United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND
and SSA GENERAL COMMITTEE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 01 FSIP 130

DECISION AND ORDER

    The SSA General Committee, 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 Statute (Statute) 5 U.S.C. § 7119, between it and the Social Security Administration, Baltimore, Maryland (SSA or Employer).

    After investigation of the request for assistance arising from negotiations over the Employer’s decision to test an initiative called the Model Multimedia Customer Contact Centers (MC3) call transfer and Internet inquiry (E-mail) project,⁽¹⁾ the Panel determined that the dispute should be resolved through an informal conference with a Panel representative. The parties were informed that if no settlement were reached, the Panel representative would notify the Panel of the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. The Panel would then resolve the dispute by taking whatever action it deemed appropriate, including the issuance of a Decision and Order.

    In accordance with the Panel’s procedural determination, Panel Member David J. Leland conducted an informal conference with the parties at the Panel’s offices in Washington, D.C., on July 12, 2001. The parties resolved completely 9 out of 11 issues in dispute.⁽²⁾ Member Leland has reported to the Panel, and it has now considered the entire record, including the parties’ post-conference summary statements of position.

BACKGROUND

    The Employer’s mission is to administer retirement, Medicare, disability, survivor, and Supplemental Security Income programs. The Union represents a nationwide consolidated bargaining unit of approximately 53,000 General Schedule (GS) and Wage Grade (WG) employees who typically work as claims representatives, teleservice representatives, data review technicians, hearing clerks, hearing assistants, benefit authorizers, safety and occupation health specialists, plumbers, carpenters, and electricians. The parties’ national agreement (NA) is due to expire on April 6, 2004.

ISSUES AT IMPASSE

    The parties disagree over: (1) whether Field Offices should participate in the MC3 Internet inquiry (E-mail) pilot, and (2) whether a joint workgroup should be established to explore possible job upgrades as a result of the work to be performed under the MC3 pilots.

POSITIONS OF THE PARTIES

1. Field Office Participation

    a. The Employer’s Position

    The Employer would exclude SSA Field Offices from participation in the MC3 pilot at this time. As required by Article 4 of the SSA/AFGE National Agreement, the Employer notified the Union of the management initiated change to implement the MC3 pilot; however, it "never gave notice of the intent to include the SSA Field Offices in the [E]-mail portion of the pilot." In so doing, the Employer "exercised its authority and discretion to determine the organizations that are to participate in the [E]-mail pilot," in accordance with its right under § 7106(a)(1) of the Statute.⁽³⁾

    On the merits, at this testing stage, the purpose of the MC3 E-mail pilot "is to further understand the impact of implementing this new technology through data gathering followed by assessments of the data." At this time, "the TSC and the PSC environments are the best test beds" for addressing the handling of general inquiry E-mail questions from the public because of the similarity between this task and the role that the TSC and PSC already perform in responding to questions in the 1-800 number program. Furthermore, the E-mail inquiries "involving more complex issues handled in the field would require a level of [computer system] security that the [Employer] does not currently possess."

    b. The Union’s Position

    The Union proposes that "Field Office participation in the E-mail pilot shall be through one virtual office in each of 8 regions." The General Committee’s role is to ensure that all the components within SSA have an opportunity to address MC3-related issues now, to avoid a claim by the Employer at a later time that the matter is foreclosed from bargaining because it is "covered by" this agreement.⁽⁴⁾ The Field Offices, which are a major component represented by the General Committee, were completely ignored in the development of the pilot. The pilot affects these offices because it could result in a workload increase or decrease (i.e., it concerns a condition of employment with respect to Field Offices). From this perspective, the Union’s proposal may be considered to be an "appropriate arrangement" as it would allow the Field Office employees, who would otherwise be left out, to participate in the pilot.

    Although the Employer states it "want[s] to find the best fit for the Internet within the Agency," eliminating Field Offices from the pilot, as it proposes, "does not allow the offices to compete to see if they are a good fit." On the positive side, the Union’s proposal, if adopted, would "enable the Union to [assess] the accuracy of the information and whether or not such work can be done in Field Offices and other components." This assessment is appropriate because "it is [Field Office] work which will be increased by any misinformation provided by the pilot." Involvement "would also ensure that Field Office employees would not necessarily lose their jobs due to lack of work." Participation in the pilot would be a "welcome break from intense, complex, and demanding work" performed in Field Offices.

    Regarding the Employer’s argument that "Field Office participation in the pilot would cause problems" because employees would not be using a "secure network to answer inquiries," it should be noted "that all parts of the agency are on the same security network." Thus, "it makes no difference who answers the Internet inquiries or from what part of the agency they are answered, because they will all travel through the same security network." To address this concern, employees create new messages when responding to E-mail questions, rather than simply using the reply function on the computer tool bar to answer queries. Employees must not include what is categorized as "private" information (personal addresses and Social Security Numbers) in the response because the network is not secure. While the Employer may want Field Offices to participate in the E-mail pilot in the future in order to provide a more thorough response to an inquiry, it cannot do so "until the entire network is set up as a secure network."

CONCLUSIONS

    Having carefully considered the record presented by the parties on this issue, the Panel turns first to the Employer’s reference to its rights under § 7106(a)(1) of the Statute, which we construe as an allegation that it has no duty to bargain over the Union’s proposal. Preliminarily, either party in a dispute before the Panel is entitled to raise a duty-to-bargain issue at any stage of our proceedings. As Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell) makes clear, the Panel may apply existing precedent to resolve an impasse where a duty-to-bargain issue is raised if the FLRA has found a "substantively identical" proposal negotiable. Independent research, however, has failed to uncover a previous FLRA decision in which a substantively identical proposal to the one raised by the Union in this case has been found within the duty to bargain. Thus, the Employer’s reference to § 7106(a)(1) raises a legitimate question as to the negotiability of the Union’s proposal which must, in accordance with Carswell, be resolved in an appropriate forum before the Panel may proceed to the merits of the impasse. Accordingly, the Panel is constrained to decline to retain jurisdiction over the dispute.

    In our view, while it is not the Panel’s role or intent to require the filing of a negotiability appeal with the FLRA, fairness dictates that the Employer’s belated duty-to-bargain allegation should not prejudice the Union from exercising its statutory rights before the MC3 program is implemented. Therefore, we shall order the Employer to maintain the status quo regarding the MC3 program to give the Union an opportunity to appeal the Employer’s allegation that it has no duty to bargain over its proposal, under the provisions of § 7117(c) of the Statute. To expedite the Union’s decision on whether to exercise its statutory rights, we also shall specify that if no appeal is filed by the Union within the 60-day period following the issuance of this Decision and Order, our order to maintain the status quo shall lapse. If an appeal is timely filed, however, the status quo order shall remain in effect until the appeal is decided by the FLRA. Thereafter, depending on the outcome of the Union’s appeal, either party may file another request for Panel assistance if an impasse subsequently is reached on the merits of the issue.

2. Position Upgrades

    a. Employer’s Position

    In essence, the Employer’s position is that the Panel should order the Union to withdraw its proposal. There should be no classification review for position upgrades in connection with the MC3 N8NN call transfer and E-mail pilots. In this regard, the Employer elects not to bargain with the Union, pursuant to 5 U.S.C. 7106(b)(1), on the grades of employees assigned to perform MC3 pilot work. The MC3 N8NN and E-mail pilots "involve use of a different media to perform job tasks that are already in existence." SSA classifiers have determined that "the media by which a task is performed does not dictate position grade level." Therefore, "there will be no upgrades for these employees in the pilot offices because they will be doing the same work but using a different media to perform the same tasks." In addition, the Union’s proposal is unnecessary because Article 28 of the parties’ NA permits any SSA employee to request a desk audit at anytime in connection with the grade level of the duties they are performing.

    b. Union’s Position

    The Union proposes that no later than 1 year from the beginning of the N8NN and E-Mail pilots a joint workgroup of an equal number of Union and Employer participants should be established to review the possibility for upgrading positions as a result of the MC3 program. This workgroup would continue through future pilots. From the parties’ current vantage point, it cannot be determined whether the pilots will "contain grade enhancing workloads." The nature of Internet inquiries are changing, however, and will continue to change as the public becomes more educated about SSA programs. Such changes and trends may also affect the N8NN pilot. Through this project, the parties may find that "the grade enhancing work is actually at the bottom of [the] grade range instead of at the top of it." Future developments may prove that the Employer’s expectation that the grade enhancements will be at the top of the range may be incorrect. The Union represents employees in all grade ranges (GS-5 through -14) "and is looking for possible grade enhancements for any employees [it] represents."

CONCLUSIONS

    As in the previous issue, the Panel is guided by the FLRA’s decision in Carswell in addressing the Employer’s duty-to-bargain allegation. Although the Employer contends that the Union’s proposal is nonnegotiable because it concerns a permissive subject, i.e., the grades of employees assigned to perform MC3 pilot work, over which it declines to bargain, the FLRA has held substantively identical proposals to be negotiable. For example, in National Federation of Federal Employees and Haskell Junior College, Bureau of Indian Affairs, Department of Interior, Lawrence, Kansas, 22 FLRA 539 (1986), the FLRA found negotiable a union proposal requiring the agency to involve employees in discussions over options to alleviate hiring problems. According to the FLRA, that proposal "neither obligates the [a]gency to agree that a work space problem exists nor is it required to remedy any problem should there be one." Because the Employer has the same discretion in the instant case, we conclude that the Employer’s jurisdictional argument is without merit, and that the Union’s proposal is properly before the Panel.

    Having carefully reviewed the evidence and arguments presented in support of the parties’ positions, we conclude that they should adopt the compromise approach of a one-time discussion of the possibility of grade enhancing positions during their second 5-month interactive briefing regarding the MC3 program. In our view, this would provide an appropriate vehicle for evaluating the possibility of position upgrades while still maintaining the Employer’s ultimate authority to determine whether or not to upgrade positions. Moreover, including the discussion as an agenda item to a briefing the parties already have mutually agreed to does not commit the Employer to expending any additional resources regarding the grades of employees in the MC3 program.

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 under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following:

    1. Field Office Participation

The Panel declines to retain jurisdiction over the parties’ proposals. The Employer shall maintain the status quo regarding implementation of the MC3 pilot while the Union appeals, under the provisions of § 7117 (c) of the Statute, the Employer’s allegation that it has no duty to bargain over the Union’s proposal. If action is not taken by the Union under § 7117(c) of the Statute within 60 days of the issuance of this Decision and Order, the order to maintain the status quo shall lapse.

    2. Position Upgrade

Contained within the second 5-month interactive briefing will be a discussion between the parties about the possibility of grade enhancement positions as a result of the workloads created through MC3.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

August 13, 2001

Washington, D.C.

1.Currently, the public can ask questions about SSA programs through the agency’s web site. The purpose of the MC3 project is to establish “virtual” offices by linking Tele-Service Centers (TSCs) and Program Service Centers (PSCs) with these Internet inquiries and parts of the National 800 (N8NN) telephone number program; field offices participate only in the N8NN call transfer pilot.

2.With Member Leland’s assistance, the parties were able to resolve issues concerning: the length of the MC3 pilots, selection of trainers, number of briefings, data to be provided to the Union, shift changes, monitoring, mentoring, promotions, and future bargaining obligations.

3.The Employer’s contention, which appears to be an allegation that the Union’s proposal infringes on its management rights under the Statute, was raised for the first time in its post-conference statement of position.

4.See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, National Council of Social Security Administration Locals, Council 220, 47 FLRA 1007 (1993), (where the FLRA set forth its framework for analysis of the covered by agreement).