United States of America BEFORE THE FEDERAL SERVICE IMPASSES PANEL In the Matter of SOCIAL SECURITY ADMINISTRATION OFFICE OF DISABILITY, ADJUDUCATION AND REVIEW FALLS CHURCH, VIRGINIA and COUNCIL 215, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Case No. 07 FSIP 107 DECISION AND ORDER Council 215, 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, Office of Disability, Adjudication and Review (ODAR), Falls Church, Virginia (Employer). After investigation of the request for assistance the Panel determined that the dispute, concerning the mandatory use of Findings Integrated Templates (FIT), should be resolved through an informal conference, via telephone, with Panel Member Grace Flores-Hughes. The parties were informed that, if a complete settlement were not reached during the informal conference, Member Flores-Hughes would notify the Panel of the status of the dispute. The notification would include, among other things, the final offers of the parties and her recommendations to the Panel for resolving the issues. The parties also were informed that, after considering the entire record, the Panel would resolve the dispute by taking whatever action it deemed appropriate, which could include the issuance of a binding decision. Pursuant to the procedural determination, Member FloresHughes conducted an informal conference with the parties on October 24, 2007. While the possibility of a voluntary 2 resolution was explored, a settlement was not reached. The Panel has now considered the entire record, including the parties’ pre-conference submissions, and Member Flores-Hughes’ recommendation for resolving the dispute. BACKGROUND ODAR’s mission is to adjudicate claimants’ appeals of SSA decisions regarding retirement, survivors, and disability benefits under Titles II and XVI of the Social Security Act, as amended. The Union represents approximately 5,000 employees in ODAR, including 1,500 attorneys and paralegal specialists, GS-9 through GS-13. The National Agreement (NA) covering these employees is due to expire on August 15, 2009. ISSUES AT IMPASSE The parties essentially disagree over the procedures and appropriate arrangements that should be included in their Memorandum of Understanding (MOU) regarding the mandatory implementation of FIT for decision writers in ODAR.1/ POSITIONS OF THE PARTIES 1. The Union’s Position Under the Union’s final offer, among other things: (1) employees would be advised orally and in writing how and under what circumstances FIT would be used; (2) any concerns regarding the use of FIT would be submitted to the employee’s supervisor, and a copy of the supervisor’s acknowledgment and response would be placed in employee’s 7B file; (3) appropriate training would be conducted in accordance with the parties’ NA; (4) an employee’s performance would be evaluated and assessed in accordance with Article 21 of the NA; (5) case assignments under the FIT format would be done in a fair and equitable manner, with a proportionate number of affirmations and reversals 1/ FIT is a tool to facilitate decision writing by attorneys and paralegals. These employees support Administrative Law Judges in writing disability decisions. FIT was piloted in a number of offices in 2005 and was designed as an enhancement to the then existing Document Generation System templates, which had the same basic function but were more difficult to use. After the pilot began, a number of userfriendly enhancements were made that made FIT easier to use. 3 assigned to each writer; (6) due consideration would be afforded to circumstances beyond the writer’s control when assessing performance, including but not limited to a list of specified items2/; (7) a sufficient adjustment period would be observed after the mandatory use of FIT comes into effect, and an expectation discussion would occur thereafter; (8) FIT would not adversely impact employee participation in the Flexiplace program; (9) the parties would jointly assess whether the mandatory use of FIT has been effective 6 months after its implementation, with Union participation in the assessment constituting an assignment of work rather than being counted as official time; (10) the MOU would be subject to the provisions of 5 U.S.C. 71 and the NA; and (11) no rights of any bargainingunit member or the Union would be waived explicitly or implicitly by signing the MOU.3/ Preliminarily, the Union recognizes the Employer’s right to make FIT mandatory and is supportive of this decision. It agrees that FIT is a much more user-friendly program that has led to fewer complaints about work products since it was introduced in 2005. Turning specifically to its final offer, employees need to be provided with enough information about FIT once it becomes mandatory so they understand what is expected of them. When FIT was initially introduced in 2005, there was mandatory training on the program, even though its use was voluntary. While the vast majority of employees are using FIT, there is still a small number, approximately 2 to 3 percent, who participated in the mandatory training yet have not used FIT. Because of the many changes to FIT since it was introduced in 2005, ensuring appropriate training would provide these employees with the necessary knowledge to use the program effectively. Moreover, listing those factors that are beyond an employee’s control when assessing performance is warranted as 2/ The following are the items the Union specifies: (1) time engaged in receiving and providing training and mentoring; (2) quality and quantity of training and mentoring received; (3) an employee’s lack of clarity regarding the specific use of FIT format in some cases; (4) the quality and quantity of advice, assistance, direction, instruction, oversight and consultation with peers and management officials; (5) the quality and difficulty of work assigned; and (6) the availability, support and training provided, if any, by peers and/or management officials. See Attachment proposed MOU. A for the complete text of the Union’s 3/ 4 ODAR has moved from a pass-fail system to a three-tier appraisal system. With the mandatory implementation of FIT, there could be a decrease in productivity as employees learn to use the new system. Without the enumerated safeguards lower performance ratings could result. Finally, the Union’s offer also would ensure employees that implementation of FIT would not lead to the elimination of flexiplace. 2. The Employer’s Position The Employer’s proposed MOU includes the following provisions: (1) employees would be advised how FIT will be used and under what circumstances; (2) concerns about the use of FIT could be submitted to an employee’s supervisor for consideration; (3) FIT training would be handled in accordance with Article 16 of the NA; and (4) management would assess performance in accordance with Article 21 of the NA.4/ The Employer’s offer provides management with discretion on how best to notify employees regarding the mandatory implementation of FIT.5/ Employees would also have the ability to raise any concerns or questions regarding FIT with their supervisors. This is similar to how concerns are dealt with in other ODAR programs. In addition, most offices in ODAR currently have a designated individual who can address questions or concerns about FIT. With respect to training, performance and flexiplace, these issues are already covered either by the NA or the 2000 Flexiplace Agreement that is still in effect. While Article 16 of the NA covers the issue of training, management recognizes the need for continuous training as a result of FIT and addresses this through such venues as train-the-trainer and interactive video/video-on-demand training. The NA also provides refresher training, upon request, or where there are identifiable problems with a particular program such as FIT. Further, Article 21 comprehensively spells out procedures regarding employee performance, including the specific 4/ 5/ See Attachment B for the complete text of the Employer’s proposed MOU. According to the Employer, notification will be provided to all employees through a Chief Judge’s Bulletin, the standard notification procedure for these types of programs. The Bulletin would fully explain that FIT is now a mandatory program, its purpose, and how and under what circumstances it will be used. 5 requirement that management consider factors beyond the employee’s control when assessing performance. Finally, while the Employer’s final offer is silent on flexiplace, the criteria for participation in this program are stated in the parties’ 2000 Flexiplace Agreement. Moreover, for employees who participate in flexiplace the FIT program has been installed on their laptop computers. CONCLUSION Having carefully considered the evidence and arguments presented by the parties, we conclude that the Employer’s final offer provides the more reasonable basis for resolving the dispute. In our view, the Union’s concerns regarding the potential adverse impact of the mandatory use of FIT are speculative, particularly in view of the fact that FIT has been used voluntarily since 2005 without any documented problems. Additionally, Articles 16 (training) and 21 (performance) of the parties’ NA appear to adequately address employees’ legitimate interests concerning the mandatory implementation of FIT. Accordingly, we shall order the adoption of the Employer’s final offer. 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 by 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: The parties shall adopt the Employer’s final offer. By direction of the Panel. H. Joseph Schimansky Executive Director November 21, 2007 Washington, D.C.