Agency argues most employees are still teleworking to the maximum extent possible and there has been no major change in work arrangements that would require negotiation.
A union representing employees at the Social Security Administration accused the agency of withholding basic information and refusing to bargain over reopening procedures, even as some employees have been called back into physical offices.
The American Federation of Government Employees has been urging Social Security to bargain over how employees will return to the office since June, after managers at the agency began asking employees about whether they fell into so-called “high risk categories” for health complications related to the coronavirus. And in late June, union officials began receiving reports that managers have been calling small numbers of employees to field offices for part of the week to help out with nonportable workloads like mail and “dire need” cases that require face-to-face contact with the public.
“It seems like management is generally overwhelmed with the paperwork,” said Ralph de Juliis, president of AFGE Council 220, which represents Social Security Administration field office employees. “[Generally], the employees who have contacted me directly are going into the office for three or four days a week, although we don’t know how many days all of these employees are going in or every [field office] asking them to come in.”
Occupational Safety and Health Administration rules state that a workplace must be “free from recognized hazards that are causing or are likely to cause death or serious physical harm,” which AFGE says applies to the ongoing COVID-19 pandemic, regardless of whether an employee is considered high risk for complications from the virus.
“The [OSHA] General Duty Clause does not apply only to employees who have ‘underlying conditions,’ ‘instructions from certified medical professionals’ or ‘dependent care issues,’ ” wrote Bill Price, first vice president of AFGE Council 220, in a June email to management. “The clause does not state that the agency can take calculated risks with the lives of the employees—not when employees are currently working in a safe [alternate duty station], giving the agency a safe and available alternative which is both feasible and useful.”
Despite the fact that some agency employees have been instructed to return to the office, albeit on a part-time basis, the Social Security Administration has repeatedly said efforts to negotiate how employees return to physical work sites are “premature.”
“As noted in the June 16 message from Commissioner [Andrew] Saul, employees will continue to telework to the maximum extent possible,” wrote Jim Julian, associate commissioner for labor-management and employee relations, in a July email after employees were asked to return to the office. “The agency is not proposing to change current arrangements at this time. There are situations where limited numbers of employees are coming into the office to address nonportable workloads.”
And in August, the agency denied information requests related to how many employees have been asked to return to field offices, citing the lack of specific instances of litigation relevant to the request. But Federal Labor Relations Authority precedent states that agencies must comply with information requests in instances when a union is only “considering” whether to file litigation or a grievance. The agency did not respond to a request for comment.
On Monday, AFGE filed an unfair labor practice complaint, alleging that the agency has ignored its demands to bargain and that the agency unlawfully denied valid information requests. De Juliis said the union’s biggest concern is that the agency will slowly ramp up the number of employees required to return to physical offices without negotiating with the union and, crucially, without adequate safety measures in place.
“That’s our fear, that it’s going to be a little bit here and a little bit there, and they’ll say, ‘We’re not going to bargain, this is just a pilot test,’ and so our fear is this is how SSA is going to do everything [to fully reopen] without bargaining,” de Juliis said. “One of the things we need to bargain is to make sure there is social distancing and [there are] cleaning protocols in place. Right now, if you go to a grocery store, there’s an employee who wipes down all of the carts before another person can use them. Well, is that going to happen in all of the offices? Who will clean where members of the public have been before the next person comes in?”
Over the past two years, unions have largely avoided the unfair labor practice process in favor of grievances and arbitration, because the lack of a general counsel at the FLRA has halted all action on those complaints. While grievances grant unions the opportunity to receive adjudication before the FLRA, they can take a year or longer to get to that point. But with an election just months away, de Juliis said he hopes the union can get relief quicker this way.
“Our hope is that the FLRA [investigators] will say, ‘Yes, we’ll issue a complaint when we get a general counsel,’” he said. “And then after election happens there will be a different administration and we’ll have a new general counsel and new FLRA members who will say, ‘We have to fix all the wrongs that have been done . . . Plus, we have pending grievances now, and SSA has said they won’t do Zoom hearings and that we’ll have to wait until next year when we figure out how to bring arbitrators behind the firewall to use Skype or can resume face-to-face hearings.”