DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND and GENERAL COMMITTEE 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
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT
Case No. 92 FSIP 91
DECISION AND ORDER
The General Committee, 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, Baltimore, Maryland (Employer).
After investigation of the request for assistance, the Panel determined that the impasse concerning a nationwide sign in/sign out policy for Union representatives 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 now considered the entire record.
The Employer administers Title II (Old Age, Survivors, Disability, and Health Insurance), and Title XVI (Supplemental Security Income) programs for the public. The Union represents a nationwide consolidated bargaining unit consisting of approximately 48,000 General Schedule employees, who work in any 1 of 6 components of the Social Security Administration. These employees hold such positions as teleservice, claims, field, and service representative; benefit authorizer; paralegal; computer and programming specialist; hearing assistant; data review technician; recovery reviewer; post-entitlement technical expert; claims clearance review examiner; and contract specialist. They are covered by a national collective-bargaining agreement (CBA) which is due to expire on January 25, 1993.
The dispute arose during negotiations over a national sign in/sign out policy for Union representatives while utilizing official time. The parties disagree over how the negotiations arose. The Union contends that negotiations ensued when the Employer proposed to change the current sign in/sign out policies or practices. The Employer indicates that, after a General Accounting Office (GAO) audit revealed that some Union representatives were not signing in/signing out in the manner indicated in the GAO's time and attendance recordation regulations,(1) and the Authority dismissed a related Union-filed ULP, it "agreed to meet with the Union to negotiate a Memorandum of Understanding on sign in/sign out procedures to ensure that Union officials were made aware of their time and attendance responsibilities." Currently, Union representatives are following various sign in/sign out procedures and practices throughout the agency.(2) The Union indicates that approximately 500 representatives will be affected by the outcome of this dispute; the Employer is unable to confirm the number.
While all five provisions in the parties' respective proposals are in dispute, the focus is on that aspect of the Employer's concerning supervisory inspection of Union representatives' time and attendance forms maintained in Union offices.
POSITIONS OF THE PARTIES
1. The Union's Position
Provision 1 of the Union's proposal recognizes (a) that the efficient operations of the agency necessitates the Employer's accounting for employees' time and attendance, and (b) that employees' participation in labor organizations and collective bargaining is in the public interest. Provision 2 provides that sign in/sign out practices in effect prior to August 12, 1991, and in compliance with GAO Policy and Procedures Manual, Title 6, chapter 3 (May 1989) (hereinafter "GAO Manual") would continue. Provision 3a would require Union officials to "usually" sign in upon arrival at and sign out upon departure from their assigned work sites in accordance with existing procedures, but would permit local parties to negotiate alternate sign in/sign out locations. Under Provision 3b, Union representatives and their supervisors would be allowed to make alternative arrangements when the representatives notify the supervisors in advance that labor-management business will prevent them from signing out. Provision 4, provides for continuing the existing practice of representatives signing in /signing out on time and attendance (T & A) forms in the Union offices; they would be responsible for forwarding such forms to the designated management official. In addition, this provision would allow employees to be paid and supervisory review of T & A supporting documents to be conducted afterwards, when approval prior to such review is impractical. Provision 5 would recognize the sign in/sign out practices agreed upon by the parties as consistent with the T & A regulations established by the GAO and "between the Union and SSA."
Generally, its proposal is consistent with the GAO Manual and the CBA, which permit all employees to maintain and approve their T & A records. For example, the GAO Manual , section 3.2.F.1.d., allows employees to do so when they frequently are away from the location of their supervisors. Its provision 4 is consistent with section 3.2.F.2., which allows for employees to be paid, and their T & A documents reviewed afterwards, when prior supervisory review is impractical.
That part of the Employer's provision 2, which would require representatives to continue to sign in/sign out at their assigned worksites until the local parties agree on alternative locations is unacceptable because it would tend to discourage local management officials from negotiating over such locations. The Union also rejects the wording "and this MOU" in the last sentence of that provision because it would require the "renegotiation and/or relitigation" of all current policies or practices, which would create "a Pandora's box of official time disputes" as well as "an atmosphere of enmity." The second sentence of the Employer's provision 4, which would permit supervisory inspection of representatives' T & A forms in the Union offices, conflicts with Article 11, § 1A., of the CBA.(3) Moreover, it provides for disparate treatment of representatives who sign in/sign out at Union offices. In this regard, the T & A documents of a number of employees who are not Union officials and are stationed in outlying areas away from their supervisors are not reviewed at their worksites. Finally, having supervisors constantly wandering in and out of the Union offices "would have a chilling effect on an employee[']s right to confidentiality and privacy."
2. The Employer's Position
Provision 1 of the Employer's proposal acknowledges that for the agency to operate efficiently, there must be an accounting of employees' time and attendance. Provision 2 would require representatives to sign in upon arrival at and sign out upon departure from their assigned worksites each day. Local parties, however, could negotiate alternative sign in/sign out locations for representatives when "accessibility " to their assigned worksites is a "significant problem;" but, until such locations are agreed upon, they would continue to sign in/sign out at their assigned worksites. This provision also would continue those practices in effect prior to August 12, 1991, "provided that they comply with GAO policies and procedures and this MOU." Provision 3 is the same as the Union's 3a, except that it specifies that the labor-management business be "offsite." Provision 4 would allow representatives to continue to sign in/sign out on T & A forms in the Union offices where that is the current practice, provided that "supervisory inspection of time and attendance forms at the Union office[s] may be undertaken as prescribed by GAO regulations." In conducting those supervisory inspections, the Employer would "respect" the Union's "right [to] and need for privacy" in its offices. This provision also would make Union officials responsible for submitting their T & A forms to designated management officials in accordance with "prearranged procedures and time frames." Provision 5 would recognize the sign in/sign out practices agreed upon by the parties as "consistent with time and attendance regulations as established by the General Accounting Office, SSA, and the AFGE/SSA National Agreement."
Under the GAO Manual, all employees, including Union representatives, are required to account for their T & A through one of the approved methods, such as serial sign in/sign out sheets, the most common method in use at the Employer's offices since implementation of flextime and alternative work schedules.(4) Whatever the method used, the GAO Manual gives supervisors the discretion to review employees' T & A records for "accuracy, legal compliance, and accountability." It is true, as the Union argues, that the GAO Manual allows employees to maintain and approve their own T & A records when they frequently are away from the location of their supervisors; however, it requires prior agency head approval in writing and Union representatives have not received it. Also, even if such approval were granted, pursuant to section 3.2.F.2., of the GAO Manual, representatives still would be subject to the supervisory controls set forth in section 3.2.B.2. through 4.
The Employer has attempted to accommodate the Union's needs. For example, some Union representatives on 100 percent official time are allowed to sign in/sign out at locations more convenient to the Union offices rather than at their assigned worksites. Under the Employer's proposed provision 2, this practice would continue so long as it complies with the GAO Manual and "this MOU" or, in other words, the Employer's proposal. Also, any future problems with accessibility to the Union offices could be resolved through negotiations as provided under this provision. Contrary to the Union's contention, requiring representatives to continue to sign in/sign out at their assigned worksites until the alternative locations are agreed upon would not interfere with the parties' reaching agreement on such locations. Nor would inclusion of the wording "and this MOU" require the renegotiation of all current sign in/sign out practices; rather, only those few that the GAO audit revealed are inconsistent with the GAO Manual would have to be renegotiated.
Currently, some representatives sign in/sign out on T & A forms maintained in the Union offices. As indicated in provision 4, this practice could continue, but only if supervisors are allowed to inspect such forms in the Union offices to ensure that representatives are signing in and out properly and working. Such supervisory inspection would be necessary for the Employer to be in compliance with the GAO's supervisory T & A accountability requirements, section 3.2.B. Contrary to the Union's assertion, "[U]nion officials are subject to the same scrutiny as other employees with regard to the maintenance of time and attendance records." No evidence was offered by the Union to show that confidential discussions would be compromised when supervisors enter Union offices for the limited purpose of examining T & A forms. Moreover, the supervisory inspection clause would be implemented in a manner that "respects" the Union's need for and right to privacy in its offices. "[A] short incursion into a [U]nion office to ensure employee accountability would not materially affect that right [to] and need for privacy."
As for provision 4 of the Union's proposal, which would allow Union officials to be paid before a review of their T & A documents is undertaken by their supervisors, it is inconsistent with the GAO accountability requirements. Also, with the exception of those circumstances identified in the Employer's provision 3, employees always must sign in/sign out in accordance with the CBA and other agreements and not "usually," as provided in the Union's provision 3.
After examining the evidence and arguments presented, we conclude that the parties should adopt the Employer's proposal to resolve the impasse. We are persuaded that, as a whole, it is more responsive to correcting the problems with existing sign in/sign out procedures or practices which a recent GAO audit revealed are in violation of the GAO Manual. In this regard, we agree with the Employer that the GAO Manual requires supervisory scrutiny of Union representatives' T & A documents and verification that they are working on appropriate matters while on official time.
In regard to supervisory inspection of T & A forms maintained in the Union offices, the key aspect of the dispute, the Employer's provision 4 balances more appropriately the interest of the Employer in obtaining assurances that Union representatives on official time are (a) signing in and out in a manner acceptable under the GAO Manual and (b) working on representational business, with the Union's interest in protecting the sanctity of its offices. In reaching this conclusion, we note that (1) supervisors would have to conduct inspections of T & A forms at Union offices in a manner that does not infringe upon the Union's privacy rights, and (2) the Union did not demonstrate how such inspections would compromise confidential discussions within those offices. Should supervisors intrude in confidential discussions or be unresponsive to the Union's privacy rights, however, the Union may (a) seek an appropriate remedy through the contractual grievance arbitration procedure or (2) negotiate under provision 2, alternate sign in/sign out locations to the Union offices. Finally, we note that the parties' CBA is to expire in January 1993; any n