United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

    DECISION AND ORDER

    Council 220, 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 Relations Statute (Statute), 5 U.S.C. ' 7119, between it and the Social Security Administration, Baltimore, Maryland (Employer or SSA).

    After investigating the request for assistance, the Panel determined that the parties should resume negotiations over their dispute, which arises from post-implementation bargaining over the Employer's National Service Observation Process, ^1/ for a 45-pay period, with the assistance of the Federal Mediation and Conciliation Service (FMCS). If a complete settlement was not reached, the parties were to submit written statements of position with arguments and evidence supporting their final offers on any issues that remained. After considering the entire record, the Panel would resolve the dispute through the issuance of a Decision and Order in which it may select between the parties' final offers on a package basis, to the extent they otherwise appear to be legal. In accordance with the Panel's procedural determination, the parties resumed bargaining with FMCS assistance. Although the parties' differences were narrowed, their efforts did not result in a complete settlement of the dispute. The parties have submitted their final offers and supporting statements of position on the remaining issues. The Panel has now considered the entire record.

BACKGROUND

    The Employer's mission is to administer retirement, Medicare, disability, survivor, and Supplemental Security Income entitlement programs. The Union represents approximately 50,000 employees in a nationwide consolidated unit. Of those, 10,000 to 15,000 employees who work primarily in 45 Teleservice Centers and Program Service Centers answering the SSA's 1-800 number (referred to by the parties as the "N8NN network") are affected by this dispute. The parties' NA went into effect in August 2005, and is due to expire in August 2009.

    SSA has had a service observation program in effect for its N8NN network telephone service representatives since the 1980s. Under that program, employees were always told when the monitoring would occur, and the assessment by the observer, normally a higher graded bargaining unit employee, was not specifically used as a performance indicator. On October 27, 2005, SSA notified the Union that it was changing its approach and would now be performing unannounced service observations that, by December 1, 2006, could occur after the fact from recordings of conversations with claimants. The purpose of the new process is to improve service delivery and ensure a consistent level of performance throughout the N8NN network. The process uses a standard Service Observation Report Form (SORF), and the results of the observations are to be used to assess performance, identify training needs, assess quality, and identify trends.

ISSUES AT IMPASSE

    Among other things, the parties disagree over: (1) the type of notification employees should receive if the number of service observations is increased; (2) the circumstances under which employees would be given access to recordings of service observations; (3) whether employees should be informed prior to any service observation of the interview techniques that would result in a "needs improvement" rating and the nature of activity that is considered misconduct; (4) whether the Employer should be required to provide training to bargaining unit employees who conduct service observations; (5) the extent of the information the Union should be provided in connection with service observation training packages and instructions for conducting service observations; and (6) whether affected employees should be provided with service observation schedules identifying in advance the days on which they will be observed.

POSITIONS OF THE PARTIES

1.  The Union's Position

    The Union proposes the following wording on the issues that remain at impasse:

If Management decides to increase the number of calls that will be observed for an individual employee, the employee will be notified in writing of the basis for the increased observations and specify the performance/conduct expectation required to return to the minimum number. The employee will also be notified when the issue has been corrected and when the number of observations will be reduced to the minimum.

If SSA uses recordings for service observations, employees will have the right to be informed about such recordings, to have access to such recordings, to make copies of such recordings, and to prepare comments regarding such recordings pursuant to Article 3, Section 4 of the National Agreement. When such recordings are purged, notice will be provided to the employee and copies provided upon request. Such recordings will be retained only as long as administrative need exists but no longer than one year. If requested by an employee or his/her representative the Agency will provide a copy of such recordings within five business days after the date of the request whenever possible. Failure to provide a copy of the recording within five business days will extend the time frame of any litigation filed regarding the call.

The SO report form will document the quality of the Agency's call handling, courtesy, compliance with acceptable procedures and guidelines, accuracy of information provided, the effectiveness of negotiated interview techniques and the use of available online resources such as CHIP. The SO report form will also indicate: whether the call was observed live or via a recording; the nature of any conduct or performance issues; if there was a payment or service error; and, policy/procedure references, if any. Employees subject to SO will be informed prior to any SO regarding the interview techniques which will result in a needs improvement rating, what the definition of error is that results in a needs improvement rating, and the nature of activity that is considered misconduct.

The Union will be provided with any training packages and policy/procedure instructions for bargaining unit employees for conducting service observations. Based on the Agency's decision to use bargaining unit employees to conduct service observations, those employees will be provided sufficient training in all aspects of this service observation policy to ensure fair, equitable and consistent application of such policy. The Agency will make every reasonable effort to provide ongoing technical assistance to N8NN agents.

The Union will be provided with any and all data related to service observation training packages, all policy/procedure instructions for conducting service observations and the methodologies used in the evaluation of performance and/or conduct within 60 days of the effective date of this agreement. All updates to this data will be provided to the Union, upon request.

Service observations will be announced, whenever possible. The N8NN agent will be provided a service observation schedule (i.e., daily, weekly, monthly) which will identify the day(s) that he/she will be observed. Exact times will not be provided. Due to operational emergency when Management is unable to service observe pursuant to the calendar, employees may be informed no later than the inception of the work day on which monitoring will take place.

Written notification to employees providing the reasons for increased observation is necessary to ensure that the Employer "adheres" to the contractual and statutory requirement that "all employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management . . . with proper regard for their privacy and constitutional rights." It also protects management from employee allegations that increased monitoring is unfair and, therefore, "will lead to less subsequent litigation." Additionally, the proposal "will promote efficiency and "uphold the Merit System Principles," providing management and employees with "a common understanding of performance inadequacies and what is necessary to improve performance and/or make corrections necessary to meet performance standards." The Employer's proposal, however, would "significantly hinder" an employee's ability to successfully challenge decisions that are "arbitrary, subjective or otherwise discriminatory," and would allow for "widespread inconsistencies in a nationwide network."

    The Union's proposal regarding the use of service observation recordings is consistent with the requirements of the Privacy Act of 1974, 5 U.S.C. ' 552, and the NA, by providing "for an arrangement in which recordings are housed in a system of records." Thus, it "provides a legal remedy and a consistent procedure for handling the recordings of employee performance through the recording of service observations." The Employer's proposal, on the other hand, "is illegal" and "should be withdrawn" because it "violates the Privacy Act." In this regard, the recordings are part of a system of records that the Employer is required to publish in the Federal Register. Since service providers are required to obtain the name and Social Security Numbers (SSNs) of callers to positively identify them, unless the Employer meets the Privacy Act's Federal Register requirements, "SSA employees should not be directed to participate in such activity which violates a law, rule or regulation."

    Its proposed wording, requiring employees subject to service observations to be informed prior to being observed about the interview techniques that will result in a "needs improvement" rating, is intended to protect them from being evaluated on interview techniques whose use was never negotiated with the Union. The wording should be adopted because the Employer's original notification regarding implementation of unannounced service observations referenced interviewing techniques that the Union and employees considered strictly voluntary. For this reason, the adoption of the Employer's proposal "would constitute a waiver of [the Union's] right to negotiate under the Statute." The Union's proposal also would ensure that employees are provided with the "performance threshold(s) that must be met to be appraised at a particular level of performance," consistent with requirements of 5 C.F.R. ' 430.203 regarding performance standards, and that they are treated with the "fairness and equity in all aspects of personnel actions" called for in Article 3, Section 2, of the NA. Conversely, management's proposal is inconsistent with the regulatory requirements because it does not clarify "what constitutes an error in performance and what constitutes satisfactory/successful performance."

    By requiring the proper training of unit employees who are assigned by management to conduct service observations on other unit employees, the Union is "seeking assurance" that they are able to carry out their duties "in a consistent manner throughout the N8NN network." In addition, the Employer's decision not to give bargaining unit service observers "reasonable guidelines of what constitutes satisfactory performance" violates Article 3, Section 2 of the NA. Moreover, the Union's proposal that the Employer "make every reasonable effort to provide ongoing technical assistance to N8NN agents" is intended to address it's concern about the effect the increased use of Technical Assistants as service observers will have on the ability of N8NN agents "to perform their duties." This portion of its proposal is an "appropriate arrangement" that does not excessively interfere with management's right to assign work. The need for its wording is buttressed by the fact that new numeric performance standards are likely to be implemented in the near future that "may require employees to spend more time looking up information." With respect to the Union's proposal that it be provided with the "methodologies" used by management in the evaluation of performance and/or conduct related to its service observation initiative, such information is required "to monitor whether SSA is adhering to the contractual provisions regarding fairness and equity in Article 3, Section 2(A)" of the NA. This information would be valuable to employees, permitting them to understand what is expected of them to reach different performance levels, and the difference between performance and conduct issues. The Employer's refusal to divulge its methodologies "leaves wide open the possibility of bias and discrimination," and "violates the Prohibited Personnel Practices under 5 U.S.C. 2302."

    Finally, the Employer has "failed to present the Union with evidence of a business need for changing the service observation process from announced to unannounced," so "there is no reason to deviate from such policy." Nevertheless, the Union proposes to set up a schedule for service observations that would relieve employees of stress by identifying the day, but not the exact times, during which monitoring will occur.^2/ Its proposal is similar to the compromise adopted by the Panel in a previous case involving a telephone monitoring program for field office employees that also permitted employees to know the day that monitoring would occur. Providing some notification also would permit employees to keep track of calls that day so they can be "prepared to rebut" adverse service observation evaluations, if necessary, in accordance with Article 3, Section 4, of the NA. N8NN agents have been provided advance notice prior to observation monitoring "since at least 1991," and the Employer has not justified treating them differently from other employees, such as Claims Representatives, who are given advanced notification of service observations.

2. The Employer's Position

    The Employer's proposals on the remaining issues are as follows:

If Management decides to increase the number of calls that will be observed for an individual employee, the employee will be notified of the basis for the increased observations. The employee will also be notified when the issue has been corrected and the number of observations will be reduced.

If requested by an employee or his/her representative, the Agency will make recorded calls available for listening under the following situations: it concerns a performance or conduct issue; it is used to support a disciplinary action; or the employee files a grievance or an EEO complaint. Under these circumstances, the recording will be available for listening within 5 business days whenever possible.

The SO report form will document the quality of the Agency's call handling, courtesy, compliance with acceptable procedures and guidelines, accuracy of information provided, the effectiveness of interview techniques and the use of available online resources such as CHIP. The SO report form will also indicate: whether the call was observed live or via a recording; the nature of any conduct or performance issues; if there was a payment or service error; and, policy/procedure references, if any.

The Union will be provided with any training packages and policy/procedure instructions for bargaining unit employees for conducting service observations. All updates to this material will be provided to the Union, upon request.

Its proposal "balances the Union/employees' desire for notice about the increase in the minimum number of calls being observed" with management's need for flexibility in providing such notice either verbally or in writing. Currently, verbal and written feedback is already provided after each service observation, which includes completion of the SORF. The Union's proposal on this issue, on the other hand, is covered by Article 21 of the NA. Similarly, the portion of the Employer's proposal addressing when and how recordings of service observations will be made available also "ensures the necessary balance" between employees' right to protect employment interests with claimants' right to privacy. It does so by limiting employee access to situations where performance or conduct issues are involved, and by providing recordings to third parties so employees can protect their interests in a grievance or administrative appeal proceeding, while appropriately minimizing the possibility of inappropriate disclosures and privacy violations. The Union's proposal on this matter is covered by various articles in the parties' NA, e.g., litigation time frames are addressed in Articles 24 and 25, and Article 3, Section 4, covers Official Records and Files. Other portions of the Union's proposal are unnecessary because management has already informed the Union and employees that it will be recording calls for service observation, and has agreed to modify the SORF to indicate whether an observation was made from a recording. In addition, employees are already allowed to provide written comments on the SORF.

    With respect to notifying employees of areas that need improvement or activity that is considered misconduct, the Employer's proposed wording fulfills employees' need and desire for feedback without being overly burdensome to administer. Furthermore, consistent with the Employer's right to establish criteria governing employees' performance of their duties, the Union's language regarding "negotiated interview techniques" is inappropriate and "interferes with management's right to direct the work." It is also unnecessary, given that all employees are "trained in the appropriate interviewing techniques," and the SORF contains a section documenting the observed techniques. On the issue of training packages for employees being observed and training for unit employees who conduct service observations, the Employer is willing to provide the Union with any training packages and policy/procedure instructions for unit employees for conducting service observations. Unlike the Union's proposal, the Employer's offer "preserves management's statutory right to determine what training is appropriate." As to the Union's request that it be provided with "methodologies" used in the evaluation of performance and/or conduct, this information is available under the Employer's proposed wording as well as Article 21 of the NA.

    Finally, the Employer's program for unannounced service observations is both legal and "a common and acceptable business practice." It is also consistent with management's view that "the best way to measure an employee's performance is to observe it in the most natural setting - during an actual call - without giving employees the opportunity to prepare in a way they would not be able to do for a live, unobserved call." The Federal Labor Relations Authority (FLRA), on the other hand, has held that proposals that preclude management from using a particular method of monitoring employees' work performance interfere with its right to direct employees and assign work, under section 7106(a)(2)(A) of the Statute.^3/ The Union's proposal "attempts to undermine the decision to have unannounced observation" and, therefore, is "not an appropriate arrangement."

CONCLUSIONS

    Having carefully considered the evidence and arguments presented by the parties, consistent with the Panel's determination that it may select between their proposals on a package basis, we shall order the adoption of the Employer's final offers to resolve the impasse. Overall, we are persuaded that its package more appropriately balances the interests of employees in adjusting to unannounced service observations and those of management in retaining flexibility and minimizing unnecessary administrative burdens. Whatever its merits may be, the fatal flaw in the Union's final package, in our view, is its insistence on challenging the Employer's underlying decision to implement unannounced service observations. In addition, the Union's frequent attempts to malign the Employer's proposals by alleging that they violate law, Government-wide regulations, or articles of the parties' NA, are more appropriately addressed under the parties' negotiated grievance procedure than by the Panel.

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 the 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 adoption of the following:

    The parties' shall adopt the Employer's final offers.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

July 18, 2006
Washington, D.C.

1/	The Employer implemented the National Service Observation Process on December 1, 2005, with the Union's concurrence, because the Union could not meet the time frames for mid-term bargaining established in their National Agreement (NA).
2/	The Union cites Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, AFL-CIO, Case No. 00 FSIP 18 (March 24, 2000), Panel Release No. 430.
3/	Among other FLRA decisions, the Employer cites National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522 (1981) to support its position in this regard.