DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION SOUTH BEND DISTRICT OFFICE SOUTH BEND, INDIANA and LOCAL 3571, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL



In the Matter of )

)

DEPARTMENT OF HEALTH AND HUMAN )

SERVICES )

SOCIAL SECURITY ADMINISTRATION )

SOUTH BEND DISTRICT OFFICE )

SOUTH BEND, INDIANA )

)

and ) Case No. 91 FSIP 147

)

LOCAL 3571, AMERICAN FEDERATION OF )

GOVERNMENT EMPLOYEES, AFL-CIO )

)



DECISION AND ORDER



Local 3571, 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 section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of Health and Human Services, Social Security Administration (SSA), South Bend District Office, South Bend, Indiana (Employer).



After investigation of the request for assistance, the Panel directed the parties to meet informally with Panel Member Edwin D. Brubeck for the purpose of resolving issues concerning the relocation of the District Office, which occurred in May 1991. The parties were advised that if no settlement were reached, Member Brubeck would report to the Panel on the status of the dispute, including his recommendations for resolving the issues. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.



Member Brubeck met with the parties on August 14, 1991, in South Bend, Indiana, but a complete agreement was not reached either on that date or during subsequent discussions between the parties. Member Brubeck reported to the Panel on the status of the dispute, and the Panel has now considered the entire record in

the care.



BACKGROUND



The Employer's mission is to administer retirement, disability, Medicare, and Supplemental Security Income (SSI) entitlement programs for the public. The Union represents approximately 30 clerks and claims and service representatives in the South Bend District Office who are part of a nationwide consolidated bargaining unit of about 48,200 employees. The parties' national agreement expires on January 25, 1993.

ISSUES AT IMPASSE



The parties are at impasse on issues involving: (1) the breakroom; (2) employee restrooms; (3) work environment and workstations; (4) Union facilities; (5) official time for negotiation/consultation related to the relocation; and (6) the duration of the agreement and a reopener provision.



1. Breakroom



a. The Union's Position



The Union agrees that the size and location of the employees'

breakroom will be as provided for in the lease-and blueprint. In addition, however, it proposes that the Employer provide, or, if

necessary, arrange through GSA, for (1) the maintenance and replacement of the current refrigerator, including reimbursing employees for their previous contributions, and microwave oven; and (2) a water-filter system as good or better than "AP-CRF-Chemical removal filter by Aqua-Pure Co. or the Flavor Guard System by Culligan Water Conditioners.



Overall, its proposal is fair to employees because it would

"counterbalance the loss of a view and natural light" suffered by some employees as a result of the relocation, and be of minimal cost. Additionally, the part of its proposal regarding appliances should be adopted because "the Employer cannot show a single local employer that forces its employees to provide their own breakroom appliances." In fact, the Employer admitted during negotiations that some SSA offices "have this provided through the lease." Moreover, maintaining and, if necessary, replacing these appliances also would be advantageous to the Employer, as it would encourage employees to eat lunch on the premises. Any allegation that this part of its proposal is outside the duty to bargain should be rejected because the Federal Labor Relations Authority (FLRA) has found such matters negotiable "in many cases." Finally, South Bend water is the employees' "sole source of daily water," and is "heavy

with chlorine, phosphates, rust, cloudiness/turbidity," and occasionally has an odd odor. Providing a filter is "cheaper than

annual inspections" and employee morale would be improved.



b. The Employer's Position



The Employer believes that the part of the Union's proposal

concerning the maintenance and replacement of the current refrigerator and microwave oven should be withdrawn. Regarding drinking water, it "agrees to have the office's water supply inspected. If contaminants above safe threshold limits are found, corrections will be made" The Employer, through the lessor, already has provided employees with adequate breakroom amenities, such as tables, chairs, cabinets, etc. It has no duty to bargain on the issue of breakroom appliances because of higher level Government-wide policy." Moreover, these are considered "personal convenience items and are prohibited purchases for the Agency."

They are not provided "in any of the field offices or the regional office in this Region."



Its proposal on the water supply promotes employees' health and safety, and addresses the concerns of the Union. In this regard, the office is supplied with the same water as the rest of South Bend, which already is tested by the city "for all known contaminants." It is treated with chlorine and phosphate for specific reasons, and these "are not known harmful additives." It is not reasonable for the Union "to expect management to provide filtered or bottled water at work, when the entire popul[ation] of the city is not afforded the same benefits." Further, there have been no employee complaints regarding any ill effects from the office water, nor does the Agency supply filtered or bottled water to any of its offices in the Region "unless the office water supply contains contaminants above safe threshold limits. "



CONCLUSIONS



Having considered the evidence and arguments presented by the

parties, we conclude that the Employer's proposal provides the more

reasonable basis for settlement. With respect to the issue of whether the Employer should be required to reimburse employees for their contributions toward the recent purchase of a new refrigerator, and to maintain and replace, if necessary, the refrigerator and microwave oven, the Union has failed to provide sufficient justification for this part of its proposal. While we note with favor that the Union has altered its proposal on the breakroom in the spirit of compromise, it is not apparent how employees were adversely affected in this area by the relocation. Similarly, we are not persuaded on the basis of the evidence presented that there is a need for a water-filtration system at the facility. In this regard, in addition to the routine testing of the city's water supply which already occurs, the Employer's proposal should further safeguard the health of employees.



2. Employee Restrooms



a. The Union's Position



The Union is willing to agree to the location of the restrooms with the following modifications. The Employer shall contact GSA to provide for "additional space added to each restroom so as to make them handicapped accessible within 60 days of the assignment of a handicapped employee to the District Office or of a current employee becoming handicapped," and "one full-length mirror in the women's restroom in addition to the vanity mirror." It also proposes that both restrooms "have a ground fault electrical outlet located between the wash basins on the wall." Regarding handicapped accessibility, "the Employer could have done this originally" at minimal expense "but arbitrarily refused." The full-length mirror would enable female employees to monitor their appearance better, which is important for employees like these who frequently meet with the public. Finally, placing electrical outlets near the -wash basins would correct the Employer's previous action of placing them by the light switches near the doors where they are unusable.



b. The Employer's Position



In the Employer's view, the Union should withdraw its proposal. The current office was constructed in accordance with General Services Administration (GSA) guidelines and space requirements. Accordingly, only the public restrooms are required to be handicapped accessible. With respect to additional electrical outlets and the full-length mirror, while "these items are nice amenities," they are not required by GSA standards, nor has the Union demonstrated a practical need for the additional expense to the Agency.



CONCLUSIONS



After examining the evidence and arguments provided by the parties, we shall order the adoption of the Union's proposal. In this regard, requiring the Employer to make employee restrooms handicapped accessible within 60 days of the assignment of a handicapped employee to the District Office, or of a current employee becoming handicapped, appears to protect the Employer from unnecessary expenditures while at the same time meeting the needs of handicapped employees. Regarding the electrical outlets and the full-length mirror, we are persuaded that, on balance, the benefits that these additional amenities would afford to employee S outweigh their minimal costs.



3. Work Environment and Workstation



a. The Union's Position



The Union proposes the following wording:



Each bargaining-unit employee will be provided with an equitable amount of bookshelf, typewriter, file cabinet, desk, general work area space, and other worksite facilities but not less than what was available at the previous location. The parties will meet and consult over concerns relating to this section. Any changes will be handled per Article 4 and 30 of the National Agreement.



According to the Union, although the parties were close to reaching an agreement in this subject area, negotiations broke down because the Employer refused to return the bookcases of three SSI claims

representatives where "many binders of regulations" were stored. As a result, they are now forced to store the heavy binders under their desks, which has caused a "serious health concern" (such as the potential for muscle strain from reaching or lifting). Its proposal, therefore, "would order the Employer to return them." It also would "allow the Employer to propose changes consistent with the National Agreement."





b. The Employer's Position



The Employer proposes that "each bargaining-unit employee will be provided worksite facilities, i.e., bookshelf space, typewriter, file cabinet, desk, if necessary." In this regard, because the parties already have agreed to negotiate over the office's floorplan "within 45 days from the date of this agreement," it believes that "general work area space is appropriate for dealing with at these negotiations." Moreover, its proposal to provide employees with the work facilities they need to accomplish the Agency's mission "is reasonable."



CONCLUSIONS



Having considered the proposals of the parties on this issue, we conclude that neither of them would satisfactorily settle the dispute. On the one hand, while the Union's purported aim is to return the three bookshelves of the affected employees, the wording of its proposal belies this intent, and appears to duplicate the subject matter of their future negotiations over the floorplan. On the other, the Employer's proposal overlooks the Union's legitimate concern for the health of the affected employees. Accordingly, we shall order the adoption of compromise wording which would permit the three SSI claims representatives the option of requesting the return of their bookcases, and specify that such requests not be unreasonably denied. In our view, this would address the health

concerns identified by the Union, and allow any denials of requests over the return of the bookcases to be resolved through the negotiated grievance procedure.



4. Union Facilities



a. The Union's Position



In essence, the Union proposes that it not suffer any loss of space or facilities due to the relocation, and that: (l) the private interview room (PIR) measure at least 13' by 10'; (2) a telephone jack be located in the PIR; (3) it receive one additional six-shelf bookcase, three lockable, five-drawer, filing cabinets, three or more (up to five) dividers for desk-area privacy, and an option to receive any material the Employer chooses to dispose of as excess property. It also proposes that "when using the personal computers, the Union will normally schedule such use in advance so as to assure availability." As a result of the relocation, the space and facilities provided to the Union have been reduced from previous levels in almost all areas. Its proposal would continue the parties' past practice in which the Union has used the PIR as its office. The additional equipment it is requesting is a realistic reflection of the Union's ongoing representational responsibilities, which include the need for "complete privacy for conversations and working on sensitive matters." Finally, because the Union currently is permitted to use personal computer equipment, it sees no reason why this should not continue.



b. The Employer's Position



The following wording is proposed by the Employer:

Management agrees to continue to provide space for the use of the Union as required by the National Agreement, Article 11. This space will measure 200 square feet with the provision that the Union will no longer have any access to the private interviewing room, the space will be in a different location in the office, near a wall, and the space will be separated from the remainder of the office by partitions. Management will continue to provide furnishings, equipment, and supplies previously used by the Union.



Its offer is about 50 square feet more than required by the parties' National Agreement, which states that "the Union will be provided space and facilities at the same level as previously provided." It also has given the Union two additional five-drawer filing cabinets since the move. Moreover, the adoption of its proposal would ensure that the PIR is used for operational purposes, including its primary purpose, which is "for the private interviewing of the public when such a setting would be most appropriate considering the circumstances of the interview," and not as a Union office, as the Union implies. Finally, the Union has not demonstrated the need for an additional phone jack in the PIR. In this regard, management has already agreed to install another telephone jack in the multi-purpose room which can be used by the Union "whenever it is necessary to have more private conversations."



CONCLUSIONS



Having considered the evidence and arguments on this issue, we are convinced that the dispute should be resolved on the basis of a modified version of the Employer's proposal. Its adoption would give the Union a generous increase in office space at a time when the facility's overall size has been reduced, and eliminate an obvious source of friction between the parties over the use of the PIR. It also is consistent with the terms of the National Agreement with respect to the Union's continuing access to furnishings and equipment. The Employer's proposal shall be modified, however, to include wording such that: (1) when the Union requires privacy to fulfill its representational duties, the Employer shall not unreasonably deny access to the PIR; (2) the Union shall be required to leave the PIR neat and clean in such cases; and (3) the Union shall continue to have access to personal computers in accordance with past practice. In our view, these additional provisions are necessary to ensure that the Union's legitimate need for privacy is accommodated, and to eliminate any ambiguity regarding the continuation of the past practice concerning the Union's access to personal computers.



5. Official Time for Negotiation/Consultation Related to the Relocation



a. The Union's Position



The Union proposes that "the parties agree that official time used to consult over issues related to the relocation is a continuation of the bargaining process and non-bank time." In its view, the time used to discuss relocation-related issues is an "ongoing part of

the negotiation/consultation process" and should not be counted against the bank of official time hours provided to the Union under the parties' National Agreement.



b. The Employer's Position



The Employer's position, in essence, is that the Union should be ordered to withdraw its proposal. In this regard, it states that the use of official time for bargaining is covered by the National Agreement, as well as a memorandum between SSA and the National Council of SSA Field Operations Locals, Council 220 of AFGE, of which Local 3571 is a part, settling a previous disagreement concerning the relevant official time provisions of the National Agreement. As such, it has "no duty to bargain" over the Union's proposal.



CONCLUSIONS



On the basis of the evidence and arguments presented by the parties, we shall order the Union to withdraw its proposal. It is clear that the issue of official time already has been negotiated by the parties' higher level representatives. In our view, they should rely on the terms of the previously-negotiated agreements to determine whether official time used to consult over issues related to the relocation is to count against the Union's bank of official-time hours. -Any disagreement between the parties over the application of these agreements on the matter should be resolved through the negotiated grievance procedure.



6. Duration and Reopener



a. The Union's Position



The Union proposes that: (1) the parties' agreement over the relocation terminate on the expiration date of the National Agreement (January 25, 1993), and that it continue in force until the parties conclude any subsequent renegotiations; and (2) "either party may reopen this agreement in January of each year but limited to not more than two articles for each party." The first part of

its proposal is necessary "to clarify the termination, renegotiation, and duration of the agreement." The second part would provide for "a limited but effective reopener so as to get at all issues in a substantive manner. "



b. The Employer's Position



The Employer proposes that "by mutual consent any article not

approved by the Head of the Agency per 5 U.S.C. 7114(c) can be

reopened."



CONCLUSIONS



On this final issue, we are unpersuaded by the evidence and

arguments provided by either party in support of their respective

positions. In this regard, the first part of the Union's proposal appears to be unnecessary because it merely restates statutory requirements. Moreover, neither party has sufficiently demonstrated the need for a reopener provision. Accordingly, we shall order that the parties withdraw their proposals so that the agreement remains silent on the matters in question.



ORDER



Pursuant to the authority vested in it by section 7119 of the

Federal Service Labor-Management Relations Statute and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to section 2471.6(a)(2) of the Panel's regulations, the Federal Service Impasses Panel under section 2471.11(a) of its regulations hereby orders the following:



1. Breakroom



The parties shall adopt the Employer's proposal.



2. Employee Restrooms



The parties shall adopt the Union's proposal.



3. Work Environment and Workstations



The parties shall adopt the following wording:



The three SSI claims representatives shall have the option of requesting bookcases for the storage of reference materials. The Employer shall not unreasonably deny such requests.



4. Union Facilities



The parties shall adopt the Employer's proposal, modified to

include the following wording:





When the Union requires privacy to fulfill its representational duties, the Employer shall not unreasonably deny access to the PIR. The Union shall be required to leave the PIR neat and clean in such cases. The Union shall continue to have access to personal computers in accordance with past practice.



5. Official Time for Negotiation/Consultation Related to the Relocation



The Union shall withdraw its proposal.



6. Duration and Reopener



The