United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND	Case No. 98 FSIP 24
and COUNCIL 220, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

 

DECISION AND ORDER

      Council 220, American Federation of Government Employees, AFL-CIO (AFGE or Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Social Security Administration (SSA or Employer).

      Following an investigation of the request for assistance, which concerns aspects of SSA’s implementation of a 1997 amendment to the Welfare Reform Act of 1996,⁽¹⁾ the Panel determined that the impasse should be resolved on the basis of written submissions, including rebuttals, from the parties, with the Panel to select between the parties’ final offers on a package basis, to the extent that they are otherwise legal. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.⁽²⁾

BACKGROUND

    The Employer administers Federal retirement, disability, Medicare, and SSI entitlement programs through its six components. The Union represents a nationwide, consolidated bargaining unit of approximately 50,500 General Schedule and Wage Grade employees who work as claims representatives, service representatives, teleservice representatives, and data review technicians, among other positions. They are covered by a master collective-bargaining agreement (MCBA) between SSA and AFGE which is due to expire on March 5, 1999.

ISSUES AT IMPASSE

    The unresolved issues include the extent to which bargaining-unit employees will be required to: (1) "participate" in the arrest, apprehension, and detention of fugitive felons; (2) limit contact with felons to telephone interviews; and (3) confine attempts to obtain fugitive felons’ residence addresses to the mail or telephone. The parties also disagree over: (4) the location of in-office interviews; (5) whether to flag and list cases involving dangerous and potentially violent felons; (6) how complete SSI non-eligibility notices sent to felons should be; (7) how soon the Memorandum of Understanding (MOU) reflecting the terms of their agreement is to be posted at field offices; (8) whether the MOU is to include statements connecting the Fugitive Felon Project to the Welfare Reform law; and (9) whether future bargaining should be conducted in accordance with Executive Order 12871.

POSITIONS OF THE PARTIES

1. The Employer's Position

    The Employer proposes the following wording on the issues which remain at impasse:

Introduction

This Memorandum of Understanding (MOU) is entered into by and between the Social Security Administration (SSA) hereinafter called the "Agency", "Employer", "Management" and/or "SSA" and the American Federation of Government Employees (AFGE) Field Council, hereinafter called the "Union". Both SSA and the Union may also be called the "Parties" jointly.

Scope

The purpose of this MOU is to set forth certain understandings concerning the implementation and impact of the Fugitive Felon Project. This project is being conducted as a result of section 202 of Public Law 104-193, enacted on August 22, 1996. This law amends Title XVI of the Social Security Act to make an individual ineligible for Social Security Income (SSI) benefits for any month during which the individual is fleeing to avoid prosecution, or custody or confinement after conviction, for a crime which is a felony (or in the State of New Jersey, a high misdemeanor) under the laws of the place from which the individual is fleeing; or violating a condition of probation or parole imposed under Federal State Law.

The Agency agrees to share information with the Union as developments relating to the Fugitive Felon Project occur. Nothing in this MOU constitutes a waiver of the > Union’s rights to negotiate on future changes in accordance with Article 4 of the National Agreement and 5 U.S.C. 71.

Health and Safety

3. If an interviewer becomes aware that a member of the public with whom an interview is required is an escaped felon or parole violator, the interviewer may conduct the interview by phone if possible. If this is not possible then protective measures will be afforded the employee conducting the interview.

Miscellaneous

4. A copy of this MOU should be posted on each office/installation bulletin board and will remain there for a period of 60 days.

By way of background, to meet the requirement of the Welfare Reform Act pertaining to fugitive felons, the Employer entered into a policy agreement with SSA’s Office of Inspector General (OIG) which will act as the agent "to identify SSI recipients who are fugitive felons or parole/probation violators" for Federal, State, and local law enforcement agencies. The Employer implemented the Fugitive Felon Project on February 18, 1998,⁽³⁾ in part because of concern about the affect of further delay on State budgets; the amount States are required to pay recipients is based on individuals’ eligibility to receive Federal SSI payments and the amount of those payments. It also implemented the project when it did because the Government Accounting Office considers the SSI program as "high risk."

    Regarding the safety of bargaining-unit employees, the Union raised the same concerns in General Committee when the parties were negotiating over other aspects of the Welfare Reform Act.⁽⁴⁾ In this case, it appears that the "Union has an ax to grind with the OIG and is trying to hold the Agency captive concerning a change that must be made per Congress." Over the last several years, SSA has spent $48 million "to cover the cost of health and safety" for employees. When combined with measures protective of employees in the agreed-to sections of the MOU,⁽⁵⁾ the existing MCBA,⁽⁶⁾ and revisions to the Project instructions,⁽⁷⁾ the third sentence of its Health and Safety section provides sufficient additional safeguards for employees who may deal with fugitive felons. In this regard, the first sentence of that section attempts further to minimize the number of potential face-to-face interviews by encouraging telephone interviews when possible. In intent and wording, it is nearly identical to the Union’s proposal on this point (Union 5B). As to information to be provided in a notice to a recipient who is a felon, the operating instructions issued on February 18, 1998, specify essentially the same information that is listed in Union proposal 11. Under circumstances where a recipient who is a felon comes into a field office, the second sentence of its Health and Safety section gives sufficient flexibility to field office managers to take appropriate steps to ensure employees’ safety during face-to-face interviews. Again, that section of the proposal is nearly identical to the second sentence of Union 5C.

    With regard to Union proposal 5D, which would require employees to contact felons by telephone and mail to obtain their addresses, the proposal is nonnegotiable. In this regard, it interferes with management’s right to assign work and direct employees under section 7106(a) of the Statute, which includes the right "to supervise and guide employees in the performance of their duties on the job."⁽⁸⁾ The Union appears to believe that by obtaining and forwarding a felon’s address, the employee would be participating in the arrest of that felon (Union proposal 1). The activity of obtaining a corrected address for an SSI recipient, whether or not the individual is a felon, is part of employees’ regular work; such change of address information should not be withheld from the OIG "even if that information might lead to the arrest of the fugitive."

    While the Union apparently believes that sting operations are to be conducted in SSA offices, Emergency Message (EM) 98-038, Q2 and A,⁽⁹⁾ clarifies that there is no intent to set up sting operations in such locations; instead, the intent is to provide the OIG with felons’ current addresses "and not for immediate apprehension purposes."

    With respect to the Union’s proposal that interviews with felons be conducted at the reception counter, that location is less safe than the normal interview area. This is because a recipient identified as a fugitive felon, who may have been coming to the same field office for many years, "might become angered by virtue of the fact of having to discuss what he/she considers a personal matter in the waiting area." Should the person become upset, "the disturbance to other employees and members of the public would be minimized if the individual was being assisted in the designated interviewing area."

    As to the time frame for posting the MOU, experience demonstrates that providing copies to 1,300 field offices and assorted teleservice centers requires at least 60 days. On the introductory paragraph, since it serves mainly to identify the parties to the MOU, there is little real difference between their respective proposals. Finally, except for wording referring to the underlying legislation giving rise to the Fugitive Felon Project, the parties’ Scope sections are also nearly identical.

2. The Union’s Position

    The following wording is proposed by the Union to resolve the remaining issues:

Introduction

This Memorandum of Understanding is entered into by and between the Social Security Administration, hereinafter referred to as "the agency", and the American Federation of Government Employees, hereinafter referred to as "the union" regarding the implementation of the Fugitive Felon Project.

Scope

The purpose of this bargaining is to set forth certain understandings concerning the implementation of the Fugitive Felon Project. The agency agrees to share information with the Union as developments relating to the Fugitive Felon Project occur. Nothing in this MOU constitutes a waiver of the Union’s rights to negotiate on future changes in accordance with Article 4 of the National Agreement, 5 U.S.C. 71, and E.O. 12871.

Proposal 1

It is not management’s intent, absent an emergency, that bargaining-unit employees should participate in the arrest, apprehension, or detention of fugitive felons.

Proposal 5

B. To the maximum extent possible, interviews with fugitive felons will be conducted by telephone.

C. In-office interviews of fugitive felons will be conducted at the reception counter whenever possible. If this is not possible, protective measures will be given to the employee conducting the interview.

D. When bargaining-unit employees are required to obtain the residence address of fugitive felons or possible fugitive felons in accordance with POMS SI 02301.240D.1, such efforts and contacts will be conducted by mail or telephone to the maximum extent possible.

Proposal 6

All cases referred for suspension for warrants resulting from acts of violence will be identified with a ‘flag’ indicating that the recipient/felon is dangerous and potentially violent. When such a case is received, the recipient’s name will be placed on a list of dangerous felons and distributed to each interviewing employee and the security guard, if any, in the servicing office.

Proposal 11

All notices to recipients and the ‘Remarks’ section of the SSID will contain the following: nature of the outstanding warrant, address and phone number of the law enforcement agency holding the warrant, date of issue of the warrant, and instructions to contact the law enforcement agency to clear the warrant before reinstatement can occur.

Proposal 20

Within 30 days of this MOU, a copy will be posted on each office/installation bulletin board and will remain there for a period of 60 days.

Proposal 23

Appropriate advance notice will be given to the Union of any subsequent changes concerning the scope or terms of this agreement, and the Union will be afforded an

opportunity to bargain said changes per Article 4 of the National Agreement and 5 U.S.C. 71 and E.O. 12871.

In its view, the Employer places greater priority on arresting fugitive felons than stopping their SSI checks; the latter is the true purpose of the legislation. Moreover, "the agency wrongly claims that the Fugitive Felon Project . . . is needed to implement the law." In this regard, "the problem arises with SSA’s foray into the field of ‘proactive law enforcement’ that places unequipped, untrained, and unprepared employees into contact with the felons that could result in the death or injury of one or more SSA employees."

    Previously, because the data on felons was shared after a felon’s checks were stopped, the connection of SSA employees to the arrest was minimized. This "lack of nexus in the mind of the felon provided a greater measure of safety for SSA employees." Under the program implemented by the Employer, however, should a felon link an SSA employee’s obtaining his or her correct address with a subsequent arrest, that employee could be subject to retaliation for "participating" in the arrest. Furthermore, the Program Operations Manual System (POMS), work-related instructions for employees, states that employees may have to contact and visit places that recipients are known to frequent, such as soup kitchens and shelters, to obtain correct addresses. Directing employees to verify addresses by mail and telephone to the maximum extent possible (Union proposal 5D) should keep employees from "conducting street investigations where they would be extremely vulnerable to harm," and prevent their being linked to arrests.

    Regarding the jurisdictional question the Employer raises over Union proposal 5D, the Union modified the proposal in its rebuttal statement; the qualification it added clarifies that employees are to update felons’ addresses by mail and telephone "to the maximum extent possible;" the original proposal lacked the quoted wording. The change takes into account wording in the Employer’s proposed Health and Safety section which permits an interviewer to "conduct the interview by telephone if possible."

    As to the information to be provided in notices to fugitive felons, when sufficient information is given, the likelihood of their coming to a field office is reduced. In the interest of keeping felons out of field offices until they have resolved their legal problems, the Union’s other proposals also emphasize telephone contact. With regard to the location of in-office interviews of felons, should they occur, the reception counter is preferable to the normal interviewing location because of its proximity to a security guard, if one is provided, and to the exit door. The counter also serves as a barrier to keep the individual from moving further into the office. In addition, the flagging of files and distributing a list of fugitive felons who are dangerous and potentially violent warns employees about who they are dealing with. In this connection, "management, the guard, employees, and the local police will be better prepared for such interviews if they are aware of the possibility of violence." As to when the resulting MOU should be posted, 30 days is consistent with a number of previous agreements between the parties.

    Finally, since Executive Order 12871 renders section 7106(b)(1) matters negotiable, and is referenced in Section 2 of the "Partnerships" Article in the MCBA, its mention is appropriate to clarify that future bargaining should include these topics.

CONCLUSIONS

    Having reviewed the arguments and evidence presented, we conclude that the remaining issues now constituting the parties’ dispute should be resolved through the adoption of the Employer’s final offer.⁽¹⁰⁾ In reaching this conclusion, we recognize the serious nature of the Union’s concerns pertaining to bargaining-unit employees’ safety when dealing with potentially violent fugitive felons. Although the Employer contends that these concerns are exaggerated, we note that through the negotiating process the parties essentially agreed, so far as possible, that contact with these individuals be limited to the telephone. In our view, the steps the Employer has taken to address the Union’s concerns in its instructions implementing the Fugitive Felon Project, the agreed-to portions of this MOU, Article 9, Section 12, of the MCBA, and the Employer’s current proposal, taken together, provide sufficient safeguards for employees in the circumstances presented. Moreover, they do so without impinging on an office manager’s ability to respond flexibly to meet situations that may arise in a given field office.

    It is the importance of the role played by the office manager in the Fugitive Felons Project which raises concerns regarding the Union’s final offer. In this connection, should instances arise when a fugitive felon appears at a field office, we are persuaded that requiring such interviews to be conducted at the reception counter would place an unwarranted restriction on the office manager’s flexibility. Furthermore, the lack of privacy at the reception counter might actually trigger the hostile reaction that both the parties and SSA field office employees are seeking to avoid. In addition, creating a list of particular felons who may be more prone to violence, as the Union proposes, might mislead employees about the potential for misconduct by other customers who are also felons. On this point, even trained professionals have difficulty predicting an individual’s propensity for violence. Regarding the items to be included in the notice to fleeing felons, with the exception that the Employer proposes to provide the warrant number and the Union the warrant date, there is little difference between the two proposals. There is also little difference between the parties’ introductory and scope sections, except for the reference to the Executive Order in the Union’s proposal. Such a reference appears to be unnecessary, given that the parties’ MCBA already covers the matter. Accordingly, we shall order the adoption of the Employer’s final offer to resolve the dispute.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

    The parties shall adopt the Employer’s final offer.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

May 29, 1998

Washington, D.C.

 

ENDNOTES

1.The 1997 amendment of Title XVI, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (commonly referred to as the Welfare Reform Act), P.L. 104-193, requires that individuals who are fugitive felons and probation and parole violators be denied Supplemental Security Income (SSI) benefits during periods when they are in such a status. The law also provides that the SSA Commissioner is to furnish Federal, State, or local law enforcement officers with information about felons, including their addresses. Previously, the Panel provided assistance in a case involving the redetermination of children’s disability and noncitizen SSI benefits in accordance with the then recently-passed Welfare Reform legislation. Social Security Administration, Baltimore, Maryland and General Committee, American Federation of Government Employees, AFL-CIO, Panel Case No. 97 FSIP 17 (June 27, 1997) Panel Release No. 399 (General Committee).

2.During negotiations and the written procedure in this case, the parties each withdrew some proposals and mutually agreed to a number of others; the introductory and scope sections, and six Union and two Employer proposals remain in dispute.

3.In a pending Union-filed unfair labor practice (ULP) charge, the Union contends that the Employer has refused to cooperate in impasse procedures as required by the Statute by implementing the Fugitive Felon Project while the parties were before the Panel.

4.The Employer also engaged in bargaining over program initiatives arising when benefits to individuals in the Drug and Alcohol Abuse program were terminated.

5.The Union has accepted a number of the Employer’s proposals. They address: (1) fugitive felons being kept away from field offices and not being arrested on those premises; (2) unit employees using pseudonyms when dealing with the public; (3) office managers determining whether additional security measures are warranted in field offices and their, rather than unit employees, acting as contacts to convey felons’ address information to the OIG; and (4) felons’ locations being defined as their residence addresses, thereby avoiding the impression that employees have provided information about a felon’s location that led directly to that felon’s arrest.

6.Article 9, Section 12, of the MCBA reads:

 

A. The Employer will make reasonable efforts to protect employees from abusive and threatening clients and will take reasonable precautions to ensure such protections.

B. The Employer will arrange for emergency protective assistance at each installation to enable employees to receive assistance if the situation requires it.

C. Whenever an employee is faced with a physically threatening situation, the Employer will provide appropriate assistance.

D. Employees will not be required to divulge personally identifiable information to the public in individual circumstances where the employee reasonably believes harassment or physical abuse may result. In such cases, the employee should timely inform the supervisor.

E. Where conditions warrant, the Employer will provide equipped security guards at SSA facilities.

F. SSA will equip reception areas with appropriate security devices to ensure, to the maximum extent possible, employee safety.

G. All phones will be labeled with appropriate emergency numbers.

7.In its initial written submission, the Employer lists 13 items it incorporated into its revised instructions for employees to meet the Union’s concerns. Among other things, field office and teleservice employees are to instruct felons not to come into the field offices. The Employer also agrees not to detain or arrest felons in field offices and to make every effort to prevent employees from having to deal face-to-face with felons.

8.In support of this position, the Employer cites National Treasury Employees Union and Department of the Treasury, Bureau of Public Debt, 3 FLRA 769 (1980). The Union’s revised wording, submitted in its rebuttal statement to the Panel, was not available to the Employer when it put forth this position.

9.The Employer has apparently issued additional instructions to employees that are called Emergency Messages. These messages are presented in a question and answer format. They attempt to dispel perceived misconceptions about the Fugitive Felon Project and to provide revisions to previously issued instructions.

10.In view of this result, it is unnecessary to consider the jurisdictional question the Employer raises with respect to Union proposal 5D.