SOCIAL SECURITY ADMINISTRATION OFFICE OF HEARINGS AND APPEALS FALLS CHURCH, VIRGINIA AND COUNCIL 215, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

FALLS CHURCH, VIRGINIA

AND

COUNCIL 215, AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES, AFL-CIO

Case No. 95 FSIP 127

DECISION AND ORDER

    Council 215, American Federation of Government Employees, AFL-CIO (AFGE 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 Social Security Administration, Office of Hearings and Appeals (OHA), Falls Church, Virginia (SSA or Employer).

    Following an investigation of the request for assistance, the Panel determined that the impasse, arising from impact-and-implementation bargaining over a transfer of function from SSA to the Department of Health and Human Services (HHS) should be resolved on the basis of an informal conference with a Panel representative. The parties were advised that if no settlement were reached, the representative would notify the Panel of the status of the dispute, and would make 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.

    Pursuant to the Panel's determination, Panel Chair Betty Bolden met with the parties on September 11, 1995, at the Panel's offices in Washington, D.C. During the informal conference, the parties resolved several minor matters. Following the conference, the Employer obtained a letter of intent from HHS concerning a number of issues which remained unresolved.(1) Ms. Bolden has reported to the Panel on the remaining sections of the memorandum of understanding (MOU) in dispute and it has now considered the entire record.

BACKGROUND

    The Employer 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. Council 215 represents 4,500 bargaining-unit employees in the Office of Hearings and Appeals who are part of a nationwide consolidated unit of 48,200. Employees work primarily as hearing clerks, docket clerks, hearing assistants, paralegal specialists, and attorneys. The parties' master collective-bargaining agreement will expire on November 17, 1996.

    The bargaining in this dispute arose as the result of a decision by the heads of SSA and HHS to transfer the function of the Health Insurance Branch currently within OHA, which is responsible for assisting in the processing of Medicare Appeals, to the Departmental Appeals Board (DAB) of HHS. The transfer is to occur on October 1, 1995, and would affect 16 GS-11 and -12 paralegals currently located at OHA Headquarters who assist attorneys in the review of appeals of adverse Medicare decisions.

ISSUES AT IMPASSE

    The main issues in dispute concern: (1) whether the parties should include certain wording in the introductory paragraph of the MOU regarding the reason for the transfer of function; (2) what accommodations should be made with respect to affected employees who desire to remain at SSA; (3) a variety of leave and personnel matters related to the transfer; (4) bargaining-unit status and dues withholding; and (5) future bargaining obligations regarding working space if affected employees are not physically relocated when the transfer becomes effective.

POSITIONS OF THE PARTIES

1. Introductory Paragraph

    a. The Union's Position

    The Union proposes to include wording in the introductory paragraph of the MOU stating that the transfer of function is "a result of the establishment of SSA as an independent agency." The additional wording should be included in the parties’ MOU to acknowledge the reason the decision was made to transfer the Medicare appeals function.

    b. The Employer's Position

      The Employer’s introductory paragraph excludes the additional wording proposed by the Union. In this regard, the transfer of function is unrelated to the breakup of SSA and HHS.

CONCLUSIONS

    Having carefully considered the evidence and arguments presented by the parties, we are persuaded that the underlying reasons for the transfer of the Medicare appeals function are immaterial to these negotiations. Accordingly, we shall order the adoption of the Employer’s proposed introductory paragraph to settle their impasse over the matter.

2. Placement Accommodations for Affected Employees

    a. The Union’s Position

    In essence, the Union proposes the establishment of a placement effort for the 16 affected employees to remain in SSA if they so desire (Union Proposals 3 through 8), and specifies time frames by which the Employer and the employees would take certain actions. Among other things, the Employer would be required to provide employees with a list of SSA positions which are available in the OHA component, their commuting area, and elsewhere in Region III; moreover, only where there are insufficient positions or locations available to accommodate employees’ requests would remaining employees be transferred. While it is unclear exactly how many of the affected employees want to stay in SSA, they should be afforded the opportunity or, alternatively, have a right to placement in SSA.

    b. The Employer’s Position

    The Employer’s proposal basically establishes a system for the affected employees to request reconsideration of the transfer if a hardship exists (Employer Proposal 4). In this regard, there are no available vacancies to which the affected employees may be assigned, and management is unaware of any employee who does not wish to be transferred. Finally, it has an obligation to transfer the function to HHS with a staff of experienced personnel.

CONCLUSIONS

    Upon consideration of the arguments and evidence provided on this issue, we believe that the Employer’s proposal provides the more reasonable basis for resolving the issue. Preliminarily, we note that in transferring the function, the regulatory requirement of offering the affected employees positions at their current grade levels has been met. In addition, because the record fails to establish that there are any affected employees desiring to remain in SSA, there is no demonstrated need for the Union’s proposals. Moreover, assuming that there are no vacant positions within OHA Headquarters to which such employees could be reassigned, adoption of the Union’s proposals would create an unrealistic expectation among bargaining-unit employees that retention at SSA is a possibility. In such circumstances, the Employer’s proposal to permit employees to request reconsideration if the transfer would impose an undue and severe hardship is sufficient to meet the needs of employees, and we shall order its adoption.

3. Leave and Personnel Issues

    a. The Union’s Position

    The Union’s proposals cover a wide range of leave and personnel matters, including wording designed to protect affected employees from suffering negative impact due to the transfer (Union Proposal 9), and to ensure that they are neither advantaged nor disadvantaged "with respect to merit promotion or any other personnel management standing as a result of having been reassigned/transferred" (Union Proposal 11). It also seeks assurances in the areas of training (Union Proposal 12), position descriptions (Union Proposal 13), use of leave, credit hours, religious compensatory time (Union Proposals 14, 15, 17, and 18), the crediting of regular compensatory time by HHS (Union Proposal 16), and wording requiring management to give every employee a specific performance rating of Successful prior to departure to HHS (Union Proposal 19), an accommodation which the Union contends the parties have already agreed to. Overall, its proposals are reasonable given the magnitude of the action being taken.

    b. The Employer’s Position

    The Employer essentially proposes to ask DAB/HHS for a letter of intent regarding most of the issues raised by the Union (Employer Proposals 5 through 11, 13 and 14). With respect to credit hours, it proposes that "all credit hours must be used by the employees prior to the reassignment/transfer and each employee will be given an opportunity to use them" (Employer Proposal 12). Finally, it also offers wording which would recognize the parties commitment and contractual obligation to treat all employees in a fair and equitable manner "in all aspects involved with personnel management including implementation of this agreement" (Employer Proposal 15). The Employer cannot bind HHS in the manner proposed by the Union because it is not a party to these negotiations. Rather, the most that management can offer on many of these matters, given that the transfer is due to occur on October 1, 1995, is to seek to obtain a letter of intent from HHS addressing the Union’s concerns.

CONCLUSIONS

    Careful examination of the parties’ proposals on these leave and personnel issues reveals that there is little substantive difference between them. The parties’ real disagreement involves how the concerns they address are to be achieved. As a practical matter, we believe that it is beyond the authority of the Panel to obligate HHS in these matters. As indicated previously, however, following the informal conference, the Employer obtained a letter from HHS in which it states its intentions with regard to the treatment of the affected employees in the specified areas. We are persuaded that the HHS letter of intent provides a level of assurance sufficient to protect the transferred employees’ interests.(2) For this reason, we shall order the parties to withdraw their final proposals on this set of issues.

4. Bargaining-Unit Status and Dues Withholding

    a. The Union’s Position

    The Union proposes (Union Proposal 20) the following wording:

The parties agree that the bargaining-unit status of the transferred employees should be resolved as part of and/in connection with terms of the attached MOU dated March 31, 1995.(3) As such, the

Its proposal would permit the Union to continue to receive dues from its members after they are transferred to HHS, until such time as the Federal Labor Relations Authority (FLRA) makes the appropriate bargaining-unit determinations. It should be adopted because the transfer of function is occurring as a result of the establishment of SSA as an independent agency.

    b. The Employer’s Position

    The Employer has withdrawn its previous offer on this issue, and would have the Panel reject the Union’s proposal. In this regard, contrary to the Union’s position, the transfer of function is unrelated to the establishment of SSA as an independent agency. Therefore, questions concerning bargaining-unit status and dues withholding arising from the transfer of function are inappropriate for resolution under the terms of the MOU of March 31, 1995.

CONCLUSIONS

    We shall order the Union to withdraw its proposal on this issue. In our view, the MOU referred to by the Union is unrelated to the transfer of function which is the subject of the negotiations in this case. In this regard, the dues checkoff provision within the MOU appears to apply only to HHS dues paying bargaining-unit employees who were either working in SSA as of March 31, 1995, or transferred to SSA bargaining-unit positions, and not to SSA employees transferred to HHS. In any event, we are persuaded that these issues concerning bargaining-unit status and dues withholding are not bona fide impasses, and should be resolved through the mechanisms provided under the Statute.

5. Future Bargaining Obligations

    a. The Union’s Position

    The Union proposes that "if the affected employees are to remain in OHA Headquarters working space on or after October 1, 1995,(4) management will provide the Union appropriate notice in accordance with the National Agreement and Supplemental Agreements" (Union Proposal 25). Its proposal merely confirms the Employer’s obligation to bargain over matters related to working space if the affected employees do not physically move on the effective date of the transfer of function.

    b. The Employer’s Position

    The following wording is proposed by the Employer (Employer Proposal 19):

In the event that the physical transfer of the identified employees does not take place by October 1, 1995, the Union reserves the right to bargain over any changes in conditions of employment of bargaining-unit employees related to the continued presence of the HHS employees, pursuant to Article 4 of the National Agreement and any other applicable agreements.

The Employer is committed to honoring whatever additional bargaining obligations arise if the physical transfer of employees does not occur on October 1, 1995. In its view, however, the Union’s proposal is unacceptable, particularly because it includes the word "appropriate," which is subject to interpretation and future disagreements.

CONCLUSIONS

    After reviewing the parties’ positions regarding future bargaining obligations, we shall order the adoption of the Union’s proposal, modified to exclude the word "appropriate," to resolve the parties’ dispute over the issue. This should preserve whatever bargaining obligations arise if the affected employees are not physically relocated at the time of the transfer, while removing the Employer’s primary objection to the Union’s proposed wording.

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. Introductory Paragraph

    The parties shall adopt the Employer’s proposal.

2. Placement Accommodations for Affected Employees

    The parties shall adopt the Employer’s proposal.

3. Leave and Personnel Issues

    The parties shall withdraw their proposals.

4. Bargaining-Unit Status and Dues Withholding

    The Union shall withdraw its proposal.

5. Future Bargaining Obligations

The parties shall adopt the Union’s proposal, modified to exclude the word "appropriate."

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

September 22, 1995

Washington, D.C.

 

1.The Employer also withdrew its proposal on the issue concerning Union dues withholding following the conference.

2.On the issue of credit hours, for example, HHS expresses a willingness to provide assurances beyond wording contained in either of the parties’ final offers on the issue.

3.The MOU referred to in the Union’s proposal was negotiated by representatives of SSA, HHS, AFGE, and the National Treasury Employees Union, and addresses unit determination and dues withholding matters, apparently in anticipation of the separation of SSA from HHS.

4.Although the effective date o