DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION OFFICE OF HEARINGS AND APPEALS FALLS CHURCH, VIRGINIA AND NATIONAL TREASURY EMPLOYEES UNION

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

FALLS CHURCH, VIRGINIA

AND

NATIONAL TREASURY EMPLOYEES UNION

Case No. 94 FSIP 47

DECISION AND ORDER

    The National Treasury Employees Union (NTEU or 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 (DHHS), Social Security Administration (SSA), Office of Hearings and Appeals, Falls Church, Virginia (OHA or Employer).

    After investigation of the request for assistance, the Panel determined that the impasse concerning nine Articles in the parties' successor collective-bargaining agreement should be resolved through an informal conference between a Panel representative and the parties. If no settlement were reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendations for resolving the matter. 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.

    Pursuant to the Panel's determination, Staff Associate Nick G. Duris met with the parties on March 29 and 30, 1994, at the Panel's offices in Washington, D.C. With his assistance several issues were resolved but 11 remained at impasse. Mr. Duris has reported to the Panel, and it has now considered the entire record.

BACKGROUND

    The mission of the Employer is to provide claimants with hearings before administrative law judges (ALJs) to appeal denials of Social Security benefits. The bargaining unit consists of approximately 425 excepted-service General Schedule attorneys located in 96 of the Employer's hearing offices throughout the country. The parties' collective-bargaining agreement (CBA) expired on May 31, 1993.

ISSUES AT IMPASSE

    The parties are in dispute over the following issues: (1) number of Union stewards and travel and per diem, (2) office space, (3) parking, (4) documents concerning relocation plans, (5) factfinding concerning relocations, (6) mid-contract negotiations/recognition of rights, (7) mid-contract negotiations/site of negotiations, (8) flexitime and credit hours, (9) reopener, (10) flexiplace, and (11) transportation subsidies.

1. Number of Stewards(1) and Travel and Per Diem

    a. The Union's Position

    The Union proposes the following:

Section 1

A. The Chapter president will have the authority to appoint one steward per region and an additional nine at-large stewards.

Section 2

C. Stewards whose representational duties other than negotiations require them to travel to a site other than their normal post of duty shall receive reasonable travel and per diem expenses in accordance with Government-wide regulations. To promote the increased use of face-to-face meetings to resolve problems, the Employer will pay 100% of these expenses up to $5,000 in each contract year. After that amount has been reached, the Union representative will be reimbursed for only 50% of these costs.

Its proposal would cut the number of stewards to 18 without forcing anyone out of a steward position. In this regard, 17 of the 26 potential steward positions are currently filled. The appointment of nine-at-large stewards would provide the Union with specialists in highly technical matters who could handle any overload of representational work from a particular region. Additionally, "in an ideal world, the Union would have one steward for each of the 96 offices just as management has managers. In an equitable world, NTEU would have the same freedom to place stewards that management has to place managers under section 7106, i.e., unlimited freedom." The Employer's proposal, on the other hand, does not take into account that some regions are bigger than others. Further, its claim that excessive costs would occur if the Union's proposal is adopted is unsubstantiated. For these reasons, the Panel should give the Union the benefit of the doubt and adopt its proposal.

    With respect to travel and per diem, both parties agree that more face-to-face meetings should be held at the local level in order to promote settlement opportunities. Since the Union represents a bargaining unit that is scattered throughout the United States, and the vast majority of its budget goes to training, bargaining-unit members' dues do not adequately cover its expenses. Therefore, its proposal would provide it with the resources needed to effectuate both parties' objectives; in contrast, the Employer's proposal for a 50-50 split of travel and per diem expenses is not enough to foster such goals. Finally, because there is a practice whereby the Employer pays 100 percent of the Union's travel and per diem costs during mid-contract negotiations, the same should occur for other representational functions. Its proposal "should be seen as an investment by management, not a cost."

    b. The Employer's Position

    The Employer's proposal is as follows:

Section 1

A. In each region, the Chapter president may appoint as many as two (2) stewards per region. Additionally, the Union may appoint three stewards at-large.

Section 2

C. The parties agree to a 50-50 split of travel and per diem for stewards who travel to a site other than their normal duty station to represent employees in grievances and similar matters, e.g., disciplinary replies.

Although it prefers the status quo, its proposal would permit the Union to appoint 21 stewards (3 of whom would be at-large). This should be more than enough to represent a unit of 425 employees. In this regard, there were only 32 employee grievances filed in 1993, and none so far this year. Furthermore, the Union has a chapter president, executive vice-president, chief steward, vice-president-at-large, treasurer, secretary, and nine regional vice presidents, all entitled to official time for purposes of representing employees. As to the number of at-large stewards, its proposal provides one more than what was in the previous contract. Moreover, "regional representation makes sense in that it would force Union representatives and regional management officials to work together on problems and arrive at a consensus on issues at the regional level." At-large stewards, on the other hand, are frequently outsiders with no knowledge of the issues in dispute until they get to the area, thus minimizing the chances of reaching settlements. While the Union is free to designate individuals of its choice to represent the bargaining unit, "there is no reason to require the Employer to automatically subsidize such choices." Therefore, its concern is over the "spillover effect" on official time, travel and per diem, and use of facilities for representational purposes.

    Concerning travel and per diem, for the first time ever it has proposed to pay half of the Union's expenses, something it has never done for any other union.(2) Paying 50 percent will give equal motivation to settle cases in the early stages, while providing the Union an incentive to economize. Its proposal is more than reasonable, given that it has already agreed to pay full travel and per diem expenses for Union representatives to participate in Labor-Management Relations meetings, Equal Employment Committee meetings, and up to 5 days for mid-contract negotiations.

CONCLUSIONS

    Preliminarily, we note that the issue over the number of stewards the Union may appoint is a permissive subject of bargaining over which it has apparently agreed to negotiate. Having considered the evidence and arguments on this issue, we conclude that the dispute should be resolved on the basis of the Employer's proposal. In our view, the number of stewards it proposes, in addition to the number of officials the Union already has, appears more than adequate for a bargaining unit of this size. Because the Employer's proposal actually permits the appointment of three more stewards than the Union's, plus one more at-large than was allowed in the previous contract, there should be no real concerns over the adequacy of representation. Finally, we feel that regional representation provides a more conducive environment in promoting settlement opportunities, while keeping use of official time and travel and per diem expenses to a minimum.

    We also favor the Employer's proposal concerning travel and per diem expenses. In this regard, the record reveals that the Employer previously has never paid any portion of the Union's travel and per diem expenses when representing employees in matters such as grievances. Its willingness to improve upon precedent reflects a meaningful accommodation in the circumstances of this case. The Union's proposal, on the other hand, could increase the Employer's expenses to over $5,000 per contract year. In short, the Union has failed to persuade us as to the need for such a radical departure from past practice. For these reasons, we shall order the adoption of the Employer's proposal.

2. Office Space

    a. The Union's Position

    The Union proposes the following:

Section 1

B. Whenever an office is to be refurbished pursuant to a move, expansion, or similar event, the following standards will serve as an "agreement norm" and be followed absent a negotiated agreement to the contrary: (1) Each employee covered by this agreement will be given an office equal in size to that provided the hearing office manager, i.e., between 125 and 135 square feet; (2) The office will have a door lock; and (3) The office will be reasonably sound proof and contain a solid core door for that purpose unless it otherwise meets a level of 50 on the sound transmission coefficient (STC) scale. Only the Employer has the right to invoke negotiations over the application of this norm to a particular office. However, where it does the Union is free to counter with proposals which exceed the norm. Otherwise, negotiations over new office space will be limited to issues involving layout, health, and safety.

Its proposal would reduce the time spent on negotiations concerning relocations by serving as an "agreement norm," absent the Employer's decision to seek other arrangements. As to office space, the current 100-square-feet requirement is not enough. In this regard, since its initial implementation, employees have received computers, computer tables, and an extra chair in their offices. Further, employees are being assigned to pre-hearing conferences with claimant attorneys in these offices, taking up even more room. Additionally, employees are receiving less than what is allowed under the General Services Adminstration's (GSA) space regulations and what was agreed upon between OHA and GSA. Finally, it is unfair for non-unit employees to receive bigger offices. In this regard, hearing office managers receive 125 to 135 square feet, although they are the same grade as most unit employees.(3) Administrative law judges' (ALJ) offices are more than twice the size, and supervisors' offices are also significantly bigger. With respect to door locks, one reason they are needed is to alleviate employees' concerns over being financially responsible for any theft of Government property that may occur, e.g., personal computers. In this regard, a recent memo was passed to employees in a particular office which indicated that they would be responsible for such. As to solid core doors, employees have complained of noise; its proposal would hopefully reduce noise so that employees could concentrate on writing decisions. Even the Employer's own regulations state that ALJ's offices will have a sound transmission coefficient of 40. Therefore, "it borders on the nonsensical to buildout office space with some offices having less soundproofing than others."

    b. The Employer's Position

    The Employer's proposal is as follows:

Section 2

A. In new offices or expansion space, each employee will be provided with office space consistent with SSA standards, which provide for each employee to have approximately 100 square feet. B. In dealing with GSA on space negotiations, the OHA will exert its best effort to obtain space allocation of 120 square feet for Attorney-Advisors in any new hearing office site or significant expansion of existing hearing office site.

Office space of 100 square feet "is sufficient for the efficient performance of their jobs, and is consistent with GSA space allocation standards" as well as its own internal regulations. In this regard, bargaining-unit employees are decision writers who have limited contact with the public. Pre-hearing conferences are normally performed over the telephone or in an available hearing room. Moreover, attorneys at OHA Headquarters, who are not represented by NTEU, have much less than 100 square feet of office space, which is also not private. Nevertheless, it will strive to obtain 120 square feet when negotiating with GSA, even though the Union's concerns are unfounded. Turning to the Union's proposals, they would increase the Employer's expenses, since the average cost of office space is $20 a square foot. Further, no need has been shown for soundproofing offices with solid core doors and for providing door locks, as no employee complaints regarding noise or thefts have been received.

CONCLUSIONS

    Upon consideration of the evidence and arguments presented, we are persuaded that the parties should adopt the Employer's proposal, modified to provide that future office spaces be "private." In coming to this conclusion, we find that the Union has failed to demonstrate a sufficient need for the Employer to incur the additional expense of having all attorney offices that are refurbished pursuant to a move or expansion, increased an extra 25 to 35 square feet, with solid-core doors and door locks.(4) While we can surmise the benefits in morale and comfort that larger offices would provide attorneys, on balance, given that they have limited contact with the public, and their primary responsibility is to write decisions, such reasons are insufficient to warrant ordering the adoption of the Union's proposal. There have also been no documented problems in the past concerning noise or thefts to justify solid-core doors and door locks. The Employer's proposal, on the other hand, limits the cost of office space while complying with space regulations. Furthermore, its willingness to obtain 120 square feet in its meetings with GSA may be the best that can be done in some cases, since GSA often selects the new sites. Our decision to modify the Employer's proposal to ensure that offices are private is in concert with its own internal regulations, and should alleviate somewhat the Union's concerns over noise.

3. Parking

    a. The Union's Position

    The Union's proposal is as follows:

Section 2

In the event that a hearing office which has free on-site parking readily accessible to employees relocates, the Employer will make its best effort to continue to provide parking at no cost for employees covered by this agreement. Any free parking space available in the new site will be apportioned between unit and non-unit employees according to past practice. Where it cannot provide free parking and the parties cannot locate parking at a price acceptable to the Union, the Employer will provide transportation subsidies to the employees of that office. It will also offer to place those employees on the agreement's Flexiplace program if they otherwise qualify.

In the Union's view, "more can be done than the Employer offers to lessen the impact on employees who have parking taken from them due to an Employer or GSA decision." In this regard, providing affected employees with public transportation subsidies will motivate the Employer to avoid the problem, while furthering the public interest in clean air. Additionally, giving employees an opportunity to be on a Flexiplace program would at least reduce parking costs for some employees. This is only fair since the alternative is for employees in some areas to pay $750 to $1,000 a year for parking when before a relocation they were paying nothing, amounting to a 2.5 percent pay cut for some.

    b. The Employer's Position

    The Employer proposes that "in the event a hearing office which has free on-site or on-street parking readily accessible to employees, relocates to a site that does not have readily accessible free on-site or on-street parking, the Employer will enter into negotiations with a parking facility designated by the Union for the purposes of obtaining a discount on that facility's parking fees." Its proposal is consistent with past Panel decisions on this matter, and is the most it can do since many times GSA selects the new relocation site, not the Employer.

CONCLUSIONS

    After examining the evidence and arguments on this issue, we conclude that the Employer's proposal should be adopted. In this regard, we deem it sufficient to give employees, through the Union, a say in selecting the parking facilities with which management will negotiate a discount, in order to offset the loss of free parking at their previous location. While we are cognizant of the effect that the elimination of free parking could have on employees' budgets, belt-tightening measures throughout the Government are a reality that simply cannot be ignored. Given our decision on the Union's later proposal on transportation subsidies, we note that some financial relief for employees who lose free parking privileges may result for those who are eligible to receive such subsidies under the Clean Air Act of 1990.

4. Documents Concerning Relocation Plans

    a. The Union's Position

    The Union proposes that the Employer provide the Chapter president or his designee the following documents in a timely manner (i.e., normally 10 workdays in advance) to facilitate pre-implementation negotiations: (1) a request for office space, a site survey or a solicitation for offers by GSA or similar authority; (2) site surveys; (3) proposed and finalized leases; (4) proposed floorplan to be submitted to GSA or final ones approved by them; (5) proposed build-out requests to GSA or final ones approved by them; and (6) action plans the Employer wishes to use in the process of modifying or occupying space. The above would provide it with enough information to effectuate meaningful bargaining and make it an equal partner in negotiations concerning relocations. Further, it would promote settlement opportunities and decrease the number of unfair labor practice charges (ULPs) filed against the Employer for "failure to provide the information" and "implementing prior to completion of bargaining."

    b. The Employer's Position

    The Employer proposes to notify the Chapter president or his designee in a timely manner of each of the following events: (1) a request for office space or solicitation for offers to GSA for the purpose of identifying prospective office space; (2) any site survey or office space visit in connection with an office relocation; (3) when a lease is signed; and (4) when a floor plan is submitted to GSA. "It can only agree to provide the information timely," since is does not always receive the information within a specified number of days. The above should be adequate for the Union to initiate bargaining, and it is free to request whatever information it feels is necessary at the time plans for relocations are announced.

CONCLUSIONS

    Having considered the evidence and arguments on this issue, we shall order the parties to adopt the Employer's proposal. In this regard, in certain circumstances the Employer may not be able to provide information regarding a relocation within a specified number of days, since many times it is dealing with a third party, normally GSA. Therefore, the Union's proposal could subject the Employer to needless grievances in a fruitless enforcement effort. Moreover, it is unclear from the record whether all the information that the Union requests is necessary to effectuate meaningful bargaining, while the Employer's at least appears to provide enough information to begin the process. In such circumstances, we are persuaded that the Union's additional needs are adequately provided for under 5 U.S.C. § 7114 (b) of the Statute, pertaining to requests for information.

5. Factfinding Concerning Relocations

    a. The Union's Position

    The Union proposes that the following take place when a relocation is proposed:

Section 3

D. 1. Negotiations will normally be scheduled to run for not more than five (5) consecutive workdays, absent agreement to the contrary. In addition, in order to expedite resolution of disputes and finalization of building plans, the parties will retain a permanent fact-finder who will have jurisdiction over all such negotiation disputes, absent a case-by-case agreement otherwise by the parties. He/she will be mutually selected or selected from a list provided by the FMCS using alternate striking procedures. He/she will normally try to settle disputes via telephone conferences and in the absence of a settlement, he/she will issue a written report of the facts and a recommended resolution. If a party chooses not to abide by that recommendation, it is to provide a statement of good cause as to why the recommendation is inappropriate when and if it requests FSIP assistance in the dispute.

Its proposal would serve to expedite negotiations through the use of a factfinder who has the power to recommend solutions to impasses. This is necessary because of the press of time that the Employer faces in bargaining leases and build-out schedules. If no settlement is reached, the information gathered by the factfinder and his or her recommendation can be used subsequently as a guide to help the Panel in resolving the issue. Lastly, its proposal is consistent with the "alternative dispute resolution" (ADR) concept that is spreading throughout the Federal sector.

    b. The Employer's Position

    Essentially, the Employer would have the Panel order the Union to withdraw its proposal. Athough the parties have had little to no bargaining over the Union's proposal, it is not willing to have all such disputes go to a private factfinder. In this regard, if the parties have a dispute, it is willing to have the Panel decide the appropriate procedure to use to resolve it. Further, it is unclear over what the cost ramifications would be to have all such disputes go to a private factfinder, while going to the Panel is likely to be more economical.

CONCLUSIONS

    Concerning the issue of factfinding over relocations, we shall order the Union to withdraw its proposal. While we support the use of ADR, it is likely to work best only if both parties can agree over which technique should be used. In this case, the Union would require us to impose their preferred ADR mechanism over the Employer's objections. In any case, we note that the Panel might well recommend factfinding with or without recommendations once a request for our assistance is made, and the parties are at impasse over a live dispute, pursuant to 5 U.S.C. § 7119 (b)(1) of the Statute, and 5 C.F.R. § 2471.1 (a) of our regulations. Finally, both parties are free voluntarily to agree to take their dispute to a factfinder in the future, regardless of the Panel's decision on this issue.

6. Mid-Contract Negotiations/Recognition of Rights

    a. The Union's Position

    The Union proposes in Article 22 that "the Employer be obligated to bargain in good faith on any negotiable Union-initiated proposals concerning matters that are not covered by the collective-bargaining agreement, unless the Union has waived its right to bargain about the subject matter." In this regard, its proposal is consistent with past Panel decisions and is compatible with Federal Labor Relations Authority (FLRA) case law.

    b. The Employer's Position

    The Employer proposes that it "recognize that the Union, in accordance with law, has the right to initiate bargaining on its own over mandatorily negotiable subjects of bargaining not contained in this agreement or for which the Employer has not otherwise satisfied its bargaining obligation." Its proposal is necessary because the Union has failed to acknowledge the changes in recent case law regarding this issue. Moreover, its misinterpretation of the law would leave the Employer subject to endless bargaining over the same subject matter.

CONCLUSIONS

    Having considered the evidence and arguments on this issue, we conclude that the parties should withdraw their proposals. In this regard, both are essentially attempts to restate rights already governed by law and, therefore, appear unnecessary. Further, it is clear that the parties are in disagreement over how the law should be interpreted. Such disagreements are inappropriate as impasses, and should be addressed in an appropriate forum.

7. Mid-Contract Negotiations/Site of Negotiations

    a. The Union's Position

    The Union proposes the following:

Section 4

C. Proposed changes which apply at more than one hearing office within a region will be negotiated within the region at sites alternately selected by the Union and management. D. Proposed changes which apply to one hearing office normally will be negotiated at that hearing office or at the Regional Office, with the site alternately selected by the Union and management.

Section 5

C. An employee representing the Union under this Article shall be authorized official time for such purposes during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this section shall not exceed the number of individuals designated as representing the Employer for such purposes. However, the Union is always entitled to a minimum two (2) members for each negotiations unless the parties mutually agree otherwise. In addition, where the Union permits management to select the site of negotiations, the Union will be entitled to a minimum of three representatives on official time.

Section 6

The Union will have the right to initiate bargaining during the life of the contract over issues not specifically addressed in this contract or otherwise waived or settled by negotiations leading to this contract.

Its proposals would provide it with an equal opportunity to select the site of negotiations. Because it has agreed to a limit of 3 days on any travel and per diem in connection with mid-term negotiations, it should not automatically be precluded from having a say in where they take place. As for a guarantee of at least two Union members on official time for each negotiating session, and possibly three, if the Employer chooses the site, this would offset any disadvantage the Union may have when bargaining with the Employer. Finally, its proposal on Section 6 is a right guaranteed by law that should be in the contract to offset the Employer's contradictory interpretation of it.

    b. The Employer's Position

    The Employer's proposal is as follows:

Section 4

B. Proposed changes which will be implemented in hearing offices in more than one region made pursuant to a national or multi-regional initiative that require variation in the changes to meet the needs of each individual hearing office will be negotiated at the appropriate Regional Office(s). C. Proposed changes which apply at more than one hearing office within a region will be negotiated at the Regional Office level. D. Proposed changes which apply to one hearing office will be negotiated at that hearing office.

Section 5

C. An employee representing the Union under this Article shall be authorized official time for such purposes during the time the employee otherwise would be in a duty status. The bargaining teams shall be limited to two (2) members for each party unless the parties mutually agree otherwise. The number of employees for whom official time is authorized under this section shall not exceed the number of individuals designated as representing the Employer for such purposes.

Its proposal would ensure that bargaining takes place at the level most appropriate for effectuating a proposed change unless there is a mutual agreement to do otherwise, thus precluding any future disputes over site selection. In contrast, the Union's proposal "does not provide a default in case the parties are unable to agree ad hoc on the location of such bargaining, and raises the specter of impasse or litigation on the matter of location before more substantive bargaining can begin." Further, since the "current proposals provide travel and per diem for such negotiations," it is "fundamentally unfair" to allow the Union to negotiate the site of such negotiations. With respect to the number of representatives on official time, since "some negotiations are local, highly focused, and involve few differences," one-on-one negotiations would be more "sensible," while the Union's proposal for a 3-person team is "excessive." Lastly, the Employer opposes Section 6 of the Union's proposal because "the Union again seeks to insulate itself from the position of the FLRA on the scope of mid-term bargaining."

CONCLUSIONS

    Having considered the circumstances and arguments regarding this issue, we find that the Employer's proposal provides the more reasonable basis for resolving the matter. With respect to the site of the negotiations, providing locations for bargaining predicated on the scope of the issues being negotiated is preferable to the Union's proposal, which would subject the parties to continual bargaining over site selection. As to the number of representatives, it is unclear why the Union needs a guarantee of at least two Union members on official time, and possibly three, when some local disputes may be minor and only require one. Keeping the number of Union representatives the same as the Employer proposes for itself is fair and, we believe, the norm in such matters. Ultimately, since the Employer is paying part of the Union's travel and per diem expenses, it has a vested interest in selecting the most economical place to conduct negotiations, and to have the minimum number of representatives on both sides if a dispute is small. Finally, the Union's proposal in Section 6 is unnecessary, since it purports to be a restatement of a statutory right.

8. Flexitime and Credit Hours

    a. The Union's Position

    The Union proposes the following:

Section 1

A. All employees must be at work, except for lunch periods, during established core hours. Such core hours shall normally be from 9:30 a.m. to 2:30 p.m. B. Employees working in the office will be provided a 12-hour band of time in which to work which shall be 6 a.m. to 6 p.m. absent agreement to the contrary. However, an employee should normally be permitted a quitting time as late as 7 p.m. where he/she provides reasons recognized under the Family Leave Act for meriting an accommodation. Section 3 - Credit Hours A. Definition: Credit hours are those hours in excess of an employee's basic work requirement and which the employee elects to work so as to vary the length of a workweek or a workday. B. Procedures 1. Employees can earn up to two (2) credit hours per regularly scheduled workday and eight (8) credit hours on nonregularly scheduled workdays. However, for the first six months of this agreement employees will be limited to four (4) hours on nonregularly scheduled workdays. D. Part-time employees can carry over a maximum of 1/4 of the employee's tour of duty. All other provisions of this Article are applicable to part-time employees.

Its sole reason for changing the core hours is to accommodate a starting time 1/2 hour earlier than the status quo.(5) In this regard, providing employees an opportunity to start at 6 a.m. and leave at 2:30 p.m. would enable some parents to work a full day and be able to pick up their children from school at the end of the workday. Extending the quitting time by an hour would accommodate hardships recognized under the Family Leave Act. Additionally, "other OHA employees covered by the new SSA-AFGE agreement will now get a 6 a.m. to 6 p.m. band." Therefore, "NTEU members should get the same especially in light of the fact that these employees work side-by-side with the AFGE employees." Further, "it is nonsensical to have two different bands in one office."

    With respect to credit hours, its proposal would permit employees to earn up to 8 hours on their normal days off, in lieu of overtime. This is necessary since employees can only earn the equivalent of a GS-10, Step 1, salary, when working overtime, which effectively results in a cut in pay because most are GS-12 employees. Nevertheless, it would allow the Employer a period of 6 months to learn how to manage the provision by limiting the amount of credit hours to be earned to 4. Any argument that its proposal is prohibited by law is "without foundation," since such a right exists in "the IRS agreement since 1989 without agency head disapproval," and is consistent with 5 U.S.C. § 6121 (4). Also, because all employees should be treated the same, provisions of this Article should apply to part-time employees as well. Lastly, if its proposal creates an "adverse agency impact," the law allows "the Employer to argue for a return to the status quo."

    b. The Employer's Position

    The Employer's proposal is as follows:

Section 1

A. All employees must be at work, except for lunch periods, during established core hours. Such core hours shall normally be from 9:30 a.m. to 3 p.m. B. Employees can start as early as 6:30 a.m. and quit as late as 6:00 p.m. Section 3 - Credit Hours A. Definition: Credit hours are those hours in excess of eight (8) in one (1) day in which an employee on a flexible schedule elects to work, with supervisory approval, so as to vary the length of a succeeding workday or workweek. Credit hours may only be worked on regularly scheduled workdays. B. Procedures 1. Employees can earn up to two (2) credit hours per day. 3. Employees may earn no more than 20 credit hours per pay period. D. Credit Hours for Part-Time Employees: Part-time employees can carry over a maximum of 1/4 of the employee's tour of duty. All other provisions of this Article except for Sections 2 and 6 are applicable to part-time employees.

For the most part, its proposals reflect the status quo. In this regard, these employees have "the most flexible schedules in the Agency" and the "current program is comparable to the more progressive plans elsewhere in the Government." Employees already have the option of choosing a 5-4/9 or 4-10 compressed work schedule, and a starting/ending time of 6:30 a.m to 6 p.m., which includes the right to "flex out" in connection with their lunch breaks. This only guarantees "that all employees will be present from 9:30 a.m. to 10:30 a.m. and 2:30 p.m. to 3 p.m." "To allow employees to start earlier and end later," as the Union proposes, "would clearly limit the availability of time for necessary meetings." Furthermore, the current "11.5 hour band is sufficiently flexible to allow employees discretion in working hours without unreasonably compromising the efficiency of the work performed." Finally, the new SSA-AFGE agreement provides for the same start/quit time for the 96 field offices in question.

    As to credit hours, allowing employees to earn up to 2 a day during the regular tour of duty should be enough. Permitting credit hours to be earned on the weekends and holidays, on the other hand, would be contrary to law. Both the legislative history and 5 U.S.C. § 6122 "indicate that the time worked to qualify as credit hours must fall within the flexible schedule" which, in this case, is during the basic workweek. Finally, excluding part-time employees from Sections 2 and 6 makes sense since those sections deal with compressed work schedules.

CONCLUSIONS

    We are persuaded that there has been no demonstrated need to expand the current flexitime and credit hours program. First of all, the record reveals that the start time for employees represented by AFGE in the 96 Field Offices in question is still 6:30 a.m., and we agree that it makes little sense to have two different bands in one office. Additionally, nothing in the record warrants extending the quitting time to 7 p.m. On the matter of credit hours, irrespective of whether the law permits them to be earned on the weekends, the arguments presented by the Union are insufficient to justify the adoption of its position. Although we are mindful about the disparity in overtime pay, employees have other options in lieu of overtime, i.e., compensatory time. Furthermore, the variety of alternative work schedule options currently available to employees, and the introduction of a flexiplace program (see Issue 10), appear to be enough for a hearing office to manage. Lastly, we concur that part-time employees should be excluded from Sections 2 and 6, since those sections deal with compressed work schedules. Accordingly, we shall order the adoption of the Employer's proposals.

9. Reopener

    a. The Union's Position

    The Union proposes that:

During the thirty (30) day period commencing with the twenty-fourth (24th) month after the effective date of this Agreement, either Party may reopen negotiations of any two existing articles. The request must be in writing and shall be accompanied by specific proposals. The Parties shall begin negotiations no later than sixty (60) days after receipt of the notice. The Employer shall pay full travel and per diem for employee negotiating team members for the period they are engaged in negotiation, not to exceed ten (10) work days. Employee negotiators will be on official time.

This proposal is contained in the current agreement, and the Employer has failed to explain why it should not be rolled over into the new one. Further, the Panel has found limited contract reopeners useful.

    b. The Employer's Position

    In essence, the Employer would have the Panel order the Union to withdraw its proposal. In this regard, it has already agreed to reopen three articles (Health and Safety, Performance Appraisals, and Flexiplace) during the term of the agreement, and to have semi-annual Labor-Management Relations meetings with the Union. Furthermore, after spending a great deal of effort and expense on the current negotiations over their successor agreement, "the parties should be expected to live with the results of those joint efforts." This should promote "stability for the duration of the agreement."

CONCLUSIONS

    On balance, having considered the evidence and arguments, we are persuaded that a reopener is unnecessary. In this regard, the parties have made exhaustive efforts at the bargaining table to reach a successor agreement. They also have agreed to reopen three specific articles during the term of the agreement, and the record reveals that it may be reopened by either party to implement newly-passed statutes or regulations which provide them with authority they did not have at the time the agreement was negotiated. For these reasons, we shall order the Union to withdraw its proposal.

10. Flexiplace

    a. The Union's Position

    The Union proposes the following:

Section 1

A. The Parties recognize that flexible workplace arrangements, including work-at-home arrangements, can have substantial advantages for the Employer, employees and the public by increasing productivity and morale. Consequently, the Flexiplace program described below will be available to all bargaining-unit employees. The Employer is free to assert that Flexiplace creates an "adverse agency impact" as that term is understood and used in 5 U.S.C. Section 6131 (b). It has the burden of sustaining that assertion. That assertion may be grieved by the Union and submitted to final and binding arbitration under this agreement. The arbitrator is free to stop further efforts with Flexiplace, modify the agreement to avoid adverse agency impact, or reject the assertion and permit Flexiplace to continue unchanged. B. However, if it wishes and at the Employer's sole option, it may limit the introduction of Flexiplace for a period of 6 months and in accordance with the following: (1) The first 6 months of the Flexiplace program will be considered a pilot program. The Union may select up to 25% of the unit for participation in the program. The Employer is free to select an equal number if it wishes, but it is not obligated to do so. Those selected will be the pilot participants; (2) The pilot will be conducted in accordance with the rules outlined elsewhere in this article; and (3) During the last 10 days of this 6-month pilot period, the Employer is free to assert that the pilot has created an "adverse agency impact" as that term is understood and used in 5 U.S.C. Section 6131 (b). It has the burden of sustaining that assertion. That assertion may be grieved by the Union and submitted to final and binding arbitration under this agreement. The arbitrator is free to stop further efforts with Flexiplace, modify the agreement to avoid adverse agency impact, or reject that assertion. If the assertion is rejected, all bargaining-unit employees will be free to participate in Flexiplace.

Section 2

B. Only employees who have completed their trial period, reached the GS-12 level, and who have a Fully Satisfactory or better performance rating may participate in the Flexiplace program.

Section 4

A. Full-time employees may work 30 hours a pay period at the flexiplace work site but no more than 20 hours during a calendar week at their flexiplace work site. The day(s) selected should be agreed upon with the supervisor similar to the way credit hours are administered. B. Part-time employees may not participate in this program for the first 6 months of the program. At that time, or after any disputes resulting from any pilot that may be implemented, the parties will negotiate rules applicable to part-time employees.

Since the Employer has been piloting a similar program with employees represented by AFGE since 1992, which included attorney-advisors, fairness dictates that NTEU members should get their turn. That pilot, incidently, ended in February 1994, with no announcement by the Employer of any "adverse agency impact." Therefore, "we can only assume that it was a success." Additionally, an immediate program with full participation by all volunteers is appropriate. In this regard, NTEU received a draft announcement from the Deputy Commissioner for Human Resources which included an agency-wide policy statement that promises flexiplace, further indicating that a pilot is unnecessary. Furthermore, flexiplace has been announced as a success by the President's Council on Management Improvement (PCMI), and a Federal Times article quotes the PCMI as saying "flexiplace is ready for Government-wide implementation." Nevertheless, its proposal provides a "safety valve" by permitting the Employer to declare that the program is causing an "adverse agency impact," and have it terminated if an arbitrator decides, that such declarations are meritorious. Also, attorney-advisors are "almost ideal candidates for the job," since they mainly write decisions, and have few face-to-face contacts. Nonetheless, if the Panel feels uncomfortable over 100 percent participation, its alternative proposal, whereby the Union would select 25 percent of the bargaining unit for the first 6 months, and if no adverse agency impact results, move to full participation, should alleviate any concerns. This too could be terminated if an arbitrator agrees that there is an "adverse agency impact." If the arbitrator decides, however, that there is none, the entire bargaining unit would be eligible to participate. Finally, allowing 30 hours a pay period to be worked at the flexible site would permit employees at least 3 days at home per pay period, while aiding in reducing traffic congestion and air pollution.

    b. The Employer's Position

    The Employer's proposal is as follows:

Section 1

Under the terms of this Article a Flexiplace pilot will be implemented no later than 1 year from the signing of the Agreement. The pilot will last 1 year. The Employer will select one hearing office per region in which to pilot Flexiplace. All qualified Attorney-Advisors in the selected hearing offices (with the exception of part-time employees) may participate in the pilot.

Section 2

A. At each pilot site the Employer will solicit qualified volunteers. B. The following criteria will be used in determining qualified volunteers to participate in the pilot: (1) The employee must have 5 years' experience as an Attorney-Advisor with the Office of Hearings and Appeals; (2) The employee must have a summary rating of "Fully Successful" or better.

Section 4

A. Employees will be allowed to work 1 day a week at the flexible work site and that day is to be selected by the supervisor based solely on business-based considerations. B. Part-time employees may not participate in the Flexiplace pilot. F. Credit hours cannot be earned at the flexiplace work site.

Section 6

At the end of the 1-year pilot, the parties will have up to three (3) months to analyze the results of the pilot and at the request of either side reopen bargaining on expansion and/or modification of flexiplace.

A pilot program is necessary to test the efficiency of flexiplace, and assess its impact on the agency. In this regard, SSA's past limited pilot had no attorney-advisors, and only one paralegal specialist as participants. Therefore, there is no information on what impact flexiplace would have on a hearing office's operations if attorney-advisors are not present. Furthermore, "attorney-advisors are a valuable office resource who are expected to interact with the staff and the public on a daily basis." Nevertheless, its proposal would permit flexiplace, but in a less extensive way. A small pilot with one office per region, participating for a period of 1 year, for employees with at least 5 years of experience and a fully satisfactory performance rating, would give the parties enough information to permit fully informed bargaining in the future. Finally, "OHA is facing an avalanche of new requests for hearings" and "the backlog of cases awaiting a decision is expected to increase by 100,000;" therefore, it is crucial that it not implement a program that could seriously affect its ability to serve the public.

CONCLUSIONS

    After carefully examining the evidence and arguments, we conclude that neither party's proposals would adequately resolve the matter. On the one hand, we find the Union's proposals, for the most part, would introduce flexiplace without proper experimentation. In this regard, it would be unwise to adopt either its expansive proposal to have every office participate in a flexiplace program, or its alternative proposal for a pilot granting it the power to select 25 percent of the participants. We believe a limited pilot is necessary to address the Employer's concerns over whether attorneys are in fact well-suited for the program. On the other hand, the Employer's proposals do not go far enough. In our view, 2 months instead of 1 year should be enough time to start the program, considering the parties have been negotiating over it for the last year. Further, a 6-month pilot, rather than 1-year, should be long enough to determine its feasibility. Additionally, participation of two offices per region, with each party selecting one, should give them a better opportunity to assess the program; one office per region is too limited. This should also alleviate any concern that the Union might have that only the smallest offices would be selected. Further, selecting attorneys with 2 years of experience, versus 5, should give more employees an opportunity to participate. Finally, we are persuaded that 45 days to analyze the success or failure of the experiment should be adequate.

    Accordingly, we shall order that the parties adopt a modified version of the Employer's proposal which would (1) implement a flexiplace pilot program no later than 2 months from the signing of the Agreement, (2) last 6 months, (3) have each party select one hearing office per region in which to have a pilot flexiplace program, (4) allow attorneys with at least 2 years' experience to participate, (5) permit attorneys to work 1 day a week at the flexible work site, with the day to be selected by the supervisor based solely on business-based considerations, and (6) at the end of the 6-month program, provide the parties with up to 45 days to analyze the results and, at the request of either side, reopen bargaining on expansion and/or modification of the flexiplace program.

11. Transportation Subsidies

    a. The Union's Position

    The Union proposes the following:

The Employer agrees to take all necessary actions within its authority to participate in state and local Government programs designed to encourage the use of public transportation by offering public transportation subsidies, to the extent permissible by law, in those cities designated as severe areas by Public Law 101-549, the Clean Air Act of 1990, as amended; provided that the Union agrees to implement reasonable methods for reducing the expense of such subsidies that the Employer may propose. These proposals will be made no later than the first day of this agreement. Any dispute is subject to grievance and arbitration.

Its proposal is consistent with a past Panel decision on this issue,(6) except that an arbitrator would decide whether any cost containment suggestions made by the Employer are reasonable, thereby speeding resolution of the conflict. Furthermore, transportation subsidies should be provided for "general welfare" reasons "enunciated by Congress and the President." Also, given the size of the unit and the number of employees in each of the involved cities, the financial impact on the Employer should be minimal.

    b. The Employer's Position

    Essentially, the Employer would have the Panel order the Union to withdraw its proposal. In this regard, DHHS has not developed a policy regarding transit subsidies, therefore SSA, a subcomponent of DHHS, "lacks authority to agree on this issue." Further, DHHS guidelines require "equal participation opportunities" for all employees co-located at SSA sites. Since employees represented by another union and unrepresented employees work in the same hearing offices with NTEU bargaining-unit members, adoption of the Union's proposal would be contrary to those instructions. Finally, "SSA has not identified any available funding to date which could be used for such programs."

CONCLUSIONS

    Based on the evidence and arguments presented by the parties with respect to this issue, we conclude that the Union's proposal should be adopted. Preliminarily, we note that transportation subsidies are a benefit authorized by law intended to reduce air pollution and traffic gridlock. Since the number of bargaining-unit members who work in cities designated as "severe areas" under the Clean Air Act should be minimal, the funds required to provide these subsidies should be limited. Finally, the Employer's argument that it needs additional guidance from higher authority before implementing such a program is unpersuasive.

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 proceedings instituted pursuant to the Panel's regulations, 5 C.F.R. § 2471.6 (a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

1. Number of Stewards and Travel and Per Diem

    The parties shall adopt the Employer's proposal.

2. Office Space

    The parties shall adopt the Employer's proposal modified as follows:

Section 2 A. In new offices or expansion space, each employee will be provided with private office space consistent with SSA standards, which provide, for each employee to have approximately 100 square feet. B. In dealing with GSA on space negotiations, the OHA will exert its best effort to obtain space allocation of 120 square feet for Attorney-Advisors in any new hearing office site or significant expansion of existing hearing office site.

3. Parking

    The parties shall adopt the Employer's proposal.

4. Documents Concerning Relocation Plans

    The parties shall adopt the Employer's proposal.

5. Factfinding Concerning Relocations

    The Union shall withdraw its proposal.

6. Mid-Contract Negotiations/Recognition of Rights

    The parties shall withdraw their proposals.

7. Mid-Contract Negotiations/Site of Negotiations

    The parties shall adopt the Employer's proposal.

8. Flexitime and Credit Hours

    The parties shall adopt the Employer's proposal.

9. Reopener

    The Union shall withdraw its proposal.

10. Flexiplace

    The parties shall adopt the Employer's proposal modified as follows:

Section 1 Under the terms of this Article a Flexiplace pilot will be implemented no later than 2 months from the signing of the Agreement. The pilot will last 6 months. Each party will select one hearing office per region in which to conduct a pilot Flexiplace program. All qualified Attorney Advisors in the selected hearing offices (with the exception of part-time employees) may participate in the pilot. Section 2 A. At each pilot site the Employer will solicit qualified volunteers. B. The following criteria will be used in determining qualified volunteers to participate in the pilot: 1. The employee must have 2 years' experience as an Attorney Advisor with the Office of Hearings and Appeals; 2. The employee must have a summary rating of "Fully Successful" or better. Section 4 A. Employees will be allowed to work 1 day a week at the flexible work site and that day is to be selected by the supervisor based solely on business based considerations. B. Part-time employees may not participate in the Flexiplace pilot program. F. Credit hours cannot be earned at the flexiplace work site. Section 6 At the end of the 6-month period, the parties will have up to 45 days to analyze the results of the pilot program and at the request of either side reopen bargaining on expansion and/or modification of flexiplace.

11. Transportation Subsidies

    The parties shall adopt the Union's proposal.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

August 3, 1994

Washington, D.C.

 

1.The Office of Hearings and Appeals is split into nine regions. The current agreement permits the Union to appoint three stewards in each of the following six regions: New York, Philadelphia, Chicago, Dallas, Kansas City, and San Francisco; two stewards in each of the following three regions: Boston, Denver, and Seattle; and two at-large stewards, for a total of 26.

2.OHA also has employees who are represented by