DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION OFFICE OF HEARINGS AND APPEALS REGION II NEW YORK, NEW YORK and LOCAL 1760, 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 )

OFFICE OF HEARINGS AND APPEALS )

REGION II )

NEW YORK, NEW YORK )

)

and ) Case No. 92 FSIP 60

)

LOCAL 1760, AMERICAN FEDERATION )

of GOVERNMENT EMPLOYEES, AFL-CIO )

________________________________________)





DECISION AND ORDER





Local 1760, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, New York, New York (SSA or Employer).



After investigation of the request for assistance, the Panel determined that the impasse, concerning break and lunch schedules, should be resolved through written submissions from the parties, with the Panel to take whatever action it deemed appropriate to resolve the impasse. Written submissions were made pursuant to this procedure and the Panel has considered the entire record.



BACKGROUND



The mission of the Office of Hearings and Appeals is to provide independent review of agency determinations denying Social Security benefits. It adjudicates all Social Security benefit disputes involving disability, retirement, and Medicaid claims. The Union represents approximately 30 employees stationed in the Brooklyn, New York, office who are part of a nationwide consolidated unit consisting of approximately 48,000. Employees in the office hold such positions as hearing assistant, hearing clerk, hearing analyst, and clerk-typist. There are also approximately 10 management officials, 10 attorneys who belong to another bargaining unit, and 10 Administrative Law Judges (ALJs) who are unrepresented. The parties are covered by a master collective bargaining agreement which is scheduled to expire in January 1993.



The impasse arose when the Employer decided to impose a fixed rest- and lunch-break policy only on those bargaining-unit employees represented by the Union.l



ISSUE AT IMPASSE



The issue is whether the Employer's new policy should also apply to ALJs.



POSITIONS OF THE PARTIES



l. The Union's Position



In essence, the Union proposes that the Employer's new policy apply to both the bargaining-unit employees it represents, and the ALJs. This is because bargaining-unit employees and the ALJs often work in conjunction with each other. Bargaining-unit employees schedule hearings, prepare case files prior to hearings, arrange for the appearance of expert witnesses, operate the transcription equipment used at the hearings, and type the ALJs' decisions. The flexibility required by an ALJ is no greater than that of the clerical and administrative staff. Employee morale, which is already quite low due to an increase in workload and the abuse of starting and quitting times by managers and ALJs, may decrease even further if there is any disparity in treatment between the barqaininq-unit employees and the ALJs.



While the Union originally proposed that all employees of the facility observe the same rest- and lunch-break policy, its proposal has been modified to comply with a recent court decision regarding the negotiability 2v of proposals which affect nonbargaining-unit employees.-/ In its view, its modified proposal is fully negotiable because ALJs are "neither managers nor part of any bargaining unit." Finally, applying the Employer~s new / Under the new policy, which is not at impasse, employees must pick a time when they prefer to go on rest and lunch breaks, and stick to that time on a daily basis. The previous policy was that all employees at the office could go on such breaks when work permitted it.

2/ United States Department of the Navy. Naval Aviation Depot. Cherry Point. North Carolina. v. Federal Labor Relation Authority, 952 F.2d 1434 (D.C. Cir. 1992) Cherry Point).



policy only to bargaining-unit employees would treat them as "sacrificial lambs to get others in line."



2. The Employer's Position



The Employer proposes that its new policy for fixed rest and lunch breaks apply only to the bargaining-unit employees represented by the Union. In this regard, ALJs require a great deal of flexibility in holding hearings and negotiating with claimants and attorneys, so the position does not lend itself to fixed rest- and lunch-break schedules. Thus, adoption of the Union's proposal would impede them from performing their jobs. On the other hand, clerical and administrative personnel spend the vast majority of their time typing, issuing decisions, and answering the telephones. In fact, one of the main reasons for the new policy is to have adequate telephone coverage for the public, which was lacking under the old policy.



With respect to whether the Union's proposal is supported by the Cherry Point decision, in the Employer's view, it is not. In this regard, "not only are ALJs part of management," but the Union's proposal does not "vitally affect" the conditions of employment of bargaining-unit employees "as required by the case." In conclusion, there is "a legitimate management need to have scheduled breaks for bargaining-unit employees, and the Union does not have the authority to bind individuals outside of their bargaining unit."



CONCLUSIONS



With regard to the arguments raised by the parties concerning the applicability of the Cherry Point case and whether ALJs are management officials, regardless of the validity of those arguments, given the parties' proposed solutions to a perceived workplace problem, we are persuaded that the Employer's proposal should be adopted. The record reveals that the job duties of an ALJ are far different from those of the support staff, and require a great deal more flexibility. For example, the Employer's need for adequate telephone coverage supports applying the policy to support personnel, whereas this is a job duty unrelated to what an ALJ does during the workday. While we are mindful of the Union's concerns regarding the effect that disparate treatment of bargaining-unit employees may have on their morale, on balance, the flexibility ALJs require to perform their work outweighs such concerns. For this reason, we shall order the adoption of the



Employer's 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