United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND
and NATIONAL COUNCIL OF SSA FIELD OPERATIONS LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 94 FSIP 138

DECISION AND ORDER

 

     National Council of SSA Field Operations Locals, American Federation of Government Employees, AFL-CIO (NCSSAFOL 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 Department of Health and Human Services, Social Security Administration, Baltimore, Maryland (SSA or Employer).

    After investigation of the request for assistance, the Panel determined that the dispute, which concerns the implementation of an automated phone system and voice mail, should be resolved on the basis of written submissions and rebuttals from the parties; the Panel would then take whatever action it deemed appropriate to resolve the impasse. Submissions were provided in accordance with this procedure, and the Panel has now considered the entire record.

BACKGROUND

    The Employer's mission is to administer retirement, Medicare, disability, survivor, and Supplemental Security Income entitlement programs for the public. NCSSAFOL represents a unit of over 25,000 employees who work at approximately 1,300 SSA field offices and teleservice centers nationwide. The parties are covered by the master agreement between SSA and AFGE which is due to expire in November 1996. They have reached impasse following negotiations over the impact and implementation of the Employer's plan to initiate demonstration projects in 30 field offices which would implement an automated phone system and voice mail. The demonstration projects are scheduled to run for 6 months; at the conclusion of that period, the program will be evaluated and a decision will be made as to whether the plan should be implemented nationwide.⁽¹⁾

ISSUES

    There are three issues before the Panel for resolution: (1) Employer access to employees' voice mail in their absence; (2) whether Union representatives in the designated offices should be provided voice mail; and (3) whether an employee may request unanticipated leave through the use of his or her supervisor's voice mail.

1. Access to Employees' Voice Mail

    a. The Employer's Position

      The Employer's proposal is as follows:

All employee passwords/access codes and messages will be kept confidential consistent with the Agency's needs per 5 U.S.C. 71.

Under this approach, management would have the ability to retrieve messages from an employee's electronic mailbox by using the individual's password or access code. This would be consistent with current agency procedures which allow field office staff unrestricted access to all file information so that timely action may be taken on pending claims and requests from the public. Since the messages that are stored in an individual's voice mailbox are likely to contain information which is relevant to pending claims, access to an absent employee's voice mail also should be allowed. Although management would gain access to an employee's voice mailbox by utilizing the employee's password, it pledges to utilize the "skip through" feature to minimize intrusion into those messages which are identified as personal.

    In the alternative, the Employer would accept a modified version of the Union's proposal, as follows:

All employee passwords/access codes and messages will be kept confidential. When required for operational or public service reasons, message access may be secured by the Office Systems Administrator to retrieve messages left by callers doing business with SSA. The skip through message feature will be utilized as soon as the Systems Administrator identifies that a call is personal. Management will strictly adhere to the Privacy Act. (Emphasis added.)

This alternative would require that an employee's voice mailbox be accessed only by the Systems Administrator and that the employee's existing password be overridden with a new one. The employee would be alerted that the voice mailbox had been entered in his or her absence, since the employee's password would no longer allow access to voice mail messages. This approach protects the employee's existing password while allowing retrieval of messages when required for operational or public service reasons. Placing reasonable limitations on access to employees' voice mail should protect both employees' and clients' privacy while allowing the agency to meet more effectively the needs of its customers. Overall, this proposal is acceptable because it balances all of the competing interests identified by the parties.

    With respect to the Union's proposal, it is nonnegotiable because it interferes with management's right, under section 7106(a)(2)(B) of the Statute, to assign work.⁽²⁾ In this regard, the portion of the proposal which allows voice mail access only "in rare circumstances" interferes with its ability to act upon information left by the public in an employee's voice mailbox, and would preclude the Employer from "reviewing such work to determine its urgency, redirecting the work to others, and taking needed actions based upon the nature of the information."

    b. The Union's Position

    The Union's proposal is fully negotiable and, therefore, the dispute should be resolved on the merits.⁽³⁾ It proposes the following wording:

All employee passwords/access codes and messages will be kept confidential. In rare circumstances, message access may be secured by the Office Systems Administrator to retrieve messages left by callers doing business with SSA. The skip through message feature will be utilized as soon as the Systems Administrator identifies that a call is personal. Management will strictly adhere to the Privacy Act. (Emphasis added.)

This proposal would protect an employee's password while allowing the Employer to retrieve messages only "in rare circumstances." These circumstances, as defined by the Union, could include, but would not be limited to: (1) the death of an employee; (2) an employee being incapacitated due to illness; or (3) a missing employee. Placing strict limitations on access to employees' voice mail would protect clients' privacy, and is consistent with the results of customer surveys which reveal that claimants prefer to deal with only one representative. Moreover, such an approach would deter the Employer from encroaching upon employees' privacy, and would prompt the Employer to utilize less invasive methods. For example, once the Employer becomes aware of an employee's absence, it could check the employee's voice mail greeting, and change it, if necessary, to direct callers to another number. If this procedure were to be followed, the need to access employees' messages would be minimized. Finally, both of the Employer's proposals allow it too much discretion to retrieve employee messages; the Union fears that the wording would be relied on too frequently to justify the invasion of employees' privacy.

CONCLUSIONS

    Turning first to the negotiability question raised by the Employer, we find it unnecessary to address the parties' arguments, as we are persuaded that the modified version of the Union's proposal (which is acceptable to the Employer) should serve as the basis for resolving the dispute. In our view, the proposal ensures the maintenance of a high standard of customer service, while sufficiently accommodating the Union's interest in protecting employee privacy. With respect to safeguarding privacy, since the Systems Administrator will be the only employee allowed access to an individual's voice mail, knowledge of the actual content of personal messages should be extremely limited. As an added protection, because the Systems Administrator may have access to the employee's messages only by overriding the employee's existing password, the employee's personal password would remain confidential. Moreover, since employees have control over their individual voice mail greetings, they have the option of alerting callers to the fact that messages may be accessed by the Employer. Finally, because utilization of the "skip through" feature is required whenever the Systems Administrator obtains access to a personal message, intrusion into employees' personal affairs should be slight. Overall, we believe that the proposal is fair to both parties and, therefore, shall order its adoption.

2. Voice Mail for Union Representatives

    a. The Employer's Position

    The Employer's proposal is as follows:

It is the intention of the Agency that each employee will be assigned a voice mail mailbox.

Under this approach, each employee in the 30 designated offices would receive a voice mailbox. All Union representatives in the designated offices would be included because, by its assessment, they all "spend some 'minimum' amount of time, however little, working on Agency public contact business." Since the reason for the demonstration projects is to test the impact of the automated phone system on customer service, restricting its implementation to employees who perform Agency work is an appropriate limitation.

    The Union's proposal, on the other hand, is "outside the scope of bargaining on these projects." It would be more appropriately addressed during master agreement negotiations⁽⁴⁾ or under paragraph 7 of the provisions which were initialed by the parties during their bargaining sessions.⁽⁵⁾ For these reasons, the availability of voice mail should not be expanded beyond the 30 designated offices.

    b. The Union's Position

    The Union proposes the following:

It is the intention of the Agency that each employee, including Union representatives, will be assigned a voice mail mailbox.

Preliminarily, its proposal applies only to Union representatives who work in the 30 designated offices. Specifically stating that representatives will be provided voice mail is necessary, as there is at least one who is a full-time Union official, and it is unclear whether the Employer considers such individuals to be "employees." Finally, since the purpose of the demonstration projects should be to test the new technology in a broad cross-section of situations, allowing full-time Union officials to participate would provide useful information should expanded implementation occur in the future.

CONCLUSIONS

    After studying the parties' positions, we conclude that the Union's proposal provides the better resolution to the dispute. In our opinion, including a specific reference to Union representatives will provide clarity and should help avoid future disputes over interpretation. Moreover, since the number of affected representatives is quite small, the burden to the Employer should be minimal. Accordingly, we shall order adoption of the Union's proposal.

3. Requesting Unanticipated Leave Through Use of Supervisor's Voice Mail

    a. The Employer's Position

    The subject of unanticipated leave is "contained in or covered by" Article 31, Section 5, of the master agreement between SSA and AFGE,⁽⁶⁾ and, therefore, the Employer has no further bargaining obligation.⁽⁷⁾ The contract wording provides an appropriate procedure for addressing the issue of unanticipated leave. In addition, the Union proposal is deficient since it (1) would eliminate the requirement that employees obtain supervisory approval for unanticipated leave and (2) would place the onus on the supervisor to contact the employee once the message is received.

    b. The Union's Position

    The Union's proposal is as follows:

An employee may request sick or annual leave by leaving a message in their supervisor's voice mail mailbox.

Its proposal is not "inconsistent with" the provisions of Article 31, Section 5, of the master agreement and is fully negotiable. The proposal would allow an employee to make contact with his or her supervisor by voice mail, thereby avoiding repetitive calling. This would be beneficial to a sick employee, as it would shift the responsibility to the supervisor to return the employee's call once the message is received. Sufficient protections are built into the system which would allow the Employer to verify the date and time of an employee's call. Overall, the system's capabilities should be fully utilized during the demonstration projects to "make [them] a success."

CONCLUSIONS

    Preliminarily, we find it unnecessary to address the duty-to-bargain question raised by the Employer because we believe that the wording of Article 31, Section 5, adequately speaks to the merits of this issue. In our view, that portion of the contract provision which requires that "contact . . . be made with the employee's immediate supervisor or other designated official," when an employee wishes to take unanticipated leave, should allow supervisors to evaluate employee requests and make any necessary adjustments in work assignments. Moreover, placing the responsibility on the employee to contact his or her immediate supervisor to request unanticipated leave is a widely accepted practice in both the private and public sectors. Accordingly, we shall direct the parties to follow the above-referenced section of the master agreement and shall order the Union to withdraw its proposal.

ORDER

    Pursuant to the authority vested in it by section 7119 of 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 parties to adopt the following:

1. Access to Employees' Voice Mail

    The parties shall adopt a modified version of the Union's proposal as follows:

All employee passwords/access codes and messages will be kept confidential. When required for operational or public service reasons, message access may be secured by the Office Systems Administrator to retrieve messages left by callers doing business with SSA. The skip through message feature will be utilized as soon as the Systems Administrator identifies that a call is personal. Management will strictly adhere to the Privacy Act.

2. Voice Mail for Union Representatives

    The parties shall adopt the Union's proposal.

3. Requesting Unanticipated Leave Through Use of Supervisor's Voice Mail

The Union shall withdraw its proposal, and the parties shall follow the provisions of Article 31, Section 5, of the master agreement.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

December 16, 1994

Washington, D.C.

 

1.Section 302 of the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, § 302, 108 Stat. 1464, 1518 (1994), provides as follows:

(a). Study. The Comptroller General of the United States shall conduct a study of telephone access to local offices of the Social Security Administration. 

(b). Matters to be Studied. In conducting the study under this section, the Comptroller General shall make an independent assessment of the Social Security Administration's use of innovative technology (including attendant call and voice mail) to increase public telephone access to local offices of the Administration. Such study shall include-- 

    (1) an assessment of the aggregate impact of such technology on public access to the local offices, and 

    (2) a separate assessment of the impact of such technology on public access to those local offices to which access was restricted on October 1, 1989. 

(c). Report. Not later than January 31, 1996, the Comptroller General shall submit a report on the results of the study conducted pursuant to this section to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate.

2.In support of its position, the Employer relies on the holding in District No. 1, Marine Engineers Beneficial Association (AFL-CIO), Panama Canal Area and Panama Canal Commission, 49 FLRA 461 (1994) (Member Talkin Dissenting in Part as to Proposal 1) and National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Alexandria, Virginia, 49 FLRA 874 (Proposal 5) (1994)(Member Armendariz Concurring as to Provision 6).

3.The Union maintains that its proposal involves a subject within the scope of section 7106(b)(1) of the Statute, as it "involves technology, methods, and means of performing work," and, therefore, the matter is a mandatory subject of bargaining under Executive Order 12871, 58 Fed. Reg. 52201 (1993). In the alternative, the Union argues that even if its proposal does impinge on management rights, it is an appropriate arrangement for adversely affected employees, and, therefore, is within the scope of bargaining under section 7106(b)(3).

4.The parties' current agreement contains a provision which addresses the issue of services for the Union. Article 11, Section 6, provides as follows: 

The Administration agrees to furnish, where available, customary and routine services which are consistent with the best interest of the Employer, employees and the Union. Such services include internal mail (for other than mass mailing), photocopy equipment, shuttle, and the like. This will include SSA Union representatives if they are conducting representational duties away from their permanent duty station. 

The Employer argues that because the expansion of agency technology to Union representatives has been "consistently dealt with during term bargaining," the issue of voice mail for Union representatives should also be addressed in that forum.

5.Paragraph 7 provides as follows: 

Management intends to complete the Demonstration Projects within 6 months from initial implementation. If Management decides to modify, expand, extend, or make permanent this Demonstration Project beyond the project's completion, the Union will be notified and afforded an opportunity to bargain per Article 4 of the National Agreement.

6.Article 31, Section 5 provides, in relevant part: 

If the use of annual leave or sick leave cannot be anticipated, the request for approval shall be called in within one (1) hour after the start of the employee's normal tour of duty, or core time when flextime is in effect, or as soon as possible thereafter. Contact will be made with the employee's immediate supervisor or other designated official. (Emphasis added.)

7.In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, National Council of Social Security Administration Field Office Locals, Council 220, 47 FLRA 1004 (1993), the Authority set out a definitive test for determining when a matter is contained in or covered by a collective-bargaining agreement, thereby relieving the employer of any further bargaining obligation.