DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION OFFICE OF HEARINGS AND APPEALS DALLAS REGION DALLAS, TEXAS and LOCAL 3506, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
LOCAL 3506, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 94 FSIP 73
DECISION AND ORDER
Local 3506, 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, 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, Dallas Region, Dallas, Texas (Employer).
After investigation of the request for assistance, the Panel directed the parties to participate in a telephone conference with Staff Associate Gladys M. Hernandez for the purpose of resolving their dispute over the assignment of seating and parking spaces at the Dallas Downtown Hearing Office. The parties were advised that if no settlement were reached, Ms. Hernandez would report to the Panel on the status of the dispute, including the parties' final offers, and her recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Ms. Hernandez held a telephone conference with the parties on June 22, 1994. With her assistance, the parties resolved the parking issue. She has reported to the Panel on the seating assignment issue based on the record developed by the parties. The Panel has now considered the entire record.
The Employer, 1 of 96 hearing offices (HO) nationwide, is responsible for adjudicating appeals of denials of retirement, survivors, medicare, disability, black lung, and supplemental security income claims, and defending its appellate decisions before the Federal courts. The Union represents approximately 390 General Schedule (GS) employees in the Dallas Region. The dispute, however, concerns only approximately 18 GS-5 through -8 hearing assistants, hearing clerks, and computer analysts working in the Dallas Downtown HO.(1) They are part of a nationwide consolidated bargaining unit of 48,200, covered by a collective-bargaining agreement due to expire on November 17, 1996.
The dispute arose during negotiations over the pending relocation of the Employer's Dallas Downtown HO from the Earl Cabell Federal Building to the Belo Building, 4 or 5 blocks away. As is relevant to the disputed issue, the record reveals that the Dallas Downtown HO processes its cases under the "unit system" wherein hearing clerks and assistants are assigned to specific Administrative Law Judges (ALJs). Employees work only on those cases assigned to their ALJ. The HO also has a few unassigned employees known as "floaters" who work on the "overflow" cases of any one of the ALJs. Currently, 12 hearing clerks and assistants are assigned to ALJs, 2 new ones are awaiting assignment, and 3 are "floaters." The system used by other Dallas Region HOs, for example, San Antonio and Oklahoma City, is the "reconfigured system" where employees work on cases assigned to any one of the ALJs. Under both systems, employees' casework involves the use of single evidentiary files, as opposed to computer files.
ISSUE AT IMPASSE
The parties basically disagree over whether all bargaining-unit employees at the Dallas Downtown HO or just those not assigned to work for a specific ALJ will be allowed to select their seats.
POSITIONS OF THE PARTIES
1. The Employer's Position
Under the Employer's proposal, only those employees "not assigned to an ALJ" would be allowed to choose their seats. The "team work implicit in the unit system" requires the "close coordination and physical proximity" of all employees assigned to the same ALJ to function effectively and efficiently. The "approach" to case processing under the "unit system" also requires that all employees assigned to an ALJ be seated in close proximity to him or her and each other.(2) Moreover, the floor plan of the new offices was designed to accommodate such seating arrangement. The Employer's proposal allows for close proximity seating for employees assigned to ALJs "while maintaining flexibility toward those who are floaters." It is willing to allow floaters "to choose among the remaining seating according to any method the Union cares to propose."
Under the Union's proposal, because of the physical layout of the new offices, employees assigned to the same ALJ could be separated from each other, the ALJ, or the decision writer (staff attorneys) "by the length of the building." The "unit system" could not operate efficiently if such were the case. With employees assigned to the same ALJ, that is, on the same "team," using single evidentiary files in their case work, having them "strung out all over the building" would create "logistic problems." Such problems could "multiply" until it would not be "feasible" for the Employer to continue to operate under the "unit system." The Union, therefore, is attempting to do indirectly what it cannot do directly, get the Employer to switch to the "reconfigured system" of case processing. Open seating works in offices using the "reconfigured system" because they have different mail routing and telephone systems as well as floor plans designed specifically to accommodate that system.
The Union's allegations of abuse committed by the Chief ALJ "are not germane" to this dispute. Those matters should be addressed in one of the "vast numbers of protective venues, including the negotiated contract, DHHS grievance procedure, EEO, the Whistleblower Act, SSA open door policy, and the MSPB," not through "seclusionary seating." In fact, the "efficacy" of these procedures is "illustrated" by the case pointed out by the Union where the Employer promptly accommodated the seating of an employee who registered a complaint against the Chief ALJ.
2. The Union's Position
The Union proposes that all unit employees be allowed to choose their seats. Employees should be allowed to select their seats as ALJs were allowed to select their offices. Allowing employees to do so would give them a "greater voice in [determining] their work environment," which is "in the spirit of Executive Order 12871." It is not necessary for employees to be seated in close proximity to the ALJs to whom they are assigned because their supervisors, not the ALJs, supervise and appraise their work.
The Employer's proposal is "inequitable" because it would allow some employees to select their seats, but not others. The Dallas Downtown HO has a "mixed" system of case processing, that is, some employees are assigned to specific ALJs, as in the "unit system," while others, "floaters," are not, as in the "reconfigured system." The Employer has "historically" used this "mixed" system together with periodic rotations(3) to reward some employees and retaliate against others when making unit assignments. The Employer uses the "mixed" system even though the Dallas Region's Chief ALJ openly supports the "reconfigured system." This indicates that it uses the "mixed" system "for the purpose of continuing the practice of 'selective accommodation and selective harassment'." In this regard, the HO's Chief ALJ's less senior hearing assistant has never been rotated, while another hearing assistant who happens to be a Native American and a Union representative has been rotated to a "floater" position in retaliation for filing an EEO complaint and reporting the Chief ALJ's use of profanity. Giving the Employer the ability to make "'forced seating assignments' [will] further its ability to retaliate against whistleblowers and practice 'selective accommodation and selective harassment'."
The Employer's argument that employees must be seated in close proximity to the ALJ for whom they work "simply does not compute with the practices in the Dallas Region." In this regard, (1) employees in offices using the "reconfigured system" and "floaters" in this office are not seated in close proximity to all the ALJs for whom they work and (2) when there are backlogs, cases are sent for processing to other offices or processing centers in the region, great distances away from the assigned ALJs. Moreover, such seating is "inefficient and uneconomical" because it would require employees to change their seats every time there is a rotation or should the Employer switch to the "reconfigured system" of case processing.
After examining the evidence and arguments presented, we conclude that the parties should adopt the Employer's proposal. Simply, we are convinced that because of the Employer's use of the "unit system" and the physical layout of the new offices, close proximity seating should be more conducive to effective and efficient case processing. In our view, the disruption of workflow which would be caused by having employees assigned to the same ALJ scattered throughout the HO, possibly at significant distances, would be greater than that caused by apparently infrequent rotations. Moreover, it is unclear as to how allowing employees to select seating outside of their unit area would resolve the real or perceived inequities in unit assignments and problems with the behavior of the HO's Chief ALJ. There are more appropriate ways for employees to remedy these problems, for example, filing Equal Employment Opportunity complaints or grievances and complaining to higher level management personnel. Finally, the Union remains free to negotiate a different seating arrangement in the future should the Employer propose to convert to the "reconfigured system" of case processing favored by the Dallas Region's Chief ALJ.
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:
The parties shall adopt the Employer's proposal.
By direction of the