed and the errors made
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would be addressed in the context of a remand. And it
may be that the judge would have to rehear the case and
conduct a new -- I mean issue a new decision and
address the areas that were deficient.
Q And does the Agency keep records --
A Yes.
Q -- on how many --
A Yes.
Q -- remands a judge gets?
A Yes.
Q And does the Agency address that issue with
judges?
A Yes.
Q And are there some cases where if a judge has
made a mistake, the Agency has done a focused review?
A Absolutely.
Q And has the Agency attempted to remove at
least one judge because he had focused reviews?
A Yes.
MS. SENOO: I'm going to object --
THE WITNESS: Yes.
MS. SENOO: -- to relevance.
JUDGE ZAHM: Okay.
MS. SENOO: Again, we're talking about
removal actions, not telework. We're well beyond --
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JUDGE ZAHM: Well --
MS. SENOO: -- the --
ARBITRATOR ROSS: Tell us what you're
introducing it for.
JUDGE ZAHM: Okay. For the purpose of
showing that if you have to have a reasonably
attainable number of cases and it's unrealistic, it's
not -- it's not reasonably attainable if you follow
Agency policies.
And if you don't follow Agency policies,
there's going to be consequences. So reasonably
attainable must be read in light of Agency policy.
ARBITRATOR ROSS: I still don't understand
what that has to do with the fact that there's going to
be consequences, discipline or something.
JUDGE ZAHM: You have to do it right. You
can't just do your job in a perfunctory fashion and
make mistakes.
ARBITRATOR ROSS: Yeah.
JUDGE ZAHM: There's going to consequences.
ARBITRATOR ROSS: I think you're stretching
it. Now --
JUDGE ZAHM: Okay.
ARBITRATOR ROSS: Sustained.
BY JUDGE ZAHM:
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Q The regulation that you talked about that was
enacted in 2015 regarding representatives forking over
all of the relevant evidence for a claimant's case.
How long ago was that put into effect?
A I think it was February of '15. It hasn't
been more than seven or eight months.
Q Okay. And has the affect -- would the affect
of that regulation show up in the data that the Agency
gave us for case size records from 2011 and to 2014?
A It would not.
Q Okay. So the 2015 regulation, I believe your
testimony was, increased the size of files?
A Right.
Q So the size of the files in 2014 -- 2014 has
been increased since then --
A Absolutely.
Q -- in 2015?
A Absolutely.
Q And do we have that data?
A We do not have that data.
Q Okay. Is that because the Agency hasn't
provided it to us?
A That is correct.
Q You testified about who can hold the hearing.
Is there anybody in the Agency who can hold the hearing
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pursuant to the Administrative Procedures Act?
A Administrative law judges.
Q Okay. Is that --
ARBITRATOR ROSS: Anybody other than that,
you said?
THE WITNESS: Oh, other than that? No, they
cannot.
BY JUDGE ZAHM:
Q Okay. So it's only ALJs who can conduct APA
hearings?
A That is correct.
Q Okay. Now, we've talked about files in the F
section, but could you describe how a file is
organized? What the various sections are and what's in
those sections, starting with A?
A Section A has things like the application,
jurisdictional documents. No.
Q State Agency documents?
A It has the -- the initial --
MS. SENOO: Mr. Arbitrator, can we have the
-- the witness testify from his own memory?
ARBITRATOR ROSS: Yeah. Don't, don't --
JUDGE ZAHM: It's okay.
THE WITNESS: It -- you know, it's a section
that -- it is -- has very few documents in it. And
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it's the initial decisional documents of the Agency.
BY JUDGE ZAHM:
Q Okay. Is that where the DDS --
A Yes.
Q -- decisions are?
A Yes.
Q Okay. And do you have to review those
decisions?
A You -- you certainly have to review the
decisions, yes. Because you're required to address
some of their conclusions in your decision.
Q Now the B section. What does that contain?
A I think that's jurisdictional.
Q Okay. And what do you mean by
jurisdictional?
A Well, the application and information related
to the application.
Q And is that also where the Agency puts any
notices, copies of notices --
A All of the jurisdictional documents, the
notice of hearing, responses to the notice of hearing.
Q Okay. Is there anything in Category C that a
judge needs --
A No.
Q -- to look at?
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A No.
Q So let's skip to D. What's in D?
A In D are earnings information.
Q Okay. And does a judge have to look at that?
A Absolutely.
Q What's in E?
A E is the various information that the
claimant provides with respect to the application
process. Claimants have to complete a number of forms
and those documents are placed in the E section.
Could even be list of medications, a form
that would be completed by the claimant; could be
treating sources; work history, there's a form for work
history that's included in the E section. And that's a
section that has far more documents than the first
sections, probably more. Next to the F section you
would find more documents in the E section than the
others.
Q Okay. And does the -- is one of the forms
that the claimant has to fill out what they do on a
daily basis?
A Yes.
Q Is that a multi-page form?
A A multi-page form and other information if
you get third party reports which are quite valuable,
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quite frankly, in the terms of judges ability to ask
questions.
You can have statements from neighbors,
statements from family members. You can have
statements from neighbors that question why their
neighbor is even applying for disability because they
mow their lawn every week. You know, that kind of
thing.
There's some valuable information in the E
section and important, very important for the judge to
review and understand.
Q Okay. And you testified about the F section.
Which is largest section?
A F section by far.
Q Okay. Can I see Agency Exhibits? Is that --
these benchmarks --
A Yes.
Q -- have they ever been enforced in any way
against the judges?
A No.
Q In fact, is there a provision in the contract
regarding these benchmarks?
A Yes.
Q And what -- where is it and what does it say?
A I can't remember the article but what it says
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is, and it's in both the old contract and the new
contract, that these are not to be used for
disciplinary actions against judges. They are
management tools, not -- not documents to be used
against judgments -- judges.
Q Can you get Union 18 out? That's the OAO
report. And what's the date on that report?
A January 13th, 2012.
Q Has any Agency manager ever provided
information on what the Agency has found since that
date, vis-à-vis the percentage of fully favorable cases
that were not supported by the record?
A I -- we may have been told some additional
information, but I don't recall.
Q Oh, all right. In the files that you
received -- the case files that you received, are
duplicates culled out?
A No.
Q In the case files that you receive, are
exhibits -- are the documents in the exhibits put in
chronological order?
A They are not.
Q Okay. Is that -- sometimes do you find that
the documents are upside down on your computer?
A Yes.
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Q Okay. And sometimes do you find that there
are other claimants' information in the file?
A Yes.
Q Do clerks work for the judges?
A Not direct -- they are not under our
supervision, no.
Q Do judges want the clerks to print out the
case fact sheet?
A Yes.
Q And will the Agency let the clerks do that
for the judges?
A No. No.
ARBITRATOR ROSS: Print out just -- print out
means print out as you understand it. Just take it to
the printer --
THE WITNESS: No, no.
JUDGE ZAHM: Press a button.
THE WITNESS: Actually from --
ARBITRATOR ROSS: Press a button?
THE WITNESS: -- the electronic file press a
button.
ARBITRATOR ROSS: Okay.
THE WITNESS: Right.
BY JUDGE ZAHM:
Q What's the case fact sheet?
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A Case fact sheet is a one-page document that
provides some very important information for the judges
to use, such as the name and Social Security number of
the claimant, the age of the claimant, the education --
not the education. The -- let's see, the age, some
work history is on that sheet and the alleged onset
date is on that sheet and, actually, the education
level is on the fact sheet as well. I'm trying to
think of --
Q Prior filings, are they on that?
A Prior filings are recorded on the fact sheet,
which is critical information to know up front.
Q Is this like a one-page outline of the
claimant's situation?
A Yes.
Q And have many judges -- do many judges
consider that to be very valuable?
A Yes.
Q And is it time consuming for a judge to go
into the file and print it out?
A It certainly adds another step to a process
that we're already burdened with the other things we
have to do.
Q And, in fact, did the Agency do away with the
case fact sheet?
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A They didn't do away with it. The actually
substituted another form that is much too cumbersome.
And judges are complaining about the fact that they've
eliminated the one page and gone to a multi-page sheet
that provides information that they do not need.
Q Okay. Now, you -- my colleague in
cross-examining you asked a question about decision
writers supporting the ALJ. And I think she asked if
the decision writers need instructions on the outcome
of the case per your decision. Do you remember that?
A Yes.
Q Okay. Do they need more than instructions on
the outcome?
A They need instructions at every step of the
sequential evaluation process. They need instructions
about the credibility of the testimony of the witnesses
at the hearing. They need -- you must -- again, this
is the Bice memo.
You -- you must identify exhibits that
support your credibility resolutions. You must
identify exhibits that support your determination with
respect to severe impairments, functional limitations,
the RFC.
It's -- I actually tried to follow the Bice
memo. In one of my cases I wanted to be compliant.
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Took me three hours and I stopped because I don't have
time to spend three hours on an instructional sheet.
Q Okay. Now, decision writers get a period of
time to complete their task and draft a decision. Is
that correct?
A That is correct.
Q And how much time do they get for issuing --
for drafting a fully favorable decision?
A I think for a fully favorable, they get four
hours. And --
Q And for an unfavorable?
A For an affirmation unfavorable, eight hours
just to draft the decision.
Q Now, my colleague also asked you about judges
tracking the status of cases. Do you remember that?
A Yes.
Q Okay. And what does a judge have to do to
track the status of their cases?
A Well, you have to be familiar with our
computer system, CPMS. You must log in and you must
bring up whatever status -- whatever list of cases that
you want to take a look at.
You can actually -- you can actually key in
ALPO, for an example, and all of your cases in ALPO
will come up. If you want all of your cases, you'll --
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you'll ask for that information and the status and then
your whole list of 2- or 300 cases could come up.
Q Does this take time?
A Oh, wow, yes.
Q Now, you talked about are judges -- how many
in the judge corp are issuing over 500 dispositions.
Is that correct?
A Yes.
Q And you said over half?
A Yes.
Q Okay. And where did you get that
information?
A Got it off of the chief's website.
Q Okay. And for what period of time was that?
A The one period that I quickly looked at was
2014.
Q Do you remember if you saw 2015 post?
A I don't remember.
Q Okay. Would it surprise you to find that
only 43 percent of the judges were able to do 500 cases
in 2015?
A No. It would not surprise me at all. We
know productivity has been declining.
Q So how are the judges who are getting over
500 dispositions -- no, I withdraw that.
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Has the Union and the Agency negotiated any
provisions for judges to be in the office to work from
5:00 a.m. to 10:00 p.m.?
A I'm not sure.
Q Okay. Let me show you what I'm marking as
what? What am I marking here? 21 -- okay, Union
Exhibit 21.
ARBITRATOR ROSS: It's 20.
JUDGE ZAHM: 20 was rejected.
MS. SENOO: 20 was rejected.
ARBITRATOR ROSS: Oh, 20 was rejected.
JUDGE ZAHM: I think we should just leave it
as 20.
(Provision for the New Contract was marked as Union
Exhibit Number 21 for identification.)
BY JUDGE ZAHM:
Q Do you recognize this?
A I do.
Q And what is it?
A It's just a provision in our new contract,
Article 14, that gives judges access before the court
hours -- I mean before the regular office hours.
Q Okay. Does it provide that a judge can have
access between 5:00 a.m. and 10:00 p.m.?
A 5:00 a.m. to 10:00 p.m., yes.
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Q Right. Every day of the week?
A Every day of the week, seven days a week.
Q Except holidays?
A Except holidays.
Q Okay. Now, what is the period of time that a
judge can be compensated?
A From the -- 6:30 a.m. to 6:00 p.m.
Q So if you work before 6:30 a.m. or after 6:00
p.m., you don't get paid.
A You do not get paid or compensated in any
way.
Q Right. No credit hours?
A No credit hours.
Q Okay. And who wanted this in the contract?
A The Union wanted this in the contract.
Q Did we have to beg the Agency to put it in?
A We actually fought hard to get them to put it
in, yes.
Q Okay. And why is that? Why would -- why
would any self-respecting Union put something in their
contract that would allow their people to work without
pay?
MS. SENOO: Objection. Argumentative.
JUDGE ZAHM: Well, I think the motivation is
for putting this in.
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ARBITRATOR ROSS: What is the purpose for
which this is --
JUDGE ZAHM: Because judges have to work on
their own time in order to keep up with what the Agency
demands.
ARBITRATOR ROSS: I don't know that that
qualifies as a fact to be determined in this case.
JUDGE ZAHM: Well, I think it goes to
reasonably attainable.
ARBITRATOR ROSS: Those are the hours that
they -- I don't think so.
JUDGE ZAHM: Okay.
BY JUDGE ZAHM:
Q After Judge Bice put out her telework memo in
February 2014 --
ARBITRATOR ROSS: This is 21 you're looking
at?
JUDGE ZAHM: No. I am looking at Joint 5.
ARBITRATOR ROSS: Oh, I didn't look down here
to see. The subject matter was 5:00 a.m. to 10:00 p.m.
JUDGE ZAHM: Yeah. That was the point.
ARBITRATOR ROSS: Okay.
JUDGE ZAHM: Yeah.
ARBITRATOR ROSS: That is --
JUDGE ZAHM: We had to beg to -- if the
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witness is allowed to testify, he will testify that
judges have to put it -- we're begging to --
MS. SENOO: We were already subjected to this
testimony. And so --
ARBITRATOR ROSS: Yes.
MS. SENOO: -- now she's trying --
JUDGE ZAHM: Okay.
MS. SENOO: -- to bring it in again.
ARBITRATOR ROSS: Okay. I've got it now. I
just -- I never did look at it.
JUDGE ZAHM: Okay. All right.
BY JUDGE ZAHM:
Q After Judge Bice put out her February 18th,
2014, memo, which is Joint 5.
A Right.
Q Did some judges no longer apply for telework
because they did not schedule as many cases that she
indicated they had to schedule?
A Yes.
MS. SENOO: Objection. Relevance.
ARBITRATOR ROSS: Let me make sure I've got
it.
JUDGE ZAHM: Okay.
ARBITRATOR ROSS: Some judges didn't apply
because they knew they didn't have enough cases. Is
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that what you're --
THE WITNESS: Yes. Yes.
JUDGE ZAHM: It's --
ARBITRATOR ROSS: Hang on just a second.
JUDGE ZAHM: Okay. Sorry.
ARBITRATOR ROSS: Okay.
JUDGE ZAHM: Okay.
MS. SENOO: I'm objecting on the relevance
grounds. 3.L.4 and -- 7.L.3 and 7.L.4 are not about
whether a judge can or cannot apply for telework.
There's a different provision of the contract that
governs that.
JUDGE ZAHM: No. They didn't -- it says
if the witness is allowed to testify, he will testify
that judges didn't apply for telework because they were
not scheduling a reasonably attainable number and
figured that they'd be denied.
And that goes to the questions that were
asked Judge Frye on direct that -- or on cross that --
well, where are all the grievances from the people who
didn't get turned down from telework?
MS. SENOO: But that's a --
JUDGE ZAHM: Lots of people didn't apply.
MS. SENOO: That's a different question,
Mr. Arbitrator. A person who doesn't apply can't
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grieve if they haven't been denied. And we understand
that, but I mean that's the whole point.
If you think that you're going to be wronged
by being denied, you have to apply first or you haven't
been harmed. That's a fundamental concept in labor
laws. You get the result from management and if you
don't like it, you grieve.
JUDGE ZAHM: And some people just opt out
because they don't want to be aggrieved over filing a
grievance.
ARBITRATOR ROSS: I know that it goes to the
heart of the matter -- the subject that I really have
to decide.
JUDGE ZAHM: Okay. But it doesn't explain --
we're offering it for the purpose of explaining why
there may not be as many grievances as there could be.
ARBITRATOR ROSS: I don't know that I need to
know any more than what I have right now. I don't need
that information.
JUDGE ZAHM: Okay.
BY JUDGE ZAHM:
Q Okay. Now, that you testified in response to
questions from my colleague about if the Agency ever
asked to bargain over the request back in 2007 to issue
5- to 700 decisions, okay. Is that correct?
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A Yes.
Q Okay. And they didn't ask to bargain, did
they?
A That's correct.
Q Does the Agency ever ask to bargain before
they do something?
A Never.
Q And with regard to the substance of how Judge
Cristaudo presented the 5- to 700, that was a request,
wasn't it?
A Yes.
Q Was not a requirement?
A That is correct.
Q Okay, did the Union disagree that judges
should try to issue as many decisions as they possibly
could?
A No.
Q In fact, we advocate judges working hard at
issuing as many decisions as they can in compliance
with the law and regulations.
A Absolutely.
JUDGE ZAHM: I have nothing further.
ARBITRATOR ROSS: Okay. Recross when you're
ready.
MS. SENOO: Can I take 5?
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ARBITRATOR ROSS: Yes.
(Whereupon, a brief recess was taken and the
following took place.)
ARBITRATOR ROSS: We are back on the record.
This is recross.
JUDGE ZAHM: Okay. Just before we get to
that, I'd like to move the admission of Union 21. I
don't think I did that.
ARBITRATOR ROSS: I'll take this and that.
Okay?
MS. SENOO: No objection.
ARBITRATOR ROSS: Received.
(Union Exhibit 21 was received in evidence.)
MS. SENOO: No additional questions for the
witness, Mr. Arbitrator.
ARBITRATOR ROSS: Thank you.
THE WITNESS: Thank you very much. Have a
great day.
(Witness exiting.)
ARBITRATOR ROSS: On the record.
(Witness entering.)
(Whereupon, the witness was sworn in, and the
following took place.)
MS. SENOO: Mr. Arbitrator, before we start
maybe put on the record that the Agency reserves the
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right to voir dire this expert and challenge any of her
opinions or her qualifications as an expert to a later
date. And that we will also reserve cross-examination
on this witness to a later date.
MR. EPPLER: We have no objections.
ARBITRATOR ROSS: Okay. So noted.
DIRECT EXAMINATION BY JUDGE EPPLER:
Q Would you state your full name for the
record, please?
A My name is Leaetta Marie Hough.
Q And would you also state where you are
currently residing?
A I live in St. Paul, Minnesota.
Q And you are currently employed by whom?
A The DyNet Group.
Q And can you explain what the DyNet Group is,
please?
A The DyNet Group does research, consulting
with organizations -- work organizations, volunteer
organizations, people at work.
I do research and I publish the findings in
academic and scholarly journals. And it is the work
that I do -- the research that I do relates to humans
at work. The work that they do -- what the
characteristics, the qualifications are, the skills and
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abilities that are needed to perform that work.
And I develop human resource management
systems and tools to evaluate people, evaluate the
performance, to set performance standards, to develop
selection systems that people that will perform the
work effectively. That's primarily the work I do.
Q And I would ask you to take a look at what's
been marked now as Exhibit U 22 which the court
reporter has. It's a copy of your vitae.
A Okay.
JUDGE EPPLER: She has her own copy. It
looks like it's the same. It doesn't matter to me
whether she's looking at her own version or the --
THE WITNESS: It's the same.
MS. SENOO: It matters to the Agency.
ARBITRATOR ROSS: Okay.
MS. SENOO: We had problems with that
yesterday.
THE WITNESS: Okay. Do you want me to look
at that one?
ARBITRATOR ROSS: But she can use this to
look at --
JUDGE ZAHM: Yes.
ARBITRATOR ROSS: -- for purposes of --
JUDGE ZAHM: Sure.
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ARBITRATOR ROSS: -- the examination. Then
just go from there.
JUDGE ZAHM: Sure. Okay.
THE WITNESS: If I need it. Okay.
JUDGE EPPLER: Thank you.
(Curriculum Vitae was marked Union Exhibit Number 22
for identification.)
BY JUDGE EPPLER:
Q Can you identify this document, please?
A It's my curriculum vitae.
Q And I'm assuming it has included in that your
education, your degrees?
A Yes.
Q And can you just briefly outline that for us?
A I have a PhD from the University of Minnesota
in the psychology department specializing in industrial
and organizational psychology. I have a master's
degree from the same institution. I also have a
bachelor -- BA from the University of Minnesota, as
well.
Q And in terms of the professional
organizations that you are affiliated with, can you
identify those?
A I'm -- the -- probably the most important one
is the Society for Industrial Organizational
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Psychology, and it's on page 3. And I'm a past
president of the organization.
I'm also the recipient of what's called the
Distinguished Professional Contributions Award, and
it's a lifetime achievement award how -- one a year.
Not always one a year but, generally, it's one a year
when given.
ARBITRATOR ROSS: That would be on page 3, as
well?
THE WITNESS: Yes. The top section. It's
the association of 8500 members that's international in
scope. If you're an IO psychologist, you belong to
this organization.
BY JUDGE EPPLER:
Q And is that the Society for Industrial and
Organizational Psychologists?
A Yes. I'm sorry. I -- it's called SIOP.
Q SIOP, okay. And were you also a past
president of that organization?
A Yes.
Q And are you also --
A I've had many leadership roles in the
organization.
Q And they're all listed out --
A Yes.
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Q -- on page 385. There's also a number of
other professional organizations that are listed there.
Can you highlight a few of the more important ones for
us?
A The APA which in this case means the American
Psychological Association. I'm a fellow of that
organization. I've held positions in that
organization, as well, on various committees.
The FABBS which is Federation of Associations
in Behavioral & Brain Sciences. I'm a past president
of that and that's a federation of about 22 scientific
societies. And I recently received an honor -- an
award from them.
Q You're also a past president --
A Yeah.
Q -- of that association as well?
A Yes. And then APS which is the Association
for Psychological Science. I'm a fellow of that
organization.
Q What does fellow mean?
A It's a mark of distinction. It's a process
by which colleagues evaluate your contributions to the
field. And maybe, 8 to 10 percent, maybe 5 to 10
percent of the Association might be considered a fellow
or achieve that level of distinction.
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Q And other associations that are in particular
professional organizations of note --
A Well --
Q -- the National Academy of Sciences?
A The Academy of Sciences, yes. I've been on
committees there. And the most recent one was one in
which the -- they were interested in measuring human
capabilities for the future.
They wanted this committee of about 8 or 10
of us to identify what kinds of skills and abilities
would be needed in the workforce in about 15 to 20
years. All of which would be based on understanding
what the work requirements are likely to be in that 10,
15, 20 years from now. And we published a book on
that.
Then there's a Summit Group. And then, of
course, there's the Minnesota Professionals for
Psychology Applied to Work, MPPAW. Co-founder of that.
That's a local organization.
Q And then you have a series of consulting
projects that start under -- I believe it's page 5.
These are -- there's quite a number of them. Can you
highlight for me some of them of distinction or any in
particular that you'd like to highlight?
A Well, first, virtually all of the work is
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founded on understanding work and analyzing work. So,
for example, the HRM, Human Resource Management
Systems. They are all -- all the systems are
fundamentally based on what the work is, what needs to
be accomplished.
Some of the more, perhaps, memorable might be
a project with NASA which was -- you might recall a
female astronaut drove cross-country in diapers, and
she beat up her astronaut's boyfriend/girlfriend in
Florida.
And Congress said that really -- that's not
-- that won't do and they mandated that NASA take a
look at the selection system for astronauts.
And I was a person that was called along with
about four or five other IO psychologists to review
NASA's selection procedures for astronauts and correct
them in ways in which they could change those selection
procedures. And, of course, that involves
understanding the work that astronauts do. Another --
Q Can you show -- can you tell me where --
where on the resumé they are found?
A Well --
Q That it would be easier to just highlight or
point out for the arbitrator?
A It seems to be buried somewhere in here.
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It's in here, I do know that.
Q We can point to it directly at a later point
if you need to.
A Okay. Unless you want me to search through
here, I could find it.
Q That's all right. You were going to give
another example?
A Another project that probably is highly
relevant to this is a work or a study that the NSSB,
which is the National Skills Standards Board,
conducted. And that was a study in which they were
examining -- they wanted this study to examine all the
different jobs, all the work in the US economy.
So all the industries, all of the jobs that
are performed in those industries in the entire US
economy were examined. And the goal was to understand
all of the work and to set performance standards for
the work in each of those jobs. And I was on a -- I
was a part of a three-person panel that oversaw the
work of that -- the people?
Q And just above the consulting projects,
there's also -- on page 5, there's also a list of
journals that you're involved with. Is that a current
list of --
A Yes.
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Q -- journals that you contribute to?
A These are journals that I have been a
reviewer. The journals in which I published -- the
articles I published are later on. But these are where
-- you know, scientific journals have peer reviews, and
I am one of the reviewers. I've been associate editor,
consulting editor, whatnot on some of them as well.
Q And in terms of the articles that you've
actually published, could you look on page 20 to 26? I
believe that's where they begin.
A Yes. Yes, it's 20 to 25.
Q To 25?
A Yes.
Q And is that a current list of your
publications?
A Yes, it is.
Q And, in particular, I'd like to direct your
attention to the one on -- to one of them on page 22
about three quarters of the way down the page. It's
entitled The Structure, Measurement, Validity and Use
of Personnel -- Personality Variables in Industrial
Work and Organizational Psychology. Can you explain to
me the significance of that particular document?
A Well, actually, there are three of them
listed right there. And those three articles that --
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were identified as one of the most influential articles
in last 100 years. And three of the articles that I've
published have appeared in what -- in the press, where
it's reprinted.
So it's Employee Selection and Performance
Management. A book which consists of those most
important articles in the last 100 years.
Q So the first title that I just read and the
second one would be --
ARBITRATOR ROSS: The first one is the
Structure, Measurement, Validity?
THE WITNESS: Yes.
ARBITRATOR ROSS: All right. And the second
one is?
THE WITNESS: Determinates, Detection and
Amelioration of Adverse Impact in Personnel Selection
Procedures. And then the third one is -- it's Advances
to Personality.
BY JUDGE EPPLER:
Q And the balance of your publications go on to
the end of page 25, correct?
A Correct. Perhaps equally and more
significant than those are I was author, co-editor of
the hand -- four volume Handbook of Industrial
Organizational Psychology which covers the entire of
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field of IO psychology.
ARBITRATOR ROSS: What is IO?
THE WITNESS: Industrial organizational
psychology. Sorry.
BY JUDGE EPPLER:
Q And have you also given talks and colloquials
on the subjects that are you experienced in?
A Yes.
Q I bring your attention to page 26 through 36,
I believe.
A Yes.
Q And that lists the talks that you've been
involved in?
A Yes.
Q And can you give me kind of an example of one
that you've --
A Well, that one on the top, working with the
Army Research Institute. There about six or seven of
us and they are trying to improve their classification
of all enlisted personnel. And so that talk was about
ways that they could go about doing that, taking into
account the different kinds of work that's involved in
the military skills and abilities that are needed.
But anyway, it's kind of surprising that they
at -- currently they only use cognitive ability to make
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their classification assignments. And they're aware
that they could be doing some other measurements of
people that would improve the performance of enlisted
personnel if they took into account these other human
characteristics.
And so not only was it identifying those
characteristics and the research that underlies but the
algorithms that is might be used in a way to validate
the selection, decisions or assignments.
Q So along with the research and the talks in
Columbia and publications that you do, do you also
issue and prepare technical reports?
A Yes, definitely.
Q And I direct your attention to page 36 --
starting at page 36 in your vitae and it goes through
--
A Right.
Q -- to page 44.
A Okay. Right.
Q Can you highlight for me the nature of the
type of technical reports that you've authored and the
types that you've worked on?
A Well, for example, this would be considered a
technical report, this study.
Q What you're here to testify on today?
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A Yes, correct.
Q But before we get to that, can you give me an
example of another type of technical report that you've
-- that you've worked on?
A Well, expert reports, that's the first one.
I've -- one of the technical reports in here was maybe
-- 10/15 years ago I was asked by the Department of
Justice -- yes, Department of Justice to examine
community oriented policing and find out what did that
mean.
What kind of activities, behaviors is
involved with community policing and then to develop
what was a -- what I would recommend as a selection
procedure to hire candidates who would be oriented
towards performing in a way that would be community
oriented. So that would be a technical report in here.
Q And when you gave us the example earlier
about the female astronaut and that was one -- one of
the issues that you have studied. Do you need to know
what's involved in the job, how it's performed, in
order to understand how to go about tackling this type
of a --
A Absolutely. It's fundamental. It's -- the
first step is to understand the work itself. And
virtually all of the work I do involves a work analysis
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and understanding the requirements of the job, what it
is that needs to get done on the job, and to what level
of performance.
In fact, it's a legal requirement for
personnel selection systems. And much of my work is
involved with selection. And the first key step is to
understand the work, the work -- the work itself.
Q Was there another project that were you
involved with that looked at lawyers and law students
that involved predicting legal performance or had
something to do with the --
A Yes.
Q -- nature of being a lawyer and successful
one?
A Yes. Yes. There have been several projects,
actually, where I had to study performance as a
practicing lawyer and develop an understanding of the
activities and skills required to be an effective
lawyer.
And one study was -- it was about a 10-year
project, really, with both School of Law, Berkeley Law
School. And they were interested in developing a
selection system for applicants to law school that
would predict how well they performed as practicing
lawyers.
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I know you all here know about the LSAT.
It's a kind of ability test, but it's also true that
other characteristics are required to be effective.
There's other work besides just cognitive work as a
lawyer, as you all know. And so we had to study what
it was that really required lawyers to do as lawyers
practicing law.
And so we developed some additional
complimentary sorts of selection devices that could be
used to measure how likely an applicant to law school
might be as a practicing lawyer.
ARBITRATOR ROSS: Sort of like what we used
to go by. You probably know it. A law student becomes
a professor. B law student becomes a lawyer, but a C
law student becomes a really good lawyer.
THE WITNESS: Yes.
ARBITRATOR ROSS: Right? Is that basically
what you found here?
THE WITNESS: Yes. And it's some other
skills besides just cognitive ability. And when you
study the job, you learn that.
BY JUDGE EPPLER:
Q And there's a list on page 19 going on to
page 20 that's labelled clients?
A Okay.
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Q Can you explain the significance of your list
of clients here?
A Well, it's a wide variety of organizations
that I've done work for. Ranges -- well, top of the
list -- Association of American Medical Schools. That
client was interested in knowing what medical doctors
do and developing a selection system for applicants to
medical school that would address not just knowing the
how to -- the knowledge part of a good doctor, but also
how to deal with the other parts of the work, the
patient, the teams that you are working with.
So that was to come up with recommendations
for how to change their medical application forms. How
they were going to select students to medical school.
Okay, there's a lot of -- there's a lot of
different organizations that I've worked for.
Q Do you have a number that are related to the
federal government?
A Yes, I do. Let's see. Army Research
Institute, Bureau of Naval Personnel, Defense Nuclear
Agency, Defense Supply Service, Federal Trade
Commission, Law Enforcement Assistance Administration.
Q You mentioned NASA earlier.
A NASA, that's the next one. National Can --
well, that's not. National Skills Standards Board,
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Navy Personnel Research and Development Center, Office
of Naval Research, Institute -- no, that's not a
federal. Library of Congress, US Air Force, US Army
Civilian Personnel Service, US Department of State, US
Department of Labor, US Department of Justice, US
General Accounting Office.
Q Then you also have something earlier on the
alphabet, Caliber Associates. Can you explain what --
who that client is and what that study was about? Or
what you did for that client, should I say?
A That -- I worked for that client who had a
contract with OPM to study administrative law judges.
Q Could you explain who OPM is?
A Office of Personnel Management.
Q Thank you.
A To study administrative law judges and
develop selection systems for them obviously involved
understanding the work of administrative law judges as
a first step.
Q And can you summarize for me what fundamental
area you've been involved in, in your research relative
to the project you've been asked to address here in
this case?
A Well, work analysis is fundamental to
virtually all of the work I have done in developing,
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setting performance measurements, performance
standards. I have a reputation for being able to
measure hard to measure human behavior at work that
involves -- is concerned about quantity and quality of
work.
Q And you had said earlier that you are
identified as the DyNet Group. There's another
organization that has been involved in the study called
HumRRO. Can you explain your relationship or your
working dynamic with them?
A HumRRO is a consulting research organization
and I am an independent contractor with them for this
study. I put the team together. I got a phone call a
little over a year ago from AALJ asking if I might be
interested in a study.
And as one person, I obviously don't do these
studies by myself. So I contacted a colleague, Cheryl
Paulin, Dr. Paulin at HumRRO. And she's a person that
I had worked with over the years rather closely. We
were colleagues at a Personnel Decisions Research
Institute and I published with her.
And so I called her and asked her if she
would be interested in working on a project. And she
said yes. And so she put together the HumRRO team.
Q And were there others on the team that you
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also worked with?
A Yes. A research assistant by the name of Joe
Caramango.
Q And were there other support staff people
that helped to do some of the --
A Sure, but we were the key ones of three key
people on the project.
ARBITRATOR ROSS: That would be HumRRO on
page 20 --
THE WITNESS: Yes.
THE ARBITRATOR ROSS: -- near the top,
H-U-M-R-R-O.
THE WITNESS: Yes. It stands for Human
Research -- I don't know -- Human Research -- Human
Resource Research Organization -- HumRRO.
BY JUDGE EPPLER:
Q So tell me what is the history of work
analysis? What is that all about?
A It has a long history. It started in the
late 1800s and it has gone on since then. And it is
written into the standards -- the American
Psychological Association standards for testing, for
developing legal, defensible selection systems.
It's -- in 1984, the US Postal Service, in
fact, issued a stamp in honor -- to honor a woman by
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the name of Lillian Gilbreth. And that was to honor
her work -- her pioneering work in work analysis.
If you've -- I don't know if you guys have
seen this, but the movie, Cheaper by the Dozen, it was
based on work analysis and efficiency, understanding
the work, and how it gets done.
But anyway, it is a well established -- it's
the -- industrial organizational psychologists use it,
human factors use it, industrial engineers use it,
human resources folks use it. It's fundamental in the
world of work to understand the work. And it has a
long tradition. There are handbooks written about work
analysis. It's very highly, frequently used in
research.
Q And the book that you referred to earlier, I
believe you said it was four volumes?
A Oh, the Handbook of Industrial Organization.
Q Does that have something to do with the
concept of work analysis in that area as well?
A Oh, sure. There were chapters in there
related to job analysis.
Q But if you had a question about --
A But it is much, much broader than just job
analysis.
Q It encompassed a lot about this area, of
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course. But if you had a question about how long it
would take to perform a job, who would you go to? What
would you do?
A To understand the work itself?
Q What would you do? I guess my question is,
is work analysis the way to tackle that type of a
problem or are there other areas in industrial
psychology that you would be looking into?
A No. It would be called job analysis or work
analysis. That would be the area that you would be
interested in applying.
Q And is that, in fact, what you were involved
in here in performing a study for the Association of
Administrative Law Judges?
A Yes. Yes.
Q Okay. And if you could take a look at what's
been marked as Exhibit U 23, and that is the report
that --
JUDGE EPPLER: She can use the package. Her
report that she has there in front of her --
THE WITNESS: It's the same.
JUDGE EPPLER: -- it's the same report.
THE WITNESS: Okay. I'm sorry, I've lost
track of what you're question was.
BY JUDGE EPPLER:
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Q It just identified the report.
A Oh, okay.
ARBITRATOR ROSS: Does opposing counsel have
a copy of it?
MS. SENOO: I do. I do. Again, I just --
concern that she is going to testify from a copy that's
not the one that's in the record. Yesterday we had
that problem.
MR. EPPLER: There is no problem. You can
compare it page to page. Everything's bound. It is
the same document.
ARBITRATOR ROSS: Where is the copy that
we're going to use?
THE WITNESS: I can use this. I can use
this.
JUDGE EPPLER: It's right there.
ADMINISTRATOR ROSS: That was what we used
yesterday?
JUDGE EPPLER: The same copy I gave to you
and --
MS. SENOO: Well, if this is the copy that
she provided us today that is being entered into the
record.
JUDGE EPPLER: Yes.
ARBITRATOR ROSS: How come I've never seen it
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before?
MR. EPPLER: I gave her a copy to be marked
and I failed to have a copy given to you.
ARBITRATOR ROSS: Okay. This is 23?
JUDGE EPPLER: This is 23.
ARBITRATOR: Is there a particular copy that
you are interested in?
MS. SENOO: Well, I think that we need to
just make sure that the copy that she's testifying from
is the one that is entered into the record.
ARBITRATOR ROSS: Well, that's fair.
MR. EPPLER: As an officer of the court, I
can tell you it is. You're free to take the time to
look through it if you have any objections. It is a
bound copy.
MS. SENOO: So during the break I'm going to
go page by page and compare the copies.
ARBITRATOR ROSS: Sure.
THE WITNESS: Okay.
MR. EPPLER: That's fine.
MS. SENOO: Well, we're going to need a copy
to do that.
JUDGE EPPLER: So do you need a copy then?
ARBITRATOR ROSS: No. Just use the one you
have.
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JUDGE EPPLER: That's fine. If she wants to
refer to her own copy, she can certainly do that as
well.
ARBITRATOR ROSS: Okay. You can close that
one for now.
THE WITNESS: I have notes in here that
highlight things. Is that --
ARBITRATOR ROSS: Can't you turn to the page?
THE WITNESS: Sure, I can.
ARBITRATOR ROSS: All right. And then if you
need this at some point and tell us why, you can use
that. But for now we can close that.
THE WITNESS: Okay.
(Project Report was marked Union Exhibit Number 23 for
identification.)
BY JUDGE EPPLER:
Q Can you identify this document, please?
A This is the report that we prepared and it
doesn't just summarize, it describes in detail what we
did in this project.
Q And in your review of the materials for the
study, did you find evidence that the Social Security
Administration had ever engaged in a study of it's own
on the time needed for judges to adjudicate disability
cases?
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MS. SENOO: Objection. That's not relevant.
MR. EPPLER: It's part of the evaluation that
she did and, of course, it's relevant.
MS. SENOO: Well, I think her study is her
study. Whether the Agency did a study or not is a
different question.
MR. EPPLER: We asked her to look to see if
there was any other documents out there or any other
studies.
ARBITRATOR ROSS: To best of your knowledge.
THE WITNESS: No, there's -- to the best of
my knowledge, there's no study that was -- has been
done by the Agency.
ARBITRATOR ROSS: Okay. We can proceed.
BY JUDGE EPPLER:
Q Can you give me an overview of how you
familiarized yourself with the job duties and
responsibilities of an ALJ? What did you do? What did
you look at? Who did you talk to?
A Let me backtrack just to give you a sense of
the project and the -- the kind of very broad
brushstrokes, what the steps were.
There were six steps, and the first step was
to understand the work itself. So it's the first step
being a very thorough job analysis.
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The second step was to design a data
gathering tool and process to learn what the -- what
ALJs -- how much time they spend on all of the work
that we had tasked, that we had identified.
And then the next step was to identify a
sample of ALJs to whom we could administer the data
gathering tool. And then the next step was to
administrator the data gathering to that sample.
And then the next step was to analyze the
data. And then the next step was to write this report.
Okay. So what we did --
Q So let's go back and go through those steps
one at a time.
A Okay.
Q I'm going to first point you to page 15.
ARBITRATOR ROSS: 15?
MR. EPPLER: 15, 1-5.
BY JUDGE EPPLER:
Q And that's entitled Compiling Information
About ALJ Activities. And that's Step 1, learning
about the job?
A Yes.
Q Okay. And can you walk me through what you
did to learn about the job and how you became familiar
with the task the judge does?
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A The bullets that are shown on page 15 are the
materials that we looked at. We started out with the
AALJ job description. That's really the first step,
always. And then all the other things are in no
particular order.
We looked at the SSA five-step sequential
process for evaluating disabilities for adults. There
are regulations to code. We looked -- we did a
comprehensive overview of the policy directives. In
fact, there is a document here that kind of summarizes
that. It's called Source Materials Policy Directive
for ALJ Validation Time Study.
MS. SENOO: Objection. We don't have a copy
of that.
JUDGE EPPLER: We'll mark that as U 24. The
main thing, it's not bound because we didn't get enough
bound to copy.
(The Policy Directive was marked Exhibit Number 24 for
identification.)
MS. SENOO: We don't have a copy. That's
being put into the record.
JUDGE EPPLER: It's the same thing.
MS. SENOO: We have to have a photocopy.
THE WITNESS: You can have this. I'll trade
with you.
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BY JUDGE EPPLER:
Q That's been marked as U 24. Can you identify
what that is?
A Yes. This is the -- these are policy
directives. We wanted to understand what the
Social Security Administration says about how you go
about what is required to have legally sufficient
decisions and we needed to understand what being in
compliance with SSA meant. So this summarizes that
kind of information.
So this is the sort of information -- this is
the information that ALJs have that guides them in
making legally sufficient policy compliant decisions.
This is very important document.
Q And the next item, the next bullet?
A We looked at ALJ training materials. There
are 27 modules. We looked at 20 judicial training --
ARBITRATOR ROSS: One second. Let me stop
you. Training materials, 27 modules, okay?
THE WITNESS: Yes. And then we looked at
training slide --
BY JUDGE EPPLER:
Q Explain what the training modules were.
A Well, when the ALJs are hired, they go
through training and they have 27 modules of training.
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They go into, in some length, some of this material,
all kinds of materials. There are -- there are the
regular training programs that the new ALJs are
required to take.
Q Okay. And the next seven items?
A Well, some of the materials that I used in
there, training slide decks, including legally
sufficient decisions; the OGC; the Office of General
Counsel's perspective, that's part of judicial
training; legally sufficient decisions; appeals counsel
perspective; mental impairment, what the definition of
those are; cardiovascular system; ODB disability
training; all kinds of anything. This is what we
could, you know, get our hands on. We looked at
anything we could.
Q I just want to go through the rest of them.
The next one is cases in training?
A Yes.
Q And that was actual disability cases or
mock-up ones?
A The two cases that I used for ALJ training, I
don't know if they're actual cases or if they've been
mocked-up. I don't know that, but they are cases that
I used for training. I presume they are very good.
Importantly, these are not the two of the three cases
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that we used in this study.
Q Okay.
A We looked at -- just kind talked about the
Agency policies and directives in producing quality
decisions, work flow chart, the ODAR's --
Q And that's an appendix?
A Yes.
Q -- in the report?
A Which would be -- appendices are labeled K,
so just look at the bottom right.
Q So that's a multi-page colored flow chart?
A Yes.
ARBITRATOR ROSS: Where would that be?
THE WITNESS: If you look in the lower right,
it would be K. We have the appendices labeled by their
appendix letter so it would be K.1 through K -- where
is it?
JUDGE EPPLER: Look to where you start to see
two colored pages. That will --
THE WITNESS: That's right.
ARBITRATOR ROSS: Okay.
BY JUDGE EPPLER:
Q And K -- K -- page -- what's labeled as K.2
starts the process. And does this take you from the
beginnings of when a case comes into the hearing office
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all the way through when a case is closed on page K.7?
A Yes.
Q It's a little bit small, but it at least is
easier to read to understand the case flow process.
A Yes.
Q And did you take the time to familiarize
yourself with each and every aspect of this process?
A Yes, we did.
Q And tell me --
A Well, we also looked -- you have another
question related to --
Q Right. I just want to finish the last -- you
also looked at the last item on this --
A Yes.
Q -- on the bullet on page 15?
A Yes. The Department of Labor has an online,
continuously updated, job work analysis website. And
it has administrative law judges in there. So, of
course, we looked at that.
And all of this material that we looked at
yielded a list of tasks and activities that
administrative law judges are involved in. And in
addition to that, we identified these activities and
tasks by phases of case processing phases.
And if you look at Appendix O, you will see
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-- well, I'm probably ahead of myself.
Our next step -- well -- no, I would like to
go to that Appendix O. And what is in Appendix O is
the final list. But after reviewing all of the
information that we've just discussed, we came up with
a tentative list of these phases and associated tasks.
Q And did you also interview and talk with
judges?
A Yes, we did. But before I get to that, we
came up with a tentative list and we had five phases
for the judges to adjudicate a case. And phase is very
broadly stated. But prehearing, the second phase is
the hearing, which is on page Appendix O-3. And then
the next page --
ARBITRATOR ROSS: Let me stop you for just a
minute.
THE WITNESS: Sure.
ARBITRATOR ROSS: So this is a tentative
list?
THE WITNESS: Well, this is the final list,
but we came up with a list that's an earlier version of
this because we then interviewed four experienced
judges who in an iterative process helped us refine our
initial list. And this is the final version that
describes what the five phases and the activities and
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tasks are in each of the phases.
ARBITRATOR ROSS: Okay. Just a second here.
THE WITNESS: Sure.
ARBITRATOR ROSS: So the five phases starts
on O-1 and works it's way through.
THE WITNESS: Yes.
BY JUDGE EPPLER:
Q So backing up, you said you interviewed
judges?
A Yes.
Q There's -- I direct your attention to M --
Appendix M-1 --
ARBITRATOR ROSS: One second.
MR. EPPLER: -- through --
ARBITRATOR ROSS: Where would -- I looked at
one, called M-1. M-1 the --
MR. EPPLER: M is a -- is a three-page
document.
ARBITRATOR ROSS: One second.
JUDGE EPPLER: And it's entitled Interview
Protocol.
ARBITRATOR ROSS: And it's M-1?
JUDGE EPPLER: Yes.
ARBITRATOR ROSS: Interviewed by students?
THE WITNESS: Right. This the interview
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format. The set of questions we used with each of the
experienced ALJs as we were gathering more information
about the work of an ALJ. And as I mentioned, they --
we gave them earlier versions of what appears in O.
And so as we worked through each interview of
each ALJ, we revised this list until at the very end we
produced the final description of what it is that's
involved at every phase of adjudicating an adult
disability case.
BY JUDGE EPPLER:
Q I'm going to take you back one more. I think
that's L. It's ALJ phone --
ARBITRATOR ROSS: Can I just stop you? And
that's when we move back to O-3.
THE WITNESS: Yes. Or O-1, whatever.
ARBITRATOR ROSS: Well, let's see, O at
phase 2.
THE WITNESS: Appendix O.
ARBITRATOR ROSS: Okay, yeah, Appendix O.
BY JUDGE EPPLER:
Q So Appendix O is what is the final
culmination after you've done all the research, the
interviewing, the talking, the revising. And then you
came up with this document that sets out all aspects of
the hearing phase based on your research, correct?
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A Yes. The case adjudication phase is not just
the hearing. The pre-hearing, the hearing, the
post-hearing, as well as the decision instruction
writing, and the editing of the decision. So all those
five phases.
And during our job analysis of all of those
-- review of all of these materials, we learned there
were other things that ALJs --
Q That's not what -- I'm going to stop you
because I'm not ready to get to that yet. But in terms
of other things that you reviewed to get to the point
that you're at now in your testimony, you also looked
at Appendix L. I think you referred to it already.
The ALJ owned that task?
A Yes. That was part of that very first step,
yes.
Q And then there's --
A Whatever. I know what it is.
Q And then if we go to the --
ARBITRATOR ROSS: Let me just take one second
out.
MR. EPPLER: Certainly.
ARBITRATOR ROSS: This is basically a one
page.
MR. EPPLER: Correct.
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THE WITNESS: And that's the O*NET. That's
how they describe the AlJ work. It's the Department of
Labor's online information about work in the
United States economy.
BY JUDGE EPPLER:
Q And I want to direct your attention to page
75. This is the list of the appendices. We talked
about some of them already.
A Page 75?
Q Yes. It's a table of all the appendices.
A Oh, okay. Yes.
Q We talked about J, the position description.
We've talked about K, the flow of the flowchart. We've
talked about L, the O*NET task. We talked about M, the
interview protocol or the questions. And we've talked
about O being kind of the culmination.
And before we get to things that go below
that that relate specifically to the study, I just want
to direct your attention to the earlier ones. The A
through I. And let's go through those first. Appendix
A was national page count data. Was that something you
also reviewed?
A Yes.
Q And that's the document that appears as
Appendix A-1?
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A Yes.
Q Let me take a moment to review and make sure
that that is consistent with --
A Yes.
Q And then Appendix B is the disposition of raw
data. And is that information that you reviewed as
well?
A Yes.
Q And the chief judge memo of February 18,
2014. That's also in the record of another
Joint Exhibit, but the document that you reviewed and
what appears in the report is something you have, in
fact, studied as well?
A Yes.
Q And the memo that appears in Appendix B from
Hearing Office Chief Judge Walters in July 17, 2015,
was something reviewed?
A Yes.
Q And Appendix E from Chief Judge Cristaudo,
the memo from December 19, 2007, you reviewed?
A Yes.
Q And the Appendix F, Chief Judge memo from
Judge (Cristaudo) on March 19, 2010, was also reviewed
as it is in Appendix F?
A Yes.
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Q And Appendix G, the chief Judge memo from
Judge Bice on February 27, 2012, is also something you
reviewed?
A Yes.
Q And that is as it is identified in Appendix
G?
A Yes.
Q And Appendix H, the chief judge memo from
Judge Bice, July 10, 2013, is also something you
reviewed and is identified as it is in appendix H-1?
A Yes.
Q And Appendix I is the chief judge memo from
Judge Bice on August 8, 2014. And that's something you
reviewed as well?
A Yes.
Q And it is in Appendix I, correct?
A Yes.
Q So all of those materials are things that you
have reviewed prior to putting together the study that
you have engaged in?
A Yes.
Q And I'm going to look at Appendix N.
A There were also the SSA website. There was
information in there, as well, and were referenced in
the text in the body of the report, other information
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as it's relevant.
Q Well, I'm going to back up a couple of pages
before the list of appendices and there's a list
references, pages 71 through 73?
A Yes.
Q Are those all items that were also reviewed
in anticipation or in preparation for doing the study
that you carried out here for the Association of
Administrative Law Judges?
A Yes. And in addition, these are the
reference or the citations within the text of that
report.
Q So these -- all of these items are also
referenced in the report?
A These are, right.
Q Perfect. And these are all things you've
reviewed?
A Yes.
Q And did you also -- I'm not sure if it's one
of the listed items -- Office of Inspector General
reports?
A Yes, we did. I don't know if it's -- it's
referenced in here. I don't know if it's listed as a
reference though.
Q Did you specifically review the 2012
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oversight of ALJ workload trend?
A Yes.
Q Did you also review testimony from
Commissioner Astrue to the US Senate Finance Committee
in May of 2012?
A Yes.
Q And in preparing to do the study on --
A And I'm not sure if they are listed in here,
but on page 60 there are some of the body of the
report. There are some documents that are available in
the SSA archives.
Q And those were also reviewed?
A Yes.
Q So let's go back to Appendix O. Tell me the
importance of this document. Tell me how you got to it
in terms of the interviews and the different phases it
went through and earlier ideations. To get to the
final list of case adjudication phases and associated
tasks, tell me the import of this document.
A Well, it's very important. It's a major part
of the description of what ALJs have to do to perform
their -- their -- their job as an ALJ. It's also the
foundation for what we're going to use to develop the
data gathering tool. So should I describe that or
just --
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Q Well, it's about the use of the study,
correct?
A Correct. This was a part.
Q Your understanding of the case adjudication
phases and associated tasks was also distributed as
part of the information that the judges were given, as
well?
A Correct. This was a key piece of the
information that was given. We gave several documents
-- six documents to be specific.
Q Okay. Let's -- I'm getting ahead of myself a
little bit here.
A Okay.
Q So tell me how were -- were -- well, first
you said you gathered all of this information and then
you identified the sample -- the sample set. Tell me
how you went ahead -- how you went about doing that?
A I'd like to describe some more things that we
learned about the work of ALJs.
Q Go ahead.
A We learned that they obviously didn't just do
case adjudication work. They also had other activities
that they were required to do. And if you look in
Appendix -- I think it's P -- no. Let's see if I can
look at my document to see what appendix --
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Q I'll direct your attention to Appendix U.
A No, N.
Q Pardon?
A N, if you go to N, page 15.
Q Okay.
A Okay. As I was mentioning, there are other
activities that ALJs do that are important parts of
their work. For example, they have professional
educational activities. They have mandatory Agency
training. They have to attend those things. They do
attend professional conferences. Anyway, they get
involved in all kinds of professional educational
activities.
They also get involved in general case
management activities that are leading, researching and
responding to Agency directives, selecting, submitting
and monitoring case hearing schedules, coordinating
fielding staff questions, and they also get involved in
general office activities.
Q Can you give me examples of the general
office activities?
A Sure. Attending hearing office and judges
meetings. Sometimes they have to make travel
arrangements. They have to prepare and submit travel
authorizations. But the point being these are other
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activities that ALJs spend their time on. So it's a
part their job as well.
Q And was there a determination that this --
this survey, this -- this work analysis that you were
going to do was going to have to also consider those
issues, as well?
A Yes, yes. So in combination, the document we
were just looking at, Appendix O, that had the case
processing phases. That, in combination with these
other ALJ -- ALJ activities, constitute the work that
an ALJ is involved in.
Q Okay. So was the next -- was the next task
to find a sample to design the study?
A Well, first, I'd like -- I've described the
job -- studying the job and what we learned. Then we
had to design a tool -- a data gathering tool. And I
think before I talk about the sample, I would like to
talk about the tool, the data gathering tool. Is that
okay?
Q Absolutely.
A Okay. We designed a data gathering tool that
consisted of three -- basically three work samples.
There were three cases.
A long case which would -- we named the
cases. We called that case the Scarlet case. We had a
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medium size case which we called Penelope, and a short
case which we called Tracy. Importantly, the medium
size case -- size, the number of pages in that case was
655 pages and the average page --
ARBITRATOR ROSS: Which one? That was the
long one?
THE WITNESS: No. That was the middle one.
ARBITRATOR ROSS: The middle one.
THE WITNESS: 655 pages. And the average
case that ALJs -- average case file is 652 pages. So
it's clear --
BY JUDGE EPPLER:
Q In what calendar or fiscal year was 652 the
average?
A It would have been -- I think it's 2015.
Q 2014, maybe?
A 2014. Okay. Anyway, the most recent year
that they had statistics for. It was an average case
then, in terms of number of pages. So we had three
work samples.
Q And can you tell me how those -- how those
specific cases were found for the case -- for the
judges to review?
A AALJ found several cases and they had to,
one, gain approval from the claimant because these were
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already adjudicated. They were real cases. They had
to get approval from the claimant. They had to get
approval from counsel that we could use these cases.
And then we had to remove all identifying information.
So what all AALJ looked through to come up
with these cases, I -- I -- that, I don't know. I just
know that they were able to find three cases.
Q So you know these to be actual cases?
A Actual cases, adjudicated cases.
Q And they were all ones where the -- what we
identify as PII, or personal identifying information,
was all wiped clean on these cases?
A Was all removed totally.
Q Okay.
A So we had these three work samples and our
design for our study, our data gathering tool, was to
have each of the people in our sample read each of the
three cases, do all of the -- do the prehearing kinds
of activities that involves reading the case.
And then we asked them to decide the case.
And then we asked them to write decision instructions.
So we were simulating that part of the ALJ's job.
Q So before we get to the specifics of how the
study was taken -- was actually done by each of the
participants, how were these participants identified?
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A Well, our thinking was that it would be nice
to have the entire sample or the entire population of
ALJs, but we knew that this was going to be a very
lengthy activity and it would be good if we could give
them official time -- Agency approved time.
So we decided that we would use LARs, which
are the local area representatives of AALJ. They had
authorized time that they could use on activities such
as this. And we knew it was going to be a lengthy
process, lengthy task. We thought maybe 15 to 20
hours, maybe more. We didn't know. But anyway, so we
wanted them to be able to use their authorized time.
So there's about 120 LARs and so we -- AALJ
contacted all of those people and asked them if they
could have their home phone number and home e-mail
address because they wanted to send them AALJ
materials. So 77 people responded with that
information.
And those folks were contacted and the
project was described. And they were asked if they
would be willing, one, to sign a confidentiality
agreement, and, two, participate in the study. And 50
-- 53 of them said, yes, they would.
So all of those 53 people received the data
gathering tool and access to the website that had that
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-- the Dropbox that has that information. So that's
the sample, but I'd like to describe then what we sent
to them. Or is that your next question?
Q Yeah. First, I want -- you talked about the
data collection instrument, so I would like to have you
identify that in Exhibit N 1.
A Yes.
Q Starts at 1, page 1 and it goes to 18. Is
that the collection --
A This is a document --
Q -- that was sent to all of the judges?
A This is -- yes. This was sent to all 53
judges via -- we put into a Dropbox specifically opened
for this project -- this document, which is the
questionnaire that they were to complete. We also
included those three work samples, those three cases.
We also included this document that we looked at
earlier -- the source materials that describe --
Q What's been marked as Appendix U 24.
A There's not Appendix U 24.
Q I'm sorry, Union 24. I'm sorry.
A Okay. Yes, this document. Yes.
ARBITRATOR ROSS: I think I forgot to mark
it. Source materials?
JUDGE EPPLER: Yes. That's Union 24.
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THE WITNESS: So that was another. And we
wanted and we instructed the ALJs --
BY JUDGE EPPLER:
Q One other item -- I believe you were also
providing them with a list of these tasks and what is
identified as Appendix O?
A I'll identify all of the six things sent.
One was the questionnaire itself. One was the source
materials. The other was the case -- the case
processing phases, the one we looked at, Appendix O,
that listed all of the tasks involved in adjudicating a
case.
ARBITRATOR ROSS: Can you do those one more
time?
THE WITNESS: Yes.
ARBITRATOR ROSS: U 24.
THE WITNESS: I'll try. Okay. We sent them
the three cases.
ARBITRATOR ROSS: Yeah.
THE WITNESS: We sent them the questionnaire.
We sent them the case processing phases.
JUDGE EPPLER: That's Appendix O.
THE WITNESS: That's Appendix O. We sent one
more document that we sent them.
JUDGE EPPLER: What's been marked as Union
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24.
THE WITNESS: Oh, yes.
JUDGE EPPLER: Right.
ARBITRATOR ROSS: Okay.
THE WITNESS: The source materials.
BY JUDGE EPPLER:
Q And you get six by actually counting the
three case studies and correct items?
A Right. And they were separate. Correct.
They were separately -- they were separate documents.
Q So those were all the materials that were
provided to the participants in this study, correct?
A Correct.
Q And I believe there's also a letter exhibit
-- Appendix P, which is one page. And that was the
invitation letter?
A Yes.
ARBITRATOR ROSS: Appendix what?
THE WITNESS: P.
JUDGE EPPLER: P as in Paul.
BY JUDGE EPPLER:
Q And it identifies the items that you just
indicated?
A Yes.
Q And did --
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A We wanted -- first, we instructed the
participants to review the source material because we
wanted them to complete this whole process following
Agency directives. We wanted them to be issuing their
decisions based on policy directives and we wanted them
familiar with it. So we thought you needed to have
that as part of the materials we sent.
Q And by that you're referring to Union Exhibit
24?
A Yes.
Q And tell me what's the importance of making
certain that document was reviewed by all the
participants before engaging in the study?
A Well, we -- we wanted to know when they were
estimating and completing this project. Not just
estimating, but when they were actually doing the cases
-- adjudicating the cases. We wanted them to be
following Agency guidelines that are descriptive of
what it is to be legally sufficient in their decision
making. And that's why we wanted them to look it over.
We wanted them to be mindful of what the Agency
requires.
We also included that -- the phases of
Appendix O that listed all the five phases and all the
activities associated with each phase because we were
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going to ask them. In addition to actually reading,
deciding, and writing decisions and instructions for
the three cases, we knew, based on our work analysis,
that there were other things that they did during the
prehearing. And so we wanted them to estimate the
amount of time they spent on those other tasks.
Q So let's go through those tasks for a minute.
A Okay.
Q There were certain tasks that the judges were
asked to do that they actually recorded the time they
spent doing them.
A Yes.
Q Can you describe those for me?
A The tasks that they actually did was for each
of the three cases, those samples -- work samples,
closed cases. They were to read the entire file. They
were to do whatever they would do with such -- such
information. They were then to --
Q Would that include potentially taking notes
or doing whatever they would normally do, whether
electronic or in paper or however they would normally
review a case?
A Yes. Knowing, however, they could not gather
more information because what they had was limited by
what we'd given them. So even though they might have
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wanted more information, and in real life on the job
they would have gathered more information, they
couldn't.
So they also decided the case and they also
wrote decision instructions for the decision writers.
That's another part. So there were three things that
they -- literally they did, as though they were -- they
were simulating their work.
Q Okay. So that would have been reviewing and
note taking or doing whatever they would normally do on
the case --
A Yes.
Q -- indicating whatever potential materials
they might want, even though they couldn't actually
order that additional evidence, making a decision, and
then actually writing decision writing instruction for
the writer who would, in this simulation, be requested
to write a decision?
A Right.
Q Then I will --
A I should mention that this is done
anonymously. We did not ask for names. We were asking
them to send the materials to us, their decision and
their decision instructions, along with their responses
to the other part of the questionnaire, so they -- we
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could link those two. But we did not -- were not able
to link them to people, the individual. There was no
--
Q So you tried to protect the anonymity here.
A Correct.
Q Okay. So there were other parts of the study
that couldn't be simulated but had to be estimated.
Would that be correct?
A Yes.
Q Okay. And which phases of the adjudicatory
process were those?
A Well, there were other parts of Phase 1, the
prehearing, that they had to estimate tasks that they
did. There were -- there was the hearing, itself, that
they had to estimate how much time was spent on that.
And then the post hearing, they had to estimate how
much time was spent on that.
And you can -- if you look at the
questionnaire, which was -- let's see -- it is in N.
If you look at that questionnaire you can see --
ARBITRATOR ROSS: M?
THE WITNESS: N as in never.
ARBITRATOR ROSS: Okay.
THE WITNESS: This is the questionnaire.
Now, once they had -- they worked with one case at a
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time. So once they have -- let's -- let's work with
Penelope, the middle sized case. Once they had read,
adjudicated, and written decision instructions for --
ARBITRATOR ROSS: Where are you now?
THE WITNESS: On page N-5. It says --
ARBITRATOR ROSS: Okay. Name case.
THE WITNESS: Okay. They are to read,
evaluate, decide, and write decision instructions for
case 1. And that was the case of their choice. I just
used --
BY JUDGE EPPLER:
Q It didn't matter which order they read the
cases in, but they had to read all three, correct?
A Correct. And we did not want to specify an
order because sometimes there are order effects when
we're doing a search. And we wanted them to chose the
order they wanted to take and do it.
So once they had done that, they then
recorded -- they were told to use a clock, a stopwatch,
whatever. And then to record the number of hours and
minutes it took them to do each of those things. And
to record their outcome, as well.
Then we asked them to estimate the amount of
time required for -- as you can see on page 6, they are
listed right there, right kind of halfway through the
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page.
Q And in talking to the judges and preparing
the survey, did you have a good sense that judges would
be in a position to be able to appropriately estimate
the time for the areas that they had to provide
estimates, as opposed to actually could simulate a
task?
A Yes. And one of the reasons we were
comfortable with that is that we included in their
materials -- remember the -- it was Appendix O that
listed all the tasks in Phase 1, 2, 3, 4, and 5.
And so we they would look at that and decide,
ah, okay. So they were to take into account how much
time it took them to read it and to do these other
activities, plus Phase 1 --
Q But my question has more to do with the fact
that did you have a comfort level that judges could
estimate how long a typical case of this nature would
take for the hearing to be held and for decision
writing instructions to be used to result in an edit
the final decision out the door?
A Yes. We conducted a pretest and that
suggested that was -- they could do that.
Q Okay. And were most of -- you did have a
place on the survey while you protected anonymity --
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you did have a place on the survey suggested to
identify how many years and months they were already
serving as a judge?
A Yes.
Q And overall were you looking at judges that
had at least -- certainly no less than one year
experience, but on average, how many years?
A The average was 10 years, 10 months, was the
average. Tenure would be --
ARBITRATOR ROSS: We can take a break.
(Whereupon, a lunch break was taken.)
ARBITRATOR ROSS: Back on the record.
BY JUDGE EPPLER:
Q When the study was first sent out, did you do
any initial beta testing or trial runs before the study
was commenced?
A Yes. Yes, we did. We had one judge complete
the questionnaire and the process and we made changes
as a result of that. And then we all looked it over
very, very carefully again and we went live.
Q And did you do some -- some changes and
modifications?
A Yes.
Q And that initial beta test, was that part of
the survey results?
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A No.
Q And after you sent out the first wave of
surveys, did there come a time when you did any yet
additional revisions or changes to the instructions?
A Yes. As the -- as the information came back
to us, we, of course, looked at each judge's
questionnaire, decision instructions and their
estimates of time. And we noted a couple of instances
in which a judge had estimated the amount of time for
Phase 1 to be less than the amount of time it took that
judge to read the case materials.
Q And why was that a problem?
A Well, because we wanted a total estimate of
time for each of the five phases and the actual reading
of the case materials as a part of the prehearing Phase
1. And so the Phase 1 time required or taken for that
judge to do it needed to include that judge's time to
read the materials in the file as well as do the other
activities.
Remember, there were -- let me get rid of the
Appendix O as it has all of the tasks in each of the
phases. And so they were clearly not quite
understanding that that -- the instructions were to
have them give us the total time on Phase 1.
So we sent out -- or AALJ sent out, because
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we did not communicate with the individual judge's
information about that possible misunderstanding and
how they were interpreting that question.
Q So for case in point, would you look at page
16 of the report, please?
ARBITRATOR ROSS: Page 16?
JUDGE EPPLER: Yes.
BY JUDGE EPPLER:
Q Okay. And these are the five phases that
you've been testifying to, correct?
A Yes.
Q And to Phase 1 --
ARBITRATOR ROSS: I've got the wrong thing, I
think.
JUDGE EPPLER: Page 16?
THE WITNESS: Of the main --
ARBITRATOR ROSS: Page 6-0? Is that what
you're saying?
JUDGE EPPLER: 1-6.
THE WITNESS: Of the text -- the body of the
report.
ARBITRATOR ROSS: Okay. That's the year.
JUDGE EPPLER: That's the entire report. All
right.
ARBITRATOR ROSS: Okay.
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BY JUDGE EPPLER:
Q So these are the five phases that you
testified to, correct?
A Correct.
Q And Phase 1 that says prehearing would have
included what we've been referring to as Harper and
ready to schedule/schedules. And that would also
include the reading of the case files?
A Correct.
Q Okay. So if it didn't capture a number that
at least included the reading of the file, the number
obviously was an underestimate?
A Correct.
Q Okay. And so we tried to correct that
perception --
A Understanding, yes.
Q -- when the instructions went out?
A Yes, yes.
Q So what did you do with the -- with the data
that came in that reflected the kind of anomaly that
you just discussed?
A Well, we --
ARBITRATOR ROSS: That collected the -- your
response? Is that what you're saying?
BY JUDGE EPPLER:
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Q Well, what did you do with the data that came
in that you identified as problematic?
ARBITRATOR ROSS: Okay. All right.
BY JUDGE EPPLER:
Q How did you handle that data?
A Well, we decided that we needed to make it
conservative. We did not want to overestimate in any
way what the responses or the time taken might have
been. But -- so one -- but one could argue that it
should be the time taken to read that file and the
other amount of time that they said it took them to do
Phase 1. But instead we went with just the amount of
time it took them to read it.
So we said this is a conservative amount of
time that's going to be included in the debate
analysis, but we don't want to overstate what the
amount of time was. So we know that -- those are
conservative time amounts for those.
Q All right. So once the information came in,
what was done to analyze or gather the data? How was
that accomplished?
A What we did -- we first screened the data for
quality responding. So we looked at things like that,
any illogical responses, and we made decisions about
those. We also --
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Q Let me stop you for a minute. When you say
you made decisions about those if there were illogical
responses. Again, how did you handle that or what did
you do with those?
A Well, the illogical responses are just the
ones I said it's okay.
Q Where there any others?
A Not that I recall.
Q Okay.
A We also looked at -- I looked at the decision
instructions that had been written just to make sure
that they -- all of them had -- that the judges had,
indeed, done a careful job.
And it's true I'm not an ALJ, but you can --
you can get a sense that someone has done a careful job
by looking at their -- what they wrote. And they were
all done carefully.
So we thought -- and I have to say this is a
really lengthy questionnaire thing we'd asked these
people to do. So our concern was they were going to be
somewhat careless about, you know, not doing this,
reading all this stuff all that well. But they did.
It was pretty clear to us that they had.
We, then, looked at any extreme response --
responses in terms of the amount of time spent and
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there really -- we decided there weren't really any
extreme responses. But we wanted not to be
overestimating the amount of time. So what we did was
decide that two standard deviations above the mean on
these time estimates should be reduced.
So for 2.5 percent of the people were what we
called outliers, but not necessarily. We wanted to be
very conservative. We said we're going to take your
time estimates out of this data segment, re-estimate
the mean, and then we're going to insert that mean
value for that individual judge's responses.
So, again, we are reducing the amount of time
that they said they would take to do this. And this
kind of outlier analysis, it's not uncommon to do an
outlier analysis. That was standard practice.
Q And were there potentially in this kind of
study the outlier analysis for both above and below the
two standard deviations below the mean?
A Typically, that's what would be done, but we
did not want to take out the bottom two and a half
percent. We left their data as is.
Q Okay. So in other words, that would be,
again, a more conservative approach to the data?
A Correct.
Q I'm going to direct your attention in the
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study, Exhibit U 23 to --
A Appendix 223? Pardon? Oh, exhibit.
Q -- Appendix Q, R, and S. Let's start with Q.
And that's labelled the data for Penelope?
A Yes. Penelope was our average size case.
Q Average size. Tell me what's this -- this
table -- this chart reflects here?
A This chart is the data for each individual
ALJ --
ARBITRATOR ROSS: On what page do you find
that?
THE WITNESS: Oh, sorry.
JUDGE EPPLER: Towards the back here.
ARBITRATOR ROSS: Got it. Got it.
THE WITNESS: This table, chart, page, has
the individual data from each of the ALJs. So the
first column is their code. Now we don't know who's
who because it was anonymous.
The next column, actual time to read the
case, that's the amount of time it took that judge to
read the case and decide the case.
The next column was actual time to write the
decision instructions. This person look an hour and a
quarter.
BY JUDGE EPPLER:
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Q You're looking at person 001?
A Correct. And then the next column over is
the decision. It's unfavorable.
Q And let's first explain what that means. If
it's an unfavorable decision, that means it's a
decision to deny benefits. Is that correct?
A Correct. There were three possible
decisions. One was fully favorable. And unfavorable
is another and the third one was partially favorable.
And that was during the period of time that they were
trying to claim their disability that the judge decided
during part of that time they were disabled. So that
would be a PF.
And then going along to the right, it's the
estimated amount of time for Phase 1. That was the
prehearing. Phase 2, which is the hearing. That
person estimated it would take them an hour to do the
hearing. For Phase 3, post hearing, they estimated a
quarter of hour or 15 minutes, .25 it's translated as a
quarter of an hour. And Phase 4, which was to -- okay,
Phase 4 is to write the decision instructions. And
Phase 5 is to edit.
And so it's three and a quarter hours to
write the decision instructions and a quarter hour to
edit. And so the total time of the hearing for that
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particular judge was 9 hours. And without the hearing,
it was four hours -- five hours.
Q Just to explain and go back and kind of
illustrate what the potential problem or anomaly was
that you identified earlier, these first two columns,
the time to read the case and the time to write the
decision, those are discrete items?
A Yes.
Q So if you look to Phase 1 -- if Phase 1 was a
smaller number than column -- then the first column
that says actual time to read the case, is that where
you're saying the anomaly or the problem would apply?
A Correct.
Q Okay. And those to the ones that you
corrected to give a lower number --
A To go with just the actual time. So you can
see judge number 2 was a person -- that judge's data
came in. It was the second person in to chart and that
person made that kind of error. And so we inserted the
time to read the case.
Q For Phase 1?
A For Phase 1.
Q And how do you know that that was one of the
people that had that kind of estimation error?
A We -- oh, you're right. I don't know for
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sure at this point.
Q Okay.
A But I'm assuming that it would take more time
to do -- both read the case and do the other activities
as part of Phase 1, so --
Q But potentially it could have been that they
didn't have any other estimated time?
A It could have been.
Q And these statistics were compiled on Exhibit
R for the Scarlet case?
A Yes. It's -- Appendix R shows Scarlet case,
which is the longer case. It was like 1,026 pages. So
these are all the data for each of the judges.
And then Appendix S is the data for the Tracy
case, which is the short case, and it was like 206
pages.
Q And going back -- let's go back to the first
of these appendixes, Q for Penelope. That's the
average case?
A Yes.
Q Can you explain the descriptive statistics on
the bottom of the page -- what you're getting at there
and what that represents?
A Yes. So average -- that's the average number
of hours across all the judges to read --
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ARBITRATOR ROSS: Where are you now?
THE WITNESS: It's at the very bottom where
it says -- on the left, it says average.
ARBITRATOR ROSS: Okay.
THE WITNESS: These are the -- these are the
-- this is the information summarized. So average
refers to all of the judges above, in that column above
-- let me restate that.
For the judges -- across all of them that
participated in this study, the actual time to read the
case on average was 3.15 hours. So that's -- that's
something less than 3.25 hours to read the case.
Q And do nothing else, just the time to read
the case?
A Nothing else, correct. And it took them --
the next column over is the average amount of time
across these judges to write the decision instructions
for the Penelope case. And it's a little over three
quarters of an hour.
Q And then the time estimated for Phases 1, 2,
3, and 4 are provided in that same --
A Exactly.
Q -- that same row across?
A Correct. And then the -- another important
number is the median values. So the median value is
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the point at which half of the sample scores higher and
the other half scores lower. So 50 percent of the
judges, the median is point -- 2.5 which is two and a
half hours to read the Penelope case.
Q And so when you look --
A And then the MIN -- that refers to the
minimum value, which is the minimum amount of time
taken to read this case across these judges. So the
fastest that anyone read all the materials in the
Penelope case was 1.25 or an hour and a quarter.
The maximum value MAX refers to the -- the
amount of time that the -- I guess it would be the
slowest judge -- the most time that any judge took to
read the Penelope case, which was eight hours.
And so those are the really key numbers --
values that summarize the data set if you just go
across those rows at the very bottom for the Penelope
case.
And likewise for the Scarlet case in the next
appendix, Appendix R. And, again, Appendix S, that's
the Tracy case. That's the short case. So the
average, the median, the minimum, and the maximum are
key numbers.
Q So for the Penelope case, the average amount
of time that it took to do all five phases, including
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estimating a hearing for this data set for this group
of judges would have been what?
A 7.09 is the column -- it's just -- if you go
to the very top of the heading, it says total time with
hearing at the very top.
ARBITRATOR ROSS: Total time with hearing?
THE WITNESS: It's about -- it's right under
P for Penelope.
ARBITRATOR ROSS: Got it.
THE WITNESS: Okay. If you go all the way
down that column to average. So it's kind of the cell
that intersects average with total time with hearing.
It's 7.09 hours which means it's just over seven hours
to do the whole -- to adjudicate this case, the
Penelope case, across these judges.
BY JUDGE EPPLER:
Q And the same question for the Scarlet case.
The case that was over 1,000 pages. Tell me what was
the average amount of time it took for judges across
this data set to complete all tasks, Phases 1 through
5?
A Okay. So that would be the column right
under Scarlet, under the kind of the C in Scarlet.
Total time with hearing, you go all the way down to
where it intersects with average and you see it's 8.6.
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So that means it's a little over 8.5 hours
for these judges, on average, to adjudicate the Scarlet
case and that's in compliance with Agency
Social Security Administration guidelines and
directives -- policy directives about legally
sufficient decisions.
Q And I'm going to ask you the same question on
Appendix X for the Tracy case. What's the average
amount of time it took for the judges in this data set
to complete task 1 of Phases 1 through 5? All the
tasks for adjudicating a case?
A Okay. Now, this time it's -- total time with
hearing is under the A for data. So if you take that,
follow that down to where it intersects with average,
it's 5.69 hours, which just over 5.5 hours for these
judges to adjudicate the Tracy case in compliance with
Agency guidelines on legally sufficient decisions.
And, of course, if one wants --
Q And with regard to the outlier data that
we've discussed earlier, did you do that same of type
of outlier analysis for all three of these cases in the
data set?
A Yes. For all of the judges.
Q And that would be including all phases that
you analyzed?
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A Yes.
Q And all data that came in?
A Yes.
Q There's a couple places where there's --
where there's blanks.
A We did not do outlier analysis on the time
they said it took them to read the cases and come to it
and write the decision. We did not do that because
those were actual times they were performing the actual
task. So those were not estimates. So we did not
adjust those cases.
Q So that outlier task would only be on
estimated holding the hearing and estimating decision?
A Correct.
Q All right. Let's turn to F. There's some
places where there's blanks. Like -- let's look to
Appendix Q for a moment. There's a number 029 and
there's no data entered.
A That's because we got off in our identifying
-- labelling the cases. So there was no judge 29.
Q So it's not like you just decided not to use
the data?
A No. No. Huh-uh.
Q And -- and a little further up -- I think
it's 020. There's some data entered and then there's
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some blanks. Can you explain that?
A Okay. That person did not --
ARBITRATOR ROSS: Where are you now?
MR. EPPLER: On judge code 020. If you go
across, there's some blanks on that.
THE WITNESS: It's the farthest left column
with the ALJ --
ARBITRATOR ROSS: The 020?
THE WITNESS: Yes.
ARBITRATOR ROSS: Got it. Okay.
BY JUDGE EPPLER:
Q If you go across the chart, there's some
blank spaces. Can you explain that?
A Yes. For example --
ARBITRATOR ROSS: Oh, like 026? When you
said blank spaces, what --
JUDGE EPPLER: No. What I'm looking at, 020,
if you go across to say, 5, there's -- there's a series
of cells that are empty if you're on the Penelope case,
Q.
ARBITRATOR ROSS: There's my problem. Okay.
BY JUDGE EPPLER:
Q So my question is can you explain why there
would be some empty cells there?
A Yes. That person did not estimate that Phase
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5. So it's blank.
Q For number 29 -- 029, where there's no data
on the Penelope case.
A Yes.
Q Can you look at that the same person, 029, on
the Scarlet case, Appendix R. Same thing, no data?
A Correct.
Q But look to that same person on the next data
set on Tracy and there is data?
A Yes.
Q What would that indicate?
A They completed the part of the questionnaire
and they actually read the Tracy work sample -- the
case. They wrote decision instructions. They did all
of this for the Tracy case but not the other two cases.
Q So was there also a part of the study that
captured information about other activities that ALJs
were involved in?
A Yes. I recall that I described some of these
other activities like mandatory training, general
office activities. Those things appeared in the
questionnaire as well. If you look at the survey,
which was Appendix N, what we called part B -- so
Appendix N --
ARBITRATOR ROSS: You're saying N like Nancy?
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THE WITNESS: Yeah. Page N-15, and we've
already looked at this, but just kind of remind
ourselves of what these other activities are. The
professional educational activities, their general case
management activities, and there's general office
activities. And we asked the judges to tell us how
much time each month they spend on each of these
activities.
So that's also part of their work and we have
separate estimates for each of those individual
activities. And if -- no.
BY JUDGE EPPLER:
Q And then did there come a time that you
received additional information on time spent on other
activities beyond the 31 people that had participated
in the survey you've been describing thus far?
A Yes. We administered at the AALJ conference
-- we administered this part of the questionnaire to
whoever would be willing to complete it.
Q I'll ask you to look at Appendix U as in
under or universe.
A Yes. That is what I just referred to as part
B of that full questionnaire. So here is the same
questions.
Q And was this something that was filled out
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with paper and pencil as opposed to computerized?
A Yes, it was.
Q Okay. And how many people completed this
paper and pencil copy of the document?
A I think it was 98. And we -- just in terms
of the data, we had to key punch those data. And we
key punched them twice just to make sure there were no
errors. Again, the quality insurance for the data. So
this is -- Appendix U is the questionnaire that was
administered and completed by, I think it was 98
people.
Q And this estimated numbers of hours and/or
minutes per month that had been spent over the last
year on this list of 30 some different specific areas?
A Yes.
Q Was there also some blank areas for
individual judges to add things that we might not have
thought of?
A That's correct. And we also asked them in
both versions of the questionnaire how much sick leave
they had taken last year, how many days -- holidays
that they had worked.
We also asked them how much leave time they
had authorized for vacations, how many uncompensated
hours they had worked in the last year, and how many
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credit hours they had lost or unable to use in the last
-- of the month or average -- in an average month. How
much leave time did they lose or donate to others in
the use or lose program.
Q And is -- use or lose, can you explain that
concept?
A Apparently, the federal government has a lot,
apparently. The federal government has a policy that
you can earn authorized leave. But if you don't use it
within a specified period of time, you lose it, and if
by working overtime without compensation, but then you
have to use it within a period of time or you've lost
it.
Q Well, if you earn a certain amount of leave
but you don't take it before the end of the calendar
year, would that be consistent with what use or lose is
identified here?
A That, I don't know.
Q Okay. Do you know whether federal employees
have a ceiling of an amount of leave that they are able
to maintain?
A Yes, I do know that.
Q So if it's leave above that amount, would
that be considered use or lose?
A Yes.
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Q Okay. Thank you. Would the -- the
participants in the survey, did you have any personal
contact with any of them?
A None.
Q Did you maintain or keep any data on
participants' identity?
A None. And we have eliminated -- we've closed
down the post office box that we had for the delivery
of the materials. We closed down the e-mail address
and the Dropbox. None of those are accessible. The
Dropbox has information accessible to us and a few
other people, but none of it has any personally
identifiable information in it.
Q I would like to take you in the -- in the
study here to Table 2 which appears at page 18. So
about your -- the specific data, tell me what Table 2
is in terms of the conclusions of the report?
A The important conclusion here is that the
Penelope file, which was 655 pages, compares to the
average case size file number of pages in a case, which
was 652. And it would have been counted among the 46
percent of electronic cases that had between 501 and
1,000 pages which is hearkening to a figure. The
important conclusion here is that Penelope case is, in
fact, an average case size.
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Q So would -- would the study have represented
three cases that were a variety of the types of cases
that judges would be given to review?
A Yes. The Scarlet case was clearly a long
case. And 12 percent of all electronic cases had more
than 1,000 pages. So that's a large case. And the
Tracy case which was 206 pages, 4 percent of electronic
cases had less than 250 pages. So the Tracy sample
case represents a small case.
Q And if you look at page 10, Table 1, an you
-- let me strike that.
Look at Figure 1 on page 7. And can you tell
me how this chart reflects the average pages in an
electronic case file based on the review of the source
materials?
A Yes. If you look at the title of the
columns, it says Fiscal Year 2011, Fiscal Year 2012,
Fiscal Year 2013, and Fiscal Year '14. And then right
below that are the numbers of pages -- total pages in
case file on average, okay.
So in 2011, the average case size, the total
pages is 514. And if you go across to Fiscal Year
2014, you see that the case -- the average number of
pages -- the average number of pages in a case file is
652 pages. And that represents a 27 percent increase
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in the size of the cases in terms of page numbers
between 2011 and 2014. So that's a significant
increase in the average case size over that period of
time.
Q So does it also show what an average size
case file is?
A Well, you'd say that that -- average pages on
2014 is 652.
Q And on the next page, the Figure 2 on page 8,
these pie charts, can you explain what those reflect?
A Yes. I'd like to interpret that for you. If
you look at the blue -- I hope everyone can see color
well here. For 2011, the blue slice is 12 percent and
the red slice is 47 percent. And those are pages --
the red is 251 to 499 pages. So if you total that, you
can see in 2011, 59 percent of the cases had less than
500 pages.
Now, if you compare that to the total page
count in 2014. For this time, let's look at larger
than 500, and that would be the green and the purple,
you see that 59 percent of the cases had more than 500
pages. So that's just a reversal.
In 2011, it was 59 percent had less than 500
pages, whereas in 2014, 59 percent had more than 500
cases.
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Q And did the -- did the issue of the average
total of pages in an electronic case by regions also
come into play in your analysis here? And I direct you
to Figure 3 on the next page?
A We looked at that and we looked at the
average pages by region. And you can see the red line
at the bottom of this graph, a figure is Region 2. And
they started out with 413 pages on average in 2011 and
went up to 588 pages.
So if you look at the top one, it's Region
10, R-10, and that went from 597 average pages per case
to 738 pages per average case. And that's two things
to note from this figure, and that is they're going up
and we saw overall at 27 percent.
But there are very large differences between
regions. So, for example, Region 10 at all times had
more cases -- more -- their page length for this case
were larger -- excuse me, they were smaller than all
the others.
Q I'm sorry. Which --
A Excuse me. Region 10 was larger and Region 2
was smaller at all times. So it's an important fact
that regions differ significantly in terms of the
average number of pages in a case.
Q And how would that variation and case size
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impact on the ability of judges to comply with
scheduling or evaluating numbers of cases based on your
review?
A Well, clearly, the more cases -- excuse me,
the more pages in the case, the more time it's going to
take to do that case. We -- our work studies indicated
that was significantly the case. And so having -- you
have fewer hours to accomplish more work per case.
Q So if you turn to Figure 12, page 31, in the
report. Can you explain that one -- that figure for
me, please?
A This figure is the average time spent
actually reading the case and writing decision
instructions. And the two rows at the bottom of that
figure, actual decision -- let's deal with the bottom
on the actual reading time, the blue one.
And that shows that the actual reading time
for our long case Scarlet was 4.7 hours. That's about
four and three quarters hours to read the Scarlet case.
Now our Penelope case, which is the average case took
three hours, 3.15. Just over three hours to read.
And our Tracy case, the short case, took a
little over two hours to read. And then if you go to
the row right above it, the actual decision instruction
time, it took for the long case about an hour to write
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the decision instructions.
For the Penelope case, our average case, it
took a little over three quarters of an hour.
Specifically .84 hours and for Tracy it took 1.12
hours.
Q And the question of relative complexity in
these three cases as it related to the cases the judges
were reviewing, typically, in their case load, was that
also looked at?
A Yes. We asked them in the questionnaire to
compare for each of these cases as they had done them
whether or not this case represented an average case,
what percent was more complex, what percent was less
complex.
And they said for Penelope, which is our
medium size case, they said that a third of their cases
were about that level of complexity and a third of
their cases were less complex and a third were more
complex. Approximately a third for each of those.
Again, suggesting that Penelope was a good
representation of what the average case was or is.
Q And we talked before this about the
supplemental of the data that you received on
activities other than just straight adjudicating cases.
And I'm going to direct your attention to how that was
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summarized on Table 4, on page 33. Can you tell me if
that is what this table reflects?
A Yes. These are the specific items that we've
kind of looked at a couple of times now. It was in the
other activities that ALJs perform. It was in the
questionnaire that we sent to the judges who completed
the work samples. It was also sent to the people who
were filling it out at the conference. And these are
the specific amounts of time, on average, that in this
table it's the 31 ALJs in our work sample study.
And so you can see for that mandatory
training activity Number 1 under professional
development, they spent on average, 1.48 hours per
month. So that's like an hour and a half every month
on that particular kind of activity.
Q And when these activities were totalled up,
and I'll point you to the next page, page 34, was there
a determination made as to what the total amount of
time was spent on these other activities?
A Yes. It was just a little over -- it's not
shown on that table but it's shown on page 39. And
it's a little -- it's thirty-eight and three quarters
hours spent on these other activities. And -- and in
--
Q Did you have some concern about a few of
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these areas if we go back to page 33? Were a couple of
these areas ones that caused some concerns in terms of
potentially needing to exclude them?
A Yes.
Q Which ones were those?
A The specific items are 10, Item 10, which is
under General Case Management Activities that reads
reviewing duplicate evidence and the average there is
2.65 hours.
But -- the -- this is an instance where the
item, frankly, overlaps with the work sample. There
were -- there was duplicate evidence in the work
sample. So it's my opinion that this number -- this
amount of time should be removed.
Similarly, the next time locating evidence
out of sequence, hour and a quarter. That's an
activity that was estimated in the work sample. There
was evidence that was out of sequence in those three
cases. And so, frankly, this hour and a quarter should
be removed, too.
Q Okay. Anything else?
A Yes. The next Item, reading handwritten
evidence. The judges said that takes about an hour and
.51 -- 1.51 hours and that should be removed, as well,
from the other activities because there was handwritten
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evidence in those three sample cases. Thus, that
amount of time should already be estimated or taken
into account, I should say, not estimated.
And then Item 16, Writing Detailed Decision
Writer Instructions. I think that should be removed,
as well.
Q And then --
A Because they did not know who the decision
writer would be, so they needed to write detailed --
they needed to write decision instructions in the work
sample.
Q So would this have referred to the fact that
some judges, if they work with the same general group
of writers, would have a level of familiarity that
might have allowed them to write less detailed
instructions --
A Yes.
Q -- than was anticipated here. All right.
Well, if you back those items out of the calculations,
how much time are you eliminating or how are the
numbers impacted?
A Those four items add up to about eight hours.
Q Okay. Could you add them together as 8.3?
Does that sound right?
A I'm not using my document so I don't think --
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JUDGE EPPLER: Well, if counsel and
arbitrator has no objections, if the witness can look
at her notes on the document. Any objections to that?
ARBITRATOR ROSS: No.
JUDGE EPPLER: I see you looking through your
notes.
ARBITRATOR ROSS: You're just asking --
MS. SENOO: No objection from me.
THE WITNESS: Yes.
BY JUDGE EPPLER:
Q So the adjusted number then would be how many
hours per month?
A Well --
Q Did we take the --
A It would be --
Q -- 3.7. First 37.92 and subtract 8.3.
A It's about 39 hours my memory -- I mean 29.
Q Yeah. I have 29.26 if I've done my math
correctly and that would be -- no? Marilyn's shaking
her head at me.
JUDGE ZAHM: 3792 minus 8.3 is 29.62.
BY JUDGE EPPLER:
Q So that would be the number of hours per
month, on average, that this group articulated that
they spent doing activities other than direct case
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adjudication?
A Correct.
Q Did you compare the responses from the
original 31 that were received to the larger sampling
that was done of close to 198?
A Yes.
Q And how did they compare?
A The amount of time that those judges
estimated was significantly more than the judges in our
sample estimated for those other activities.
Q Okay. And that's summarized at page 56 and
57? Is it 15 and 16?
A Yes.
Q Is that correct?
A Yes.
ARBITRATOR ROSS: Let's look at 56 and 57.
MR. EPPLER: Correct.
BY JUDGE EPPLER:
Q And those numbers are significantly higher.
Is that correct?
A Yes. They're much higher.
Q And what did you make of that discrepancy
that these numbers were so much higher than the 31
participants in the full survey?
A We concluded that very likely the people
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involved in the larger study, the sample of 98, because
they had not done the actual work samples, that they
were including in their estimates time that was
required, frankly, to do case adjudication.
So we concluded that they were probably
including some other things. We also concluded that
the -- our sample of 31 judges who had done the work
samples had provided reasonable, good estimates, solid
estimates of the amount of time required to do the
activity involved in being an ALJ.
Q All right. Then in doing this study, did you
also look at available hours that judges have in a
given work year?
A Yes.
Q And how much time are judges authorized in
terms of leave in a given year? I'm going to direct
you to Table 10 on page 41.
A I'm sorry. Can you ask me the question
again?
Q Yeah. How much time are judges authorized in
a given year?
A Well, there are 2,087 hours in a year that
are available to work according to the General
Accounting Office in a study they published in 1981
that the good year they say --
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ARBITRATOR ROSS: What was that number again?
It was 20 --
THE WITNESS: It's right -- the first column
-- excuse me, the first row it says assume full-time
employment (2,087) page 41.
ARBITRATOR ROSS: 2,087, that's what I was
wanting.
THE WITNESS: Yeah. So those are the --
that's the number you start with. And then subtract --
well, let's say that -- let's say that all someone did
-- an ALJ did was really spend 2,087 hours working as
an ALJ on case adjudication. How many cases could they
do -- or excuse me, how many hours would they get to do
500 cases.
So if you go to the middle column which is
the one I would like to focus on because our ALJs in
this sample had for 10 years, 10 months on average so
they are probably in that column. And it's 4.2.
BY JUDGE EPPLER:
Q The three columns represent if you have less
than three years, you get a smaller amount of leave
time. If you have three years to 15 years of service,
you get more leave time. And if you're 15 years or
more, you get yet more time. You're focusing on the
middle column?
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A Exactly. Because it's the average and it's
where our judges were. So if you divide 2,087 by 500,
you get 4.2 hours to adjudicate a case.
Q So that assumes that an individual judge has
taken no holidays, no vacation, has never gotten sick,
and has never taken any breaks.
A And they don't have to do any of these other
activities that we know they have to do.
Q Okay. So --
A So following that logic we said, well, we
know that's not realistic. They get, we know for sure,
two 15 minute breaks per day. So let's let them have
that. Then let's see what happens to the number of
hours that they would have available.
So the next column -- excuse me, the next row
subtracts out the 130 hours from the 2,087, and you get
1,957. So divide that by 500, and you get 3.9 hours.
Q And the 3.9 hours allows the judges to take
what amount of leave?
A None. No holidays, no sick, no -- they don't
have annual leave, they don't have any of these other
activities we know they have to do. They're only
adjudicating a case.
Q So they're just allowed to go to the bathroom
twice a day in order to have this amount of time left
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to adjudicate cases?
A Yeah. That's right.
Q Okay. And what if they take their 10 federal
holidays?
A Well, that would translate to 80 hours, so on
that next row you have 1,957 hours minus 80 hours. You
get 1877 and divide that by 500, and now we're down to
3.8 hours to do a case.
Q And if they take their earned annual leave,
the -- for an average judge with less than 15 years,
but more than three years of experience, what does that
leave?
A It leaves 3.4 hours on average per case.
That's on page 42.
Q And let me give --
A And then -- let's be realistic and know that
they have to do these other activities. So if we
subtract out -- on this case I'd like to work on my
document, my report because --
JUDGE EPPLER: Any objections?
MS. SENOO: No objection.
THE WITNESS: -- we've just described that
the eight hours should be removed. I don't need it
actually. I can remember.
Subtract the approximately eight hours and we
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get 2.7 hours per case and we have not allowed anyone
any sick time in all of this.
So this is a situation where we've allowed
people to take their leave. We've allowed their
vacation. We've allowed them to do the other work that
they have to do as part of an ALJ. We also let them
take their holidays and we let them take their two 15
minute breaks. And they have 2.7 hours per case.
BY JUDGE EPPLER:
Q And how does that compare to what the average
amount of time it took to do an average case in the
study?
A The average amount of time it took to do a
case was seven hours. And that seems obvious that this
is really very difficult to do 500 cases when it takes
seven hours on average and yet, just doing the math you
end up with 2.7 hours allotted on average to adjudicate
a case, if you use the 500 case goal.
Q I direct your attention to Table 12 on page
44, descriptive statistics for numbers of average cases
that could be decided for ALJ per year. Can you
explain the statistics here?
A We looked at the judges in our sample in our
study and found that -- okay. This is the total cases
that can be decided based on the hours available for
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case adjudication. We found the average was 191 that
could be decided -- that they could decide. And the
median was 195 and, again, the median was half of a
sample of half of the people score lower or take longer
and can do more cases and the other half can do fewer
than half. That came out wrong.
Q Do you need to clarify that?
A I do.
Q Okay. Go ahead.
A The median is where half of the group could
do it with -- could do fewer cases and the other half
could do more cases.
Q Could any of the judges in the study have
rendered 500 cases similar to the average size case,
which was Penelope, in a year?
A No. And the reason you can tell that is by
looking at the MAX which is the maximum number of cases
that the judges in this study could handle. And the
maximum number any judge could handle was 342.
Q And tell me what the factors are that you
discovered that affected case processing time. Just
generally what are the things that affected it?
A Well, whether or not -- clearly, size of the
file affected it. So how many pages were in the case
affects the amount of time. Whether or not there was a
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hearing affects the amount of time. The quality of the
decision writer affects the time.
Q How about the organization of the file in
terms of --
A Yes. All of those items that we just
removed. And we can go to those -- it's the
sequencing, whether or not there is duplication. All
of those affect the amount of time.
Q And does the complexity of the case also
impact on case processing time?
A Yes. They told us that it did.
Q Does the quality of the support staff also
impact it?
A Yes.
Q And I think you also referred to the
handwritten notes that that was an item we backed out
from the earlier period?
A Yes.
Q You said you also did look at the impact of
decision writers quality on the time required to
process cases, correct?
A Yes.
Q And were there definitions given to the
judges in terms of getting input on that issue?
A Yes. We asked them to think about the top
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quarter of decision writers that would be the above
average, the top quarter. And the lower quality
decision writers was the bottom 25 percent of the
decision writers that they were familiar with.
Q And did the writers indicate the percentage
of the cases that they received that were average or
above or below average in terms of the quality of the
writing?
A Can you direct me where I might find that?
Q Yes. Page 48.
A Yes.
Q There's a figure -- actually 17 and 18 are a
part of that so it really starts on page 47.
A Okay.
Q 47 is the bar chart and 48 is more of a pie
chart, right?
A Yeah. And for Penelope, the below average
decision writer takes about a half an -- half an hour.
Q So if a case -- from the estimate of the
judges, if a case is written by someone that they
identified to be of a low average writer, are you
saying it would add 30 minutes of time to the editing
process?
A Yes. And I think it would actually take --
yes.
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Q And if it was an above average writer, would
it save time?
A Yes. About a quarter of an hour.
Q We've talked a lot about the statistics and
the figures here. You've also talked about the
percentage that are actually meeting the goals. Based
on your study, are there limitations that you've
identified that you can comment on in terms of how some
of the judges are, in fact, processing 500 cases or
more a year? I direct your attention to page 61 in the
report.
A If I could, I'd like to look at my page
because it summarizes some of the numbers. Thank you.
On Table 17, page 61.
ARBITRATOR ROSS: Table 7?
MR. EPPLER: 17, page 61.
THE WITNESS: Right.
ARBITRATOR ROSS: Oh, page 61.
THE WITNESS: 61. This is where we look the
at how they might be meeting those 500 cases per year.
And we asked them about the number of uncompensated
hours that they worked per month on average. And as
you can see from those figures, a number of them did.
And if you were to add up line -- rows 2, 3,
4, and 5 where it shows that 58.1 percent worked one to
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eight uncompensated hours and 12 --
BY JUDGE EPPLER:
Q And that's in what period of time?
A That's per month. And 12.9 percent worked 9
to 24 hours per month uncompensated. And 6.5 worked 25
to 48 hours per month uncompensated. And 6.5 percent
worked more than 48 hours per month uncompensated.
And that total goes -- four lines total 84
percent of our judges in our study worked between 1 and
48 hours per month uncompensated. So that's one way in
which they're increasing their number of case they
adjudicate.
If you go to the next table, Table 18, the
number of credit hours lost per month on average -- and
this time, let's just look at rows 2 and 3, the 1 to 8
hours 45.2 percent, 9 to 24 hours is 12.9 percent per
month.
And that's 58.1 percent of the people in our
sample lost between 1 and 24 hours per month in credit
hours lost. So that's another way.
Q Let me back up and have you explain that
because we haven't really talked about the concept of
credit hours. Are credit hours something that a judge
can earn during the core hours or from 6:30 in the
morning until 6:00 at night if they work more than a
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seven and a half hour day?
A Yes.
Q Okay. So do you know how many credit hours a
judge is permitted to earn in any particular period of
time?
A They can earn up to 80 non overtime credit
hours in a two-week pay period under the --
Q No. That's not accurate. So --
A Okay.
MS. SENOO: The witness needs to testify to
her understanding of what she knows and if she's
inaccurate then the Union can find someone else to give
the information or --
MR. EPPLER: That's fine. That's fine.
BY JUDGE EPPLER:
Q Regardless of how many hours a judge is
permitted to earn in terms of credit hours, your study
has captured the amount of credit hours that the judge
is forfeiting, that they cannot carry over to the next
pay period, correct?
A Correct.
Q Okay.
A Another way in which the ALJs in our study
were able to do more cases per year is by working
holidays and on Table 19, page 62, the majority, 80.6
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percent, do not donate time, their holiday time. But
16 percent do work between 1 and 24 hours a year on
holidays that are legitimately their time.
To move on to the next table, Sick Leave,
another way in which ALJs are not using -- what shall
we say, time -- let's put it this way. Another way in
which they are able to meet their quota is by not
taking sick time.
And if you look at this, only 3.2 percent of
our sample -- a total of 87 percent if you total that
first four rows, 87 percent of the ALJs use less than
half of their sick time. And a majority, about 60
percent, use less than a quarter of their sick time.
So that's another way in which ALJs are meeting their
quota. They don't use their sick time.
Moving to page 63, Table 21 shows another way
in which ALJs are able to meet their quotas. And that
is, they donate their time to others in what's called
the use or lose program. And it turned out that 39
percent of our sample donated or lost excess accrued
annual leave time. That was between 1 and 48 hours a
year.
Q Is that in a year?
A Per year. So that's another way in which
they're -- I was going to say buy time, but that's not
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the right term. That's another way in which they able
to reach a goal of 500 cases per year.
Another way in which the ALJs can accomplish
or reach their goals is to not process cases carefully.
Another way is to take shortcuts. Another way is to
issue favorable ratings.
Q You mean favorable decisions?
A Excuse me, yes, favorable decisions,
favorable rulings. So those are a variety of ways in
which the judges can increase the number of cases they
adjudicate per year, get closer to or above the 500
goal.
Q Is there research on the impact of goal
setting?
A Yes, there is.
Q In your opinion, are ALJs motivated to meet
these goals?
A Yes, I think they are.
Q And why do you think that's the case?
A Well, I think that's the case because, one,
they are -- the information is publically available.
It's also true that the expectations that are set
matter. And so when people expect you to do something,
you're more likely to do whatever to meet that. The --
I have written about that in here and if you could
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direct me to where that might be, I --
Q Yeah. In particular, looking at page 59 is
the chapter that starts on how some of the judges are
using the production quota goals now and citing some of
the relevant research on this topic.
A I thought you were asking me a different
question.
Q Well, can you explain some of the things that
you personally observed in the study that indicates the
judges are motivated to meet these goals?
A Well, in reviewing the decision instructions
-- what did I personally observe?
Q Well, you talked a lot about donating time.
A Yes.
Q Is that one of the aspects that you consider
for purposes of the judges motivation here.
A Oh. Yes.
Q And are you familiar with an article about
goal setting entitled Goals Gone Wild?
A Yes.
Q Are you familiar with whether there's
unintended side effects identified in the article and
in other aspects of your research that you've done
related to the -- to goal setting?
A Yes. I'm familiar with that article and it
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suggests that there are negative consequence that
accrue as a result of setting goals that are too high.
Some of the unintended consequences, shall we say, are
unethical behavior. Low morale is another issue. What
you might call negative sorts of organizational
citizenship behaviors.
Q And what do you mean by that?
A Well, there are a lot of things that make an
organization work effectively. And part of it is
people cooperating with other people, donating their
time, shall we say.
And when you've reduced your morale, you're
going to reduce those kinds of good citizenship
behaviors that it takes for an organization to run
effectively. A number of the people in this study were
clearly donating their time, so I don't know,
obviously, the extent to which those negative effects
are being felt.
Q In fact, you mean that the positive trait in
terms of people trying to do their best and donating
time?
A Right.
Q Okay. Despite the circumstances --
A Right, right.
Q Are you aware of -- in your review of all the
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materials and your studies here of how many judges are
meeting the production goals from 2007 going forward to
2015?
A Yes. We reported on that.
Q Now, I direct your attention to page 60 of
the report.
A Yes. And in the last year, fiscal year 2015,
I think it's like -- what does it say, 43 percent?
Yes, 43 percent. It's towards the bottom. It's
information found on the SSA website. 47 -- 43 percent
of the ALJs met the 500 or more dispositions last year.
Q And how did that compare to 2011?
A 2011 was -- 2011 was 77 percent.
ARBITRATOR ROSS: What page are you looking
at?
THE WITNESS: That would be on page -- where
is that?
JUDGE EPPLER: 60.
ARBITRATOR ROSS: Is it page 60?
JUDGE EPPLER: Yes.
ARBITRATOR ROSS: Where it says 77 percent?
THE WITNESS: Yes.
JUDGE EPPLER: Half way down the page where
it says how many ALJs are meeting the production goals.
THE WITNESS: Yes.
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JUDGE EPPLER: That first paragraph
references the 77 and it goes through --
ARBITRATOR ROSS: Yeah. Okay.
JUDGE EPPLER: -- various years. 43 is
referenced in the second paragraph.
ARBITRATOR: Yeah. Okay.
THE WITNESS: So a significantly fewer number
were meeting their goals.
BY JUDGE EPPLER:
Q Are -- I'm not certain that we've made this
clear so I'd like to ask you the question. When we did
this report, did we consider anything other than adult
disability adjudication?
A No. It was entirely adult disability cases.
ARBITRATOR ROSS: I don't know what that
means.
THE WITNESS: It's a type of case. It's
people who are claiming disability and they're adults.
They have children under age.
ARBITRATOR ROSS: That's what it means?
THE WITNESS: Right. So it's adult --
ARBITRATOR ROSS: It's adult disability.
THE WITNESS: Right. Only adults. Adult
cases.
JUDGE EPPLER: If I could have just a five
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minute --
ARBITRATOR ROSS: Sure.
JUDGE EPPLER: -- break.
ARBITRATOR ROSS: Okay.
(Whereupon, a brief recess was taken and the
following took place.)
ARBITRATOR ROSS: Back on the record.
BY JUDGE EPPLER:
Q I direct your attention to page 67 and 68 on
Chapter 10 of the study. Are there recommendations
that you were provided by the ALJs that participated in
the study that could improve their ability to
adjudicate more cases annually?
A Yes. We asked them for write-ins and these
-- there were two question that asked them that. And
these two pages summarized what they had to say. And
the very specific individual responses are in the
appendices in the back. So if the Agency wants to very
specifically look at those.
Q And those V and W?
A Yes.
Q And are those verbatim responses --
A Yes, they are.
ARBITRATOR ROSS: Where are now? I'm sorry.
THE WITNESS: We're on page 67, which is a
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summary of two appendices, Appendix V and Appendix W.
ARBITRATOR ROSS: In this document?
THE WITNESS: Yes. So --
ARBITRATOR ROSS: V and W, you said?
THE WITNESS: Correct. And those are the
word-for-word suggestions, but we've summarized them on
page 67 --
ARBITRATOR ROSS: Oh, okay.
THE WITNESS: -- and 68 --
ARBITRATOR ROSS. Oh, okay.
THE WITNESS: -- in just general themes. And
those general themes include improving the readability,
organization, and streamlining of case file materials.
And then there's specific things under there.
ARBITRATOR ROSS: Okay.
THE WITNESS: Then there's improving the
hearing process, a type of tightening and enforce the
rules about when claimants or their representatives can
file evidence.
And then another general theme was to improve
the support staff for ALJs. Complete the number and
quality of decision writers as we saw bad effects with
the amount of time they spend both writing instruction
and editing their decision, assigning decision writers
to ALJs so that they can develop a working
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relationship. They get familiar with, you know, what
they to do and don't need to do with any particular
decision writer.
Another general theme was to apply support of
management practices, demonstrate respect for the ALJs
professionalism, autonomy, require fewer meetings.
And then another general theme was to
eliminate or reduce the scope of the appeals council.
And there they specifically said to eliminate demands
requiring redo a whole case for minor judicial errors.
Another specific suggestion there was, again,
not word-for-word what they said, but to ask AC to make
decisions based on the appeals council -- to make
decisions rather than simply remand the case.
And another general themes was to improve
technology. For example, to find technology that can
recognize and eliminate duplication of case file
materials and other specific things. And those would
make a difference in terms of the efficiency and the
quality, but primarily efficiency.
BY JUDGE EPPLER:
Q And again the actual specific responses of
each individual is included in Exhibit -- Appendix V
and W in the back of the report, correct?
A Yes.
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Q And the difference is V is the first 30
participants and --
A No. They're different questions. The
question is listed at the top of the page.
ARBITRATOR ROSS: Want recommendations?
THE WITNESS: Yes. And then W is what work
or organizational factors and circumstances hinder your
productivity. So there were two different --
ARBITRATOR ROSS: Where is that at?
THE WITNESS: That was W.
ARBITRATOR ROSS: W.
THE WITNESS: Appendix W. And so we had
asked them, the ALJs, to suggest ways in which they
could be more efficient.
BY JUDGE EPPLER:
Q And since these have 102 responses, I assume
this is from the larger survey group?
A No. You can see that it is from -- yes, it
is. The first 32 are -- the first 31 are in -- are the
ones from the work sample, the respondent's ID is up to
102. They're all there, both samples.
Q Right. Both sets of samples are included in
the recommendations chapter.
A Yes. Correct. But knowing that the two
separate questions -- one question's in Appendix V and
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the other question responses are in Appendix W.
Q And they are both summarized?
A Yes. The total set is summarized --
JUDGE EPPLER: At page 16.
ARBITRATOR ROSS: 67 and 68?
JUDGE EPPLER: 67 and 68.
THE WITNESS: Yes.
BY JUDGE EPPLER:
Q Do you have an opinion on whether scheduling
an average of 50 cases per month is reasonably
attainable based on the study you have conducted?
A Well, you can schedule 50, you could schedule
100. Whether or not you'd be able to adjudicate them
is another matter.
And our study suggests that you could not
effectively, abiding by following Agency directives in
terms of complying with Agency directives allow legally
sufficient decision, you could not reasonably do that.
Q Could the Office of Disability Adjudication
and Review have conducted a similar study to determine
the actual processing it takes to adjudicate adult
disability cases?
A Yes.
Q In your opinion, is a single number of cases
to be scheduled or adjudicated for all judges across
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all hearing offices, across all regions, across the
country, appropriate?
A No.
Q Why not?
A Our study clearly shows that there are
differences across hearing offices and regions. It's
not appropriate to have the same number.
Q Does this study set up a way that the Agency
could conduct a similar study to base case processing
performance goals that request actual time spent on
processing real cases that vary in size and complexity?
A Yes. This a prototype that the Agency could
-- could take a lot of the materials that we developed
in the study and proceed to do a study of its own with
a lot the leg work already done.
Q Thank you.
ARBITRATOR ROSS: Okay. Let's go off the
record just a minute.
(Whereupon, an off-the-record discussion was
held.)
ARBITRATOR ROSS: Okay. Back on the record.
MS. SENOO: I have questions about materials
that you refer to and I want to make sure that they are
contained either in U 23, which is the report, or U 24
the source materials. So on page 15 --
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ARBITRATOR ROSS: Of?
MS. SENOO: Of U 23.
ARBITRATOR ROSS: U 23? Okay.
JUDGE EPPLER: I'm sorry, page what?
MS. SENOO: 15. Starting with the fourth
bullet point, the new ALJ training modules, are they
attached to either U 23 or U 24?
THE WITNESS: No.
MS. SENOO: No. And so can the Agency get a
copy of the training modules that the expert looked at?
THE WITNESS: I presume so. I presume we
still have them. I'm not positive we still have them.
We may have had to return them, but if we have them,
yes.
MS. SENOO: If -- if the expert cannot return
them or share a copy with us, is the Union able to
provide an exact copy of what was provided to her?
MR. EPPLER: Certainly. Came off of your
website and I'm sure we can.
MS. SENOO: Okay. Well, the Agency's website
is somewhat organic so if it fluctuates over time we're
not sure. I mean, we want to know what she was
provided.
ARBITRATOR ROSS: Yeah.
MS. SENOO: Same with the 20 judicial slide
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decks.
ARBITRATOR ROSS: Where? Oh, it's the
next --
MS. SENOO: The next bullet point.
ARBITRATOR ROSS: Oh, it's the next bullet.
Okay.
MS. SENOO: The next bullet point. Judicial
training slide deck. I'm sorry. Can we -- does the
expert still have copies of those and everything listed
in that bullet point?
THE WITNESS: I don't know if we still have
copies of them but we can -- but we can provide them.
It's --
MS. SENOO: If the expert can't provide them,
can the Union provide them to the Agency?
JUDGE ZAHM: Assuming we still have them,
yeah. It came off your website, so --
MS. SENOO: Okay. And I understand -- yeah.
JUDGE ZAHM: I heard you say maybe they're
not there now. If we have them, we certainly will.
MS. SENOO: Okay. So the two cases used for
ALJ training, to begin -- it's the same question. Does
the expert still have a copy? If so, can the expert
provide them or can the Union provide the exact
material?
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JUDGE ZAHM: I'm assuming we'll be able to.
I can't promise it because I don't have them in my
hands. But, again, all of this came off the Agency's
website. So even though the website might be organic,
I'm assuming that there is --
ARBITRATOR ROSS: Access somewhere.
JUDGE ZAHM: Yeah. There's a master
somewhere.
MS. SENOO: But we don't know when these were
pulled. That's the other thing. If we don't know
when, they may have been changed and I'm assuming the
Agency refines and updates training materials. I mean,
I'm assuming --
MR. EPPLER: Well, we'll certainly find out.
JUDGE ZAHM: You know, probably if we ring up
HumRRO, they have all the stuff. That's the most
logical thing to do.
ARBITRATOR ROSS: Okay.
MS. SENOO: Now the next bullet point, Agency
policies and directives on producing quality decisions?
MR. EPPLER: That's this.
MS. SENOO: That is the U 24?
JUDGE EPPLER: Yes.
THE WITNESS: Yes.
MS. SENOO: Okay. I have the second bullet
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point as being U 24. Am I incorrect on that?
THE WITNESS: It says as noted above.
ARBITRATOR ROSS: Well, I'm lost here. ALJ
training materials, 27 modules, judicial training slide
decks. All right, that's the next one?
THE WITNESS: Yes.
ARBITRATOR ROSS: Okay. And then the next
one would be --
THE WITNESS: Two cases.
MR. EPPLER: We covered that.
ARBITRATOR ROSS: Two? We did cover -- that
was the last one we covered?
JUDGE EPPLER: Right.
MS. SENOO: And so now we're down to Agency
policies and directives.
ARBITRATOR ROSS: Okay.
MS. SENOO: And the expert is telling us that
that is U 24?
THE WITNESS: U 24 is this document, yes.
ARBITRATOR ROSS: Is U 24.
THE WITNESS: Yes.
ARBITRATOR ROSS: That's this one. That's
source materials?
THE WITNESS: Yes.
ARBITRATOR ROSS: Okay.
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MS. SENOO: And the next one, the work flow
chart, I understand is Appendix A --
THE WITNESS: K.
MS. SENOO: K, sorry. Appendix K. And then
the occupational profile from the US Department of
Labor. Does the expert still have a copy of that?
THE WITNESS: That's in Appendix L.
MS. SENOO: Okay. Oh, I see that now. Now
there were also references to the SSA website in the
text in the body of the document U 23, as well?
THE WITNESS: Yes.
MS. SENOO: Were those provided to the
expert?
THE WITNESS: No. We were just on the
internet going to the websites ourselves. And the
websites are specified in the text.
MS. SENOO: Right. Did you preserve the
copies or the versions that you had looked at at the
time?
THE WITNESS: I'm not positive.
MS. SENOO: So if the expert has -- could we
first be informed of whether she preserved a copy and
then, if so, provide them?
The expert also referred to a draft list of
the five phases of the hearing process that -- I forget
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which exhibit that refers to or which appendix --
THE WITNESS: The final was O.
MS. SENOO: Okay. Appendix O. So is there a
draft of Appendix 0?
THE WITNESS: Earlier versions of Appendix O?
MS. SENOO: Yes.
THE WITNESS: Yes, I have those.
MS. SENOO: Can we be provided those?
THE WITNESS: Yes.
MR. EPPLER: I think that's something we need
to discuss because that's more potentially a work
product so that's a work-in-progress question but --
MS. SENOO: We talked about how the ALJs
helped her refine her list. So the subject actually
assisted in refining the list for Appendix O, so we'd
like to see the draft version.
JUDGE ZAHM: Although you do understand the
draft -- only the final was used.
MS. SENOO: We understand that. We
understand, but we also understand that the subject had
input in what went into the final.
JUDGE ZAHM: Yes.
MS. SENOO: The expert said that she
conducted a pretest that supported the data gathering
tool. Has that been included somewhere in the
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materials?
THE WITNESS: No. It's not in the materials.
MS. SENOO: And the results aren't in there
either?
THE WITNESS: No. We did make revisions
based on the pretest.
MS. SENOO: Will the Agency get a copy of the
pretest --
THE WITNESS: Yes.
MS. SENOO: -- and the results?
THE WITNESS: Well, the results would be what
the final version looks like.
MS. SENOO: Well, somebody actually took the
test, right?
THE WITNESS: Well, they could -- do we have
actual responses?
MS. SENOO: Yes.
THE WITNESS: I'm not sure about that.
MS. SENOO: May we have the responses if they
--
THE WITNESS: We will give you what we have.
MS. SENOO: The AALJ sent information to
judges informing them of possible misinformation when
there were some potential errors in the process. And
the expert talks about when judges were making
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estimates to complete tasks that actually took longer
than their estimates.
And she testified that the AALJ sent out
information to judges to inform them of that. May we
have the --
MR. EPPLER: I don't think that characterizes
the testimony correctly, but I understand what you're
referring to, I think.
MS. SENOO: So what am I referring to?
JUDGE EPPLER: I believe you're asking for a
copy of what was sent out on the second wave to give
additional instruction to the judges participating.
MS. SENOO: And that came from AALJ to the
judges?
MR. EPPLER: Yes.
MS. SENOO: May we have that?
MR. EPPLER: Yes.
MS. SENOO: And I presume the Union -- well,
actually, let me ask, did the expert see the
correspondence that the Union sent to the subject?
THE WITNESS: I personally didn't. I don't
know if Cheryl or Joe did.
MS. SENOO: I mean it would be important to
have an answer to that question, but I guess we could
save that --
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ARBITRATOR ROSS: Yeah.
MS. SENOO: -- for later, but we would like
that correspondence.
JUDGE ZAHM: I've no problem providing it.
MS. SENOO: That's it. That ends the list
that I have.
Do you have anything, Ms. Collick?
ARBITRATOR ROSS: Okay. Maybe you can just
excuse yourself for a few minutes. There's a place to
sit out there.
THE WITNESS: Should I wait?
ARBITRATOR ROSS: Yeah. Just give us a few
minutes. I don't think it'll take that long. Off the
record.
(Whereupon, an off-the-record discussion was
held and witness entered.)
ARBITRATOR ROSS: Are we ready? Will you
swear the witness. Proceed.
(Whereupon, the witness was sworn in, and the
following took place.)
DIRECT EXAMINATION BY JUDGE ZAHM:
Q Would you state your name for the record,
please.
A Mark Brown.
Q And Judge Brown, where do you work?
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A I work at the Office of Hearings and Appeals
in -- that's the old name. The Office of Disability,
Adjudication and Review in St Louis, Missouri.
Q And what is your position with the Agency?
A I'm an administrative law judge.
Q And how long have you held that position?
A Since February of 1982.
Q And have you ever held a management position
for the Agency?
A I have.
Q And when was that and what position was it?
A That was from June of 1993 till January of
2000, when I was the hearing office chief ALJ in the
St. Louis downtown ODAR Office -- Office of Hearings
and Appeals at the time.
Q And did you leave that job voluntarily?
A Yes.
Q Prior to working for Social Security, what
work did you do?
A Out of law school I spent six years as a
felony prosecuting attorney for the City of St. Louis.
And then I spent four years in private practice with a
law firm doing just general litigation work.
Q Okay. Do you hold any positions with the
AALJ?
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A I do.
Q And what positions do you hold?
A I am the Region 7 -- vice-president of Region
7, covering now 4, 5, 6 states. We just expanded it,
16 offices. And I am also the co-chair of the Health
and Safety Labor Management Committee.
And so I come here to Falls Church every
three months to meet with Agency officials to try and
improve health and safety conditions in the -- in the
organization.
Then I am also -- was appointed as the chair
of the collective bargaining team for the negotiation
of our new CBA that we're still trying to finally sign
off on. In fact, I just got the signature page today.
Even you don't know that yet.
Q Now as a Social Security ALJ, do you
adjudicate different kinds of cases?
A Yes.
Q Okay. Now, we've had testimony here today
about a study that was done on adult disability cases.
Is that one of the kinds of cases that ALJs adjudicate
for Social Security?
A Certainly. Certainly.
Q Are there other kinds?
A Yes. There would be child's disability
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cases. There are continuing disability reviews, which
would be the cases where people have been in pay status
and then they have the type of condition that the
Agency believes there's a reasonable possibility that
they'll medically improve.
And so they review it. They may say they no
longer meet the definition of disability after this
passage of time and treatment.
There -- there can be overpayment cases.
There can be underpayment cases. There can be
workman's compensation offset cases.
There can be cases which I would call a
paternity case, which is a type of survivor's benefit
case where if -- an example would be an over-the-word
trucker who has had liaisons with women in several
different states and has had children with several
different women.
And then he dies and there's only one pie.
And so it's a question of can all of these different
women establish that they have a child who should have
a slice of the pie.
And so you get some situations where the
women are saying, well, I knew about that woman and I
knew about that one, but I didn't know about this one
and this one. And so there's a lot of tension in the
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room when you have those hearings.
Q Okay. What happens if a child's been getting
disability benefits and turns 18.
A Well, that's another category and that's
called an adult redetermination case.
ARBITRATOR ROSS: An adult?
THE WITNESS: An adult redetermination case.
The concept is they met the definition as a child,
which is different than the definition to be an adult.
And so they get reevaluated using the adult
standard and sometimes it's found that although they
met the definition of disability as a child, they no
longer meet the definition of disability as an adult.
BY JUDGE ZAHM:
Q Now, of all of the kinds of cases that might
come to an ALJ, what is the most usual case?
A Clearly, the most frequent case is the adult
disability. And that can either be the Title 2
disability insurance benefits or the supplemental
security income.
Q And what percentage would you estimate of an
ALJ's caseload are adult disability cases?
A As a rough estimate, I'd say somewhere in the
neighborhood of 80 percent, if not more.
Q Okay. Did there come a time when you were
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involved in negotiations on a collective bargaining
agreement that was to be a successor to the 2001
Collective Bargaining Agreement?
A Correct. I was.
Q And what was your involvement?
A I was -- as I said before, I was named by the
Union as the chair of our collective bargaining team.
Q Were you known and considered the chief
negotiator?
A Yes.
Q And can you just briefly give us a timeline
of the negotiations overall?
A All right. Well I was named as this chair in
November of 2008. And so in 2009, we internally spent
some time trying to prepare for this point. Finally,
in November of 2009, both sides, meaning both the
Agency and the Union, exchanged letters with the other
saying that we wanted to reopen bargaining on the 2001
version of the CBA or collective bargaining agreement.
And so then we first sat down at the
bargaining table at the end of January 2009, just to
bargain the ground rules. And that took three days.
Q Let me just ask you since you said, I
thought, that November of 2009 is when the notices were
sent by the Agency and the Union to renegotiate the
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contract?
A Right. The bargaining of the ground rules
was in January of 2010.
Q Okay.
ARBITRATOR ROSS: Okay.
BY JUDGE ZAHM:
Q Let's get the years right. So many have gone
by since we started that process?
A Right.
Q Then what happened?
A So following the bargaining of the ground
rules in January, we -- we finally -- as part of the --
following the ground rules we finally met and exchanged
for the first time our opening draft proposals for the
new successor CBA in May of 2010.
And at that point, we then set up a schedule
for bargaining that ended up blasting through the rest
of 2010 and on in toward -- to November of 2011. We
had the services of someone from the Federal Mediation
and Conciliation Service sitting in with us for the
bulk of that time. And he finally agreed in November
of 2011 that we were at impasse on 11 articles.
You want me to keep going or did you want me
to -- did you want to ask us --
Q Keep going.
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A Oh, okay. And so after he declared us at
impasse on those 11 articles -- we signed off on 18
articles in the preamble. So he declared us at impasse
on 11 articles.
In January, then, of 2012, we filed our
formal, it's called a request for assistance, with the
FSIP, the Federal Services Impasse Panel. And both
sides then had to brief our respective positions. And
the FSIP decided that the way it wanted us to move
forward in the process is they referred us out to get a
"mediator/slash factfinder."
And so we got a list of names, again, from
FMCS of people who would be appropriate to be in the
mediator/factfinder role. And the parties took turns
-- we tossed a coin, and then took turns striking names
till one man was left standing, and that was Ira Jaffe.
And so we then dealt with Ira Jaffe from May
of 2012 until August of 2012. And in the vast majority
of that time he was wearing the mediator hat. And
while he was wearing the mediator hat, the parties
finally came to an agreement on four of those 11
articles. And so we signed off on another four of the
11 articles, leaving only seven where we still could
not come to 100 percent agreement on the language.
Even though we had come to agreement on the
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vast bulk of the language, there were some significant
parts that we could not agree on. So in the third
week, the week of August 20th of 2012 --
Q Well, we're going to get into that part more
deeply but what happened then? What did Mr. Jaffe do
after he fact found and mediated and -- what was the
upshot of all of that?
A Well, ultimately, he issued his findings and
recommendations to the FSIP and he did that on October
15th of 2012.
Q And then what happened?
A The Union read his findings and
recommendations and we did not find that we approved of
or agreed with his facts finding and recommendations.
And so we appealed then to the FSIP to review his -- as
we stated our objections to the FSIP and, in effect,
appealed to them trying to get some of his findings and
recommendations to be changed.
Q And then what happened?
A Well, then the FSIP issued a -- finally a 26
page report in April of 2013. And 25 pages of that
report were saying, well, as to Article 5, the Union's
position is this. As to article 5, the Agency's
position is this. And then it gave no more discussion
about Article 5.
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Then it would go on to -- in Article 7, the
Union's position is this, the Agency's position is
this. So that was the first 25 pages.
Finally, on the 26th page, in three sentences
they said, well, we find nothing wrong with the
factfinder's recommendation and report and we adopt it.
So it gave no rational at all.
Q Okay. Let me have you look at Joint Exhibit
Number 7. And could -- do you recognize Joint 7?
A Yes. This is the document I was just talking
about.
Q And do you want to point out where the FSIP
analyzed the proposals and recommendations?
A Yeah. If you turn it over to the back page,
it says, "Conclusion. Having carefully considered the
Union's response to the" -- OSC stands for Office of
Special Counsel -- "and to the employer's rebuttal
statement, we conclude that the Union has failed to
show cause why the factfinder's recommendations should
not be imposed to resolve the parties' impasse over
their successors CBA.
"In our view, the factfinder has supported
his recommendations with clear and convincing rational.
And they do not otherwise appear to be illegal.
Accordingly, we shall order the adoption of these
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recommendations in their entirety."
Q Okay. And the date of that report?
A April 30, 2013.
Q And so what happened after that?
A The next thing that happened vis a vis these
articles -- these specific articles that -- all right.
Q That were the subject of the factfinding
report.
A Of the -- yes. The -- the Agency, on
September 30 of 2013, sent the Union an e-mail saying
that they were imposing these 11 articles. And --
Q So those 11 articles were implemented by the
Agency?
A Yeah. Unilaterally implemented by the Agency
on the day of the shutdown of the Government or the day
before the shutdown of the Government.
Q Now, since then have the parties continued
the negotiations?
A Yes.
Q And are they drawing to a close?
A Fortunately, they are. We -- the -- we
finally -- with the passage of time, some of the facts
that we were dealing with when we originally bargained
this have changed.
For example, when we bargained this
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originally -- in the telework article -- the ADS
article, Commissioner Astrue, at that point, was
refusing to allow judges to use VPN which is the -- an
electronic way of accessing a record from the home. He
just flat out refused to allow it. And so there was
language in Article 15 which was based on that reality.
Since that time, Astrue has moved on. We've
gotten a new commissioner and that has changed. Judges
are now allowed to use this VPN which I stated --
forget what it stands for. Virtual something network.
I forget what --
MS. COLLICK: Virtual private?
THE WITNESS: Private? Private? Yeah.
Network. Something like that which allows us from home
to call -- to dial in and have access to our office
computer, in effect. And so we then had to modify
Article 15 to recognize that new reality and change the
language. And that's just an example of --
BY JUDGE ZAHM:
Q So there's been some changes --
A Some tweaks to it, yeah.
Q -- in the articles. And you indicated when
you sat down that you finally have a signature page to
sign?
A Yes. Because -- we -- I just got -- just
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today Judge Frye and I just got an e-mail back from Tom
Funciello who is the Associate Commissioner of the
Office of Labor Management Employee Relations or OLMR,
where they agreed to our last tweaks except they
tweaked our tweaks and so we had to agree to their
tweaks.
We were all working conceptually on the same
thing, just trying to come up with what we felt was the
best wording to try and capture what we were
conceptually all in agreement on.
And so we're going to be signing that,
hopefully, today, Judge Zahm, and getting it back to
them. And at that point, they're finally going to send
it electronically to all the judges so everyone has it.
And that'll start the process of us being able to
finally ratify the CBA.
Q Okay.
A The entire CBA.
Q So we're on the cusp of a new contract?
A Yes, yes.
Q Hopeful?
A Yes. Breaking news.
Q And was Article 15 of the Collective
Bargaining Agreement subject to these negotiations?
A Yes.
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JUDGE ZAHM: Could we have the witness shown
U 11?
BY JUDGE ZAHM:
Q Do you recognize that?
A Let me just check one thing to make sure it's
the final version of it. Oh, oh, all right. I
recognize this. This is from the 2001 CBA. Yes.
Q Okay. When was that in effect for?
A This was in effect from August 31st of 2001,
until September 30 of 2013, and it was called
flexiplace then.
Q Right. Now, you talked about the parties
exchanging initial proposals. Is that correct?
A Correct. In May of 2010.
(Mechanical Agreement With The Agency was marked Union
Exhibit Number 25 for identification.)
BY JUDGE ZAHM:
Q Let me show you what I've marked as Union 25
and ask you if you recognize that?
A Does this need to be labeled first?
Q No, I --
A Okay. Oh, yes, I do recognize this.
Q And what is this?
A This is the AALJ opening version of our --
ARBITRATOR ROSS: Initial proposal?
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THE WITNESS: Yeah. Our initial proposal in
May of 2010, to the Agency about changes to the
flexiplace -- the then flexiplace article.
BY JUDGE ZAHM:
Q And would you just explain what the
cross-outs and the underlines are?
A Yes. We had a mechanical agreement with the
Agency for consistency that if we had a cross-out in
the article, that meant that that was language that was
in the original article, the 2001 version of the
article.
And the cross-out meant that in this
document, U 25, our proposal was to eliminate that
particular language that we had the cross-out going
through. And then if we added new language to this new
document, we would put that new proposed language in
bold.
And so anything that was not stricken through
or in bold, we would know was still in the old 2001
version of this article.
Q Okay. And so does U 25 show that the Union
took the flexiplace article that was in the 2001
contract and just made some changes to it, but used
that as the template for what it wanted in a new
contract?
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A That -- that was -- I would agree with that
-- your question, the way you characterized it, yes.
Q Okay. All right. And let me show you U 26.
A Yeah. And from now on I -- you know, looking
at this version of -- in U 25, I said bold. It may
have been underlined. It was actually the new language
as opposed to bold.
(Management's Opening Proposal was marked Union Exhibit
Number 26 for identification.)
ARBITRATOR ROSS: Okay. Some is underlined
and some is bold.
THE WITNESS: Yeah. I think most of the bold
is in the headings. I think most of the bold is in the
headings --
ARBITRATOR ROSS: Well, look on page 1,
number B, third one --
THE WITNESS: All right, all right. Well, in
-- I can see that the A, B, C, D on the first page are
all in bold, but nothing was -- when I compare it to
11, nothing changed between those two documents.
ARBITRATOR ROSS: I'm not sure I understand.
Some underlines and I don't see anything in -- well, on
the first page it says bold under D, right? D leave
restriction. Leave restriction is crossed out and in
bold looks like to me.
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THE WITNESS: I don't believe that leave
restriction is in bold but it might have been -- we may
-- we may have had some mechanical things when we were
first trying to do this back in May of 2010, because it
was new to us and sometimes we made mistakes. Again,
this was the starting point.
ARBITRATOR ROSS: Okay. I think we're clear.
Cross-out means cross-out and underline means --
THE WITNESS: It means brand new language for
the first time.
ARBITRATOR ROSS: Okay.
BY JUDGE ZAHM:
Q Okay. Let me show you Union Exhibit 26 and
ask you if you recognize that?
A Do you need U 25 back?
Q I gave you two and one belongs --
A Okay. Got you, got you, got you.
Q And what's that?
ARBITRATOR ROSS: Have we marked this?
JUDGE ZAHM: We marked it as U --
THE WITNESS: 26.
JUDGE ZAHM: -- 26.
BY JUDGE ZAHM:
Q Do you recognize this?
A I do.
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Q And what is this?
A This is -- U 26 is management's opening
proposal that they gave us in May of 2010. And the
quickest way to summarize this is by saying they struck
through every single word in the 2001 version of
Article 15.
And their opening proposal was one sentence
which is the language at the very top in lines 3 and 4.
You can see there are lines -- numbered lines going
down the side -- the left-hand side.
And that language was, "The Agency will have
a flexiplace program, consistent with Agency PII" --
and PII, of course, stands for personally identifiable
information -- "and system security policies, rules and
regulations."
And that was the extent of their opening
proposal which, quite frankly, we took as being a sham.
It meant that they could do literally whatever they
wanted to, whenever they wanted to.
Q Okay. Did the Agency ever move from this
position of U 26.
A Eventually.
Q And when was that?
A It -- it -- that would have been in June of
2011, following a couple of things that forced them to
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do so.
(Telework Enhancement Act of 2010 was marked Union
Exhibit Number 27 for identification.)
BY JUDGE ZAHM:
Q Okay. Let me show you what I've marked as U
27 and ask you if you recognize that?
A I do.
Q And what is it?
A It is the Telework Enhancement Act of 2010.
Q And when the Agency put a -- first put a
substantive proposal on the table in June 2011, was
this Telework Act mentioned?
A No. Oh, in June of 2011 --
Q Yeah.
A All right. Yes, as opposed to the one in May
of 2010.
Q Yeah, right.
A It was -- I believe it was referred to. I'd
have to look at the article again. I believe it was
referred to.
Q All right. Let me draw your attention to
Section 6502.b, which is on the second page of the
document.
A The small b?
Q Small b. The section labelled Participation.
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A Okay.
Q Okay. And what does the law say regarding
participation in telework for employees?
A Well, it says, the policy described under
subsection A, which is talking about telework
eligibility. If you go back and look at A, it says,
"The policy described under subsection A shall, one,
ensure that telework does not diminish employee
performance or Agency operations."
Q Okay. Let me stop you there. Let me also
direct your attention to 6503 Training and Monitoring,
subsection A.3. That begins teleworkers and
non-teleworkers.
A Correct.
Q Okay. Could you read that please?
A It says, "Teleworkers and non-teleworkers are
treated the same for purposes of:
"A. Periodic appraisals of job performance of
employees.
"B. Training, rewarding, reassigning,
promoting, reducing in grade, retaining and removing
employees.
"C. Work requirements or,
"D. Other acts involving managerial
discretion."
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Q Okay. And --
A And so it says they're supposed to be treated
the same.
Q Okay. I move Union 27.
ARBITRATOR ROSS: Okay. Hearing no
objection, it's received.
(Union Exhibit 27 was received into evidence.)
(OPM's Guide to Telework in the Federal Government was
marked Union Exhibit Number 28 for
identification.)
BY JUDGE ZAHM:
Q I'm going to show you what I've marked as
Union 28 and ask you if you recognize that?
A I do.
Q And what is it?
A This was produced by the Office of Personnel
Management in April of 2011, and it was OPM's Guide to
Telework in the Federal Government. OPM -- this flowed
from the Telework Enhancement Act of 2010 and OPM
produced this guide and distributed it to all federal
Agencies so that all federal agencies could have the
same general skeleton about how to flesh out the
Telework Enforcement Act.
Q And the date on this?
A April of 2011.
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Q This was just before the Agency's first
substantive telework proposal to the Union?
A Correct.
Q Okay. Let me direct your attention to page
5, the fourth paragraph?
A The one starting telework arrangements?
Q Right. And would you start reading from the
second sentence of that paragraph?
A The one that starts part time schedules?
Q No. I'm sorry, third.
A Okay. "As with most aspects of the telework
program, federal Agencies have discretion to define the
types of arrangements and parameters for participation
within their telework policies and telework agreements.
In exercising this discretions, agencies should
consider individual employee needs while ensuring that
telework does not diminish employee performance or
Agency operations."
Q Okay. And page 6, the third paragraph?
A The one starting "It is important."
Q Yes. Start reading from the third sentence.
A "That being said, it is clear that the intent
of the laws on telework is to encourage Agencies to
allow employee participation in the telework program to
the maximum extent possible without diminished employee
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performance."
Q And page 12, the second bullet -- second
arrow from the bottom, but read the --
A "Opening. With regard to program operations,
the telework policy should establish that the
performance of teleworkers will be evaluated consistent
with the Agency's regular performance management system
(i.e., teleworkers should be treated the same as
non-teleworkers with regard to performance
management.)"
Q Page 24, the second paragraph. Could you
read --
A The one starting "Use good performance"?
Q Yes. The sentence after "use good
performance management practices."
A All right. It is -- whenever you're ready.
"It is important to note that performance standards for
teleworking employees must be the same as performance
standards for non-teleworking employees."
Q Okay. And on page 30, the third paragraph.
The first sentence reiterates that.
A "When implementing the telework program,
managers" -- okay.
ARBITRATOR ROSS: Where are we now?
THE WITNESS: The third paragraph.
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ARBITRATOR ROSS: At the top?
THE WITNESS: The third paragraph from the
top.
ARBITRATOR ROSS: Oh, the third paragraph
from the top. Got it. Okay.
THE WITNESS: Okay. "When implementing the
telework program, managers should keep in mind that
performance standards for teleworking employees must be
the same as performance standards for non-teleworking
employees."
JUDGE ZAHM: Okay. I move Union 28.
ARBITRATOR ROSS: It's received.
MS. SENOO: No objection.
(Union Exhibit 28 was received into evidence.)
BY JUDGE ZAHM:
Q Now, let me show you what's in evidence as a
Joint Exhibit, Joint Exhibit 4.
JUDGE ZAHM: Please, show the witness Joint
Exhibit 4.
BY JUDGE ZAHM:
Q And please direct your attention to page 9
under -- okay, page 9.L.3.
A 7.L.3?
Q Right. Start with the -- read the third
sentence, please.
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A The one starting "If."
Q Yes.
A "If the employer determines that a judge has
not scheduled a reasonably attainable number of cases
for hearing, then after advising the judge of that
determination and further advising the judge that his
or her eligibility to telework may be restricted, the
employer may limit the ability of the judge to telework
until a reasonably attainable number of cases are
selected or scheduled."
MS. SENOO: I'm going to make one objection
that misreading that line. It doesn't say his or her
eligibility to telework.
ARBITRATOR ROSS: Yeah. The ability.
THE WITNESS: Okay. All right. All right.
I'm sorry. I strike my misstatement.
BY JUDGE ZAHM:
Q Now, who first proposed the language -- that
language that ended up on page 9.L.3?
A The mediator factfinder, Ira Jaffe.
Q Okay. Tell us how that came about.
A All right. Well, we're getting back then to
the week of August 21st of 2012. And we had gotten to
the point where Mr. Jaffe had felt that he had
exhausted his talents as the mediator and that the
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parties were that entrenched in their positions, that
he then went from his mediator phase to his factfinding
phase.
And so he scheduled both sides to make their
formal presentations of their positions on the
remaining articles. And we did that for two days
during that week.
After we finished the formal factfinding
phase, then -- where we had produced our final version
-- our proposals and some briefing to support why we
were arguing what we were -- each side was arguing, he
then reverted back to his mediator phase.
And we -- we continued in the mediator phase
where he was engaged in the process of -- that I would
call shuttle diplomacy. The two sides were never
together in the same room. We were both in individual
caucus rooms and he was just shuttling Henry
Kissinger-esque from one room to the other.
And so it was -- we went even into Saturday
and we started at 9:00 a.m. on Saturday, the 25th of
August. And we went till after 7:00 p.m. doing this.
And it was at about 5:00 p.m. that day, a little bit
after 5:00 p.m. that day that, for the very first time,
he introduced this language in L.3 and in L.4 about the
seriously delinquent language to both sides as what he
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called a proposal.
And he finally then gave us a written version
of that language, his proposed language, at about 7:00
p.m. that night.
Q Okay. I'm going to stop you for a moment.
(E-mail from Ira Jaffe was marked Union Exhibit Number
29 for identification.)
BY JUDGE ZAHM:
Q I'm showing you what I'm marking as Union 29,
and ask you to look at the bottom of that page. And is
that the written document that Mr. Jaffe sent to you --
A It is.
Q -- that you've just described?
A It is. And he e-mailed it to Sid Fredericks.
ARBITRATOR ROSS: This is 29?
THE WITNESS: Union 29.
ARBITRATOR ROSS: From Mark Brown. I'm not
there yet. Oh, from Ira Jaffe. I see.
JUDGE ZAHM: Right.
ARBITRATOR ROSS: Okay.
BY JUDGE ZAHM:
Q And did Mr. Jaffe indicate that the language
that is at issue about reasonably attainable number of
scheduled cases came from him?
A He -- well, he didn't mention that in the
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e-mail itself.
Q Right.
A Other than in the subject line he says as
discussed.
Q Right. During those discussions did he
indicate that?
A Oh, during the discussions about an hour or
two before that, yes, clearly. He made it clear that
this was his proposal and, in fact, I allude to that
above in my e-mail at the top of the page.
Q And what is that e-mail at the top of the
page?
A All right. The -- it was an e-mail that I
sent that same night at about 8:47 p.m. to all of the
members of our National Executive Board of AALJ. And I
-- I sent it to them because I felt that this new Jaffe
language was so important that we needed to immediately
have a conference call, which we then held on the very
next day on Sunday August 26th. And we spent more than
an hour and a half on that conference call.
ARBITRATOR ROSS: We had a conference call?
THE WITNESS: We -- we -- the AALJ
educational -- not educational -- National Executive
Board. All of our officers, in other words.
BY JUDGE ZAHM:
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Q Okay. And in that e-mail to the National
Executive Board you state, "Please understand this is
not any language we have crafted or sought. It also is
not any language SSA has crafted."
ARBITRATOR ROSS: Where are you now? What
paragraph?
JUDGE ZAHM: First paragraph.
THE WITNESS: The one that says, "It's now
9:05 p.m."
ARBITRATOR ROSS: Got it.
JUDGE ZAHM: "Please understand."
THE WITNESS: About half way through that
first paragraph.
ARBITRATOR ROSS: Oh, "Please understand this
is." Okay.
BY JUDGE ZAHM:
Q And the end of the thought is rather it is a
"proposal" put in play by Jaffe to both sides. Was
that -- when you wrote that, was that accurate?
A Yes. It was -- that was hot off the presses.
I mean that was --
JUDGE ZAHM: Okay. I move Union 29.
MS. SENOO: I don't -- I have an objection.
I don't know that it's relevant to the issues we have
here. I mean I understand and Mr. Brown has talked
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about the fact that the factfinder made recommendations
that the Union did not agree with.
And that the Union did challenge those and
that ultimately the panel did order that -- that it be
accepted -- that the factfinder's recommendations be
accepted in their entirety. Well, that issue's been
litigated.
Really what we're here to talk about is Judge
Bice's memorandum, the Article -- Article 15, you know.
Again, I know that there was a disagreement of what was
ultimately imposed, but we've agreed as a Joint Exhibit
this is the language that was in place at the time
Judge Bice issued her memo.
So I don't think it's relevant or necessary
to go through this level of detail on the background
and the history.
JUDGE ZAHM: Negotiating history is relevant
to contract terms. I will be eliciting from Judge
Brown the fact that there was never any face-to-face
meeting with the Agency about this language and, in
fact, there was no representation by Mr. Jaffe that the
Agency could unilaterally set the specific number of
cases. So that's relevant.
ARBITRATOR ROSS: I guess the question is
when -- when did Ira Jaffe make a decision for purposes
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of the record that was given to both parties to say
that this is what's -- what we ought to do?
JUDGE ZAHM: Right. Well, I'm explaining how
it found its way into the factfinding report, which I'm
going over next, and what is written in there is
relevant to the view of the person who wrote it.
MS. SENOO: And I agree that the factfinder's
report is relevant and it is a Joint Exhibit that you
already have, Mr. Arbitrator. And so is the panel's
decision in order for that J 6 and J 7 so you have
those, you know, those final documents that speak for
themselves and speak to the issues. And so I don't
think that this preliminary e-mail is necessary.
JUDGE ZAHM: Well, I disagree because the
factfinding report calls it an Agency proposal. It was
not an Agency proposal. It was a proposal from
Mr. Jaffe.
ARBITRATOR ROSS: Hang on a second. This is
what the FLRA said. It says --
JUDGE ZAHM: The factfinding report says --
calls it an Agency proposal.
ARBITRATOR ROSS: I mean the factfinding
report is the FSIP. I just need to make sure I'm --
JUDGE ZAHM: The factfinding report and then
there's an FSIP report. They're both separate
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documents.
ARBITRATOR ROSS: So the factfinding report
is --
MS. SENOO: J 6.
ARBITRATOR ROSS: J 6?
MS. SENOO: Yes.
ARBITRATOR ROSS: Okay. Let me check that
first. And that was Ira's?
MS. SENOO: Yes.
THE WITNESS: Correct.
JUDGE ZAHM: Yes.
ARBITRATOR ROSS: J 6. And that was this one
here, right?
MS. SENOO: Yes.
ARBITRATOR ROSS: Okay. And where in this
one does it say? Just give me a page number.
JUDGE ZAHM: Page 27.
ARBITRATOR ROSS: Okay.
JUDGE ZAHM: The length between scheduling
hearings and the ability to telework.
THE WITNESS: Toward the top of the page.
JUDGE ZAHM: Right.
ARBITRATOR ROSS: The link between scheduling
a hearing and so we want to get down to the Agency
proposal is based --
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JUDGE ZAHM: Yeah.
ARBITRATOR ROSS: -- on its position, okay.
Let's see. Telework is not a legal right. So is it in
here?
JUDGE ZAHM: Well, it calls -- the
factfinding report calls the language an Agency
proposal. It was not an Agency proposal initially. It
was Mr. Jaffe's proposal.
ARBITRATOR ROSS: Yeah. And that's what this
is, right? The Agency proposal?
JUDGE ZAHM: Yeah.
ARBITRATOR ROSS: And that is --
JUDGE ZAHM: In effect, it was Mr. Jaffe's
proposal and to support that I am showing the e-mail
that was written contemporaneously, both by Mr. Jaffe
and then by Judge Brown, as to where the language came
from. The language came from Ira Jaffe and the Agency
then adopted it.
MS. SENOO: Mr. Brown testified to --
THE WITNESS: It says Judge Brown, with all
due respect, Counselor.
MS. SENOO: Judge Brown testified that he --
the e-mail speaks for itself and it says as discussed.
He testified about what happened during the -- so, you
know, it's to the extent that he's already testified
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about that, then that evidence the arbitrator will
have.
But the e-mail, itself, doesn't say for Mr.
Jaffe, here is the language that I propose. It says as
discussed to the extent that Judge Brown wants to
explain that based on his experience being there and
being a part of that process, he can do that.
JUDGE ZAHM: I believe it supports his
testimony.
ARBITRATOR ROSS: Okay. Well, that's going
to be a determination for me to make after --
JUDGE ZAHM: Exactly.
ARBITRATOR ROSS: -- considering the
testimony. But I understand your position, I
understand your position, both sides.
Okay. Hang on just a second. Okay. And 29
is basically Ira's decision for factfinding. Is that
fair, you say?
JUDGE ZAHM: Close. Close, not exactly, but
pretty close.
THE WITNESS: It was tweaked a little bit
subsequently.
JUDGE ZAHM: Only to clarify.
THE WITNESS: It's a skeleton.
JUDGE ZAHM: Only to clarify.
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MS. SENOO: This is the e-mail you're
referring to, U 29, or are you looking at the
factfinders report?
ARBITRATOR ROSS: I'm looking at the
factfinder's report.
MS. SENOO: Well, that's J 6, right? I want
to make sure we're not getting confused with the
numbers.
ARBITRATOR ROSS: That's J 6. I just want to
see how -- how Ira dealt with this.
JUDGE ZAHM: I will be pointing out things in
the factfinder's report.
ARBITRATOR ROSS: Okay. We can wait for
that.
JUDGE ZAHM: So is that admitted?
ARBITRATOR ROSS: It's -- I've received it,
yes.
JUDGE ZAHM: Okay. Okay.
(Union Exhibit 29 was received into evidence.)
BY JUDGE ZAHM:
Q So the first time this language was written
down and you saw it, it came from Mr. Jaffe?
A Yes. Mr. Jaffe is the one who reduced this
to writing and even proposed it.
Q And with regard to the language, let's go
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back to the Joint --
A 4 --
Q 4. Look at page 9?
ARBITRATOR ROSS: Hang on. Joint 4?
THE WITNESS: Joint 4, which is the telework
article.
ARBITRATOR ROSS: Got it. Oh, okay.
BY JUDGE ZAHM:
Q 7.L.4, there's language about seriously
delinquent cases.
A Correct.
Q And where did that language come from?
A Again, it -- it came from Ira Jaffe at the
same time, on the same day at -- after 5:00 p.m. on
August 25th of 2012.
Q Okay. And if you look at U 29, is that the
first full paragraph on the second page?
A Correct.
Q Okay. The Agency ever give you any such
language?
A The --
ARBITRATOR ROSS: One second. Let me make
sure I'm keeping up with you now. All right. Now,
we're talking about the seriously delinquent?
THE WITNESS: Yes. The L.4 paragraph and
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that's -- tracks the second page of the Jaffe of U 29.
ARBITRATOR ROSS: Page 2 of U 29, right?
THE WITNESS: Yes.
ARBITRATOR ROSS: And let me just see that.
THE WITNESS: It's the second -- the full
paragraph.
ARBITRATOR ROSS. The full paragraph. Let's
see. Okay. And did you refer to Ira's -- Mr. Jaffe's
view of that and how it relates?
JUDGE ZAHM: Yes. And it's in the
factfinding report, yes.
ARBITRATOR ROSS: Okay. Can you show us
where that is?
THE WITNESS: Show you where which is? I'm
not sure I understand your question.
ARBITRATOR ROSS: The seriously --
THE WITNESS: Delinquent?
ARBITRATOR ROSS: -- delinquent.
THE WITNESS: All right. First of all, on U
29, the serious delinquent language first appeared on
the second page of U 29 which was Jaffe's proposal.
ARBITRATOR ROSS: That's what I'm asking.
THE WITNESS: Yes. Yes, that's --
ARBITRATOR ROSS: So let's see where that is.
THE WITNESS: That's on the second page of
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the Jaffe e-mail. And then --
ARBITRATOR ROSS: That's not the Jaffe -- oh,
oh, of his e-mail.
THE WITNESS: Yes, yes.
ARBITRATOR ROSS: I see what you're saying.
Okay. Hang on just a second. Let me -- okay, and
where from there?
THE WITNESS: Okay. So very simply, if you
look at U 29 --
ARBITRATOR ROSS: Oh, this is Ira's --
THE WITNESS: Yeah. Yes. So his first
paragraph in U 29 became basically L.3, and his second
paragraph in U 29 basically became L.4. It's the
simple way of tracking it.
ARBITRATOR ROSS: Okay.
BY JUDGE ZAHM:
Q And did you have any face-to-face discussions
with Agency negotiators about what the language that
Mr. Jaffe had proposed, that ended up as 7.L.3 and 4 in
Article 15 meant?
A No. We -- I was never -- I never had --
after -- after U 29 was generated, I never had
face-to-face discussion with Agency bargainers on the
meanings, the definitions of those phrases.
Q And did Mr. Jaffe ever say to you that this
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language meant that the Agency could unilaterally
implement minimum numbers of cases to be scheduled as
being reasonably attainable?
A No. No, he did not.
Q Did he ever define what reasonably attainable
meant?
A No. And that was one of our complaints to
him that there was no definition. One of the reasons
we were opposing his proposal.
Q And what about seriously delinquent? Did you
ever have any discussions about what seriously
delinquent meant?
A Not with Agency bargainers. Certainly, I
also complained to Jaffe that the term seriously
delinquent had no definition and that we, the Union,
were concerned with the latitude, the openness of that
-- it would leave the Agency with as far as how the
Agency was going to try and interpret that language and
use that language.
Q Okay. Did he ever say the Agency had a right
to set a specific number of cases to be scheduled for
hearing and that the Union won't be able to do anything
about that?
A Absolutely not.
Q Okay. In fact, didn't he provide a means for
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the Union to contest the Agency's setting of a figure
that the Union considered not to be reasonably
attainable?
A He did.
Q And what did he do?
A Well, again, if you look at U 29, the last
sentence in each of his two paragraphs says that the --
and it's an identical sentence -- "The parties agree
that any dispute as to whether the Agency has properly
restricted the ability to telework under this paragraph
is to be resolved pursuant to the negotiated grievance
and arbitration procedures."
Q Now, let me --
JUDGE ZAHM: Could we show the witness
Joint Exhibit 6, please?
BY JUDGE ZAHM:
Q It's the factfinding report.
A Okay. Looks like this.
Q And was the upshot of all of the factfinding
process that Mr. Jaffe issued a report?
A Yes.
Q Okay. And that's the report you mentioned
before was generated in October 2015 --
A Correct.
Q -- wait a minute, 2012?
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A Correct. Yes.
Q Okay. And after Mr. Jaffe proposed the
language which is at issue, the language in his e-mail
to you and to the Agency, regarding 7.L.3 and 4, did
you Agency decide to adopt it?
A They did.
Q Okay. Let me direct your attention to page
27 of the factfinding report?
A Okay.
Q And does -- is there language in there
indicating that now the Agency is proposing this
language?
A Yes.
Q Okay. Could you read the first sentence
underneath the link between schedule hearings and the
ability to telework?
A Yes. It says, "The most significant Article
15 dispute between the parties pertains to the
following two new Agency proposed sections 7.L.3 and
7.L.4."
Q Okay. Now skip down to the last paragraph
after the language at 7.L.3 and 4. Same page, just the
bottom. And start reading from "The Agency wishes."
A All right. "The Agency wishes to provide an
inducement for each judge to schedule a reasonably
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attainable number of cases for a hearing." And then
there's a footnote. "And to encourage judges to take
appropriate action to ensure that cases do not remain
seriously delinquent when in a controlled status that
is controlled by the judge."
Q Okay. And that footnote, does it talk about
scheduling or requiring a minimum number of cases in
order to telework?
A No. What is says is, "It is worth noting
that this is not an attempt to condition the ability to
telework on a minimum number of case dispositions
(i.e., goals) or adherence to case processing and
benchmarks. Further, the concepts of reasonable
attainability in the scheduling of hearings and the
timely movement of cases meant judicially controlled
status involved individualized determinations, taking
into account all of the facts relevant in the
particular judge's case."
Q Okay. Well, taking into consideration?
A Yes.
Q Okay. And --
A In fact, I'm speaking --
Q It doesn't count.
A Okay. I'm sorry.
Q Same thing, but a different word.
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A Yeah, okay.
Q And so did Mr. Jaffe, in effect, write that
what is reasonably attainable depends on individual
situations?
A He did.
Q And that minimums are not appropriate?
A He did.
MS. SENOO: Objection. Mischaracterizes the
testimony and leading the witness.
JUDGE ZAHM: Well, you've read it, so...
THE WITNESS: And it says --
ARBITRATOR ROSS: Hang on just a second.
THE WITNESS: It says what it says.
ARBITRATOR ROSS: What's the basis for the
objection?
MS. SENOO: That it mischaracterized what the
witness had testified to and it was also leading the
witness in terms of an answer.
ARBITRATOR ROSS: How so?
MS. SENOO: Because she was basically
summarizing and testifying and then asking him if he
agreed rather than lifting the testimony from the
witness.
ARBITRATOR ROSS: Well --
MS. SENOO: And the document speaks for
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itself. What -- the question she asked was did the
document -- did Mr. Jaffe essentially say that minimums
were not appropriate. I think that mischaracterizes,
one, what J 6 says and also was not testimony provided
by Judge Brown.
JUDGE ZAHM: I actually agree with that
objection.
THE WITNESS: So you withdraw the question?
JUDGE ZAHM: Yes, I withdraw the question.
ARBITRATOR ROSS: Yeah. Well, there's an
interpretation to be made there. Okay, I admit it.
JUDGE ZAHM: Okay.
BY JUDGE ZAHM:
Q How did you interpret what you just read?
A Well, I think the only reading that I can
come to is that he said that his language, which the
Agency adopted, was not an attempt to condition the
ability to telework on a minimum number of case
dispositions in black and white.
Q What did he say about -- what's your
interpretation of his statement about the concepts of
reasonable attainability?
A Well, he, clearly, in that footnote,
recognized that reasonable attainability was going to
be an individualized determination depending upon all
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the factors involving a particular judge and what's
going on in their offices or with their cases?
Q Okay. Let's take a look at page 28. The
very last paragraph on that page.
A The one that started off "Second?"
Q Yes.
A Do you want me to the read that?
Q Yes.
A "Second, this new language does not purport
to resolve the parties long-standing disputes regarding
goals and benchmark." Do you want me to go on?
Q Yes.
A "The record failed to establish whether the
existing goals being communicated by the Agency to the
judges, either on their face or as applied, are
appropriate and attainable or, as applied, take into
consideration all of the individual facts specific in
case specific factors that may" -- be -- "affect the
scheduling number of dispositions and the timeliness of
decisions."
Q So in this paragraph, did Mr. Jaffe come down
on the side of the Agency to impose goals and
benchmarks?
A He did not.
Q And what did he say about whether or not
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those goals are appropriate or attainable? What must
be taken into consideration?
A Well, basically all the variables and
recognizing that things change from office to office,
parts of the country to parts of the country.
Q Okay. Now, let's take a look the paragraph
that begins with the word "Third."
A On page 29?
Q Yeah. Page 29. Starting at about the middle
of the paragraph with "Section 7.L.3 allows the
Agency."
A "Section 7.L.3 allows the Agency to limit the
ability of a judge to telework when the Agency has
determined the judge has failed to schedule a
reasonably attainable number of hearings. The standard
of" -- reasonably -- "of reasonable attainability is
not defined, but is expected to be a situation
specific, taking into account all relevant and
appropriate factors."
Q Okay. That's fine. So if the Agency
established minimum numbers of cases to be scheduled
per month, would that fit what Mr. Jaffe wrote?
A It would not.
MS. SENOO: Objection. Mischaracterizes J 6.
ARBITRATOR ROSS: Hang on. Well, I think
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it's an argument they're making that you can respond
to.
BY JUDGE ZAHM:
Q Let's take a look at the very last sentence
in that paragraph starting with "The link."
A Okay. Do you want me to read that?
Q Yes.
A Okay. All right. "The link between timely
processing of cases and the status controlled by the
judge and the ability to work telework is the
expectation that being absent from the office on
telework is not diminishing employee performance or
Agency operations."
Q So if an employee was in the office --
withdraw that.
Read the paragraph starting "Fourth." That's
right at the bottom of the page.
A Okay. On page 29. "Forth, the language in
Section 7.L.3 and 7.L.4 specifically allows the Union
the opportunity to grieve and arbitrate the propriety
of any action taken, including whether the Agency
correctly determined that the judge had failed to
schedule a reasonably attainable number of cases or has
seriously delinquent cases in a judge controlled
status."
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Q Okay. Does this sentence limit the Union's
-- the Union's opportunity to grieve and arbitrate an
Agency action only to whether the Agency correctly
determined that the judge had failed to schedule a
reasonably attainable number of cases?
A No.
Q In fact, does it anticipate that there would
be more opportunities to grieve and arbitrate the
propriety of any action separate and apart from whether
or not the Agency correctly determined that any
particular judge had failed to schedule a reasonably
attainable number of cases?
A No. It says specifically that it allows the
Union the opportunity to grieve and arbitrate the
propriety of any action taken. And then it went on to
say including and gave a couple of examples.
Q Okay. Let's take a look at page 31, please?
ARBITRATOR ROSS: Hang on just a second.
JUDGE ZAHM: Okay.
ADMINISTRATOR ROSS: Okay. Where are we now?
Page 31?
JUDGE ZAHM: Page 31.
BY JUDGE ZAHM:
Q There's one real big long paragraph on that
page. Let me direct your attention to the middle of
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that paragraph starting with "The provisions." Would
you read that sentence, please?
A "The provisions of 7.L.3 and 7.L.4, however,
contain no unattainable or unrealistic goals, either in
terms of the volume of cases disposed of or the time in
which the cases are to be processed or issued."
Q Keep going.
A "Nor is this a case of providing an arguably
improper 'incentive' for particular performance.
Judges are not granted the right to telework as an
incentive for meeting or exceeding particular
benchmarks or goals. Rather, the Agency is permitted
to limit telework based upon criteria set forth in the
Telework Enhancement Act of 2010."
Q So Mr. Jaffe says that the Agency can limit
telework only based on the criteria set forth in the
Telework Enhancement Act of 2010?
MS. SENOO: Objection.
ARBITRATOR ROSS: Is she asking a question?
MS. SENOO: But she is mischaracterizing what
the J 6 says.
ARBITRATOR ROSS: Do you want me to respond
to it?
THE WITNESS: I can say that -- that what
Jaffe said specifically in black and white is, "Rather,
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the Agency is permitted to limit telework based on
criteria set forth in the Telework Enhancement Act of
2010."
ARBITRATOR ROSS: That's your response.
THE WITNESS: All right. If you want to
rephrase the question, I thought that was the answer
you were -- I thought that answered the question you're
asking. If I misunderstood your --
BY JUDGE ZAHM:
Q Does Mr. Jaffe indicate that the Agency is
permitted to limit telework based on any other
criteria?
A Certainly not in this part of his report.
And that, again, he's -- he's -- he's made references
several times to the fact that this is -- does not
permit the Agency to limit telework.
Q Let me just direct you back to the provision
-- the sentence about the provisions of Sections 7.L.3
and 7.L.4. Does Mr. Jaffe say that those provisions
contain no unattainable or unrealistic goals?
A He does.
Q One minute please.
ARBITRATOR ROSS: Hang on just a second.
BY JUDGE ZAHM:
Q Now, did there come a time when the Agency
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managers sought to talk to the Union about the memo
which Judge Bice put out on February 18th, 2014, which
is Joint 5, before that memo was issued?
A Yes. Yes. Yes.
Q Okay. And --
A That would have been in January of 2014.
Q Okay. Let me show you what I'm going to mark
as Union Exhibit 30.
A So this is your copy as opposed to one that
formerly marked copies. Yeah. I was trying to keep
things separate in the report.
(E-mail issued by a Judge Bice on January
22nd of 2014 was marked Union Exhibit Number
30 for identification.)
BY JUDGE ZAHM:
ARBITRATOR ROSS: Union 30. We're taking a
break.
(Whereupon, a brief recess was taken and the
following took place.)
BY JUDGE ZAHM:
Q I'm going to show you what I marked as Union
30 and ask you if you recognize that?
A I do.
Q And what is that?
A It's an e-mail issued by a Judge Bice on
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January 22nd of 2014, and it was to a group of -- of
people that were identified as invitees only. And it
was for the purpose of getting together on a conference
call. And so the -- do you want me to talk about who
the parties this was sent to or what do you want me to
get to?
Q Yeah, go ahead.
A Okay. So James Julian was, at the time, an
associate commissioner for something called EOR which
stands for Office of -- let me think about this for a
second -- Emergency and Human Relations Operations or
something like that. Executive -- Office of Executive
and Human Relations Operations, I believe, is what it
stands for. Randy Frye, of course, is --
ARBITRATOR ROSS: Is that a bargaining unit
position?
THE WITNESS: No. It was -- it's kind of
associated with HOCALJ. I'm not sure. Maybe it's
lateral, but it's in there.
JUDGE ZAHM: I think Mr. Ross meant is James
Julian a bargaining unit member.
THE WITNESS: Oh, no. Oh, no, no. Oh, no.
He was an associate commissioner. He's clearly a
management person.
ARBITRATOR ROSS: Okay.
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THE WITNESS: In fact, he's the one who
contacted me first with an e-mail trying to set up this
conference call.
Randy Frye, of course, is the president of
our Union. Marilyn Zahm, of course, you know. Dale
Glendenning was the secretary of our Union and had been
on our bargaining team. Of course, I'm Mark Brown.
John Allen is the deputy chief judge. And Douglas
Whatley is a member of LMER, the Office of Labor
Management Employee Relations and he was one of the
members of the Agency bargaining team on the CBA.
JUDGE ZAHM: I'm moving Union 30 into
evidence.
MS. SENOO: No objection.
ARBITRATOR ROSS: It's received.
(Union Exhibit 30 was received into evidence.)
BY JUDGE ZAHM:
Q Now, if you read this document, it shows that
Judge Bice was proposing that the judges schedule 50
cases for hearing per month and -- if you want to
telework. And scheduling -- I'm sorry -- and providing
that cases had to be in certain judge controlled
statuses, for instance, and signed 10 days and in ARPR.
A For no more than ten days.
Q No more than 10 days and then ARPR, ALPO,
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edit or other ALJ controlled statuses for no more than
30 calendar days. Otherwise, they would be considered
seriously delinquent.
A Correct.
Q Did the language of this e-mail end up in the
February 18th, 2014, memo that Judge Bice promulgated,
which is J 4?
A To J 5. In general, yes. But J 5 changed
some of the timelines.
Q Okay. Did it have a ramp-up period?
A Yes. What it -- it started with lower
numbers in effect and if you look at page 2 of J 5, it
describes April of 2014 to September of 2014 in the
middle of page as being a start-up period where,
apparently, the Agency was not trying to impose any
numbers at all one way or the other in these categories
of reasonably attainable or seriously delinquent.
But then in October 14 to March of 2015, it
-- for scheduling, it was using 40 or more scheduled
hearings as being what the Agency was going to consider
as being reasonably attainable.
And then effective April 15 to September of
2015, suddenly 40 was no longer reasonably attainable.
It was now going to be 45 that they were going to
determine as being reasonably attainable as far as
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scheduling.
And then in October of 2015 and continuing,
suddenly the number was jumping five cases a month to
50 or more with --
Q Okay. What about seriously delinquent?
A And from the seriously delinquent, if you go
to page -- although it's -- well, the numbering on --
it's actually the third page of this exhibit, although
at the bottom it's numbered as page 5 of this Exhibit.
Well, this -- I think this came from management so...
All right, but moving on.
When you look at this chart, again, it has a
timeline. It speaks for itself, but it gradually
increases these seriously delinquent terms -- or
decreases -- it cranks it down, in effect.
Q And what are the final ones?
A Well, for October 2015, continuing it for
sign it says 10 days or greater. Edit, it says 30 days
or greater. For ARPR, ARFL and ALPO and ALFL it's 30
days or greater. Hopefully, someone else has explained
what ALFL and ARFL are.
ARBITRATOR ROSS: No. I thought one was dog
food but --
BY JUDGE ZAHM:
Q So when Judge Bice wrote this memo on January
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22nd, 2014, setting out 50 scheduled cases for hearing
and 10 days for sign and 30 days for seriously
delinquent ARPR, ALPO or edit, that's where she ended
up in that memo. Is that correct?
A Correct.
Q And did the Union ever agree to these figures
--
A No.
Q -- numbers?
A No.
Q Okay. Did we object to them?
A We did.
JUDGE ZAHM: I have no further questions.
ARBITRATOR ROSS: Okay. A few minutes or you
are ready to go?
MS. COLLICK: A couple minutes.
JUDGE ZAHM: We still on the record? We're
off the record?
ARBITRATOR ROSS: No, we're on.
JUDGE ZAHM: Oh, then, I'll wait.
ARBITRATOR ROSS: Well, you want to put
something on the record?
JUDGE ZAHM: Yeah. I would move admission of
22, 23, and 24.
MS. SENOO: And the Agency has a standing
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objection.
ARBITRATOR ROSS: Yes. Okay. Hang on just a
second. Exhibits 22, 23, and 24?
JUDGE ZAHM: Correct.
ARBITRATOR ROSS: And I've noted the Agency's
objection as well. They're received.
(Union Exhibits 22, 23, and 24 were received into
evidence.)
(Whereupon, a brief recess was taken and the
following took place.)
ARBITRATOR ROSS: Okay, we're back on the
record.
CROSS EXAMINATION BY MS. COLLICK:
Q Judge Brown, good afternoon. My name is
Aminah Collick. I'm one of the other Agency
representatives in this matter. A few questions for
you. You testified, I believe, that you are a judge in
the St. Louis hearing office?
A Correct.
Q Is that correct? Okay. And you testified
that you were previously a HOCALJ. Is it fair to say
that you're no longer the HOCALJ for that office?
A That's very fair to say.
Q And you would be what they describe as a line
ALJ at this time?
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A Correct.
Q We heard some testimony earlier today about a
LAR or a person that was described as being a LAR.
A Yes.
Q Are you familiar with that term?
ARBITRATOR ROSS: I don't remember that.
What -- L-A-R?
MS. COLLICK: L-A-R.
THE WITNESS: It stands for local association
representative.
ARBITRATOR ROSS: That would be like a Union
official?
THE WITNESS: That's like a shop steward, in
effect. We try to have an LAR in all 165 or so of the
whole ODAR offices.
BY MS. COLLICK:
Q Is there generally one per hearing office?
A Yes. There's only per hearing office. In
some offices, we do not have an LAR and in those cases
the regional vice-president serves as the acting LAR.
Q And what do LARs generally do in terms of
their -- their Union duties?
A Well, there are kind of the point of contact
for the Union if -- a judge has a concern about
something in that particular office. The other line
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judge can go and talk to the LAR and if the LAR is not
familiar enough with the particular relevant language
in the CBA, the LAR will then get in touch with the
vice-president. And the vice-president will then get
back to him.
Or another example is we -- every six months
there's supposed to be a safety inspection of the
office and so the LAR is the one who will go around on
the safety inspections. It's things of that nature.
We -- that's the type of things they do.
Q Okay.
A If an office is going to move, the LAR will
serve on the AALJ bargaining -- one of the people on
the AALJ bargaining team about the terms of the move.
So it just depends on what's going on in the office.
Q You testified earlier that in around November
of 2009, labor and management started exchanging
letters about reopening the bargaining of the 2001
Collective Bargaining Agreement.
A Correct.
Q And that -- that was reopening the bargaining
of the entire agreement?
A Correct.
Q You went through the timeline of how that
process took place and how the -- Mr. Jaffe became
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involved. Will you testify about a period of time
during which you were working with Mr. Jaffe, the
factfinder, where it became what you described as a --
what was the term you used? Where he was sort of
shuttling back and forth? Do you --
A Yes.
Q -- recall that --
A Yes.
Q -- today? Could you explain in a little more
detail about how long that shuttling process, for a
lack of a better word, lasted? How many days out of
the total period and...
A Well -- it -- what -- I'm dusting off cobwebs
here now. I believe that even before the week of April
21st, there may well have been times that he was
shuttling between the two sides. And then there would
be times where he would think that it would be good to
bring the parties together for face-to-face on a
particular matter.
And then we would revert to shuttling back
and forth again on other things until he thought we
might be close enough that if we got in a room
together, we may be able to finally resolve whatever
was an issue on a particular article.
So I think that was going on even earlier in
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August and maybe it could have been happening in July.
You know, I just can't remember.
ARBITRATOR ROSS: You say it was going on
with regard to a lot of the issues.
THE WITNESS: Correct, correct, correct,
correct. And as I said, we finally came to agreement
and signed off on four of the seven -- of the 11
articles, too.
I -- I just can't -- it's just, you know, it
was spread out over so much time, I can't tell you
exactly when he started it. So --
BY MS. COLLICK:
Q Would you stop? Let me ask this question.
You started with -- working with Mr. Jaffe on what time
period?
A He was selected in April. I think the first
time we actually physically met him was in May. We
exchanged e-mails before that, but I think the first
time we actually met with him in person was in May of
2012.
Q 2012, Okay. And what was the last date on
which you met with Mr. Jaffe?
A The last date on -- I -- I know that I
physically met with Jaffe in person on that Saturday,
August 25th. It is possible that I met with him on the
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following Monday, but I cannot guarantee that off the
top of my head. It was one of the two.
Q Okay. And this is still 2012, correct?
A Correct. Correct.
Q Did the management representative also meet
with Mr. Jaffe on August 25th, 2012, if you know?
A Certainly they would have been there. That's
when he was in what I characterized as the Henry
Kissinger mode, yes.
Q So there was never a time when Mr. Jaffe was
meeting with one side or the other without the other
side being present somewhere around?
A Correct. In their individual caucus rooms,
yes.
Q And again you were dealing with not just
Article 15 at that time, correct?
A In the last week of August, correct. We were
dealing with multiple things. Multiple things were
still an issue.
Q You also testified about and we have
Joint Exhibit J 6 and J 7 which illustrate that
Mr. Jaffe ultimately did write a report and that the
panel ultimately decided to adopt his recommendations
in their entirety, correct?
A Correct.
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Q And that's reflected in J 6 and J 7?
A Correct. Yeah. I just to the locate them to
make sure I knew what you were talking about.
ARBITRATOR ROSS: And what one was it that --
THE WITNESS: J 6 was Jaffe's recommendations
and -- findings and recommendations dated October 15 of
2012, that looks like this.
ARBITRATOR ROSS: Yeah. Absolutely. I'm
just asking. The question sort of went over my head.
MS. COLLICK: Oh, I'm sorry. I was sort of
looking away as I was saying it.
ARBITRATOR ROSS: No problem. No, no.
MS. COLLICK: I apologize.
THE WITNESS: And then J 7 was the FSIP
decision dated April 30th, 2013.
ARBITRATOR ROSS: Okay. But what was the
question?
BY MS. COLLICK:
Q My question -- my next question is, you
testified about in September 2013, September 30th,
around the time of the government shutdown, I think is
what you said, the Agency sent the Union a letter to
say that they were, I think the word you used, was
imposing Article 15?
A Yeah. It was an e-mail from Associate
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Commissioner Thomas Funciello and he said that the
Agency was imposing the 11 articles that went to FSIP
and which the FSIP ended up issuing that decision and
order that's reflected in J 7.
Q And you used the word imposing not
implementing?
A Implementing, I think, is the verb that he --
I'd have to see the e-mail again. I think it was
implementing is the verb he used.
Q And that was in September 2013, so it was
after the panel's April 30th, 2013, decision and order?
A Correct.
Q You also testified about the fact that
management and the Union continued negotiating some
articles of the collective bargaining agreement even
after the panel's decision and order. Is that correct?
A Yeah. And maybe negotiated is not the
accurate word. The sides recognized that, as time
passed, things had changed. And so we had
conversations and we finally came to a settlement
agreement dated October 9 of this year where we tried
to clean up some of those realities and address some of
those things that had changed over the passage of time.
And my example was the VPN one as being a simple
example.
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Q Okay. So and it wasn't -- did it involve
this particular section of Article 15 that we have been
talking about today, which is the accountability --
A Reasonably attainability, no. No. That was
not one of the things.
Q And I'm just going to repeat my question just
so that the court reporter can get it down all the way.
So these discussions that labor -- that management and
the Union have been having after September 2013, have
not involved Article -- Section 7.L of Article 15 of
the collective bargaining agreement. Is that correct?
Which is known as -- which is labelled as the
accountability section.
A I don't -- I don't have the October 9, 2015,
document in front of me at the moment. I don't believe
that that addressed the reasonably attainable or
seriously delinquent definitions. If that's what the
question is.
Q Okay. Thank you. Judge Brown, I'm going to
refer you to what has been entered, I believe, as U 27.
A Let me see if I've got a copy of that
article. Okay. The Telework Enhancement Act of 2010?
Q Yes.
A Yes. Okay.
Q And this -- as you testified earlier, this
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was a statute that was passed in 2010 by Congress,
correct?
A And signed by the president.
Q Signed by the president. And this act
required federal agencies to have a policy that allowed
employees to telework. Is that correct?
A Correct.
Q And the Act also provides some guidance to
federal agencies about how to establish policies --
that type of policies?
A To some extent, the Act did and more detail
came out with the OPM guidance that was related to that
-- that flowed from this.
Q And you testified earlier about -- I'm going
to call your attention back to Section 6502.b, which is
on page 2 of U 27.
A Correct.
Q Under participation, which is b, and then one
says, "Ensure that telework does not diminish employee
performance or Agency operations"?
A Correct.
Q Do you interrupt that language to mean that
the federal Agency's telework policy should not
diminish the employees -- the work that the Agency
needs to get done?
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A Yes, yes.
Q And do you interpret that language to mean
that an Agency's telework policy should not -- or that
an Agency employee who's teleworking should not
diminish their performance because of their telework?
A Yes. I agree with that.
Q Administrative law judges do not receive
performance appraisals. Is that correct?
A Correct. It's forbidden by the ATA. It's
also precluded by our CBA.
Q You mentioned the OPM guidance which is --
has either been entered as U 28?
A Correct.
Q And that came out in April 2011?
A Correct.
Q I'm calling your attention to page 6 of the
telework guidance or page 6 of the copy I think that we
all have.
A Okay.
Q At the top it says Telework Guidance by
Audience Federal Agency/Telework Managing Officers.
Are you with me?
A Yes, yes.
Q Under telework fundamentals, the second full
paragraph?
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A The one that says it is important?
Q Yes. Would you read that first sentence that
you started off with?
A "It is important to understand that telework
is not an employee right, i.e., federal law requires
the Agency to establish telework programs but does not
give individual employees a legal right to telework."
Q Did you understand that to be an accurate --
did you understand that to be what the Telework Act --
strike that.
Do you think -- is that an accurate statement
of the Telework Act, that telework is not an employee
right?
A I agree with that sentence in U 28 from OPM.
In fact, I believe -- I have to go back and look at the
Act itself. I think the Act itself may say that. But
I'd have to look at it again?
Q Had you -- did you review the Act -- the
Telework Act before you participated in negotiations
with management regarding a new telework program or
Article 15?
A Certainly.
Q Did you read and review this OPM -- this
April 2011 OPM guidance before you participated in the
negotiations regarding Article 15?
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A I -- yeah, I reviewed that. I also reviewed
the presidential executive order on point.
Q And, in fact, Article 15 which is J 4 --
A Yes.
Q -- Section 1 of Article 15. The last
sentence of that section states, "Teleworking is not a
right, but is a benefit that expands work options for
judges for whom this type of arrangement is
appropriate."
ARBITRATOR ROSS: Where are you reading from
now?
MS. COLLICK: I'm reading from Section 1 of J
4.
THE WITNESS: J 4.
ARBITRATOR ROSS: Let me find that. Which
would be?
MS. COLLICK: The last sentence.
ARBITRATOR ROSS: I'm sorry?
MS. COLLICK: The last sentence.
ARBITRATOR ROSS: The last sentence? Of
what?
MS. COLLICK: J 4. First page.
ARBITRATOR ROSS: Okay. Got it.
BY MS. COLLICK:
Q So that part of Article 15 is consistent with
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-- the Act -- the law?
A That -- I've been looking at U 27 and my
recollection is that sentence or that concept is in the
Act itself. I've just been looking at the Act and I
haven't come upon it yet. I've been scanning that
while we've been -- it's certainly it's consistent with
the OPM guidance in U 28.
Q Also in that same Section 1 under purpose, it
starts off stating that, "The purpose of this article
is to establish a uniform telework program that permits
judges to perform work at an employer approved
alternate duty station (ADS)."
A Correct.
Q Then it says, "This telework program replaces
all other flexiplace and/or telework programs
instituted by the employer."
A Correct.
Q So the prior versions of Article 15 or the
prior flexiplace program that was in place have been
replaced by what we have here as J 4?
A Correct.
Q While we're on this very first page of
Article 15, if you'll take a look at Section 2, which
is labelled as a definition section.
A Okay.
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Q Do you see where I am?
A Yes.
Q Okay. And these are definitions that apply
to Article 15 or --
A Correct.
Q This Section 2 does not include a definition
for the phrase reasonably attainable, does it?
A It does not.
JUDGE ZAHM: I'm sorry, what --
THE WITNESS: The definitions doesn't contain
the definition for reasonably attainable.
BY MS. COLLICK:
Q And similarly, Section 2 of Article 15 does
not contain the definition for the phrase seriously
delinquent case?
A Correct.
Q Going back to the time period when you were
working with Mr. Jaffe -- is it Jaffe or Jockey?
A Jaffe.
Q Jaffe. May through August 2012, time period,
you indicated that you hadn't -- the first time you had
saw the terms reasonably -- reasonable -- reasonably
attainable was when you received Mr. Jaffe's e-mail on
August 25th, 2012?
A Correct.
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Q Okay. Prior to that -- to that date --
JUDGE ZAHM: Wait. Could you -- I'm sorry.
MS. COLLICK: Sure.
JUDGE ZAHM: I'm old and it's late. Tell me
that again. I missed that.
BY MS. COLLICK:
Q You testified that you had not previously
seen the term or phrase reasonably attainable until you
received Mr. Jaffe's e-mail of August 25th, 2012, which
has been entered as --
A I don't have a copy of it here in front of me
right now, but the answer is --
Q -- as U 29.
A Correct. That's the first time I saw that
terminology.
JUDGE ZAHM: You mean during negotiations or
you mean ever in his life?
MS. SENOO: In the context of the Agency's
telework program.
THE WITNESS: The new Article 15. Yes. That
is correct, still.
BY MS. COLLICK:
Q Prior to August 25th, 2012, did you ever have
any discussions with Mr. Jaffe during the negotiation
process about Section 7.L?
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A Section 7.L didn't exist prior to that date.
Q Did you have any discussions with Mr. Jaffe
about the concept of an employee's accountability for
doing their Agency work?
A The -- prior to Mr. Jaffe uttering his
proposal to both sides on that Saturday, there just was
no language in this area. The Agency version had
language which was even more open and broad than
Jaffe's language.
Q Well, not even just specific language, but
did you have discussions about the need to have
language that addressed the Agency's need to ensure, as
the Telework Act states, that an employee's performance
is not diminished because of telework?
A I think the best way I can answer your
question is that not only does the Act say that the
employee's performance cannot be diminished by the
employee working at an ADS, at an alternative duty
station, but the Act also did not require that the
employee's performance be increased by working at an
ADS.
Q Well, my question is did you -- did you and
the management representative discuss that, that issue?
A You know -- no, we didn't discuss it in those
specific terms, that I recall.
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Q Looking at U 29 --
A I'm -- I'm sorry, but you --
Q -- Mr. Jaffe's e-mail to you --
A Yeah. Okay. Great. See, I don't have it --
I don't have it.
Q You don't have that?
A Oh, wait a minute. Here, I found it. I
found it. I found it. Okay.
ARBITRATOR ROSS: Is it 29?
THE WITNESS: Yes, yes.
BY MS. COLLICK:
Q U 29, which actually is an e-mail from
Mr. Jaffe addressed to Judge Brown and Dennis O'Leary
--
A Correct.
Q -- with a cc to Mr. Jaffe [sic]. And the
subject says "As Discussed."
A Right.
Q So when you received Mr. Jaffe's e-mail with
the subject line as discussed, what was your
understanding of what he meant by that?
A What -- what -- that was a reference to --
again, he generated this e-mail to Judge O'Leary and to
me at 6:07 p.m. on that day. He had first come in, in
this shuttle diplomacy stage, a couple of hours earlier
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that day. And that's when he first verbally raised
this concept. He didn't actually reduce it to writing
and transmit it to us until 7:00 p.m. on that day,
roughly.
Q So prior to that day, there were no
discussions about a need to put together some language
that would address the requirement that an employee
performance should not be diminished by telework?
A I -- I --
ARBITRATOR ROSS: The employee's what?
MS. Collick: Performance.
THE WITNESS: Performance.
ARBITRATOR: Performance might be affected by
the --
MS. COLLICK: Telework.
ARBITRATOR ROSS: Telework.
THE WITNESS: Yeah. I -- I -- we recognize
that in keeping with U 28, the -- the OPM guide to
telework that that was a given. That an employee's
performance could not diminish if the employee was
going to be working at telework. But the converse was
also true that the employee's performance was not to be
increased as a condition of being able to telework.
BY MS. COLLICK:
Q And the Telework Act also states that not
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only should the employee's performance not be
diminished but also Agency operation should not be
diminished because of telework.
A Correct.
Q Okay. And did you also have that
understanding that Agency operations should not be
diminished because of telework?
A Correct.
Q And did the parties discuss that concept
during the negotiations that the Agency work should not
be diminished because of this program?
A You know, that was a given, but it was also
then, as I said, also not to be an inducement that
performance had to be increased to be able to work at
telework.
Q The Agency representative at the negotiations
did not make any proposals to you about how reasonably
attainable should be defined?
A No.
Q And the Agency --
A Not -- not -- not when we were dealing with
Jaffe.
Q And -- or prior to dealing with Mr. Jaffe?
A Correct.
Q And at no time did the Agency representative
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propose to you a definition for a seriously delinquent
case?
A No. Because that didn't come up until Jaffe
brought it up.
Q After Mr. Jaffe brought it up, did -- and
prior to the September 30th, 2013, implementation of
Article 15, did the management -- did the Agency offer
a proposal on how a seriously delinquent case should be
defined?
A No.
Q Judge Brown, I want to refer you to Section
7.L of Article 15 which is labelled Accountability, and
this is J 4.
A Okay. I'm sorry, so you're on page 9.
Q So I'm on page 9.
A 7.L.
Q 7.L. And then we're going to go down to
paragraph 3.
A Okay.
Q And the first sentence of paragraph 3 says,
"Judges will schedule hearing days prior to selecting
the days on which they telework"?
A Correct.
Q That's a reflection of the fact that the
Agency work takes priority over the telework benefit.
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Is that correct?
A Well, they were intertwined together. It
says what it says, you know, and I agree with that
concept that before any judge was selecting an ADS day,
the first thing that they had to do was make sure that
they had selected the days they were going to be
available to hold hearings.
Q Because holding hearings is a judge's job,
correct?
A Correct.
Q Okay. And it says here that an ALJ cannot
hold a hearing from --
A Home?
Q -- home.
A Correct.
Q Okay. And if you go to the third sentence in
paragraph 3 that starts off "If comma the employer."
A Yeah. I'm amused to the comma. It's a typo,
but yes.
Q I wasn't pointing that out, I was just
trying... So that says, "If the employer determines
that a judge has not scheduled a reasonably attainable
number of cases for hearing, then after advising the
judge of that determination and further advising the
judge that his or her ability to telework may be
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restricted, the employer may limit the ability of the
judge to telework until a reasonably attainable number
of cases are scheduled."
So that first clause, "If the employer
determines" indicates that it's the Agency who
determines whether a judge has not scheduled a
reasonably attainable number of cases for hearing?
A That was Jaffe's language, which the Agency
adopted and which was ultimately imposed on the
parties. Correct.
Q So that's correct. That was yes to my
question?
A Correct.
Q And this language also indicates that the
Agency may limit the ability of the judge to telework
until a reasonably attainable number of cases are
scheduled. So it puts -- it puts a time period in
which a judge couldn't regain their ability to telework
if it is limited. Is that a fair statement?
A I'm not sure what you mean by a time period.
Q Okay. Under this section, as you understand
it, if the Agency determines that a judge has not
scheduled a reasonably attainable number of cases for
hearing, does that judge lose his or her right to
telework forever?
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A No.
Q There is a mechanism by which, under this
section, a judge who has their telework limited can
regain the ability to telework?
A Correct. There's the possibility.
Q If they schedule a reasonably attainable
number of cases?
A Whatever that means.
Q Yes?
A Yes.
Q Now, the -- the next sentence, which is the
last sentence of Section 3 under -- or paragraph 3,
under Section L says, "The parties agree that any
dispute as to whether the employer has properly
restricted the ability to telework under this paragraph
is to be resolved pursuant to the negotiated grievance
and arbitration procedures."
A Correct.
Q And what is your understanding of what that
sentence means?
A It really means that if either the Union or
an individual judge feels that the employer is
improperly restricting the ability to telework, then
it's to be resolved under the arbitration -- grievance
and arbitration procedures, meaning back to Article --
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Article 10 and Article 11 of the CBA.
And Article 10 and Article 11 of the CBA give
the right to file a grievance to both an individual
judge or to the Union. Now, the arbitration article in
Article 11 gives the right to arbitrate only to the
Union, not to the individual judges.
Q And this sentence is in the context of a
judge that has had his or her ability to telework
restricted under this Section L.3, correct?
A To that, plus also to the Union. The Union
has the right to grieve or arbitrate if the Union feels
that the ability to telework is being improperly
restricted by the Agency.
Q My question is the grievable act that this
refers to is a restriction under this paragraph. And
this paragraph is Article 16, Section 7.L.3?
ARBITRATOR ROSS: Article 15.
BY MS. COLLICK:
Q I mean 15.
A If I understand your question correctly, it's
yes. But it's also tied into Article 10 on grievances
and Article 11 on arbitration.
Q Right because Article 10 describes the
process for filing a grievance --
A And who can.
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Q -- and who can. And Article 10 also talks
about the time period for filing a grievance and that
information.
A Well, 10 talks about the time periods for
filing a grievance, not 11.
Q Oh, I'm sorry. I meant 10 if I said 11.
Okay. And then Article 11 of the parties agreement
discusses the arbitration procedures.
A Correct.
Q Okay.
ARBITRATOR ROSS: Let me just ask, do we have
a copy of the agreement, the arbitration period? Do we
have 10 and 11 or is that not in the record? And I'm
not saying I need it, I just want to know.
JUDGE ZAHM: It's not in the record, but we'd
be happy to do it.
MS. SENOO: Yeah, we can put it in.
JUDGE ZAHM: Yeah. We can stipulate to that.
In fact, I think it's a good idea.
MS. COLLICK: Yes, it's photocopied and
scanned from the blue book.
MR. EPPLER: So can we make these
Joint Exhibits.
THE WITNESS: And the only thing, I don't
have memorized as whether either 10 or 11 was part of
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the September 30, '13 implementation.
JUDGE ZAHM: No, they weren't.
THE WITNESS: Okay. All right.
MS. COLLICK: Do you want me to make these
joints?
JUDGE ZAHM: Yes.
MS. COLLICK: Okay.
(Article 10 of the parties Collective
Bargaining Agreement was marked Joint
Exhibit. Number 8, and Article 11 of the
parties Collective Bargaining Agreement was
marked as Joint Exhibit Number 9 for
identification.)
BY MS. COLLICK:
Q Judge Brown, I have just handed you what's
been marked as J8, Joint Exhibit 8.
A Correct.
Q Do you recognize this document?
A I do.
Q And is this the Article 10 of the parties
Collective Bargaining Agreement that you were
previously testifying about?
A Correct. Correct.
Q And Article 10 sets forth the grievance
procedure that an SSA administrative law judge or the
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AALJ Union is bound by?
A It's -- well, it's the --
ARBITRATOR ROSS: Doesn't say "or" does it?
MS. COLLICK: No. And that was a bad
question. Let me rephrase.
BY MS. COLLICK:
Q Judge Brown, you testified that under the
parties agreement either a judge or the Union could
grieve a management decision related to --
A Anything.
Q Anything. Is that correct?
A Correct.
Q Is this that your testimony?
A Yes.
Q Okay. And that Article 10 is the grievance
procedure that you were referring to?
A Correct.
Q In your testimony?
A Correct.
Q Okay. I also handed you what has been marked
as J 9, Joint Exhibit 9. This is Article 11 of the
parties Collective Bargaining Agreement.
A The new one, correct.
Q J 9, okay. And this has the arbitration
procedures?
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A Correct.
Q Let's go back to section 7.L.4 of Article 15,
which is J 4.
A Correct.
Q This is the section that permits the Agency
to restrict a judge's telework if the Agency finds that
the judge has one or more seriously delinquent cases in
status controlled by a judge. Is that correct?
A Yes, L.4 does.
Q Yes. And when it refers to the employer --
just so that we're clear, when this section refers to
the employer, the employer is Agency management?
A Correct. At the bargaining table the Agency
insisted on referring to itself as the employer.
MS. COLLICK: Can I take a short break and
see if I have anything?
ARBITRATOR ROSS: Okay.
(Whereupon, a brief recess was taken and the
following took place.)
MS. COLLICK: I don't have any further
questions.
ARBITRATOR ROSS: Okay. Any redirect?
JUDGE ZAHM: I just have a few.
ARBITRATOR ROSS: Okay.
REDIRECT EXAMINATION BY JUDGE ZAHM:
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Q Let's talk about LARs, the local Union
representatives. Do they get official time under the
contract?
A They do.
Q Who else besides LARs gets official time?
A Designated reps do.
Q How many of them are there?
A The contract allows for five?
Q Okay. Anybody else?
A Well, obviously the president, the executive
vice-president, the treasurer, the secretary, and the
10 regional vice-presidents, and the -- and the deputy
-- the grievance -- the national grievance chair.
Q And?
A And the deputy national grievance chair.
Q Okay. Those are the only people who get
official time?
A Well, in general, correct. But the
aberration is the Health and Safety Committee because
the three AALJ members of the Health and Safety
Committee do -- can include line judges who are not
otherwise officers.
Q Okay. But do those individuals get official
time only when they're tending HFC meetings?
A Or preparing for them.
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Q Okay. Not for other activities?
A Correct.
Q Now, let's pretend that J 5 doesn't exist,
which is the February 18th, 2014, Judge Bice memo
setting out the minimum number of cases that can be
scheduled if you want to telework. Pretend for a
minute it doesn't exist.
So Judge Smith is doing 35 hearings --
scheduling 35 hearings a month in his office, but he's
not teleworking. And then he decides he wants to
telework. And so when he teleworks, he still schedules
35 hearings a month. Would you consider that his
performance is diminished in any way?
A No?
Q Now, let's talk -- oh, one thing I wanted to
make sure is clear and that is, you did answer a
question about reviewing Union 28, the Guide to
Telework in the Federal Government During Negotiations.
Did you review it before April of 2011?
A Of course not.
Q Okay. Just to clarify. Now, when something
is set out in the contract -- some provision, some
benefit, does the Union and do the judges in the
bargaining unit have the legal right to have it
enforced?
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A I'm sorry, repeat that.
Q Okay. When something is set out in the --
A CBA.
Q -- CBA, some provision, some benefit, some
enhancement of working conditions or some requirement
of the Agency's, doesn't the Union and the judge have
the legal right to have it enforced?
A They do.
Q Okay. And so is that a -- does that
provision, once it goes into the contract, become a
legally enforceable right?
A It does.
Q Okay. And how do you enforce contract
provisions?
A By hoping the Agency complies, number one.
But if the Agency does not comply, then both the
individual judge and the Union have the right to file a
grievance.
Q Okay. Let me just --
A Three of -- then we can also get in the ULPs,
but I don't think you want me to worry about that at
this point.
Q No, not if you ordered it today.
A But you asked a general question and I'm just
saying that's there.
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Q Let's take a look at Joint Exhibit something
-- Joint Exhibit 4, of telework -- Article 15, the new
telework.
A Okay got it. Well, Joint 4 is the telework,
Article 15, yes.
Q Okay. Now, let's just for fun take a look at
page 4, Section 6.B. Would you just read section 6.B
for us, please.
A "The HOCALJ will act on telework
participation requests within 10 (1-0) workdays
following the end of the request period (i.e., February
or August) and note in writing the reasons for any
denial."
Q Okay. Now, suppose you put in your telework
participation request and the HOCALJ doesn't do
anything and 10 days comes and goes. Can you, the
judge, or the Union file a grievance over the fact that
the contract's been violated?
A Certainly.
Q Can you enforce that contract provision?
A Via that process of a grievance, yes.
Q And if the HOCALJ, after you put in your
telework participation request, gives you a note saying
I'm not going to let you telework. Could you file a
grievance over the fact that he did not put in writing
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the reason for the denial?
A Certainly.
Q Should an arbitrator uphold that?
A Certainly.
Q Okay. Now, in fact, let's take a look on
page --
A When you say uphold that, you mean --
Q Uphold the contract provision.
A And the fact that the judge has filed a
grievance over that Union?
Q Yes.
A Yes.
Q And that's a valid grievance and the
arbitrator should order the HOCALJ should put his
denial --
A In writing.
Q -- in writing and the reasons in writing?
A Yes.
Q Okay. Because that's what the contract says
right?
A Yes.
Q Now, take a look at page 2.
A Yes.
Q It says you're eligible, the employer will
determine which judges --
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A You're talking about Section 3 now?
Q Oh, yes. Section 3, Eligibility to
Participate in Telework. And the section says, "The
employer will determine which judges, including
part-time judges, will be eligible to participate in
telework.
"In general, to be eligible to participate in
telework, the judge must meet all of the following
conditions, one, the judge has served as an SSA
administrative law judge for one year or more." Does
-- is that what that says?
A Up to that point?
Q Yes. And did the Union have a situation
where the Agency refused to let judges, who had served
as an SSA administrative law judge for a year, the
right to participate in telework as soon as their one
year anniversary occurred?
MS. SENOO: Objection. That issue, if it
occurred, is not a part of the grievance. That's
before this arbitrator and it's not relevant to these
proceedings.
JUDGE ZAHM: Well, I'll tell you why it's
relevant because I'm afraid I may have -- and maybe I
misinterpreted some of the questions. So if you
stipulate to something, then there won't be a problem.
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You indicated that somehow --
THE WITNESS: By you, you're talking about --
JUDGE ZAHM: I'm looking at my colleague --
that telework was not a legal right. Did I understand
correctly?
MS. SENOO: Well, I asked -- Judge Brown
wasn't --
JUDGE ZAHM: Right.
MS. SENOO: Okay.
JUDGE ZAHM: Are you implying or do you
intend to take the position --
THE WITNESS: No. This is not a question
when you say you. You're not --
JUDGE ZAHM: No.
THE WITNESS: Okay. I want to make sure to
whom.
MS ZAHM: The Agency. Are you suggesting
that the Union can't enforce Article 15?
MS. SENOO: No. I'm not going to imply or
make that suggestion. I was just getting -- because
suggesting I already talked about the Telework Act --
we were going over what the Telework Act says and what
it means and how it applies to the situation.
JUDGE ZAHM: Okay. Well, then I'll withdraw
questions on this issue unless at any point either --
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MS. SENOO: Let me confer with my colleague.
Just want to make sure we're on the same page, too.
JUDGE ZAHM: Okay. I'll withdraw my
questions in this regard unless and until the Agency
takes the position we can't enforce anything in Article
15 because telework's not a legal right. Okay.
BY JUDGE ZAHM:
Q Now, you testified that the Telework Act and
the guidance for OPM shows that neither the employee's
performance nor Agency operations can be diminished
because of telework. Is that correct?
A Yes.
Q Okay. And if your job at the Agency was to
meet and greet the public at a park -- a national park
because you were a park ranger and you spent 40 hours a
week doing that job, would teleworking from your home
diminish Agency operations?
MS. SENOO: Objection to relevance. We're
not talking about park rangers here.
JUDGE ZAHM: Well, I think that the point of
diminishing Agency operations means you can't let
employees telework if their job requires them to be at
a particular work site because of the nature of the
job. That's what that means.
MS. SENOO: But Judge Brown has testified as
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to what his understanding is of the language and so you
know.
JUDGE ZAHM: Well, you --
MS. SENOO: It's different from yours, but
you know, he's the witness so...
JUDGE ZAHM: Is he an expert on the Telework
Act?
MS. COLLICK: Well, he's not my witness. He
testified on the issue.
JUDGE ZAHM: Right. It can't diminish Agency
operations and clearly we agree with that. Well, for
heaven's sake, it's spelled out in the law. The
question is what does that mean?
And I believe if you read the Telework Act,
what it means is you can't have people in an Agency
whose job it is to be at a particular work place site
teleworking because the nature of their job binds them
to that work site. And if they worked at home, Agency
operations would be impacted -- wold be diminished.
MS. SENOO: You can certainly argue that
in --
JUDGE ZAHM: Okay.
ARBITRATOR ROSS: You can argue that.
JUDGE ZAHM: Okay.
BY JUDGE ZAHM:
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Q Now, let's take a look at, again, the
Telework Act -- I'm sorry, it's Article 15, J 4, page 9
--
A Page 9, okay.
Q L.3. Now, that provision doesn't say if the
employer determines that a judge has not scheduled the
number of cases for hearing that the employer wants him
to schedule, then the judge can't telework, does it?
A Judge Zahm, we're getting to 6:00.
Q Yes.
A And having said that, the reason I'm saying
that, I'm afraid my blood sugar is dropping and
therefore I'm having trouble following your particular
question.
And I want the record to reflect I'm an
insulin-dependent diabetic and -- tell you what, let me
do a finger stick --
Q Oh, okay.
A -- to find out where I am.
MS. SENOO: Okay. Do you want to --
THE WITNESS: I appreciate that but my finger
stick kit is right outside the door. Let me get that,
if I may.
(Whereupon, an off-the-record discussion was
held.)
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ARBITRATOR ROSS: Back on the record.
BY JUDGE ZAHM:
Q Section L.3 doesn't say if the employer
determines that a judge has not scheduled the number of
cases for hearing that the employer wants him to
schedule, the judge won't be able to telework, does it?
A What it says is the employer may limit the
ability of the judge to telework until a reasonably
attainable number of cases are scheduled meaning that
the judge -- that the employer is coming to the
conclusion that it's not a reasonably attainable number
of cases have been scheduled.
Q Well, the word "number" is modified by the
words reasonably attainable. Is that correct?
A Correct.
Q Okay. So that whatever number is chosen has
to be one that can be reasonably attained. Is that
correct?
A Yes. In addition to the fact that it's the
-- the way this is worded, that the employer determines
if this is a reasonably attainable number.
Q Doesn't -- isn't the employer locked into
providing a reasonably attainable number for the judge
to schedule?
MS. SENOO: You're saying "locked into"?
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JUDGE ZAHM: Yes.
BY JUDGE ZAHM:
Q Doesn't the language lock the employer into
choosing a reasonably attainable number?
A It says that if the lawyer determines that
the judge has not scheduled a reasonably attainable
number, then the employer may limit the ability of the
judge to telework until the employer comes back to the
position where the judge or the lawyer believes that
the judge's schedule --
Q You know what? I don't think your blood
sugar is up enough because you're not reading it
accurately.
JUDGE ZAHM: I'd like to adjourn for the
night.
THE WITNESS: We're after 6:00 now.
MR. EPPLER: He's read the word employer and
lawyer several times. I think his clarity is not where
it needs to be.
THE WITNESS: Even for me.
JUDGE ZAHM: And certainly for Mark. Judge
Brown has a very sharp mind.
ARBITRATOR ROSS: According to the contract
interpretation there's a lot of ways to get to that.
You've already been into it but I understand what
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you're doing. The question is --
THE WITNESS: Do I understand what she's
doing?
ARBITRATOR ROSS: -- do we need to keep him
here now versus --
JUDGE ZAHM: No. I actually only had that to
make determination overnight and -- yeah, sorry. If he
needs to -- if you need to bring him back, we'll bring
him back --
ARBITRATOR ROSS: I think that's fair.
JUDGE ZAHM: -- for a few minutes in the
morning before he gets out of the airport and --
ARBITRATOR ROSS: I think that's fair. Okay.
So what time are we going to meet tomorrow morning? We
can put that on the record if you want to.
It's up to you. Whatever you want.
JUDGE EPPLER: Are we going to be able to get
-- we have three witnesses and Judge Brown. Then we'll
be able to button it up.
ARBITRATOR ROSS: Okay. So we can close for
today.
(Whereupon, Volume II of the arbitration
concluded at 6:05 p.m.)