DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION OFFICE OF HEARINGS AND APPEALS TUCSON, ARIZONA and COUNCIL 147, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL- CIO

In the Matter of an )

Interest Arbitration between )

)

DEPARTMENT OF HEALTH AND HUMAN )

SERVICES )

SOCIAL SECURITY ADMINISTRATION )

OFFICE OF HEARINGS AND APPEALS )

TUCSON, ARIZONA )

)

and ) Case No. 91 FSIP 292

)

COUNCIL 147, AMERICAN FEDERATION )

OF GOVERNMENT EMPLOYEES, AFL- CIO



ARBITRATOR'S OPINION AND DECISION



Council 147, American Federation of Government Employees, AFL-CIO (Union or AFGE), 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), Office of Hearings and Appeals (OHA), Tucson, Arizona (Employer).



The parties accepted the Panel's recommendation that the issues in dispute be referred to the undersigned for "med-arb." Under this procedure, I was vested with authority to mediate with respect to the outstanding issues, and render a decision if necessary. Representatives of the parties convened before me on April 28, 1992, at the Tucson hearing office of the Office of Hearings and Appeals. When the 10 outstanding issues were not resolved through the mediation process the parties were then permitted to submit posthearing briefs with respect to the issues at impasse and their final offers on the issues. I have now consi ordered the entire record.



BACKGROUND



The Employer is a component within the SSA whose mission is to hear and decide cases which have been appealed by claimants for benefits under social security, supplemental security income, or Medicare. The Union represents approximately 15 employees in the Tucson office who are part of a nationwide consolidated bargaining unit of about 48,000. They work in such jobs as legal processing clerk (LPC), decision writer, scheduler, computer specialist, and

hearing assist ant.1/ The parties' collective-bargaining agreement expires in January 1993. This dispute arose out of the Employer's

decision to consolidate its operations from two separate floors to one within the same building.2/



ISSUES AT IMPASSE



The issues at impasse concern: (1) partitions for hearing assistants; (2) the location of hearing assistants; (3) partitions for legal processing clerks; (4) the location of legal processing clerks; (5) the amount of office space for decision writers; (6) choice of offices for decision writers; (7) the amount of office space for the scheduler; (8) the amount of office space and partitions for the FOSA/computer specialist; (9) filing cabinets for the local Union representative; and (10) the overall floorplan of the Tucson hearing office.



THE POSITIONS OF THE PARTIES



A. The Union's Position



The Union proposes the following wording with respect to the issues at impasse:



Hearing Assistants



1. The Employer will provide at least three partitions per workstation for employee privacy and quiet.



2. These workstations will be located next to the windows.



Legal Processing Clerks



3. The Employer will provide at least three partitions per workstation for employee privacy and quiet.



4. These workstations will be located next to the windows.



1/ One of the employees at the Tucson office is an attorney advisor

represented by a different union. There are also three administrative law judges (ALJ), a supervisory staff attorney, and a hearing office manager and an assistant manager not represented by any union.



2/ The space renovations were implemented on September 11, 1991.

Decision Writers



5. The Employer will provide each decision writer a ceiling-high private office of at least 125 square feet in working space.



6. From among the three offices available, the AFGE unit employees will get first choice by seniority.



Scheduler



7. The Employer will provide the scheduler at least 75 square feet of working space with at least two partitions.



For purposes of seat selection the scheduler will be considered part of the LPC Unit.



FOSA/Computer Specialist



8. The FOSA/Computer Specialist will have a workspace of at least 75 square feet and will be provided at least three partitions.



Filing Cabinet for the Local Union Representative



9. The Employer will provide the local Union representative with a locking two-drawer filing cabinet.



Floorplan



The Union's four alternative floorplan options are attached to

this decision as Appendix A.



The Union maintains that the onsite visit by the undersigned to the general work area established the need for partitions. They would create a more productive work environment by suppressing excessive noise and providing affected employees with needed privacy. While the Employer does not object to providing partitions, its counterproposal is unacceptable because it would allow "higher level management to veto necessary furniture without regard to employees' needs." It also "misses the point" because, based on SSA's own estimates, there will be over $7 million available at the end of Fiscal Year 1993 in unobligated funds in its building construction program, so "the Agency does not need to request funding" that it already has. Moreover, because the partitions would be moveable, free standing, and "allow air circulation above and below," SSA's air circulation concerns have

been addressed. Its proposals for partitions also are "consistent with recent Panel decisions."



Its proposals regarding the location of hearing assistants and

legal processing clerks next to windows should be adopted because: (1) no work-related reasons were proffered which would preclude it,





(2) it would not interfere with the Employer's mission, and (3) it is a positive benefit for unit employees.



More office space should be provided for decision writers because the current 94 square feet "is too small." This is confirmed by the oral and written testimony of one of the decision writers who "demonstrated that she had difficulty working in these cramped quarters." The Employer's suggestion that employees give up furniture is unacceptable because it conflicts with the parties' previous agreement that employees would retain past practices and

prior benefits. In addition, the Union's proposal of at least 125 square feet of working space should be adopted because "SSA will have to reconstruct the offices anyway" under its own proposal, and the money to do so is currently available.



Regarding the decision writers' choice of offices, the Employer's opposition to the Union's proposal is based on "a weak and paternalistic reason," i.e., that management is trying to be fair both to AFGE and to the union representing a third decision writer. AFGE, however, exercised its bargaining rights while the other union did not. "Through its acquiescence" the other union waived its right to negotiate over which office the employee it represents should get. The Union's proposal that the two employees it represents get to choose from any of the three offices also should be adopted because: (1) it will contribute to improved morale and efficiency, and (2) the Employer failed to demonstrate a bona fide reason for adopting its counteroffer.



The parties' dispute over the amount of working space to be provided for the scheduler should be resolved on the basis of its proposal "because it will reduce the likelihood of disputes." In this regard, the amount of space to be granted under its proposal is clear (75 square feet), and would not place an undue burden on the Employer. The Employer's proposal, on the other hand, is vague and may lead to disputes over the meaning of the phrase "existing

standards," which its own recent documentation refers to as "guidelines" rather than "standards." This also applies to the parties' differing proposals regarding the FOSA/Computer Specialist, so the Union's proposal on this issue should be adopted for identical reasons.



Its proposal that the Employer provide the local Union representative with a locking filing cabinet is reasonable because she needs a secure place to store labor-relations related documents, it would not create an undue burden on the Employer, and no bona fide reasons to the contrary were given.



Finally, on the key issue of the office's floorplan, "SSA improperly implemented the office renovation without completing its bargaining obligation." Moreover, the Union has established the need for more working space for all its unit employees, a need which can be accommodated "by providing the two decision writers

with larger offices, moving the hearing assistants to another area in order to give all employees more space." The four options it proposes, any one of which it would find acceptable, balance the needs of employees for more space with the Employer's need to keep costs to a minimum. To this end, its options only require the removal of one wall, the relocation of a few employees to another area of the office, and the possible modification of telephone lines.



The Employer's opposition to any change to its unilaterally-imposed current floorplan is generally unfounded, and the documents it has provided to support its position are "self-serving." For instance, it has provided no evidence for its claim that it is "mandated" to have two hearing rooms, nor are two such rooms actually needed, as the Union's witnesses testified at the hearing. The scheduling data provided by the Employer also fail to support the view that two hearing rooms are required for the Employer to perform its mission. In conclusion, the Union is proposing to relocate the hearing assistants to one of the hearing rooms "because the space is available and would allow SSA to avoid removing additional walls." Thus, its proposed floorplan options are cost-effective and accommodate the needs of the employees.



B. The Employer's Position



The Employer's counterproposals are as follows:



Hearing Assistants



1. Management will request funding to provide moveable partitions

between workstations as long as the partitions are not placed

parallel to the window wall.



2. Employees may choose where they sit within the area allocated

for hearing assistant and legal processing clerk functions.

Disputes will be settled according to service computation date.



Legal Processing Clerks J



3. Management will request funding to provide moveable partitions

between workstations as long as the partitions are not placed parallel to the window wall.



4. Employees may choose where they sit within the area allocated

for hearing assistant and legal processing clerk functions. Disputes will be settled according to service computation date.



Decision Writers



5. Each decision writer will have a ceiling-high private office of 100 square feet.



6. From the two offices designated by the Employer to be decision writer offices, AFGE unit employees will choose which one they prefer by seniority as determined by service computation date.



Scheduler



7. The scheduler will be provided working space in accordance with existing standards.



Management agrees to request funding for no more than two partitions for use by this employee with the understanding that no partition will be used parallel to the window wall which would impede air circulation.



FOSA/Computer Specialist



8. In accordance with existing space standards, the FOSA/Computer Specialist will have a workstation of 75 square feet.



Management agrees to request funding for no more than two partitions for use by this employee with the understanding that no partition will be used parallel to the window wall which would impede air circulation.



Filing Cabinet for the Local Union Representatives



9. The Employer will continue to provide the Union such furnishings as were being Provided as of March 12. 1988.



Floorplan



The current layout for the Tucson hearing office [shall] be maintained.



In the Employer's view, the current allocation of space facilitates the accomplishment of its mission of providing service to the public, is consistent with SSA's space allocation standards, and "treats employees similarly situated equitably." The implementation of any of the Union's proposed floorplans, on the other hand, would have one or more of the following adverse effects: (1) decrease the ability of the hearing office to meet it; mission; (2) "treat employees performing the same function in dissimilar manner; (3) expose management to grievances from employees in other unions;" (4) violate (a) management prerogatives concerning how work is to be performed and supervision provided,

and (b) SSA's space allocation standards; and (5) "require the expenditure of scarce taxpayer funds for the provision of more spacious offices to employees who are either not entitled to more

space or not entitled to an office."



The Tucson Hearing Office generally complies with the SSA/OHA

nationwide Space Allocation Standards. Where it does not, the discrepancies are minor, and caused either by two building constraints peculiar to the facility: (1) interior walls must be laid at 5 foot intervals, and (2) the air conditioning vents are only on the exterior walls; or because of fire safety requirements. This means that offices "must be constructed with one wall along an exterior wall in order to have any ventilation," and explains management's opposition to placing partitions in a direction parallel to the exterior wall. In no case, however, did the Employer "feather its own office space nest at the expense of AFGE employees." Moreover, the Union's argument that the employees it represents were inequitably treated in the amount and kind of space which they received is demonstrably false.



While the current floorplan ensures mission accomplishment by

providing facilities adequate to meet the needs of appellants, and is consistent with the standards for space allocated throughout OHA, the Union's various floorplan options appear to have the primary purpose of increasing office space for the hearing analysts represented by AFGE. There is, however, "no reason to provide either of the AFGE analysts with a larger office." The complaints raised by one of the analysts about lack of space are because she "has in her office two extra pieces of furniture," which are now being used "as an excuse for a larger office." The Union's proposals would also have the effect of providing the analysts it represents with more apace than an employee engaged in the same function represented by a different union. Although "AFGE obviously does not care about members of another bargaining unit," management must.



Because the Tucson Hearing Office "is mandated to have two hearing rooms," the floorplan options proposed by the Union are all

unacceptable. In general, the alternatives proposed by the Union

decrease the ability of the office to meet its mission "by decreasing the hearing, reception, or counsel area available to the public, decreasing security, or decreasing supervision." Finally, the Union's "solutions" also "have the ironic effect of increasing both horizontal and vertical inequity" by in some cases granting employees at the same grade different amounts and kinds of space, while in others providing lower graded employees with more office space than their supervisor<.



CONCLUSIONS



As I have studied the evidence and arguments presented by the parties, both in person and through their posthearing briefs, I am moved by a desire to balance the needs of employees for more space and quiet with the need to respect nationally set space standards that SSA management has determined as proper.



In support of the Union's position, the record reveals that the two hearing rooms at the facility were needed for only 72 days during January through mid-June 1992 (plus 2 days total additional use by other Federal agencies). Yet awarding one of them to accomplish employees' wishes would violate national standards, and it is uncontroverted that an additional ALJ will soon be added. In addition, I am persuaded by both the on-site inspection and the Employer's assertions that altering the current reception area to provide more space for a disaffected employee would lead to inadequate supervision of, and communication with, the employee, and to a possible breach of security.



This leads me to a need to order adjustments, in light of essential equipment space, and problems caused by the building configuration, within present employee locations. Yet I feel that moveable partitions should be ordered to the extent that they do not unavoidably hinder the circulation of air. The feasibility of such should be established in consultation with an expert knowledgeable in heating, ventilation, and air conditioning.



The current location of an employee represented by a different union should not be disturbed. Furthermore, the amount of furniture in an employee's office should be left to employee discretion for personal additions, as it seems now to be. Any resulting congestion however, cannot be used to justify an expanded allocation of space. Moreover, I am persuaded that the Union has justified the need for a locking two-drawer filing cabinet to ensure adequate storage and security of confidential matters.



In conclusion, in my view the following order is the best way to balance the Employer's need for mission accomplishment with the demonstrated needs of employees for improved quiet and lack of interruptions.



ORDER



The Employer shall Supply moveable partitions for privacy and quiet between workstations for hearing assistants and legal processing clerk functions, and partitions parallel to a window wall if adequate air passage can be arranged at the bottom and/or at the top of such parallel partitions. This decision will be made in consultation with an expert, as described above.



Hearing assistants and legal processing clerks shall choose where they shall sit, with disputes settled in accordance with service computation dates.

Each decision writer shall have a ceiling-high private office of 100 square feet including, as needed, footprint and circulation, from the two offices designated by the Employer, with disputes settled in accordance with service computation dates.



The scheduler shall be provided with 75 square feet of work space including, as needed, footprint and circulation, and the Employer shall supply two moveable partitions for privacy and quiet.



The FOSA computer specialist shall be supplied by the Employer a workstation of 75 square feet including, as needed, footprint and circulation with two moveable partitions and a third parallel to the window wall if adequate air passage can be arranged at the bottom and/or top of the third partition.



The Employer shall provide the local Union representative with a locking two-drawer filing cabinet, and also such furnishings as were being provided as of March 12, 1988.



In addition to the Employer's noted "Authorized Furniture and Equipment (Hearing Offices)," employees may personally add additional furnishings that do not hinder their productivity and comfort.



No relocations are herewith ordered



John R. VandeWater

Arbitrator



August 25, 1992

Anchorage, Alaska





APPENDIX A



Option 1

a. Decision Writers





1. Remove the wall currently between the two decision

writers in order to create one office for one of the

employees.



2. The other decision writer will move to the Counsel's

office.



b. Hearing Assistants



1. The three hearing assistants will be moved to the hearing

room.



c. Legal Processing Clerks



The three LPCs will be located on the wall with the windows

separated by partitions.



Option 2

a. Decision Writers





1. Remove the wall currently between the two decision

writers in order to create one office for one of the

employees.



2. The other decision writer will move to the Supervisory

Attorney's office.



b. Hearing Assistants



1. The three hearing assistants will be moved to the hearing

room.



c. Legal Processing Clerks



The three LPCs will be located on the wall with the windows

separated by partitions.



Option 3



a. Decision Writers



1. One decision writer would be moved to the Counsel's

office.



2. One decision writer would be moved to the Supervisory

Attorney's office.



b. Hearing Assistants



1. Two HAs would be moved to the two offices vacated by the

decision writers. 2. The other HA will be located in the

corner next to the windows and multipurpose room.



c. Legal Processing Clerks



T