United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of SOCIAL SECURITY ADMINISTRATION XENIA BRANCH OFFICE XENIA, OHIO
and LOCAL 3448, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 96 FSIP 93

DECISION AND ORDER

    Local 3448, American Federation of Government Employees, AFL-CIO (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, Xenia Branch Office, Xenia, Ohio (Employer).

    After investigation of the request for assistance, the Panel determined that the dispute, which concerns an office sound system, should be resolved on the basis of written submissions and rebuttals from the parties, with the Panel to select one party’s final offer to resolve the impasse. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.

BACKGROUND

    The Employer administers retirement, Medicare, disability, survivor, and supplemental security income (SSI) entitlement programs. The Union represents, at the local level, 14 employees who are members of a nationwide bargaining unit of approximately 50,000 employees; representative occupations include clerk, and service and claims representatives. The parties are governed by the master agreement between SSA and AFGE, which is due to expire in March 1999. They have reached impasse in this case following negotiations over the impact and implementation of an office relocation; the move was completed in June 1996.

ISSUE AT IMPASSE

    The sole issue in dispute is whether the Employer should provide a sound system at the new location.

    a. The Union’s Position

    The Union proposes that "the [a]gency . . . purchase and install a sound system (radio) in the new office." Adoption of this proposal would continue the practice from the former location, which had been in effect since 1975. The proposal is consistent with the practice in some offices in the Chicago Region of SSA which use the radio for telephone "hold" or as office background music. In addition, at least one other SSA office -- Compton, California -- provides piped-in office music. Background music would provide a buffer from employee discussions and claimant interviews, thereby allowing for greater privacy and fewer distractions; this should help some employees concentrate more closely on their work. The total cost of installing a sound system (equipment and labor) is approximately $393, which is a minimal investment in employee morale. The proposal is also consistent with prior Panel decisions.⁽¹⁾

    In response to the Employer’s arguments, there is no legal impediment to adopting the proposal, since this type of use falls within the "homestyle exemption" to the copyright laws;⁽²⁾ thus, there would be no need for annual licensing fees. Regardless, the American Society of Composers, Authors, and Publishers (ASCAP) has advised the Union that it has no interest in this issue. Finally, the Employer’s interpretation of what constitutes an appropriate use of agency funds is overly restrictive since other types of "creature comforts" have been routinely funded.

    b. The Employer’s Position

    The Employer, in essence, would have the Panel order the Union to withdraw its proposal. It estimates the cost of a sound system at $1000 for the actual equipment plus an additional $400 per year for licensing fees. Such an expenditure is unwarranted, especially since other office equipment (e.g., file cabinets) has not been purchased due to budgetary constraints. Its position is consistent with Governmentwide procurement rules which allow funds to be expended only when there is a "bona fide need" for "essential" equipment; because an office sound system provides no tangible benefit such as increased productivity or enhanced morale, such a purchase cannot be supported. In addition, the sound system at the former location was installed by the building owner and included in the lease; thus, contrary to the Union’s assertions, a past practice was never established. Since SSA has not provided a sound system in any other office in the Chicago Region, there is no justification for installing one at Xenia.

    The Union’s proposal is unnecessary because: (1) new modular wall panels will act as sound buffers, thereby reducing distractions created by office discussions and claimant interviews; and (2) employees already have a radio available in the break room. In view of the fact that the new wall panels will be sound absorbent, office music would have to be played at a relatively high volume; this could have a negative impact on customer service and the public’s perception of the agency. Moreover, a Panel order providing a sound system for one office could "open the flood gates" to similar requests from all 1,100 field offices, which would result in a significant cost to the agency. Finally, the Union’s proposal fails to recognize that some employees are more content without background music.

CONCLUSIONS

    Having reviewed the record in this case, we conclude that the Employer’s final position should serve as the basis for resolving the parties’ dispute. In our view, the cost of the proposed sound system, although relatively small, cannot be justified given that basic office equipment has not been purchased due to budgetary constraints, as the Employer indicates. Moreover, it is clear from the record that the practice of providing sound systems for employees’ use is not widespread within the region, and that the establishment of the practice at the parties’ previous location occurred under unusual circumstances. For these reasons, we shall order the Union to withdraw its proposal.

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 Union shall withdraw its proposal.

 

By direction of the Panel.

H. Joseph Schimansky

Acting Executive Director

October 3, 1996

Washington, D.C.

 

1.In support of its proposal, the Union has cited Department of the Navy, Naval Aviation Depot, Naval Air Station, Alameda, California and Lodge 1584, International Association of Machinists and Aerospace Workers, AFL-CIO, California Conference of Machinists and District No. 115, Case No. 94 FSIP 29 (April 21, 1994), Panel Release No. 358; and Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Syracuse, New York and Local 1760, American Federation of Government Employees, AFL-CIO, Case No. 93 FSIP 164 (November 18, 1993), Panel Release No. 351.

2.In this regard, copyright infringement occurs when there is a public performance of a copyrighted work. A performance is public if it occurs at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. There is, however, a “homestyle exemption” to this general rule. If a radio station is played on a single, inexpensive, homestyle receiver, which is not installed in a commercial manner, no licensing agreement is required. See 17 U.S.C. § 110(5)(1988).