DECISION AND ORDER
This request for assistance, filed by the Social Security Administration, Office of Hearings Operation (SSA or Agency) under the Federal Service Labor Management Relations Statute (the Statute), involves bargaining over a successor collective bargaining agreement (National Agreement). There is one remaining article at issue: Article 17 – Telework.
The Social Security Administration Office of Hearings Operation (OHO) is responsible for holding hearings, issuing decisions, and reviewing post-hearing appeals for claims filed under Titles II and XVI of the Social Security Act, as amended. While OHO is headquartered in Falls Church, Virginia, and Baltimore, Maryland, OHO directs a nationwide field organization of Administrative Law Judges (ALJ) and Attorneys who conduct investigations, conduct hearings and make decisions on appealed determinations involving retirement, survivors, disability insurance and supplemental security income benefits. The National Treasury Employees Union, Chapter 224 (NTEU or Union) represents approximately 2100 bargaining unit employees across the country in this SSA organization. The majority of the bargaining unit members are Attorneys/Decision Writers (grades GS 9-13). The Attorneys draft the disability decisions for the Administrative Law Judges, represented by another union, i.e., the Association of Administrative Law Judges, IFPTE. NTEU, Chapter 224 also represents a smaller group of Paralegals and Legal Assistants (grades GS 6-12). The American Federation of Government Employees Union represents the administrative and support staff within the SSA. The parties in this case are governed by a National Agreement that expired on June 2, 2018.
BACKGROUND, BARGAINING AND PROCEDURAL HISTORY
In February 2018, the Agency provided notice to NTEU to terminate and renegotiate the parties' National Agreement. In March 2018, the parties agreed to ground rules for renegotiation of the National Agreement with term negotiations starting in July 2018. The 2014 SSA-NTEU National Agreement subsequently expired on June 2, 2018. From July 2018 through January 2019, the parties engaged in face-to-face negotiations in five 2-week sessions. Since the start of the negotiations in July 2018, and throughout the course of the five negotiation sessions, the parties were supported by the Federal Mediation and Conciliation Services (FMCS). The parties bargained at the table for approximately 40 days during a six-month timeframe (July 2018 to January 2019). During that period, the parties reached agreement on 33 of 38 articles. FMCS released the parties to the Panel in February 2019. The Agency filed a request for assistance with the Panel.
In its Panel meeting in April 2019, FSIP asserted jurisdiction over 5 remaining articles and ordered the parties to engage in the Informal Conference procedure with Member Karen Czarnecki in Washington, D.C. During the Informal Conference in June 2019, the parties successfully reached full agreement on 2 articles: Article 27 – Adverse Action and Article 28 – Grievance Procedure. The parties were unable to reach agreement on 3 articles: Article 8 – Official Time; Article 17 – Telework; and Article 34 - Duration. The parties were directed to submit Written Submissions for consideration of the three remaining articles. Both parties submitted timely submissions (attached). In October 2019, the parties provided notice to the Panel that they had jointly resolved their dispute over Articles 8 - Official Time and 34 - Duration and Termination and, therefore, withdrew those matters from Panel consideration. Accordingly, the parties only seek a Panel decision on Article 17 – Telework.
ISSUE AND POSITIONS OF THE PARTIES
Article 17 – Telework
The current work environment includes a 4-day a week telework pilot that was implemented in 2016, after engagement with FSIP Chairman Mary Jacksteit in a Mediation-Arbitration in 16 FSIP 069. In that case, involving this same bargaining unit, the parties bargained a reopener to the telework article in its National Agreement. With no agreement reached, the parties engaged FSIP assistance. Chairman Jacksteit was assigned to conduct a Mediation-Arbitration. The remaining issues in that case involved the number of days a bargaining unit employee could telework; telework procedures during an emergency; and rescheduling of missed telework days. Chairman Jacksteit ordered the adoption of the 4-day telework option for some Decision Writers.
The employees currently work either 3-days or 4-days a week teleworking. The Union introduced into the record an Office of Inspector General (OIG) Report that found the Agency was able to achieve a reduction in its backlog, at the same time the parties had implemented the 4-day a week telework option. All indications are that the pilot was successful, or that having 3-day and 4-day telework has not been adverse to the Agency accomplishing its mission. Now, in this current impasse case, the disagreement is over whether the Deputy Commissioner can unilaterally terminate participation in parts or whole of the telework program.
Union Position regarding Telework
The Union largely proposed status quo, reflecting the current state of telework in the unit, with a few additional changes to allow a temporary suspension of the telework program or telework arrangements during weather or safety-related conditions. The Union rejected the idea that while the parties have negotiated a robust Telework article, including providing for the need to temporarily suspend the program, that the Agency should maintain the sole discretion to terminate or modify the program unilaterally. The Union argued that allowing the Agency to maintain sole discretion to make modifications defeats the purpose and right of the Union to negotiate the details of a telework program. The Union maintained that to the extent that telework is fully negotiable, the parties should complete that negotiations through this process, and be required to adhere to those terms through the life of the National Agreement, unless the parties mutually agree in the future to make modifications.
Agency Position regarding Telework
While the Agency has negotiated a robust telework program, the Agency seeks to maintain the flexibility to adapt the program during the life of the CBA. The Agency contended that telework, especially for Case Technicians who provide support services in the offices, has resulted in service disruptions (i.e., coverage issues) in the offices. As for the majority of the employees (i.e., Decision Writers), the Agency argued that the work is changing; it is expected that their work will be less portable. The Agency would like the flexibility to assign other (perhaps not portable) work to the employees, as needed. While the current contract provides the Agency the ability to make short term suspensions and changes to the program, the Agency seeks to make long-term and permanent changes, if and when they need to do so.
The contract language allows for temporary suspensions or changes to the telework program. In response to concerns raised in the Informal Conference regarding the interpretation of that language, the Union offered further clarification to make it clear that management can make temporary changes (for example, for emergencies). As for permanent changes to the program, the Telework Enhancement Act and the Labor Statute intend for the Telework program to be negotiated and any changes to the program to be negotiated with the Union. The Agency presented evidence to demonstrate that the workload for Decision Writers, due to the success of addressing the backlog, has begun to diminish. However, although the parties have been bargaining for a year, the Agency failed to present any specific program changes they are seeking to make in the bargaining unit workload that would impact eligibility under the telework program. While the Agency asserted that they “may” need flexibility to redirect other work, the Agency offered no specific to do so, or any demonstration that the other work cannot also be done while teleworking. Without any specifics, the Union has not had the opportunity to bargain over any potential changes. With the conclusion of this bargaining, going forward permanent change will need to be proposed and bargained when the contract reopens, unless the parties mutually agree otherwise. As such, the Panel orders the parties to adopt the Union’s proposal, including the additional clarification providing for temporary suspensions.
Pursuant to the authority vested in the Federal Service Impasses Panel under 5 U.S.C. §7119, the Panel hereby orders the parties to adopt the provisions as stated above.
Mark A. Carter
November 14, 2019
• Union Post-Hearing Submission and Rebuttal, Re: Article 17
• Agency Post-Hearing Submission and Rebuttal, Re: Article 17