United States of
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
Case No. 03 FSIP 131
DECISION AND ORDER
Local 1760, American Federation of Government Employees, AFL-CIO (Union or AFGE), 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 (SSA), Office of Hearings and Appeals (OHA), Newark, New Jersey (Employer).
After investigation of the request for assistance, concerning the relocation of the Newark hearing office, the Panel determined that the parties should resume negotiations, during a 45-day period following the Panel’s directive, with the assistance of the Federal Mediation and Conciliation Service, as necessary. The parties were advised further that if no agreement is reached, the Panel shall take whatever action it deems appropriate to resolve the impasse. At the close of the time period for additional negotiations, however, the parties reported that no bargaining or mediation sessions had been conducted. The Panel granted their request for additional time to resume negotiations. Thereafter, the parties reported that during this second “window of opportunity,” they participated in three telephonic bargaining sessions, which resulted in the resolution of several matters, but they remained at odds over key issues. The Panel then determined that Chief Legal Advisor Donna M. DiTullio should assist the parties further through an informal conference by telephone.
Pursuant to this procedural determination, Ms. DiTullio convened an informal conference by telephone with the parties on May 3, 2004. During that session, the parties were able to resolve several issues, but they remained deadlocked over others. Ms. DiTullio has reported to the Panel, and it now has considered the entire record, including the parties’ final offers and post-conference statements of position.
OHA is a major organizational component of SSA charged with resolving appeals from claimants whose Medicare or disability benefits have been denied. The Employer is 1 of approximately 140 OHA hearings offices located throughout the United States and Puerto Rico. In the Newark office, OHA employees are represented by three different labor organizations: administrative law judges (ALJs) are represented by the Association of Administrative Law Judges, International Federation of Professional and Technical Employees; the attorneys are represented by the National Treasury Employees Union (NTEU); and paralegals and support staff are represented by AFGE. Within the bargaining unit represented by the Union herein, there are 36 employees, including 12 paralegals; all are part of a nationwide bargaining unit of approximately 48,000 SSA employees, which includes OHA. The parties are covered by a master collective-bargaining agreement, which is in effect until August 30, 2004.
The current Newark office is scheduled to relocate
in mid-August 2004. At this point,
the Employer’s proposed floor plan has been implemented and the interior
construction of the office is nearly completed. Previously, the Employer reached agreements on matters
relating to the move with the other two labor organizations which represent
employees in the office. Although
attorneys and paralegals are in separate bargaining units within the Newark
office, they perform essentially the same function and, collectively, they are
referred to as “decision writers.” All
decision writers are entitled to private offices of equal size.
POSITIONS OF THE PARTIES
1. Article II, Section 3, Office Selection Procedure
The Employer’s Position
The Employer proposes that “(p)aralegal analysts will select private offices designated ‘decision writer’ in a common pool with attorney advisors in order of seniority defined as time in the Newark Hearing Office as a decision writer.” This is the same procedure to be used by the attorneys represented by NTEU for selection of their offices; since paralegals and attorneys are both decision writers in the same pool for selection of private offices, the two groups should follow the same criteria for determining priority in office selection. Decision writers are authorized private offices because they need privacy and quiet to study cases and draft decisions for ALJs. It only makes sense, in the Employer’s view, that service time spent performing those duties, and not time employed in other positions, such as clerk or secretary, should be the basis for determining seniority for office selection at the new facility. Moreover, in the event that office vacancies occur, the proposal would give selection priority to current paralegal staff members over other decision writers who may transfer into the Newark office from other Government agencies or components of SSA; this may be significant in those instances when a decision writer who is new to the Newark office may have substantial Government service elsewhere.
b. The Union’s Position
The Union proposes that “paralegal analysts [are to be] awarded ‘decision writer’ private offices (in a common pool with attorney advisors) in order of seniority by service computation date (SCD).” The Union asserts that seniority status, based upon SCD, is well established as a means for determining preferences. In this regard, within OHA there is ample precedent for using SCD to determine how office space should be assigned; for example, a national-level partnership agreement between SSA and AFGE, signed June 22, 2000, which addressed numerous issues relating to a nationwide reorganization of OHA whereby employees were placed into work groups, used SCD for technicians, paralegals and attorneys to select their work groups and office assignments./ Furthermore, numerous local agreements exist in other OHA offices concerning office relocations where SCD is used to determine office and workstation assignments. In fact, when employees moved to the current OHA office in Newark 11 years ago, decision writers chose their offices according to SCD. Since there are more paralegals in the office than attorneys, arguably the selection process should weigh in favor of the larger group. Using criteria based upon SCD would be perceived as fairer by paralegals, who typically worked their way up the ranks as clericals, and have longer Government service time than decision writers who hold attorney positions.
Having carefully reviewed the evidence and arguments presented in support of the parties’ positions, we are persuaded that the impasse should be resolved on the basis of the Employer’s proposal. The circumstances of this case are unusual because employees from two different bargaining units within the same office perform the same duties, are entitled to private offices of the same size, and are in a common pool for purposes of office selection. In addition, the Employer has already reached an agreement with the union representing attorney decision writers that implements its proposed procedure. In our view, given these circumstances, both groups should follow the Employer’s proposed procedure for determining priority in office selection. It is by virtue of their position as decision writers, and for no other reason, that bargaining-unit employees are entitled to private office space. The Employer’s proposed procedure is preferable in this context because it would give more weight to an employee’s service time as a decision writer in the Newark office. Its adoption also is consistent with the agreement the Employer has reached with the other labor organization.
2. Article V, Floor Plan, Light Panels, Window Coverings and Furniture Placement
In essence, the Employer proposes that the new office should be constructed in accordance with the floor plan labeled “final,” dated March 22, 2004. Each window would be equipped with drapes, shades or blinds to control light. Designated private offices that have exterior windows would have “a window installed on the interior wall opposite the external window to provide natural light into the general work area. The window would be approximately 48 inches wide and 18 to 24 inches in height starting at 66 inches from the floor.” It would not be permissible to place items against or upon any external or internal window that would block natural light from flowing into interior offices or space.
Its proposal would permit light to flow into interior space while ensuring privacy for occupants of those offices that are to have the transoms cut into the walls. Higher placement of light panels would eliminate the need for the opaque covering proposed by the Union since it would be more difficult to see into the office. More natural light would be able to flow into interior space, thereby benefiting employees who have workstations in those areas. Placing transom light panels higher on office walls also would allow office furniture, such as bookcases and credenzas, to be placed on the same wall without obstructing light flow through the transom into interior space. At this point, the interior walls of the new office have been constructed with the light panels placed 66 inches above the floor; reconfiguring this design now would be extremely costly and it likely would delay the office relocation while the design is reconformed. Moreover, any reconfiguration of the floor plan and office design would result in management having to reopen its negotiations with the other two unions, which already have agreed to the Employer’s proposed floor plan and design. Those negotiations ultimately could lead to more impasses, effectively delaying closure on these matters.
b. The Union’s Position
The Union basically proposes that the new office be designed in accordance with its floor plan, dated April 11, 2003. Those private offices which have external windows would be fitted with “a transom window, 24 inches tall, installed on the interior wall, 4 feet, 6 inches from the floor and running the entire width of the interior wall (minus the door frame) opposite the external windows.” This transom window or light panel would be covered with “a white film or clear, patterned contact paper that will allow maximum natural light to pass but maintain privacy.” Placement of items “against or upon any external, vertical, or transom window that blocks natural light” would be prohibited.
The Union’s proposed floor plan would place more private offices and filing cabinets in interior space so that additional natural light would flow unobstructed into the general work area where many of its bargaining-unit employees would be stationed. Under this design, employees who are part of the largest bargaining unit in the office would have a better opportunity to enjoy natural lighting. This floor plan would “de-link” window access to grade level because it would allow the lowest paid employees in the office to have a chance to be closer to exterior window space. Lowering the placement of transom windows to approximately eye level would allow the light panels to be in line with the height of the external windows, thereby maximizing light flow into interior space. Placing an opaque film over transom windows would both ensure privacy for the occupant of the office and allow natural light to come into interior space.
After thorough consideration of the record developed by the parties on these issues, we conclude that the impasse should be resolved on the basis of the Employer’s position. In our view, its approach provides a better way of optimizing the flow of natural light into interior work areas without compromising the privacy interests of those who would have transom light panels cut into the walls of their offices. Placing light panels at a higher elevation should prevent direct vision into offices from the outside, thereby obviating the need for drapes, blinds or opaque coverings. Such coverings would tend to reduce the amount of natural light reaching interior office space. Furthermore, placing light panels higher up on an office wall, rather than at eye level, as the Union proposes, should avoid difficulties in arranging furniture in private offices so that light panels are not blocked, and natural light is not impeded from entering interior space. Accordingly, we shall order the adoption of the Employer’s proposals.
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 under 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. Article II, Section 3, Office Selection Procedure
parties shall adopt the Employer’s proposal.
2. Article V, Floor Plan Light Panels, Window Coverings and
The parties shall adopt the Employer’s proposals.
By direction of the Panel.
June 8, 2004
/ In some OHA offices, attorneys are represented by AFGE; however, this is not the case in the Newark office where attorneys are represented by NTEU.