SOCIAL SECURITY ADMINISTRATION OFFICE OF HEARINGS AND APPEALS FALLS CHURCH, VIRGINIA and ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
FALLS CHURCH, VIRGINIA

and

ASSOCIATION OF ADMINISTRATIVE LAW
JUDGES, INTERNATIONAL FEDERATION
OF PROFESSIONAL AND TECHNICAL
ENGINEERS, AFL-CIO

Case No. 02 FSIP 61

DECISION AND ORDER

    The Association of Administrative Law Judges, International Federation of Professional and Technical Engineers, 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), Office of Hearings and Appeals, Falls Church, Virginia (Employer or OHA).

    After investigation of the request for assistance, the Panel determined that the dispute, which concerns the Facilities and Services article in the parties’ first collective-bargaining agreement (CBA), should be resolved through an informal conference with Panel Member Grace Flores-Hughes. The parties also were advised that if no settlement was reached, Member Flores-Hughes would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision.

    Pursuant to this procedural determination, Member Flores-Hughes conducted an informal conference with the parties on July 23 and 24, 2002, at the Panel’s offices, Suite 220, 607 14th Street, NW., Washington, D.C. These meetings were preceded by a site visit to the Employer’s hearing office in Washington, D.C., where Member Flores-Hughes and representatives of the parties toured that facility, including the private offices of administrative law judges (ALJs) and their hearing rooms. At the close of the informal conference, the parties remained deadlocked over approximately 19 issues. In addition to their final offers on the disputed provisions, the parties were permitted to submit written statements in support of their positions.(1) Member Flores-Hughes has reported to the Panel, and it now has considered the entire record.

BACKGROUND

    The mission of the OHA is to resolve appeals from persons whose claims for Medicare, disability benefits, or SSI benefits are denied. The Employer, a component of the SSA, has approximately 140 hearing offices, of varying sizes, throughout 10 Regions in the United States and Puerto Rico. The Union represents a nationwide bargaining unit consisting of approximately 1,000 ALJs.(2) On August 31, 2001, the parties implemented all contract articles in their first CBA over which they had voluntarily reached agreement; the CBA has a 3-year duration.

ISSUES AT IMPASSE

    The parties remain at impasse over numerous provisions in their Facilities and Services article which include: whether the terms of the Employer’s Space Allocation Standards (SAS) should become part of the parties’ CBA;(3) the extent to which the terms of the Facilities and Services article would effect existing working conditions; space allocation for offices, particularly, the size of private offices and hearing rooms for ALJs; equipment and furnishings for ALJ offices and hearing rooms; whether ALJs should be permitted to have personally-owned furnishings in their offices; locks for office doors; the establishment of "permanent remote hearing sites" and the layout and equipment for those offices; and parking for ALJs.

POSITIONS OF THE PARTIES

1. Section 1.A., Definitions

    a. The Employer’s Position

    The Employer proposes to define SAS as the "Agency policy for the allocation of space and to be used when requesting or providing space for OHA." The terms of this policy should become part of the CBA because the terms of the SAS are reasonable and well thought out. The current SAS has been utilized for over 4 years and it has provided the Employer with uniform standards in its acquisition of space for its many offices throughout the country.

    b. The Union’s Position

    The Union would include the following wording: "The OHA Space Allocation Standard is OHA policy and, as required by law, subject to bargaining." Its proposal would not infringe upon management’s right to determine its space acquisition policy; rather, it would require the Employer, before imposing any changes in that policy on bargaining-unit employees, to bargain as required by law over those aspects of the OHA SAS that are negotiable and affect conditions of employment, such as office size.

CONCLUSIONS

    Having carefully considered the parties’ proposals and positions with respect to this issue, we conclude that the matter should be resolved on the basis of the Employer’s proposal, modified to include a reference to the Employer’s current SAS, dated March 1998. As worded, the Employer’s proposal appears to give management the right to make changes in its SAS without bargaining with the Union. To the extent that any future changes in the SAS may affect conditions of employment, we find no basis for requiring the Union to waive its bargaining rights in that regard. In our view, adding the date of the current SAS to the definition would ensure that the terms of the March 1998 SAS are used by the Employer when it acquires or reconfigures office space. This modification should clarify that the terms of the current SAS, and not one that the Employer may develop in the future, are to be applied when the SAS is referenced further in the Facilities and Services article.

2. Section 2.A., Facilities–-General Provisions

a. The Employer’s Position

    The Employer proposes that "(t)he Judges shall be accorded the same professional respect and treatment in the planning and layout of their facilities as the other Executive Branch employees in the office." The Employer maintains that including this provision in the article should serve notice upon the Union that the Employer intends to treat the ALJs no differently than bargaining-unit employees represented by the two other labor organizations within OHA. Its effect would be to dismiss ALJ claims that they are "executive personnel" and entitled to treatment commensurate with that designation.

    b. The Union’s Position

    The Union proposes that "(t)he judicial position of Administrative Law Judge shall be accorded the professional respect and similar treatment as other administrative judicial officers and executives of equivalent grade and status in the Executive Branch of the United States Government." The Union maintains that including the provision in the CBA may serve to discourage management from denigrating ALJs merely because they chose to form and join a labor organization. Furthermore, it may deter the Employer from treating ALJs in a manner inconsistent with their status as senior-level Government officials. In this regard, similar to executive-level personnel, ALJs receive executive-level pay, undergo a rigorous selection process to become ALJs and, annually, they must file financial disclosure statements.

CONCLUSIONS

    After reviewing the parties’ proposals, we have determined that they should be withdrawn. In our view, the subject of "respect" is out of place in the current context, and neither parties’ proposal adds value to the article. Moreover, if the parties are unable to mutually agree to respect one another in the work place, the imposition of either proposal is unlikely to help matters.

3. Section 2.D., Facilities-–General Provisions

a. The Employer’s Position

    The Employer proposes that "(e)xisting locations will not be modified prior to relocation to another facility."(4) Office space changes that may be required as a result of the terms of the Facilities and Services article should be delayed until offices relocate. Doing so would defer, at least temporarily, a considerable expense for the Employer.

    b. The Union’s Position

    The Union proposes that "existing locations [] not be modified prior to lease expiration, expansion, or relocation to meet the requirements enumerated in this National Agreement." Its proposal would alleviate the financial burden on the Employer to make structural changes to offices that may be required by the terms of the Facilities and Services article. In this regard, by waiting until the Employer needs to expand an office, relocate, or an office lease expires, the phase-in period for implementing changes in office space would be dispersed over several years.

CONCLUSIONS

    Upon thorough consideration of the parties’ evidence and arguments, we shall order that this issue be resolved on the basis of the Union’s proposal. Under the Employer’s approach, implementation of the terms of the agreement would occur only when an office relocates. Since Government offices typically do not relocate until lease expiration, if then, and leases generally are for long terms, many years may pass before some offices come into compliance with the terms of the parties’ CBA. The Union’s proposal, on the other hand, is more reasonable because it includes other triggering events besides relocation, such as an office expansion or lease expiration, requiring the terms of the parties’ agreement to be met. Given our decisions on the other issues in this case, the costs of implementation should not be unduly financially burdensome.

4. Section 5.A., Hearing Office Space Planning

    a. The Employer’s Position

The Employer proposes the following:

In the acquisition of hearing office expansion spaces or new hearing offices, office space calculations will be consistent with the SSA Office of Hearings and Appeals Space Allocation Standards (OHA SAS) in effect on the date of the space action. At the time of this agreement, the OHA SAS in effect is dated March 1998.

The space calculations contained in the OHA SAS should be followed because they "provide clear and unambiguous standards consistent with Government-wide standards for Government offices." The current space standards are well established, having been in effect for over 4 years, and should remain. Moreover, two other labor organizations which represent employees in other bargaining units within OHA have agreed to them; therefore, any deviation of space standards as they concern ALJs would require the Employer to renegotiate space requirements with the other unions which represent bargaining-unit employees.

    b. The Union’s Position

    The Union proposes the following:

In the acquisition of hearing office space, whether by expansion, relocation, or new hearing offices, office space calculations will be consistent with the terms of this agreement. The policy of OHA, as expressed in the current OHA Space Allocation Standard (SAS) may also be followed to the extent that it is not inconsistent with this agreement.

The proposal is reasonable because it simply would require the parties, in the acquisition of hearing office space, to follow the terms of the CBA, whatever they may turn out to be. Further, the proposal would ensure that space calculations are determined through the collective-bargaining process, rather than through unilateral implementation of the Employer’s space policies.

CONCLUSIONS

    On this issue, we are persuaded that the impasse should be resolved through the adoption of the following compromise wording:

In the acquisition of hearing office space, whether by expansion, relocation, or new hearing offices, or in the event of lease expiration, office space calculations will be consistent with the SSA Office of Hearings and Appeals Space Allocation Standards dated March 1998.

As we noted with respect to first issue (Section 1.A., Definitions), it appears that the Employer’s proposal would allow management to make changes in the current SAS without bargaining with the Union concerning office space calculations. Consistent with our approach in Section 1.A, above, we shall order the parties to include wording which specifies that the office space calculations in the current SAS, dated March 1998, are to be followed. Without a reference to the March 1998 SAS, the Panel, in effect, would be waiving the Union’s right to bargain over a matter that affects a condition of employment, namely, the size of private offices for ALJs and hearing rooms. While the Employer has a right to make changes in its SAS, we believe that it should meet its bargaining obligations before any space calculations that deviate from those in the March 1998 SAS are implemented.

5. Section 5.E., Hearing Office Space Planning

    a. The Employer’s Position

The Employer proposes that "existing locations [] not be modified prior to lease expiration or relocation solely to meet any requirements enumerated in this National Agreement." Delaying any modifications to hearing offices until the triggering events of lease expiration or relocation likely would save the Employer considerable expenditure of funds.

    b. The Union’s Position

    The Union proposes that "existing locations, except those in which negotiations are pending at the time the FSIP asserted jurisdiction in this case, [] not be modified prior to lease expiration, expansion or relocation to meet requirements enumerated in this National Agreement." Under its proposal, the Employer would not have to make changes to office facilities that may be required by the CBA until the office lease expires, or the office expands or relocates. In the short run, this would avoid considerable expense for the Employer. In addition, the proposal would clarify that for those few offices which were in various stages of relocation at the time the Panel asserted jurisdiction in this case, modifications in accordance with the terms of the CBA, would be implemented.

CONCLUSIONS

    Having carefully considered the parties’ positions on this issue, we shall order the parties to withdraw their proposals regarding Section 5.E. Essentially, they are restatements of their proposals in Section 2.D., Facilities-–General Provisions, above, which has been resolved on the basis of the Union’s position.

6. Section 5.F. and Section 5.H., Hearing Office Space Planning

a. The Employer’s Position

    In Section 5.F., which concerns the size of offices for ALJs, the Employer proposes that "(e)ach Judge in a hearing office shall be provided an individual private office, as described in the OHA SAS." In Section 5.H., which concerns the hearing rooms used by ALJs, the Employer proposes the following wording:

The OHA SAS will be followed in sizing, constructing and finishing these hearing rooms but, specifically, each hearing room shall be constructed with materials and by design to meet a minimum sound transmission (suppression class of 50). All duct work within a hearing room shall be baffled to meet the minimum sound requirements.

Under the current SAS, dated March 1998, ALJs are to have private offices measuring 200 sq. ft. According to the Employer, this has been the standard office size for ALJs dating back to 1982. The Employer has planned space for ALJ offices based on a 200 sq. ft. standard and, while some ALJ offices may be slightly larger or slightly smaller than 200 sq. ft. because of office design issues, the Employer has strived to meet that standard. An office consisting of 200 sq. ft. provides adequate space to accommodate ALJ furniture, case files, and the necessary work area for ALJs to review case files. Larger space is unnecessary since ALJs are not required to store case files or hold meetings in their offices. Comparability data show that the two Federal agencies which employ the second and third largest number of ALJs, also use a 200 sq. ft. office-size standard for their ALJs. Since the proposal does not require a window for every ALJ office, the Employer would have greater flexibility in the design and planning of office space, which may result in cost savings to the agency and, ultimately, the taxpayer.

    As to hearing rooms, the proposal is clear and comprehensive; the current standard of 300 sq. ft. is enough space to adequately accommodate the 7-9 persons who typically attend a hearing. Following the SAS in terms of hearing room size, construction, and finishings would provide uniformity and adherence to long-standing and well thought-out standards for hearing office design and construction. Additional measures to ensure security within the hearing rooms are unnecessary because each ALJ bench already is equipped with a panic bar to alert guards and other office personnel in case of an emergency. Breaches of security within hearing rooms have been extremely rare, with only one incident of violent behavior toward an ALJ having occurred in the past 20 years.

    b. The Union’s Position

    In essence, the Union proposes in Section F. that each ALJ should be provided with a private office, including a window, ranging in size from 220-245 sq. ft.; the determination of office size within that range would be "based on local needs and circumstances." ALJs who have offices larger than the range proposed would be permitted to retain them until lease expiration and relocation of the office. In Sections H.1., H.2. and H.4., concerning hearing rooms, each one would range in size from 375-475 sq. ft.; the parties would follow the CBA in terms of office size, construction and other enumerated matters concerning hearing rooms. Each hearing room would be equipped with a security railing to separate the ALJ from hearing participants and the ALJ bench would be on a raised dais. Adequate space and electrical outlets would be provided for recording equipment, and computers for the ALJ, staff and participants. In all other respects, hearing rooms would conform to the current SAS concerning architecture, electrical wiring and telephones, heating, ventilation and air conditioning.

    Its proposal reflects a significant reduction in the size of ALJ offices from its previous demand of 400 sq. ft. According to the Union, scaling back its proposal by nearly 50 percent demonstrates that it is attempting to be reasonable and meet the Employer’s interest in containing costs. ALJs require offices that are somewhat larger than those offered by the Employer because they routinely have a large number of cases assigned to them, on average, 44 cases per month for hearing and decision. Each case typically has large exhibit and work files and, for a case to be reviewed properly, room for adequate table space is needed. Moreover, ALJs frequently work on more than one case at a time, which adds to the amount of space needed in their offices. Contrary to the Employer’s assertion, ALJs "routinely meet with staff, claimants’ attorneys/representatives, vocational and medical experts, and witnesses" in their offices and, if the need arises, they may conduct hearings in their offices.

    With respect to hearing rooms, the larger size proposed by the Union would help create a zone of safety between the claimants and the ALJ, which may be prudent since some claimants suffer from contagious diseases, various forms of mental illness, and/or harbor some resentment for the process because of prior denials of their claims. Often during a hearing, there are eight or more persons in a hearing room. Expanding the size of the hearing room as the Union proposes would alleviate the current cramped conditions, present a more positive judicial environment, and convey the importance of the proceeding to claimants and their witnesses. Finally, Union bargaining rights would be preserved under its proposal. While the Employer would not be prevented from making changes in its policy concerning hearing office space, in the event that changes in the SAS are made, the Employer would have to fulfill its bargaining obligations before attempting to implement those changes.

CONCLUSIONS

    After carefully considering the evidence and arguments presented by the parties, we conclude that the Employer’s proposals, modified to include references to the March 1998 SAS, provide the better basis for resolving the dispute. In our view, the Union’s proposals, which would significantly increase the size of ALJ offices and hearing rooms from those specified in the SAS, are not supported by a demonstrated need for such changes. In this regard, there does not appear to be any requirement for ALJs to hold meetings in their offices with claimants, their representatives or staff. As to the Union’s claim that the size and volume of the case files ALJs review justify a need for more expansive office space, while room for more surface space in an office may certainly be desirable, we are not persuaded that the current space for furnishings is inadequate. Furthermore, the Employer’s comparability data, which was unrefuted by the Union, reveals that other Federal agencies employing large numbers of ALJs also have standard office space consisting of 200 sq. ft.

    The Union’s proposal for hearing rooms ranging in size from 375-475 sq. ft. also appears to lack sufficient support. In this regard, there are no comparability data to show that ALJs in other Federal agencies have hearing rooms of similar size. Larger hearing rooms also appear unnecessary to provide a safer environment given the scarcity of incidents of violent behavior towards ALJs in hearing rooms and the fact that adequate precautions already exist to ensure their safety. The portions of the Union’s proposals basing office and hearing room size upon "local needs and circumstances" are unclear and likely to lead to grievances and unnecessary litigation. Finally, in accordance with our decision on the first issue in this case, we shall modify the Employer’s proposal to include, in both Sections 5.F. and 5.H., the date of the current SAS – March 1998.

7. Section 6.1.B., Private Office Furnishings and Assignment(5)

    a. The Employer’s Position

    The Employer proposes that each ALJ should be provided with a traditional high-backed chair, or a suitable alternative, to be determined by management; also, one locking file cabinet would be provided for each ALJ office, except a second locking file cabinet would be provided, upon request, to the four Union officers, the grievance chairperson, the 10 Regional vice-presidents, and the four committee chairs, for placement in their offices. Management should make the determination on alternative chairs for ALJs because budgetary concerns or other constraints, such as the need to meet the Employer’s ergonomic standards, may prevent the approval of an alternative chair desired by an ALJ. Providing Union representatives with an additional locking file cabinet for their offices should help ensure the confidentiality of Union-related materials while allowing other personnel to have access to case-related files in ALJ offices. No ALJ office should be outfitted with locking doors because management may need to obtain information from case files kept there.

    b. The Union’s Position

    The Union proposes that ALJs have the option of selecting a suitable alternative high-backed chair for their offices; also, each ALJ office should have two locking file cabinets. Union officers and committee chairs should be provided with locks on their office doors, with a copy of the office key to be given to the hearing office’s Chief ALJ. The ALJs should select their chairs since they would be using them, and not management. Union officers and committee chairpersons should have locks on their private office doors to ensure the confidentiality of Union representational materials. Providing the Chief ALJ with a copy of the key to those office doors would provide management with access to hearing case files that may be in the ALJ’s office. The cost of installing locks on office doors would be minimal since only a few would be needed.

CONCLUSIONS

    Having considered the parties’ proposals and supporting arguments on this issue, we are persuaded that the dispute should be resolved on the basis of the Employer’s proposal. Regarding the selection of alternative high-backed chairs for ALJ offices, in our view the Employer should have the discretion to make those determinations to ensure that costs are contained and safety and ergonomic standards are met. With respect to locks on ALJ office doors, the Union has not demonstrated a need to change the current practice. Further, the Employer appears to have a legitimate concern that locked office doors may prevent management from gaining access to case files in ALJ offices. There is no guarantee that providing Chief ALJs with duplicate keys to all ALJ offices, as the Union proposes, would ensure accessibility since they may be out of the office and unable to turn over the key to other management officials who need to gain entry. For these reasons, we shall order the adoption of the Employer’s proposal.

8. Section 6.1.D., Private Office Furnishings and Assignment(6)

    a. The Employer’s Position

    The Employer would prohibit personally procured, employee-owned furniture from being placed in any SSA office. Personal furniture should be banned because it may not meet the Employer’s health and safety standards or be consistent with hearing office decor. In addition, if an ALJ brings in his or her own desk or chair, the Employer may have to incur the expense of storing the Government desk and/or chair assigned to the ALJ to permit the use of personal furnishings.

    b. The Union’s Position

   The Union proposes that "(i)n accordance with past practices, personally procured and owned furniture of a judge can be placed in any hearing office. The agency is not responsible or liable for loss or damage to such furniture and the judge is responsible for clearly identifying such personally-owned furniture to the agency." Its proposal merely reflects a long-standing past practice that has been enjoyed by ALJs. Furthermore, the proposal would ensure that the Employer has no liability for any loss or damage to such furniture.

CONCLUSIONS

    After considering the parties’ positions on this issue, we shall order that it be resolved on the basis of a modified version of the Union’s proposal permitting ALJs to use personally-owned desks and/or chairs in their private offices, subject to the approval by local office management. In our view, the Employer has not sufficiently demonstrated why the current practice should be eliminated. We are mindful, however, of the Employer’s interest in ensuring that office furnishings meet the agency’s health and safety standards. To that end, local management shall be given the discretion to approve ALJ requests to use personally-owned desks and/or chairs in their offices.

9. Section 6.2.B., Hearing Room Furnishings and Assignment

    a. The Employer’s Position

   Essentially, the Employer proposes that management have the discretion to make hearing room assignments for ALJs so that the rooms would be utilized to the maximum extent feasible. Under this approach, the Employer would have the flexibility it needs in scheduling to ensure that hearing rooms are not underutilized.

    b. The Union’s Position

    The Union proposes, in essence, that "to the extent possible, each hearing room shall be primarily assigned for the use of two specific judges." Its proposal provides a reasonable and rational approach to scheduling because assigning two judges to a particular hearing room would allow them the flexibility to coordinate their hearing schedules, thereby maximizing the use of the hearing room and avoiding scheduling conflicts.

CONCLUSIONS

    Having assessed the merits of the parties’ arguments on this issue, we are persuaded that the Employer’s proposal should be adopted to resolve the impasse. Although the Union contends that its proposal would eliminate scheduling conflicts, it has not provided sufficient evidence to demonstrate that the scheduling of hearing rooms among ALJs is a problem that should be remedied by using its approach. In addition, the approach may not lend itself to maximum use of the rooms because when an ALJ is conducting off-site hearings or on leave, the hearing room assigned to that judge may be underutilized during that period. In our view, the Employer’s proposal is superior because it would allow local management to maximize the use of each hearing room after evaluating the needs of all of the ALJs in the office.

10. Sections 7.1.A., 7.1.C., 7.1.D., and 7.1.E., Permanent Remote Site Planning(7)

    a. The Employer’s Position

    The Employer basically proposes in Section 7.1.A. that remote sites be established in accordance with OHA policy guidance, dated February 15, 1990; office space for new permanent remote sites would be based on the space calculations in the OHA SAS in effect on the date of the space action. In Section 7.1.D., floor plans for permanent remote site hearing offices would include an appropriately-sized reception area; a minimum of one attorney-client conference room; at least one standard hearing room, outfitted as described in the OHA SAS; and a fax, copier, and printer. Concerning Section 7.1.E., the Employer proposes that no modification of existing space take place prior to relocation to another facility.

    When new permanent remote office sites are to be acquired, the office space calculations found in the OHA SAS should be followed because they establish reasonable and cost-effective standards. There is no evidence that permanent remote sites established pursuant to the OHA SAS have been substandard. Modifications to existing permanent remote sites so that they conform with this agreement should be delayed until such time as the site relocates; doing so likely would save the agency a considerable amount of money. Current remote sites have "an appropriately sized reception area, one attorney-claimant conference room, and at least one standard hearing room;" workspace for an ALJ already is provided in the hearing room and an adjacent room with ADP equipment, desk, chair, telephone, fax and LAN connections. These facilities are adequately sized and furnished, and there is no need for additional office space for an ALJ.

    b. The Union’s Position

    The Union proposes, essentially, in Section 7.1.A., that the establishment of a remote site should be pursuant to the Employer’s policy guidance, dated February 15, 1990, to the extent that it is not inconsistent with the office space calculations required by the CBA; furthermore, whenever new permanent remote sites or satellite offices(8) are acquired, upon the expansion or relocation of permanent remote sites or satellite offices, or at the time of lease expiration, office space calculations must be consistent with the CBA. In Section 7.1.C., the Union proposes that all remote hearing sites which currently, or in the future, generate at least two hearing dockets per month, on average, would have a permanent, fixed hearing room suite. Current remote sites that do not have a fixed hearing room suite, but meet or exceed the two-hearing dockets per month average, would become permanent remote hearing offices within 2 years of the effective date of this agreement. In Section 7.1.D., the Union proposes that upon the expiration of a lease for a permanent remote site or, when space renovations of an existing permanent remote site are required, the office then would be modified, as necessary, to include an ALJ office of at least 200 sq. ft. Finally, in Section 7.1.E., the Union proposes that existing remote or satellite office locations would not be modified prior to lease expiration or office relocation to meet the requirements enumerated in the CBA.

    The Union views its proposal merely as requiring the Employer to follow its policy regarding the planning and establishment of permanent sites, and comply with its contractual obligations. For the most part, the proposal represents a cost-saving measure designed to meet the Employer’s financial interests. In this regard, it addresses situations where permanent remote sites may be underutilized. In that circumstance, the Employer would be able to save money because it would not have to retain permanent remote hearing offices where there are less than two hearing dockets per month, on average. The proposal also would ensure private office space for an ALJ, measuring 200 sq. ft. Most remote sites currently do not have private ALJ offices; this situation should be remedied because ALJs need dedicated private office space to facilitate the review of hearing case files which, typically, are quite large.

CONCLUSIONS

    With respect to these issues, we find that they would be resolved appropriately on the basis of a compromise solution where the parties adopt the Employer’s wording in Sections 7.1.A., and 7.1.D., modified to require that space calculations and the outfitting of hearing rooms are to be consistent with the OHA SAS dated March 1998. Further, we shall order the Union to withdraw its proposal in Section 7.1.C., and that the parties adopt compromise wording in Section 7.1.E., which provides that "existing permanent remote locations will not be modified prior to lease expiration, expansion, or relocation to meet requirements enumerated in this National Agreement." Fundamentally, we are concerned that the Union’s proposal may encroach on management’s reserved right, under 5 U.S.C. § 7106(a)(1), to determine its organization by mandating that remote sites which "generate" two or more docketed cases per month, on average, would become permanent remote site hearing offices. Further, the parties already have agreed to provisions in Section 4 concerning permanent remote sites, and the Union’s proposal appears to be an attempt to bargain further over matters which already are covered by that section of the article. As to the Union’s proposal that each permanent remote site office should include a 200 sq. ft. private office for an ALJ, the Union has not demonstrated why the current work areas for ALJs in those offices are inadequate. In the absence of such evidence, we see no need to require the Employer to incur the considerable operating expenses that likely would result. The Employer’s proposals in Sections 7.1.A., and 7.1.D., on the other hand, provide a more reasonable approach to resolving the issues. Consistent with our decisions resolving other provisions in this dispute that require the parties to follow the OHA SAS, however, we shall modify the Employer’s proposal so that the space calculations and the outfitting of the hearing rooms are based on the OHA SAS dated March 1998. Similarly, with regard to Section 7.1.E., the compromise wording we shall impose ensures that the provision is consistent with our decision in Section 2.D. concerning the implementation of modifications to office space that may be necessary under this article.

11. Sections 8.A. and 8.C., Parking(9)

    a. The Employer’s Position

    In Section 8.A., the Employer proposes that OHA "follow the Agency-wide policy described in the OHA SAS regarding paid parking for OHA-occupied permanent spaces and the OM Memorandum of June 7, 2000." It does not have a proposal for Section 8.C. Its proposal is consistent with Government-wide regulations and agency policy with respect to the distribution of parking spaces among personnel. In this regard, 41 C.F.R. § 101-20.104(d) provides that parking spaces are to be distributed in the following priority order: (1) disabled employees; (2) executive personnel and persons who work unusual hours; (3) vanpool/carpool vehicles; (4) employees who use their vehicles for Government business at least 12 days per month; and (5) privately-owned vehicles of "other" employees, on a space-available basis. "Executive" is further defined in 41 C.F.R. § 101-20.003(j) to mean "a Government employee with management responsibilities which, in the judgment of the employing agency head or his/her designees, requires preferential assignment of parking privileges." The Employer’s Memorandum of June 7, 2000, further defines "executive personnel" in hearing offices to be the Chief ALJ, the hearing office Manager, and the Supervisory Staff Attorney. Significantly, the proposal would correct a prior practice whereby free parking was assigned to ALJs before those in the category of "other." This error occurred "years ago under a fundamentally different organization (when) judges were presumed to have some managerial or supervisory authority." Now, however, it is clear that they do not have such authority, given that ALJs are members of a bargaining unit certified by the Federal Labor Relations Authority. The Employer’s proposal should be adopted, therefore, because ALJs belong in the "other" category, and all employees in that category would be treated fairly and equitably, including those represented by two different labor organizations.

    b. The Union’s Position

    In Section 8.A., the Union proposes that "OHA [] follow GSA regulations (41 C.F.R. § 101) and past practices regarding parking for OHA-occupied permanent spaces." In the alternative, if the Panel determines not to adopt the Union’s wording, it should decline jurisdiction over the proposal to allow the Union to pursue a resolution in the unfair labor practice forum. In Section 8.C., the Union proposes that the agency "use its best effort to obtain at least one parking space for judge use at each permanent remote site." Its proposal would allow those ALJs who were assigned parking spaces because they were once believed to be in the "executive personnel" category, to retain those spaces on a temporary basis. This is not likely to result in any additional costs to the Employer, as spaces allocated to ALJs were provided as part of building leases. Its alternative proposal has merit because the Employer’s interest in reclaiming parking spaces assigned to some ALJs is "payback" for their having formed and joined a labor organization. The proposal in Section 8.C. would require management to make an effort to secure a parking space at a permanent remote site for ALJ use. It would not compel the Employer to pay for the space; rather, merely requesting space from the lessor would satisfy this provision. Attempting to secure free parking for ALJs at remote permanent sites may be cheaper than paying for ALJ parking as a travel expense.

CONCLUSIONS

    After fully considering the parties’ proposals and arguments on these issues, we believe that their impasse over parking should be resolved on the basis of a compromise solution. Preliminarily, we are not inclined to relinquish jurisdiction over the Union’s proposal in Section 8.A., even though it shall not be adopted, because this would merely perpetuate an already long-standing dispute. Instead, we shall order that current parking practices concerning ALJs in the Employer’s approximately 140 hearing offices be "grand fathered" until such time as the office lease expires, an office expands its current space, or an office is relocated. When any one of these triggering events occurs, the Employer then may make changes, as needed, with respect to the distribution of free parking for ALJs in that office. This approach should avoid short-term disruption in the conditions of employment for some ALJs while eventually permitting the Employer to reconcile discrepancies between its past practices and the criteria established in regulations and agency policy concerning priority distribution of parking spaces. The ultimate effect of this compromise solution may be minimal since the evidence submitted by the Employer shows that 62 percent of hearing offices surveyed have free parking available to all employees. Thus, there may not be any significant redistribution of parking spaces in the future as it affects ALJs. As to the Union’s proposal in Section 8.C., the meaning of the term "best effort" is unclear, and may lead to grievances over whether the Employer has satisfied its obligations under the provision. Accordingly, we shall order the Union to withdraw the 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 the proceedings instituted under the Panel’s regulations 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under 5 C.F.R. § 2471.11(a) of its regulations hereby orders the following:

1. Section 1.A., Definitions

    The parties shall adopt a modified version of the Employer’s proposal which provides as follows: "Space Allocation Standard: The March 1998 SAS is Agency policy for the allocation of space and to be used when requesting or providing space for OHA."

2. Section 2.A., Facilities--General Provisions

    The parties shall withdraw their proposals.

 

3. Section 2.D., Facilities--General Provisions

    The parties shall adopt the Union’s proposal.

 

4. Section 5.A., Hearing Office Space Planning

    The parties shall adopt the following wording:

In the acquisition of hearing office space, whether by expansion, relocation, or new hearing offices, or in the event of lease expiration, office space calculations will be consistent with the SSA Office of Hearings and Appeals Space Allocation Standards dated March 1998.

5. Section 5.E., Hearing Office Space Planning

    The parties shall withdraw their proposals.

6. Sections 5.F. and 5.H., Hearing Office Space Planning

    The parties shall adopt a modified version of the Employer’s proposals which adds "March 1998" before the references in both sections to the OHA SAS.

7. Section 6.1.B., Private Office Furnishings and Assignment

    The parties shall adopt the Employer’s proposal.

 

8. Section 6.1.D., Private Office Furnishings and Assignment

    The parties shall adopt the Union’s proposal, with the first sentence modified to provide that "(w)ith the concurrence of local management, ALJs may bring in a personally-owned desk and/or chair to be used in their offices."

9. Section 6.2.B., Private Office Furnishings and Assignment

    The parties shall adopt the Employer’s proposal.

 

10. Sections 7.1.A., 7.1.C., 7.1.D. and 7.1.E., Permanent Remote Site Planning

    In Sections 7.1.A. and 7.1.D., the parties shall adopt the Employer’s wording, modified to require in both sections that space calculations and the outfitting of hearing rooms shall be consistent with the OHA SAS dated March 1998; in Section 7.1.C., the Union shall withdraw its proposal; and in Section 7.1.E., the parties shall adopt wording which provides that "existing permanent remote locations will not be modified prior to lease expiration, expansion, or relocation to meet requirements enumerated in this National Agreement."

11. Sections 8.A. and 8.C., Parking

    In Section 8.A., the parties shall adopt the following wording:

The current parking situations for ALJs in the approximately 140 hearing offices shall remain in place. However, when an office lease expires, an office expands its current space, or an office is relocated, changes in the distribution of free parking for ALJs may be made by the Employer consistent with Government-wide regulations in 41 C.F.R. § 101, concerning the criteria for assignment of parking spaces, and OM Memorandum dated June 7, 2000.

    In Section 8.C., the Union shall withdraw its proposal.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

October 24, 2002

Washington, D.C.

1. On September 12, 2002, a teleconference was convened with the parties’ chief spokespersons for the purpose of clarifying certain proposals and positions. During the call, the parties resolved one issue in Section 3.A.7., which would require the Employer to receive and consider suggestions and comments from the Union during the process of acquiring space for an office relocation or expansion.

2. Within OHA, two other labor organizations represent employees; attorneys, for the most part, are represented by the National Treasury Employees Union, and administrative support staff are represented, primarily, by the American Federation of Government Employees, AFL-CIO.

3. The SAS is an agreement between the General Services Administration (GSA) and SSA, on the allocation of space for OHA’s hearing offices, remote sites and other field facilities. OHA’s current SAS is dated March 1998. In essence, it is OHA’s policy on space for its offices that is “endorsed” by GSA.

4. The Employer did not address this proposal in its post-conference statement of position. However, during the initial investigation of this case by the Panel’s staff, the Employer submitted a letter which set forth, in summary form, its position on the issue.

5. Only the disputed portions of the parties’ proposals in Section 6.1.B. are described.

6. Only the disputed portions of the parties’ proposals in Section 6.1.D. are described.

7. The parties define a remote site as “an unstaffed space located within the defined service area of a hearing office and administratively managed by that office’s management team. Hearings are held intermittently at remote sites by Judges who travel to the location from their normal duty station.” There are two types of remote sites–-permanent and temporary. A permanent remote site “is a space that has been assigned to or leased for OHA by GSA.” A temporary remote site “is a location where hearings are held in spaces not under GSA lease or assignment to OHA. Typically such sites are in spaces rented under a daily or weekly rate . . . or [are] made available to OHA at no charge.”

8. A satellite office “is a subordinate permanent duty station aligned with a specific hearing office and administratively managed as a branch of that office.” It “normally has a limited staff, usually consisting of one or two Judges and a few support staff.”

9. Not all ALJs have b