United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
| In the Matter of
SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND |
Case No. 97 FSIP 17
|
|
and GENERAL COMMITTEE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO |
DECISION AND ORDER
The General Committee, American Federation of Government Employees (AFGE), 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 (SSA or Employer).
Following an investigation of the request for assistance, the Panel determined that the parties should resume negotiations, on a concentrated schedule, with the assistance of the Federal Mediation and Conciliation Service (FMCS) in an attempt to resolve the dispute, which concerns the SSA’s implementation of the Welfare Reform Act of 1996 (WRA)(1) (referred to by the parties as the WR/IR). Upon receipt of the mediator’s status report, assuming a complete agreement was not reached, the Panel would take whatever action it deemed appropriate to resolve the impasse. Pursuant to this determination, the parties met and bargained on 3 consecutive days in mid-February, but to no avail. Shortly thereafter, in view of the parties' failure to resolve their dispute during resumed negotiations, 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 from among the parties’ final offers submitted on a package basis, to the extent that the final offers are otherwise legal. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.
BACKGROUND
The Employer administers the Federal retirement, disability, Medicare, and Supplemental Security Income (SSI) entitlement programs through its six components. The Union represents a nationwide consolidated bargaining unit of approximately 48,000 General Schedule (GS) and Wage Grade employees who hold such positions as claims representative (CR), service representative (SR), teleservice representative, data review technician, hearing clerk, hearing assistant, benefit authorizer, safety and occupation health specialist, plumber, carpenter, and electrician, among many others. They are covered by a master collective-bargaining agreement (MCBA) between SSA and AFGE which is due to expire on March 5, 1999.
Given the time constraints it is under in carrying out its mandates under the WRA,(2) the Employer has proceeded to implement a number of its proposals. For example, it has hired approximately 1,000 temporary employees and temporarily promoted about 59 permanent employees to handle the additional workload. Also, it has proceeded to set up a number of "temporary sites" at various locations nationwide to handle the increased numbers of persons (noncitizens primarily) who are being served in person at field offices. Some "temporary sites" are trailers parked next to field offices, and others are located in the same building as a field office.
ISSUES AT IMPASSE
The parties disagree over various issues, including the scope of future bargaining over WRA-related matters, the number of temporary promotions, selection procedures for temporary promotions and details, and health and safety protections at "temporary sites."
POSITIONS OF THE PARTIES(3)
1. The Employer's Position
Its proposal 1 is not "substantively different" from the Union’s in that it does not provide for the WRA memorandum of agreement (MOU) to be "the final labor relations word for every possible past, present, or future change" regarding the WRA. Contrary to the Union’s argument, it was the Union’s and not management’s "dilatory and interest-driven actions" which, "to a considerable degree," resulted in the parties’ "failure to reach agreement through [interest-based bargaining (IBB)] and traditional bargaining" with FMCS assistance. Proposal 2 is intended to exclude from further negotiations only those matters over which the Union already has received notice and an opportunity to bargain; the Employer has fulfilled its obligation to bargain over such matters even if the Union chose not to pursue them for resolution in these negotiations. Under this proposal, therefore, any "new matters" (i.e., matters over which notice and an opportunity to bargain were not provided the Union during these WRA negotiations) would be subject to bargaining in accordance with Article (Art.) 4, of the MCBA. Any disputes over whether the Union was afforded an opportunity to bargain over any particular WRA-related actions the Employer may have already taken, or will take, would be appropriate for resolution through the ULP process; in this regard, there is already pending before the Federal Labor Relations Authority’s Washington Regional Office a Union-filed unfair labor practice (ULP) charge regarding the appropriateness of management’s actions in connection with the implementation of the WRA while the matter was being negotiated. Proposal 3, irrespective of the Union’s argument, "does not change the fact" that "new changes" concerning each and all SSA components are subject to bargaining consistent with Art. 4, of the MCBA.
The procedures for handling temporary promotions are already set forth in great detail in Art. 26, of the MCBA. Its proposal 19 addresses temporary promotions, and affirms management’s commitment to follow MCBA procedures when conducting temporary promotions; in fact, it used these procedures when it temporarily promoted employees in connection with implementation of the WRA. Proposal 7 similarly affirms its commitment to abide by the MCBA provisions for handling details as set forth in Art. 27, as well as any existing local negotiated agreements and practices on the matter. This proposal balances the needs of both employees and the Employer; in this regard, details would be handled on a voluntary basis except when it becomes necessary for management to direct them. Employees may consider personal hardships in deciding whether or not to volunteer for details and are not precluded from asking to be excused from details for the same reasons, although the final decision on whether to detail employees would be management’s.
Proposal 8 addresses the Union’s concerns regarding office equipment, facilities, furnishings, etc., at temporary sites while recognizing their temporary nature. With regard to the availability and assignment of flexible work schedules and compressed work schedules (CWS), this proposal expresses management’s intent to comply with Art. 10, of the MCBA, which covers these matters in detail. Proposal 9 simply expresses management’s intent to comply with the MCBA when local negotiations over WRA-related issues are mandated; of course, the extent of management’s duty to bargain would depend upon, among other things, whether the matter is contained in or covered by the MCBA. This proposal also expresses management’s intent not to use any lunch or break area for WRA-related purposes. However, if it proposes to do so in the future, consistent with law and Art. 4, of the MCBA, it would be required to give the Union notice and an opportunity to bargain at the appropriate level.
"Health and Safety" proposal 10, "evidences" management’s commitment to comply with Art. 9, of the MCBA, and to conduct required inspections within 60 days after the parties have signed the MOU. A 30-day time frame to complete Security Action Plans (SAPs) is provided for under proposal 11; there is no dispute that SAPs are necessary.
Even though the WRA does not require SSA to detain individuals, proposal 12 addresses the Union’s concern that employees not be involved in the detention of any individuals. Proposal 13 attempts to address, at least to some extent, the Union’s concern that certain individuals not be arrested at facilities where employees are working. Proposal 14 speaks to the more common or likely scenario of employees being the first to discover that an individual is an escaped felon or parole violator. The actions that employees would be allowed to take are not in dispute. Since management is "unaware of any unusual or special risks or threats to [SSA] employees posed by [WRA-related] work that differs from those risks or threats associated with other existing workloads," protections in addition to those that are already in place or provided for in these proposals are unnecessary.
Employees’ interests in being advised on how to prioritize their WRA-related workload, albeit orally, are addressed in proposal 15. Management’s commitment to abide by Art. 31 concerning leave is expressed in proposal 16.
With regard to the Union’s proposals, "General Provisions" proposal 1 is substantially the same as the Employer’s. Proposal 2 is nonnegotiable because it addresses a matter already contained in and covered by Art. 4, of the MCBA, which "covers explicitly and comprehensively the process [and] procedures [for] and limitations on mid-term bargaining."(4) This proposal "attempts to reserve for recall and repeated negotiations matters on which [the Union has] already received notice and an opportunity to bargain." Proposal 3 is inconsistent with Art. 4, § 1A., which "explicitly" requires management to give the Union "reasonable advance notice" of any proposed changes affecting the conditions of employment of unit employees as well as § 3 which specifies that when bargaining over a component level issue would begin and the length of bargaining; therefore, it too is nonnegotiable.
The Union’s proposal 7 addresses temporary promotions. It is nonnegotiable because the matter of promotions (temporary or otherwise), including the procedures and processes for handling them, is already "explicitly and comprehensively" covered by Art. 26, entitled "Merit Promotions," of the MCBA. This proposal also excessively interferes with management’s right to determine its organization and assign employees under § 7106(a). If it is considered to address a permissive subject of bargaining under § 7106(b)(1), specifically, "the numbers, types, and grades of employees assigned to the [WRA] work effort," management has decided "not [to] enter into bargaining over such matters." On the merits, by requiring "the unwarranted temporary promotions of employees," it is simply an "attempt" by the Union to "penalize" SSA for its "lawful exercise of its right under the Statute [to] hire temporary employees." Furthermore, the amount and nature of the workload related to implementation of the WRA "does not justify 500 promotions;" in this regard, most of the additional work is of a clerical nature which does not support the promotion of so many permanent clerical employees to higher graded CR and SR positions. The fact that management has agreed to temporary promotions in the past is relevant in this case only to the extent that it will agree to them in the future only when the work justifies such promotions; that is not the case here, at least not in the large numbers proposed by the Union.
The Union’s "Details" proposals are outside management’s duty to bargain because they address matters already "explicitly and comprehensively" contained in and covered by Art. 26 and 27, of the MCBA. Management has elected not to negotiate over such matters; instead, it has chosen to "rely upon" those MCBA provisions. Also, in some cases, the proposals "conflict with the language" in the MCBA. For example, proposal 8 conflicts with Art. 27, § 3, which makes the Employer "responsible for keeping details within the shortest practicable time limits[.]" In addition, this proposal, to the extent that it requires management to "summarily end all details," interferes with management’s right to assign employees and accomplish its mission and, therefore, is nonnegotiable under § 7106(a). Proposals 9 through 15 also are nonnegotiable because they interfere with management’s right to determine its organization and assign employees under § 7106 (a). Proposal 9 specifically conflicts with Art. 27, § 4, and Art. 26, §§ 5, 6 and 7.C., which (1) provide for competitive procedures in the MCBA to be followed in conducting details and temporary promotions to higher graded positions of more than 120 days; (2) establish the area of consideration for such details and promotions; and (3) exclude from the competitive procedures details and promotions to higher graded positions of less than 120 days, among other things. Thus, this proposal takes away the "flexibility of noncompetitive details" provided for under the MCBA. Proposals 10 and 11, which speak to announcements of details, are inconsistent with Art. 26, § 7.C., which addresses announcements of details and promotions handled competitively; in this regard, as noted above, certain details and promotions are specifically excluded from the competitive process, thereby allowing them to occur without following the competitive procedures. Proposals 13 and 15 are inconsistent with Art. 26, §§ 8, 9, 10, and 11.(5) More specifically, proposal 13, which provides for selection based on seniority only, should not be adopted because it may impede the assignment of the "best suited" employee for a position in terms of "experience, temperament, and skills." Proposal 16 is nonnegotiable because it is inconsistent with the requirements of law and Government-wide regulations.(6) Moreover, Art. 8, of the MCBA already addresses compensation for official travel and reimbursement for travel expenses,(7) so this proposal is also nonnegotiable because it addresses a matter already contained in and covered by the MCBA.
The Union’s proposals 17 a., b., and e., which require that temporary sites be considered extensions of specific field offices for various purposes, are nonnegotiable because they interfere with management’s right to determine its organization under § 7106 (a). To the extent these proposals would tie CWS at temporary sites to "parent offices," they are nonnegotiable because they address a matter already "explicitly and comprehensively" covered by Art. 10, of the MCBA. Since Art. 4 already addresses appropriate levels for mid-term bargaining over management proposed changes, proposals 17 c. and 18 a. are nonnegotiable. Also nonnegotiable is proposal 18 b. because it refers to workload unrelated to implementation of the WRA, a matter outside the scope of these negotiations. It is "unacceptable" to require that the temporary sites have the same facilities as permanent sites because of their short-term status. With regard to constructing lunch and break areas at each temporary site, it would amount to "an unnecessary duplication of resources" given that many of them are in close proximity to permanent offices with lunch and break areas available for employees’ use. Also, the trailers being used as temporary sites may not be altered for "practical, legal, and logistical reasons." By linking hours of work, lunch breaks, etc., at temporary sites to what is provided at "parent offices," the Union denies the Employer the "flexibility" it needs in addressing those matters to ensure office "coverage by qualified staff" and "service to the public."
On the matter of the Union’s "Health and Safety" proposals 19 and 20, they are nonnegotiable because they address matters already contained in and covered by Art. 9, of the MCBA, including all appendices.(8) Proposal 19 also interferes with management’s right to determine its internal security practices under § 7106(a). Management "does not dispute its legal and contractual responsibilities" to employees regarding health and safety protections. The Union, however, has not shown how the MCBA fails to address its concerns, or how any problems that may arise cannot be resolved through the MCBA.
Employees already have a duty to report fugitive felons and parole violators to appropriate law enforcement authorities by law and regulation, a matter addressed in the Union’s proposal 22;(9) therefore, such duty need not be included in their position descriptions (PDs).(10) Also, unit employees rarely have to perform law enforcement-type duties; thus, they need not be "reflected" in their PDs. In any event, there are already statements in the PDs of SRs and CRs that address the reporting requirement.(11) Besides, under the WRA and implementing regulations, employees are not being required "to engage in types of work dissimilar from the types that they engaged in before," such as providing information to appropriate law enforcement authorities and making claims determinations regarding felons and children. Proposal 23 may be an attempt by the Union to circumvent the reporting and cooperation requirements of the WRA; in this regard, it is possible that employees’ compliance with such requirements may be viewed as "deliberately setting up" an individual because it may lead to the apprehension and arrest of the individual by law enforcement authorities. Proposals 25 through 27 interfere with management’s right to determine its internal security practices and, therefore, are nonnegotiable under § 7106(a). Proposal 25 specifically, in effect, attempts to establish work requirements for other Federal and State agencies (i.e., keeping track and reporting to SSA the release of any felons that may have some involvement with SSA), a matter outside management’s duty to bargain. Proposal 27, which concerns training, also is outside management’s duty to bargain because it addresses a matter already contained in and covered by the MCBA, specifically, Art. 9. § 5D.(12)
Finally, with regard to the Union’s "Miscellaneous" proposals, proposal 28 is nonnegotiable because it interferes with management’s right to assign work and direct employees under § 7106(a), which includes the right "to supervise and guide employees in the performance of their duties on the job."(13) On the merits, this proposal establishes a procedure which is "offensive and demeaning" to supervisors as well as "cumbersome and time consuming." Proposal 29 is outside management’s duty to bargain because it addresses matters already covered by Art. 31, entitled "Time and Leave," of the MCBA and a letter of understanding (LOU) dated August 10, 1993, incorporated therein.(14) Proposal 30, which concerns official time, also is outside management’s duty to bargain because it concerns a matter already covered by Art. 30,(15) including appendices, and Art. 4 (with regard to midterm negotiations specifically). The Union has not demonstrated a need to bargain over additional official time; in this regard, it has not shown that the official time provided for under the MCBA would not allow it to meet any additional representational duties resulting from implementation of the WRA. In fact, the opposite is true; in this regard, the Union carried over into this year approximately 200,000 hours of unused official time from previous years, more than enough to allow it to fulfill any additional representational duties related to the WRA. With regard to proposal 31, the WRA MOU is not the place for the Union to express its disagreement with the requirements of the legislation. Proposal 33, which provides for an "automatic [and] unconditional reopener" of the WRA MOU, is not justified given the parties’ experience in these negotiations.
2. The Union’s Position
Contrary to the Employer’s arguments, all its proposals are negotiable. In this regard, some proposals address § 7106(b)(1) matters and, therefore, are negotiable under Executive Order 12871 and Section 2 of the "Partnerships" article in the MCBA.(16) Others are negotiable under the March 5, 1996, MOU which is incorporated in the MCBA, because they address matters not "explicitly and comprehensively" provided for in the MCBA.(17) Still others represent appropriate arrangements for employees adversely affected by the implementation of the WRA and/or procedures for management to follow in exercising any of its statutory rights and, therefore, are negotiable under § 7106(b)(2) and (3).(18) If the Panel cannot resolve the duty-to-bargain issues raised by the Employer, the Panel should nevertheless adopt the Union’s package of final offers on the merits and let those issues be resolved subsequently in the appropriate forums.
Its package of final offers should be adopted on the merits for various reasons. With regard to the "General Provisions" proposals, proposal 1 would provide for the WRA MOU to cover only those matters over which the parties have "bargained and reached agreement;" this is "necessary" in order to "protect[] the Union’s rights and [the] well-being of the bargaining unit." Proposal 2 assures the Union: (a) an opportunity to bargain over those implemented WRA-related changes on which it has not been given notice to date; and (b) notice and an opportunity to bargain over any future changes to SSA policies. It may be necessary to include such wording in the MOU because the Employer continues to take WRA-related actions without bargaining with the Union, e.g., taking on work from, and detailing employees to, State agencies. Also, it would allow the parties to address issues which were "misperceived" or "overlooked" as a consequence of their abandonment of the IBB process. The last sentence of proposal 2 is "essentially derived and lifted" from the March 5, 1996, MOU mentioned above; in this regard, "what was good enough for the parties" in the MCBA is "good enough, and even required," to be included in the WRA MOU. Proposal 3, compared to the Employer’s, is clearly worded and, therefore, less likely to be the subject of disputes. Since the "impact" of the WRA on other SSA components is not known at this time and "in large part" will depend on what happens in the field offices, it is best that issues be handled as they arise at the appropriate component level; its proposal 3 allows for this. Contrary to the Employer’s argument, Art. 4 of the MCBA does not preclude the parties from negotiating over "how they will handle subsequent related issues or from delegating the bargaining of lower level issues to lower levels."
On the matter of its "Temporary Promotions" proposal, it should be adopted because it is consistent with earlier agreements concerning initiatives addressing the reduction of workload at the Office of Hearings and Appeals and modifications and continuation of the Short-Term Disability Plan action items, where the Employer agreed to certain temporary promotions. The proposed promotions are intended to "recognize and reward" at least some of the permanent clerical employees now performing additional work, including training temporary hires, and to make them whole for any loss they may have incurred as a result of the Employer’s proceeding with the hiring of temporary employees instead of temporarily promoting them during the pendency of these negotiations. Furthermore, it may be equitable and prudent to promote permanent employees now given that they will likely take over the work started by temporary hires after they are dismissed once funding for their services runs out.
With regard to its "Detail" proposals, Art. 27 of the MCBA, entitled "Details," while addressing some matters related to details, leaves others to be "deal[t with] when a proposed detail arises;" in fact, the LOU dated July 17, 1988, and incorporated in the MCBA following Art. 27, clearly requires SSA "to give [the Union] notice and an opportunity to bargain over details that involve more than one employee, are for [more] than 30 days and extend beyond [an employee’s] commuting area."(19) The proposals "would add order and equity into the [detail] process." In fact, the announcement and selection processes proposed are consistent with the 1992 MOU concerning reassignments.(20) Specifically, proposal 8 should be adopted because it simply is a restatement of Art. 27, § 3. Its use of the word "normally" in this proposal gives the Employer "sufficient flexibility" to deal with "particular situations that might stand outside the normal selection procedure." Moreover, it would be fair to employees for the Employer to undo all details and begin anew because they were "illegally implemented." Proposal 9 is consistent with Art. 26, § 7.C., entitled "Vacancy Announcements and Areas of Consideration," which limits details to commuting areas.(21) The 10-day announcement period provided for in proposal 11 is "reasonable." As for proposal 15, it is typical of those negotiated by the parties and other Federal agencies and unions on the matter.
As to its "Facilities Issues" proposals 17 a. and 17 b., they are a "restatement of the arrangements described by SSA at the bargaining table;" in fact, the former simply references "whatever SSA has done in this regard," which is what the Union is requesting to "know more about." The information requested concerning the temporary sites and their "parent" offices would be necessary to enable the Union to "monitor compliance" with the WRA MOU. Proposals 17 c. and 18 a. provide for a more efficient and expeditious handling of the listed matters by allowing them to be negotiated locally or regionally; for example, matters related to the use of trailers at temporary sites by the Sacramento South Office, and the decision not to allow flexible work schedules at temporary sites in New York and New Jersey, would be handled most appropriately locally.(22) Contrary to the Employer’s argument, the MCBA does not preclude the delegation of authority to negotiate over the listed matters to lower levels; in this regard, proposal 17 c. is consistent with Art. 4, which provides for matters that affect more than one office in a region to be negotiated regionally, and those that affect a particular office to be negotiated locally. Overall, proposal 17 is fair to employees at temporary sites because it requires them to have the same conditions of employment as fellow employees at "parent" sites; it ensures that employees will not lose rights and benefits obtained through the MCBA (e.g., the right to work CWS under Art. 10.) or past practice if they are relocated to a temporary site.
Its "Health and Safety" proposals ensure: (1) that employees, regardless of where they are assigned to work, "will have a certain level of health and safety protections," and (2) a level of security at each site that addresses its particular "circumstances," and is consistent with contract and regulations. Proposal 20 is simply a "restate[ment]" of the parties "obligation ... to conduct and act on joint health and safety inspections of SSA sites" set forth in Art. 9, § 3.A. and 7.; inspections should be done in the shorter time frame proposed because temporary sites are already up and running. For the same reason, the SAPs, which are provided for under both parties’ proposals and mandated under Art. 9, § 14.A., of the MCBA also should be completed in the shorter time frame proposed.
Concerning its "Felons, Parole Violators and Law Enforcement Officers" proposals, they are necessary to protect, "to the maximum extent possible," unit employees and the public from harm now that "Congress" is having them perform law enforcement-type duties which are "far removed from the original mission and culture of the SSA." On the matter of proposal 22, "by law and contract," unit employees’ new law enforcement duties must be reflected in their PDs even though they may be "infrequent or rare duties." Also, contrary to the Employer’s argument, duties that are less than routine such as, e.g., the reporting of program abuses or "other questionable situations," are in fact included in unit employees’ PDs. The notice provided for under proposal 25 is not out of the ordinary and could be obtained by SSA through administrative and/or judicial processes. Proposal 26 is "more comprehensive" than the Employer’s because it would require management to notify unit employees of any dangerous individuals and not just felons and parole violators. For employees to be able to protect themselves from the dangers associated with their new law enforcement duties, it is necessary for them to get training as provided for in proposal 27.
Finally, with implementation of the WRA came an undisputed increase in workload in a short period of time; thus, it is necessary for employees to receive "clear guidance" from management in prioritizing their work, as would be required under proposal 28. Providing that work priorities be set forth in writing is appropriate because it would: (1) "help employees remember," and (2) serve as a reminder to supervisors when appraising employees. Notwithstanding that proposal 29 addresses a matter already covered by Art. 31, of the MCBA, it should be included in the WRA MOU because it is "in essence a restatement of matters that are covered in [the MCBA] and other agreements," and would refresh employees’ memories and "smooth the transition" for employees "move[d] for [WRA]-related reasons." The impact on labor-management relations resulting from the increase in the number of unit employees and in their workload, "justif[ies]" adoption of its proposal 30 providing for additional official time for representational activities in amounts to be negotiated. Moreover, it is appropriate to provide official time in addition to what is provided for in Art. 31, of the MCBA because that agreement was based on the assumption that the number of SSA offices and employees would be decreasing, not increasing, as has happened with implementation of the WRA. It is "reasonable" to provide for a reopener of the MOU as set forth in proposal 33, and important to the Union to include a statement in the MOU such as proposal 31 which expresses the Union’s disagreement with the implementation of the WRA.
With regard to the Employer’s package of final offers, "General Provisions" proposal 1 is "objectionable" because it would foreclose negotiations over those "needs" of the parties which were not addressed in WRA negotiations as a result of the parties’ abandoning the IBB process. Proposal 2 is unacceptable to the Union because the Employer’s use of the wording "may be appropriate" fails to "guarantee" bargaining over SSA policies concerning the Childhood Disability provisions of the law and other matters which have yet to be negotiated for whatever reasons. As for proposal 3, it is "inadequate" because it does not cover all SSA components and "suggests" that bargaining over certain matters may be "inappropriate or unnecessary." The Employer’s "Facilities Issues" proposal 8, which addresses office equipment, etc., at temporary sites, is "inadequate" because it "commit[s] the Employer to [do] little or nothing." Also, the temporary nature of the new sites is not a valid reason to "turn back the clock on employee benefits." Moreover, this proposal does not guarantee lunch and break areas at temporary sites, which is important given that it would not be "practical, comfortable, or safe" to require employees to take their breaks outside or use the areas available in the "parent" offices because it may require them to walk through public waiting areas. The wording concerning CWS is unacceptable because it evidences the Employer’s "ambivalence" over whether it will abide by Art. 10, of the MCBA, and may allow it to disregard the MCBA to address "coverage problems." Proposal 9 is unnecessary because it simply expresses management’s "commitment to the contract;" also, it does not address the Union’s interest in being assured that local parties would be able to bargain over matters which are not "clearly resolved" in the WRA MOU. "Health and Safety" proposal 10 is "unfair" to employees stationed at temporary sites because it would allow the Employer to provide them less health and safety protections for no other reason than the temporary nature of the facilities. Furthermore, it sets conditions for management’s compliance with the requirements of the Art. 9, of the MCBA; in effect, it "waters down" the article, something over which the Union has no obligation to bargain.
CONCLUSIONS
Having reviewed the arguments and evidence before us, we find that, on balance, the Employer’s package of final offers is more reasonable than the Union’s. Preliminarily, we note that our decision in this case is based solely on our review of the merits of the parties’ respective proposals. In this regard, two issues stand out and appear to be at the center of the parties’ dispute: (1) the scope of future bargaining over WRA-related matters; and (2) the temporary promotion of certain unit employees. In our view, the Employer’s proposals provide a better basis for resolving these issues. In this regard, concerning the former issue, the Employer’s proposals, as written and/or explained, limit future bargaining to new issues (i.e., matters for which the Union has not received notice and an opportunity to bargain), which is consistent with an effective and efficient Federal Government.(23) The Union’s proposals, on the other hand, provide for future bargaining over any matters not explicitly addressed in the WRA or fully covered in the MCBA, which may lead to continuous bargaining over the implementation of the WRA. It also gives the Union a "second bite at the apple" with regard to subjects it neglected or elected not to pursue earlier. On the latter issue, the Union proposes the promotions of hundreds of unit employees to CR and SR positions. Its sole supporting argument, however, is that such promotions should be undertaken as a remedy for management’s decision to hire temporary employees while negotiations over the implementation of the WRA were occurring, which it contends was in violation of the Statute. The Panel is not the appropriate forum to obtain what is, in effect, a ULP remedy. The Union submitted no empirical evidence which shows that 500 temporary promotions (or some other number, for that matter) are necessary given the SSA’s added responsibilities under the WRA. Under these circumstances, there is no basis for us to dispute the Employer’s contention that the 59 unit employees it temporarily promoted by following the procedures set forth in Art. 26, of the MCBA, and the hiring of 1,000 temporary employees, were required to handle the additional workload; these actions conform with its proposal on the matter. Finally, concerning the remainder of the parties’ dispute, the record weighs heavily in favor of adopting the Employer’s final offers. In this regard, the parties’ proposals address some issues already extensively covered in the MCBA (e.g., procedures for details and promotions, official time, official travel, training, CWS, leave, and mid-term bargaining). The Union’s proposals appear to be an attempt to expand on or modify those MCBA provisions, without persuasive substantial evidence in support thereof. The Employer’s, on the other hand, mainly would have it comply with the MCBA, other negotiated agreements, laws and regulations.(24) Accordingly, we shall order the adoption of the Employer’s package of final offers.
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 package of final offers.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
June 27, 1997
Washington, D.C.
1.Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104-193, 110 Stat. 2105 (1996), amended by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, Div. C., Title V, 110 Stat. 3009-1570 (1996).
2.SSA, for example, is responsible for implementing the SSI eligibility provisions which concern disabled children and noncitizens. The law required SSA to notify affected persons of the new childhood disability and noncitizen SSI eligibility criteria by January 1, and March 31, 1997, respectively. It also requires SSA to redetermine the eligibility of all children and noncitizens currently receiving SSI benefits by August 22, 1997
(i.e., 1 year from the date of enactment of the law).
3.The parties’ final offers are attached as Appendices A and B. We note that there is no dispute over the parties’ respective proposals concerning temporary employees, as well as Union proposals 32 and 34 and Employer proposals 17 and 18.
4.See, e.g., 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); see also, the March 5, 1996, MOU incorporated in the MCBA following Art. 4 which reads, in toto, as follows:
5.These MCBA provisions set out an employee application process, provide for the establishment of “assessment criteria” for positions, address the makeup and responsibilities of Assessment Panels (i.e., the Panels responsible for identifying well-qualified candidates for positions) and the process for selecting from among such applicants.
6.Although not cited by the Employer, these are 5 U.S.C. § 5542 and the Federal Travel Regulations, 5 C.F.R. Parts 301-304 (1996).
7.For example, § 1 of this Art. reads as follows: “To the maximum extent practicable, time spent in travel status away from the employee’s official duty station will be scheduled by the Administration within normal working hours. Where it is necessary that travel be performed during non-duty hours, the employee will be paid overtime when such travel constitutes hours of work under 5 U.S.C. or the Fair Labor Standards Act, if applicable.”
8.Art. 9, § 1A., for example, requires the Employer to “provide a safe and healthy work environment in accordance with Executive Order 12196 and the Department of Labor[’s] implementing regulations.” Section 1C. provides for “[o]ccupational safety, safety and fire standards adopted by HHS [to] be used and [] considered minimum requirements;” also, “[s]pecial SSA standards [are] recognized as recommended standards for SSA facilities,” and deviated from “only in accordance with AIMS 13.04.06.” Some other examples of matters addressed in Art. 9: § 4 speaks to abatement of unsafe and unhealthy working conditions; § 7 speaks to inspections; § 8 speaks to temperature conditions; § 9 speaks to onsite security; and § 14 speaks to emergency preparedness.
9.The Employer specifically cites to The Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. Part 2635 (1997). It notes that, under § 2635.101(b)(11), employees are required to “disclose waste, fraud, abuse, and corruption to appropriate authority.” The Employer does not, however, explain how reporting felons falls under this rule of conduct, and it is unclear to us how it does. The Employer also cites to Program Operations Manual System (POMS), Part 05, Chapter 005, Subchapter 01, which addresses, among other things, the procedures for field and teleservice center employees to follow when receiving requests from law enforcement officers for information SSA is required to provide under the WRA. The Employer did not provide a copy of the section of this POMS setting forth procedures. The Employer contends that the Union was provided a copy of this POMS, but the record does not reveal whether the Union requested to bargain over it.
10.A review of Art. 28, § 1, of the MCBA does not appear to support the Union’s argument. In this regard, it provides for PDs to “accurately reflect the principal duties and responsibilities of the position.” (Emphasis added.)
11.In SRs’ PDs the statement reads as follows: “Identifies, verifies, documents, and reports program abuse cases or other questionable situations encountered.” The CRs’ PDs state: “Identifies situations with public affairs implications or problems and issues of such complexity or magnitude to warrant referral and refers them to superiors of other organizational components.”
12.This MCBA provision reads as follows: “The Employer will continue to provide employees with the appropriate orientation and/or training it deems necessary to perform their jobs safely. Such training shall include instructions in the proper work methods to be used and proper use of required equipment.”
13.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 relevancy of this case is questionable. It concerns the negotiability of union proposals involving the establishment of the performance standards an employee must meet in order to continue employment with the agency, and to receive an increase in pay. Proposal 28 concerns neither of these issues.
14.For example, Art. 31, § 2B., provides for, among other things, leave requested in advance “normally” to be granted except when “conflicts of scheduling or undue interference with the work of the Administration would preclude it.” The LOU addresses leave rosters specifically; in this regard, it provides for “roster agreements in existence in Field, Headquarters, Hearings and Appeals, the Office of Program and Integrity Review and the Data Operations Centers [to] remain in effect through the term of this agreement. Each of the six PSCs [(Program Service Centers)] can select either pre-1988 seniority arrangements or the leave roster system in use in all other components.”
15.For example, Art. 30, Appendix F, which addresses official time and labor relations in field offices, provides, at paragraph K, that “[a]ny payment of travel and per diem will be limited to that which is specifically provided by this agreement, and past practices in effect on June 10, 1982.” Art. 30, § 4, allows for a Union representative in one component to engage in representational activities in another component, but specifically precludes the payment of travel and per diem expenses for such “crossover” representation.
16.For example, proposals 7 and 17.
17.These include proposals 8 through 16, 17 c., 18 a., and 20.
18.Proposals 8 through 16, 19, 25 through 27, and 28, among others.
19.This LOU, at 1.b., states that whether there is a duty to bargain over details or reassignments in field offices would be determined by the Statute and the MCBA, and specifically excludes from bargaining details of a single employee for 30 days or less within the employee’s commuting area. Paragraph 1.c. calls for past practice to apply when conducting such details and for any hardship to the employee to be “considered.” Paragraph 2 provides for “the law, the agreement, and past practice” to determine “the duty to bargain rights and responsibilities” of the parties in negotiating over details and reassignments at all other component levels.
20.The Union contends that this MOU is referred to in Art. 27, § 7 of the MCBA; there does not appear to be such a reference, however.
21.This MCBA provision reads as follows: “Areas of Consideration - The area of consideration for a position vacancy is that area in which the Administration should reasonably expect to locate enough well-qualified candidates. Employees within an area of consideration are given the opportunity to be considered by means of the vacancy announcement and application procedures and/or by being automatically considered without having to submit an application. Unless otherwise indicated in this article, areas of consideration applicable when filling bargaining-unit vacancies are as follows: 1. For all positions at GS-14 and GS-15, SSA-wide; 2. For all other positions at GS-8 and above, SSA region-wide; [and] 3. For all other positions at GS-7 and below, SSA commuting area-wide . . . .” Contrary to the Union’s argument, therefore, it appears that only details to positions at a GS-7 or below level are to be limited to commuting areas.
22.One of the Union’s exhibits reveals that negotiations over the former matter were requested locally; however, it is unclear from the record whether they were pursued in light of these negotiations. Another exhibit reveals that a grievance was filed concerning the latter matter on January 21 because, according to the local union, “bargaining is inappropriate” given that “the contract covers this item.”
23.Of course, any disputes over whether the Employer has, in fact, given the Union notice and an opportunity to bargain over any specific WRA-related matters would have to be resolved through the ULP process.
24.If any employee or the Union believes that the Employer has violated the MCBA, other negotiated agreements, or any law, rule or regulation in taking any WRA-related actions, it is more appropriate for them to seek relief through the negotiated grievance and arbitration procedures.
The parties agree that in the administration of Article 4 of the National Agreement, SSA will continue its current practice of giving notice to AFGE concerning changes in conditions of employment without regard to the Barstow decision. Unless it is clear that a matter at issue is set forth explicitly and comprehensively in the National Agreement or existing MOU, the subject is appropriate for mid-term bargaining.