United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
SOCIAL SECURITY ADMINISTRATION
COUNCIL 220, COUNCIL OF SSA FIELD
Case No. 04 FSIP 125
DECISION AND ORDER
Council 220, Council of SSA Field Operations Locals, American Federation of Government Employees (AFGE), 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 (Statute), 5 U.S.C. § 7119, between it and the Social Security Administration, Baltimore, Maryland (Employer or SSA).
After investigation of the request for assistance, concerning issues that arose during negotiations over the impact and implementation of new assessment criteria for the position of Teleservice Center Lead Contact Representative (TA position), the Panel determined that the parties should meet with Panel Member Mark A. Carter to assist them in resolving any outstanding issues. Thereafter, if any issues remained unresolved, the parties were informed that the Panel would take whatever action it deems appropriate to resolve the matter, which could include the issuance of a binding decision.
Pursuant to this procedural determination, Member Carter convened an informal conference with the parties on November 23, 2004, at the Panel's offices in Washington, D.C. During the course of those meetings, however, the parties remained deadlocked. The Panel has considered the entire record, including the parties' final offers and post-conference statements of position.
The Employer's overall mission is to administer retirement, Medicare, disability, survivor, and supplemental security income entitlement programs. Within its field operations component, the Employer operates 37 teleservice centers nationwide, where employees respond to inquiries from customers made through the Employer's toll free number. AFGE represents a nationwide bargaining unit consisting of approximately 48,000 employees. Within the teleservice centers, there are approximately 240 TA positions; incumbents provide technical advice and guidance to lower graded employees who "man the phones at the teleservice centers." Typically, candidates for the TA position are teleservice center employees who are seeking promotion to a GS-9 position.
The parties' most recent master collective-bargaining agreement (MCBA), implemented in April 2000, has expired. On December 29, 2003, the Employer notified AFGE of its intent to terminate the contract on its scheduled expiration date, April 6, 2004; it also informed AFGE that it would continue to adhere to contract articles until replaced by a successor agreement, with the exception of those provisions which "either impermissibly interfere with the management rights delineated in section 7106(b)(1) of the Federal Service Labor-Management Relations Statute  or which do not concern conditions of employment of bargaining unit employees, or which waive a statutory right." Among those provisions identified by the Employer as falling within the above categories are Article 26, Merit Promotion, Section 9, "Development of Assessment Criteria," Section 10, "Assessment Panel," and Section 11.A. "Selection." The Employer declared those contract provisions in the expired agreement "null and void" to the extent that they "require the Agency to obtain the Union's agreement on the assessment criteria which must be used for selections" and to the extent that the provisions "preclude the Agency from gathering candidate information other than that provided by the assessment panel." Currently, the parties at the national level are engaged in bargaining over a new MCBA, including Article 26.
The parties primarily disagree over: (1) the extent to which seniority service within SSA should be considered in selection of an applicant for a TA position; (2) whether details and temporary promotions to a TA position, that were not competitively advertised, may be considered in the assessment of a candidate's application; and (3) whether a selecting official who makes inquiries about applicants must disclose to the Union the names of persons contacted.
POSITIONS OF THE PARTIES
1. The Union's Position
In essence, the Union proposes that all criteria, qualifications or other factors that are to be used to assess candidates and make selection decisions be included in each Merit Promotion Vacancy Announcement for a TA position. All panels convened to assess the qualifications of candidates for the TA position are to operate in accordance with the SSA/AFGE Merit Promotion Plan Assessment Panel Handbook, dated February 1996; criteria, qualifications and other factors that are were not contained in the vacancy announcement for the position could not be used. Assessment panels are not permitted to grant points for details or temporary promotions of 120 days or less to positions at the same or higher grade, except where the details or temporary promotions were filled in accordance with Article 27, "Details," Section 9 of the MCBA. Selection to fill a vacancy would be based on seniority, defined as the length of SSA service, where the candidates are equally qualified and capable of performing the work of the position; alternatively, the selecting official, when choosing from among otherwise equally qualified candidates, would first consider a candidate's length of experience in relevant Field Operations positions. The records for all applicants referred to well qualified and laterals lists would be maintained for a minimum of 2 years, or until audited by the Office of Personnel Management (OPM). In the alternative, if a grievance or complaint were filed relating to the selection, applicant records would be maintained until their final disposition. Written records utilized in the selection process are subject to Union review. Finally, the names of management officials contacted by selecting officials would be provided to the Union, although there would be no requirement to reduce to writing the contents of oral discussions that may have taken place between managers and selecting officials.
Its proposals would help ensure that the selection process is more "open and transparent" and that management is more accountable for the selection decisions it makes; they would help to reverse a trend whereby employees and their Union representatives have been cut out of the candidate assessment process, which has led to numerous complaints. Fairness dictates that prospective applicants for a TA position should know, from the contents of the vacancy announcement, the qualifications needed for the position, as well as other factors to be considered by management when making its selection. There should not be any "secret criteria" for selection, which the Union believes management has used in the past. Nor would assessment panels any longer be permitted to grant "points" to applicants for details and temporary promotions that were authorized without using the competitive process. This provision should reverse a continuing problem in several SSA Regions.
Seniority status should be considered because it is a time-honored factor in selection processes. Under the Union's alternative wording, there is no requirement for management to select the most senior candidate among those equally qualified for the position; rather, the Employer only would have to consider first the length of SSA service in relevant Field Operations positions. Since the Union no longer has a representative on assessment panels, in order to monitor selections, the Union should be given access to the written records utilized by selecting officials when making their determinations on candidates. In the past, selecting officials have contacted other managers and supervisors to discuss candidates; such discussions may have a negative impact on whether an otherwise highly-qualified candidate is selected for the position, so the Union needs to be apprised of the names of managers who were contacted for additional information about candidates in the event that a grievance is filed over a selection. Furthermore, its final offer requires the parties to continue to adhere to the provisions of Article 26, "Merit Promotion," of the expired MCBA, except for those sections the Employer now has terminated. Finally, its proposals address only appropriate arrangements and procedures relating to management's decision to implement new assessment criteria for the TA position. The Union is not attempting to bargain over the substance of assessment criteria for the position.
2. The Employer's Position
Under the Employer's proposal, implementation of the TA assessment criteria would be consistent with the requirements of applicable Government-wide rules and regulations. The Employer would abide by all negotiable conditions of employment contained in the expired MCBA, and its proposed wording expressly provides that neither party is deemed to have waived any bargaining rights. Notice would be provided to the Union of any changes the Employer may make concerning the assessment criteria for the position, and it would fulfill any bargaining obligations it may have under law and the expired MCBA. Its proposal is similar to two other agreements the parties recently have entered into which involve changes in assessment criteria for other positions. It also preserves all rights and obligations under the labor statute and the parties' MCBA, except for those provisions that the Employer terminated when the contract officially expired on April 6, 2004.
Turning to the Union's final offer, it is an attempt to recapture "partnership" rights it lost when the 2000 MCBA expired. At that time, the Employer refused to continue provisions that allowed the Union to be represented on assessment panels, and contribute to the development of assessment criteria which limited the selecting official's ability to obtain additional information about a candidate, other than what was provided by the assessment panel. The Union's attempt to re-impose those provisions raises duty-to-bargain questions concerning the Employer's reserved management right to select candidates from any appropriate source. Furthermore, the Union's attempt to use "seniority" as a selection factor is outside the scope of bargaining over the impact and implementation of new assessment criteria for the TA position. A decision to adopt the Union's proposals may soon be superseded by the terms of a new MCBA currently being negotiated by the parties at the national level. Term bargaining is the appropriate forum to consider the substantive issues which it appears the Union wants to address, rather than during impact-and-implementation bargaining at a lower level of recognition. Finally, the Union's proposals would create a "different and unique set of promotions procedures" that would have to be followed for only the TA position and no other national standard position. There is no basis for creating a different set of rules for the approximately 244 TA positions nationwide that could be superseded in the future by a successor MCBA.
After carefully considering the evidence and arguments presented by the parties on this matter, we are persuaded that the Employer's final offer should be adopted. There is insufficient evidence in the record to support the Union's claims that managers have been using "secret criteria" to assess candidates for TA positions, and granting "points" to applicants for the experience they have gained from details and temporary promotions for which they were not required to compete. More fundamentally, however, we believe that this matter should be governed by the results of the higher-level negotiations currently underway over a comprehensive merit promotion article. In our view, it would be inappropriate to impose a unique set of requirements for management to follow when making selections for the TA position that may soon be rendered moot at the national level. For these reasons, we shall order the parties to resolve their dispute by adopting the Employer's final offer.
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 parties to adopt the Employer's final offer.
By direction of the Panel.
H. Joseph Schimansky
January 12, 2005