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. 96 FSIP 159

 

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

    Following an investigation of the request for assistance, which involves a dispute over the implementation of the Field Office Telephone Service Monitoring pilot, the Panel directed the parties to participate in an informal conference with Panel Member Stanley M. Fisher for the purpose of resolving the outstanding issues. The parties were advised that if no settlement were reached, Mr. Fisher would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the issues. After considering the report, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Pursuant to the Panel’s determination, the parties met with Mr. Fisher on December 10, 1996, and they were able to resolve 11 of the 12 issues in dispute. Following the informal conference, both parties submitted a one-page brief explaining their respective positions on the unresolved issue. Mr. Fisher has reported to the Panel, and it has now considered the entire record.

BACKGROUND

    The Social Security Administration is responsible for administering retirement, Medicare, disability, survivor, and supplemental security income (SSI) entitlement programs. The proposed telephone monitoring pilot will be conducted in 50 field offices in order to develop effective methodology for improving the quality of the service it provides to its customers. Nationwide, the Union represents approximately 48,200 employees. Approximately 1,500 employees will be affected by the pilot, 1,250 of whom are in the bargaining unit. They work as clerical staff, claims representatives, and service representatives. In addition to the employees in the field offices, the Union also represents a small number of employees who will be conducting the pilot in the Office of Program and Integrity Review (OPIR). The parties’ collective-bargaining agreement (CBA) is due to expire in March 1999.

ISSUE

    The parties are at impasse over whether employees should be given up-front notice before each monitored call.

POSITIONS OF THE PARTIES

1. The Union’s Position

    The Union’s proposal is as follows:

There will be up-front notice regarding call monitoring given to the employee for each monitored call.

By providing up-front notice to employees prior to each monitored telephone call, this proposal would avoid high stress levels for employees and prevent attrition levels from rising.⁽¹⁾ Moreover, if employees do not have sufficient notice of the monitoring, the pilot would violate various criminal statutes because employees have not expressly consented to a third party monitoring the telephone calls.⁽²⁾ Its proposal is consistent with the practice of SSA’s Operations component, as well as that of the General Services Administration (GSA) and many organizations in the private sector. The Employer’s argument that up-front notice will introduce bias into the pilot is not relevant to the purpose of this pilot, which is to develop a "methodology" for monitoring field office service quality. The data obtained is not intended to be relied on to make substantive policy changes. In addition, the Employer’s estimated cost for procuring the necessary technology to implement the proposal is purely speculative.

2. The Employer’s Position

    The Employer proposes the following:

To avoid any bias in study results and/or disruption in service, there will be no up-front notice to alert employees regarding which calls are being monitored. It is understood by the parties that this provision is not precedent setting in regard to any future expansion of field office monitoring.

Its proposal provides employees with sufficient notice of the telephone monitoring pilot because each will receive a copy of the parties’ Memorandum of Understanding, and every telephone which is subject to monitoring will be labeled. Moreover, SSA does not currently have the technology to provide up-front notice, and the cost of obtaining the necessary equipment would be substantial.⁽³⁾ If employees receive such notice, they are likely to change their behavior, which would introduce an undeterminable amount of bias into the study.⁽⁴⁾ This bias might thwart the purpose of the pilot by undermining the analysis of the feasibility of monitoring field offices.⁽⁵⁾ The Union’s argument that this proposal might violate criminal statutes is unsubstantiated because courts have found that up-front notice may not be necessary to establish that employees have consented to the monitoring.⁽⁶⁾ In addition, it is not accurate to compare the OPIR and Operations components, since they serve different functions within SSA. Finally, its approach would also give the Union the opportunity to gather data on any adverse affects that telephone monitoring has on employees. The parties would then be able to consider the results of the Union’s data during future negotiations.

CONCLUSION

    Having carefully considered the evidence and arguments presented, we conclude that the Employer’s proposal would provide the more reasonable resolution of this dispute. The record establishes that the purpose of the telephone monitoring pilot is to obtain accurate results which can be used to determine the feasibility of conducting telephone monitoring in the future. In our view, up-front notice to employees could undermine the integrity of the data collected during the pilot. Moreover, while we are not persuaded that the pilot would violate any criminal statutes, the Union has alternative avenues available if it wishes to contest its legality. Finally, because its evidence is scant, the 6-month pilot period should give the Union the opportunity to gather data in support of its contention that telephone monitoring causes employees to experience high stress levels, which could then be used in subsequent discussions over the matter. For these reasons, we shall order the adoption of the Employer’s proposal.

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 § 2471.11(a) of its regulations hereby orders the following:

    The parties shall adopt the Employer’s proposal.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

February 3, 1997

Washington, D.C.

1.The Union claims that SSA teleservice centers have double the attrition level of the rest of the agency, and employee surveys suggest that a primary cause is due to the stress from secret monitoring. In particular, the Union has pointed out that employees are extremely concerned about a situation in Golden, Colorado, where a teleservice center employee was fired in September 1995, after his supervisor secretly monitored personal telephone calls.

2.Although the Federal Information Resource Management Regulation (FIRMR), 41 C.F.R. § 201-21.603, was repealed in August 1996, the parties have agreed to follow its procedures for the purposes of this pilot. As such, FIRMR authorizes the use of secret monitoring only when at least one party consents. Unless a party either has given prior consent to the monitoring or knows that a particular telephone call is being monitored, that activity would not satisfy the requirements of FIRMR, and may violate the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. § 2510.

3.The Employer stated that in 1991, it cost $6 million to provide up-front notice to the public prior to the monitoring of telephone conversations with employees in its teleservice centers.

4.A Field Office Pilot Teleservice Evaluation, dated January 31, 1995, found that employees would transfer calls to unmonitored telephones if they “were able to detect when the office was being monitored.” In addition, when employees suspect that particular calls are being monitored, those calls “would have no value in the analysis of service delivery since they would not be representative of typical calls.” Id.

5.Article I of the parties’ MOU provides the following:

The pilot study will determine the methodology to be used to determine FO service quality; i.e., workloads, operating procedures, call routing procedures, telecommunications equipment, testing monitoring procedures and software on live calls. The pilot results will provide decision data for assessing the feasibility of conducting OPIR monitoring of FO phone accuracy in the future.

6.See Watkins v. Berry & Company, 704 F.2d 577, 581 (11th Cir. 1983) (holding that if the “employee is fully aware of the extent of the monitoring and deliberately ignored the strong probability of monitoring,” the facts would suggest implied consent).