Department of Health and Human Services Social Security Administration Philadelphia, PA and Local 2006 American Federation of Government Employees

In the Matter of the Arbitration between

Department of Health and Human Services

Social Security Administration

Philadelphia, PA

and

Local 2006 American Federation of Government Employees

Case No. 93 FSIP 119

ARBITRATOR'S OPINION AND AWARD

    The Arbitrator held the hearing on June 15, 1993 beginning at 9:00 a.m. in a conference room in the basement of 300 Spring Garden St., Philadelphia. The attendees at the hearing appear in Appendix A.

BACKGROUND:

    The Agency decided to move the Regional Office of Program Integrity Review (ROPIR) unit which serves the region from the Gateway Building to the second floor of 300 Garden Spring. The Gateway Building is located 30 blocks from 300 Garden Spring Building. The Agency stated that the primary reason for the relocation to the Spring Garden Building was to provide the ROPIR with contiguous space. Currently a substantial part of the ROPIR staff is located at the Gateway Building and the remaining staff is at the Spring Garden Building. Thus, the move to 300 Garden Spring will unite the staff resulting in better service.

    It was also noted that part of the ROPIR staff at the Gateway Building is separated from their line staffs because of the configuration of space (i.e utility core) within the structure. The Agency stated that the separation of the staff from their first line supervision has created situations that reduce the efficiency of the component and require extraordinary management intervention into situations that should be routine (see Agency Brief, p. 3).

    In the move to the Spring Garden Building the following units of the Regional Program Integrity Review Office will be together: 1) The administrative office; 2) APOB, which handles SSI (Supplement Security Income) matters; 3) DQB, which handles disability claims, and 4) IPQB, which handles Old Age Survivors Insurance Matters. All of these components will be quartered in the eastern half of the second floor of the Spring Garden Building. The Agency stated that the line employees and the managers of each unit will be together which will facilitate communications and improve efficiency.

ISSUES:

    There are two issues in the instant case.

    The Agency raised the threshold issue of its duty to bargain on the location of offices for its managers on the second floor of the building at 300 Spring Garden Street in Philadelphia.

             The second issue relates to the physical location of certain offices. The Union contends that the Agency will impact significantly and adversely on the health and safety of its employees by erecting walls and partitions which would obstruct or impair the heating ventilation and air conditioning (HVAC) system.

DISCUSSION OF THE THRESHOLD ISSUE

POSITION OF AGENCY:

    The Agency asserts that the FLRA has found consistently that proposals very similar to those in the instant case are clearly non-negotiable. In support of its position the Agency cited Federal Union of Scientists and Engineers. National Association of Government Emplovees, Naval Underwater System Center. and Newport Rhode Island 28 FLRA 352 (see Management Exhibit #8). This case came before the FLRA on a negotiability appeal under the statute under Section 7106 (a) (2) E of the statute. The FLRA in the context of section 7106 (D) stated that "means" refers to any instrumentality, including an agent, tool, device, measure plan, or policy used by an agency for the accomplishing a furthering of the performance of its work (see p. Agency Exhibit #8, p. 353). The Agency contends that the performance of its work is facilitated by its ability to group employees functionally and to place supervisory and other management officials m close proximity of the work to be performed and those individuals they supervise (see Agency Brief, p. 1). The Agency further noted that any externally mandated restriction on this right would unduly disrupt and impair the effectiveness of the operation (see Agency Brief, p. 1).

    The Agency also stated that 28 FLRA 352 supports its contention that there is no duty to bargain in the instant case because the issues involves the placement of management offices who are non-unit employees (see Agency Brief, p. 2).

    The Agency attached to its brief American Federation of Government Employees Local 12 AFL-CIO and Department of Labor 25 FLRA 82. The Agency claimed that in this case determining the location and size of office space to be occupied by non-unit employees is nonnegotiable (see Agency Brief, p. 2).

    The Agency introduced American Federation of State. CountY and Municipal Emplovees AFL-CIO Local 2910 and LibrarY of Congress 19 FLRA 130 (see Agency Exhibit #7). In this case FLRA defined the right of management to group employees functionally in order to enhance the ability of the section to accomplish its function in a more and efficient and effective manner (see Agency Exhibit #7, p. 1181).

The Agency also cited Social Security Administration and American Federation of Government Emplovees Local 1164 FLRA 36 No. 71 in support of its position that the Union's proposal are non-negotiable (see Agency Exhibit #9).

    The Agency contended that the issue of the floor plan in the instant grievance is clearly a method and means of performing the work of the unit and the Union's proposal would have a substantial and negative effect on the Agency's right to determine methods and means. Accordingly the Agency maintained that it had no duty to bargain (see Agency Brief, p. 3). The Agency also pointed out that the offices in contention are for the use of non-unit employees and that their location is not of vital interest to the unit employees (see Agency Brief, p. 3).

POSITION OF THE UNION:

    Interestingly the Union in addressing the issue of non-negotiability included 25 FLRA No. 82, the same case the Agency attached to its Brief. The Union stated that this case 25 FLRA 82 involves the Union's proposal for the location of office space and the duty to bargain (see Union Brief, p. 2). The Union contended that this FLRA decision is favorable to its position. Moreover, it claimed that this FLRA decision clearly negates the Agency's arguments. The Union stated that the Agency has failed to establish any basis for its claims that nonbargaining unit employees are vitally affected by the Union's proposal (see Union Brief, p. 2).

ARBITRATOR'S CONCLUSION ON THE THRESHOLD ISSUE:

    In Commander. Carswell Air Force Base, Texas and American Federation of Government Emplovees Local 1364 (31 FLRA 620), the Federal Labor Relations Authority (FLRA) clarified the authority of interest arbitrators to determine the duty to bargain issues raised by the parties in such a proceeding. The thrust of this decision is that arbitrators may resolve a negotiability issue when there is clear FLRA precedent (see for example 25 FLRA 82, 41 FLRA 99, 41 FLRA 72, 46 FLRA 85, 47 FLRA 26). Accordingly there is clear FLRA precedent on the issues in the instant case.

    The Arbitrator takes note that informal negotiations began in early 1992 on the configuration of the office space on the second floor of 300 Spring Gardens. In March, 1993 formal negotiations began, and earnest proposals were made and exchanged between the parties. The Agency stated at the hearing that a good faith effort was made with the hope for a bilateral agreement which would be clearly acceptable under the statute despite its concerns about the negotiability of the Union's proposal (see Agency Brief, p. 3).

    Having engaged in good faith bargaining in an effort to reach a bilateral agreement, it is difficult for this Arbitrator to understand the Agency's claim that the issues in this case are now non-negotiable, and therefore it does not have the duty have the duty to bargain.

DISCUSSION OF THE ISSUE ON THE LOCATION

OF THE OFFICES FOR MANAGERS

    The location of four offices for managers on the second floor is being challenged by the Union. The Arbitrator personally inspected the layout of the second floor of the building where the ROPIR will be housed. There are two offices with windows on the south side of the building and two offices with windows on the north side of the building which are in question.

    The view from the offices on the north side is partially blocked by a wall which is a part of the building.

    The computer room is also located on the second and is windowless. The Union offices are also located adjacent to the computer room. The Union offices have floor to ceiling walls and are completed enclosed without windows.

POSITION OF THE EMPLOYER:

    The Agency's position is that the location of these offices will bring together managers and the staff employees of the four sections. For example the manager of the IPQB section will have all of the staff of this section together. This in the view of the Agency will improve both efficiency and communications for each of the four sections as well as for the entire ROPIR component. The Agency stated that any discernable values from the relocation will be compromised if the Union's position (to be discussed later) is allowed to prevail because managers will be placed in a location remote from the employees whom they supervise (see Agency Brief, p. 3).

    The Agency maintained that the four offices in dispute cannot be moved without vitally affecting the operation and efficiency of the ROPIR. Any change in the location of the disputed offices would jeopardize ROPIR functional integrity (see Agency Brief, p. 7). The Agency stated that it must be allowed to group employees functionally and to provide managers and supervisors access for routine interaction with those employees. The Agency maintained that any decision that would restrict this right would compel the Agency to act in a manner that is less efficient and less productive. It went on to say that such a decision would interfere with the Agency's right to determine the methods and means of accomplishing its mission (see Agency Brief, p. 7).

    The Agency pointed out that the linear amount of window space in the four disputed offices is about 25 feet on the north wall and about 35 feet on the south wall. Thus the total window linear amount for the four offices is 60 feet. The total linear amount of window space for each exterior wall is 240 feet, or 480 feet for both the north and south walls. Thus the Agency pointed out that four disputed offices involve 12.5 percent of the windowed perimeter on the second floor (60/480 = 12.5 percent) (see Agency Brief, p. 6).

    The Agency further pointed out that there is 50,000 square feet of space on the second floor. 20,000 square feet of space has been allocated to ROPIR. The Agency went on to say that there is 350,000 square feet in the building. These four disputed offices represent only 4.5 percent of the ROPIR space, 1.8 percent of the second floor, and .25 percent of the entire building space (see Agency Brief, pp. 6-7). The Agency stated it is not reasonable to believe that the placement of these offices which occupy so little of the actual space on the second floor would reasonably or significantly or adversely impact on the air quality and comfort levels through the entire building as the Union maintained.

POSITION OF THE UNION:

    The Union is opposed to the location of these four offices on grounds that these offices will affect significantly a,nd adversely the health and safety of employees by erecting walls and partitions which would obstruct or impair the already marginally effective heating ventilation and air conditioning (HVAC) system. The Union also maintained that the Agency has not shown conclusively that its location of these four offices will adversely affect the unit's mission (see Union Brief, p. 2).

    The Union presented evidence through exhibits, testimony, and eyewitness observation on the inadequacies of the HVAC system on the second floor of the Spring Gardens Building.

    One Union witness who is located at the Social Security Western Program Service Center (WNPSC) in Richmond, California testified via a telephone conference call on the HVAC system. He said that a building in Richmond, California is a virtually identical facility in terms of HVAC requirements, capabilities and design to the Spring Garden Building and he testified on the problems of HVAC system (Union Brief, p. 2).

    Two officers of Local 2006 testified that there are problems in the HVAC system at the Spring Garden Building. They said that in cold weather employees bring electrical heaters to work and their assertions were not challenged by the Agency spokesperson. They also said that when it is too hot or too cold maintenance personnel work on the wall perimeter units to alter temperature. They maintained that the offices in question would alter the flow of air conditioning/heat on the second floor creating unfavorable working conditions.

    The Union called attention to the remarks made by the designer of the Spring Garden Building at a briefing of managerial and union officials several years ago. This person was not present at the hearing nor were any written statements by him introduced.

    In support of its position the Union introduced a "Hazard Fact Sheet" published by the Occupational Health Foundation (see Union Exhibit #5). This publication deals with indoor air pollution and discusses the specifications promulgated by the American Society of Heating, Refrigeration, and Air Conditioning Engineers (ASHRAE 62-1989) (see Union Exhibit #5). The Union also introduced U.S. Environmental Protection Agency Indoor Air Facts No.3, which deals with ventilation and air quality in offices (see Union Exhibit #7). This publication also discusses indoor air pollution.

    The Union challenged the Agency's decision to locate the four manager's offices along the perimeter wall. The Union said that the only claimed basis for building separate offices for managers was that an office is necessary to the performance of the manager and that an office for the manager needs to be located adjacent to the work unit he or she supervises (see Union Brief, p. 2). The Union claimed that the agency has not demonstrated exactly how a manager's performance requires an enclosed office space.

    The Union called attention to the DHHS' memorandum of November 19, 1990 to Gil Morris (see Union Exhibit #6) item #3 on page 1 reads.

3. Pertaining to the work group concern item 6. Develop an executive work station for GS 13s and 14s. We believe it unadvisable to offer GS 13tl4s larger "prestige" workstations. Providing a larger workstation based solely on grade level is generally no longer acceptable under current regulations on space utilization.

Union Exhibit #6, p. 1.

    The Union pointed out that at WNPSC managers' work units in Richmond, California are esser,tially identical to the employees' work cubicle except that the managers space includes a small area for a seat or two for consultation (see Union Brief, p. 2). The Union went on to say that the work areas at Richmond are utilized in a manner consistent with the best operational results and the health and safety of employees and not because an employee is a manager (see Union Brief, p. 2).

    The Union contended that there is absolutely no basis for the Agency's argument that the location of the disputed offices is critical to the mission of the unit (see Union Brief, p. 3). Further the Union maintained that the Agency's expressed concerns whether on the location of the offices and how the location of the offices impacts on methods and means or on "disruption" in the work site are not substantiated (see Union Brief, p. 3).

           The Union said that the Agency claimed that the ROPIR unit's work required an additional degree of security over and above the extreme security provided in this and other worksites in the building. The Union maintained that the Agency was unable to describe the nature of any additional security requirements (see Union Brief, p. 3).

    The Union raised the question as to whether the Agency bargained in good faith (see Union Brief, p. 4).

    The Union proposed the following as to a plan of action.

Remove the offices off the windows, freeing the window vents and windows for the benefit of all employees, and from the middle of the floor to prevent blockage of air flow, to existing walls on the east and west sides of the ROPIR area. Postpone the erection of walls around the space utilized ba managers until such time as the new proposed HVAC system has been installed and evaluated. This is consistent with the existing past practice on other floors of the facility.

Union Brief, p. 4.

AGENCY REBUTTAL OF THE UNION'S CHARGE THAT THE HVAC SYSTEM IS DEFICIENT:

    The Agency provided direct evidence and testimony that the proposed location and size of the non-unit (management) offices will have no measurable impacts on air quality and its circulation.

    The Building Manager at 300 Spring Garden, testified concerning the operation of the HVAC system and the Agency's efforts to maintain a safe and comfortable work environment. She discussed what she called the state of the art Energy Management Control System which had been installed in the building. The system computer monitors comfort levels at several locations on each floor. She stated that it is programmed to react to this feedback in a manner that provides the desired comfort levels with the least amount of temperature variation and in a manner that conserves energy (see Agency Brief, p. 6).

    An Agency expert on HVAC from Baltimore stated that offices constructed along perimeter walls would not adversely affect temperature and/or air flow in the building's interior space. He said that the only function of the air induction units located at the windows is to wash the windows with conditioned air either heated of cooled. The washing provides a cushion of air-like curtains which r,educes the effect of solar heat in the cooling session (summer) and reduces heat loss through the windows in the heating season (winter). He pointed out that the heating and cooling for the interior of the building is provided by air that is forced through the "air bars" in the ceiling space (see Agency Brief, p. 6).

    The Agency introduced a letter to the Acting Assistant Regional Commissioner from the Director Division of Facilities DHHS dated March 26, 1993. This letter was the response to a meeting with representatives of both the Union (AFGE) and Agency management and a tour of the building on March 24, 1993.

    In response to an issue raised by AFGE and not resolved at the meeting. He wrote.

Construction of offices along the perimeter - Walls will not have an adverse impact. The perimeter HVAC system is a separate system from interior system and neither will greatly impact the other. The cold problem being encountered in the offices on the north and south side of the second floor is because of the overhang and will be addressed by the HVAC Retrofit proiect.

Agency Exhibit #11, p. 1

    The Agency introduced a study of the indoor air quality by the Federal Employee Occupational Health (FEOH) that this U.S. Public Health Service unit conducted on October 12, 1991 (see Agency Exhibit #4). FEOH found temperature and relative humidity were well controlled and regulated. FEOH also stated that the building is well maintained, well ventilated, and has an exemplary level of air filtration. The second floor where the disputed offices are located was included in the study (see Agency Exhibit #4; see also Agency Brief, p. 4).

    On June 2, 1993 FEOH Region III again conducted an indoor air quality (IAQ) survey of the northwest quadrant of the second floor of the Spring Garden Building. The conclusions and recommendations of the study appear below.

1. The complaints inside the Remittance area resulted from a single episode of short duration. A specific reason for the occurrence of symptoms among employees could not be found; no further investigation is warranted in that the symptoms have not reappeared and the air sampling did not reveal any abnormal conditions. If a similar situation develops, a more thorough investigation of the ventilation system serving both the north quadrant of the entire building and other areas on the 2nd floor should be initiated. Emphasis should be placed on the laser printed room adjacent to the Remittance room.

2. A causative agent(s) for the odors could not be located. There have not been any repeat complaints from employees working outside the Remittance area but within the 2nd floor north quadrant. Future complaints should be reported immediately so that investigators might experience the unusual odors first hand.

3, Adjustments or modifications to the air distribution, temperature, and humidity will contribute to resolving employee discomfort. The HVAC system should be evaluated and modified (if necessary) to maintain space temperatures within acceptable ranges during the entire year.

Agency Exhibit #5, p. 7.

    Another study by FEOH analyzed air samples in 30 different locations in the building including the second floor in late 1992 (see Agency Exhibit #6). The reports showed no indoor air quality problems (see Agency Exhibit #6, p. 2; see also Agency Brief, p. 4).

    The Agency stated that it sought the assistance of FEOH in an effort to assess accurately the office environment and the air quality of the building and to respond to the concerns of the Union on the health and comfort of the employees (see Agency Brief, p. 5 and p. 7).

    The Agency further stated that the WNPSC Building in Richmond, California and the Garden Spring Building differ greatly in design and in engineering. Although both buildings were designed by the same firm, the designs are substantially different reflecting heating/cooling demands, piping patterns, etc, (see Agency Brief, p. 7). Thus, the Agency maintained that it is difficult to make meaningful comparisons between the two buildings.

CONCLUSION:

    The Union maintained that the location of these four offices will affect the health and safety of the employees who work on the second floor of the Spring Garden Building. The Agency ;ntroduced studies conducted by the U.S. Public Health Service Federal Employees Occupational Health at several different time frames which indicated the air quality on the second floor presented no problem (see Agency Exhibit #4, #5, and #6). These studies in the opinion of this Arbitrator do address satisfactorily the health concerns of the Union.

    Since the construction of the four disputed offices has taken place after the studies conducted by FEOH cited earlier, there is no evidence available on how the location of these four offices will actually affect air quality, heating and air conditioning, and climate environment of all employees on the second floor. Because of this lack of evidence the Arbitrator cannot accept the position of the Union that the location of these four offices pose a threat to the health and safety of the employees working on the second floor.

    The Union concluded that office space and the location for managers should not be based on a G.S. grade. The Union also challenged the claim of the Agency that the location of the four disputed offices are critical to the mission of ROPIR. While these assertions of the Union are interesting they do not relate to the basic issue raised by the Union that the location of the four disputed offices affect the health and safety of the employees working on the second floor of the building.

    The Arbitrator concludes that the Agency can position the four disputed offices as indicated on the final floor plan. However, the Arbitrator