DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE WASHINGTON, D.C. and NATIONAL TREASURY EMPLOYEES UNION
States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE
NATIONAL TREASURY EMPLOYEES UNION
Case No. 03 FSIP 178
DECISION AND ORDER
The National Treasury Employees Union (Union or NTEU), 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 Department of the Treasury,
Internal Revenue Service, Washington, D.C. (Employer or IRS).
After investigation of the request for assistance, the Panel determined that the
dispute, which involves the implementation of a maxiflex pilot program, should
be resolved through an informal conference with Panel Member Grace
Flores-Hughes. The parties were
informed that if no settlement was reached, Member Flores-Hughes would notify
the Panel of the status of the dispute, including the parties’ final offers
and her recommendations for resolving the impasse.
After considering this information, the Panel would resolve the dispute
by taking whatever action it deems appropriate, which could include the issuance
of a binding decision.
Pursuant to this procedural determination, Member Flores-Hughes convened a
meeting with the parties on April 15, 2004.
During that session, numerous issues were resolved.
At its close, however, four issues remained in dispute.
The parties submitted post-conference statements in support of their
final offers on these issues. Member
Flores-Hughes has reported to the Panel and it has now considered the entire
record, including the parties’ post-conference statements of position.
The Employer’s mission is to fairly enforce tax laws, respect taxpayer rights,
collect taxes and help educate the taxpayer.
The Union represents a bargaining unit which consists of approximately
90,000 professional and non-professional employees stationed at facilities and
offices nationwide. The parties are
covered by a National Agreement (NA) that went into effect on July 1, 2002, for
a 4-year term ending June 30, 2006. During
the course of bargaining their successor NA, the parties executed a Memorandum
of Understanding on February 11, 2002, wherein they agreed to negotiate
separately over the terms and conditions of a pilot program for a maxiflex work
schedule. Those negotiations led to
this request for assistance. The
parties already have agreed to test a maxiflex work schedule among a
pre-determined group of approximately 4,000 bargaining-unit employees who will
have the option of working that schedule for a 1-year period.
The parties disagree over: (1) whether employees who currently have a flexiplace
work arrangement would be eligible to participate in the maxiflex pilot program;
(2) the maximum number of hours an employee may work each day under a maxiflex
schedule; (3) the definition of “core hours” and whether “situational
maxiflex” (special maxiflex work schedule arrangements) should be available to
employees; and (4) the number of non-core hour days in each bi-weekly pay
Combining a Maxiflex Work Schedule with Flexiplace
a. The Union’s
The Union proposes that employees who currently work under a flexiplace
arrangement in accordance with Article 50, Section 1C of the NA, be eligible to
participate in the maxiflex pilot from an alternative worksite. In its view, the purpose of the pilot program is to study how
well maxiflex schedules work among the test group and, therefore, this is an
appropriate time to experiment with different variables, such as the effect of
combining two work schedule programs. Permitting
such experimentation also would ensure adequate participation in the pilot
because those who currently have flexiplace are not likely to abandon their
flexiplace arrangement to work an office-based maxiflex schedule.
This is particularly true for two key groups of employees, revenue
officers and revenue agents, many of whom have flexiplace arrangements.
Without the information that its proposal would provide, the parties
would be inhibited in their assessment of the maxiflex work schedule after the
Safeguards exist for the Employer to ensure that work schedules are compatible
with its mission. In this regard,
ultimately, management would have control in determining the feasibility of
combining the schedules because it retains the discretion to approve work
schedule requests submitted by employees. In
addition, the Employer would have the right to initiate termination of a
combined flexiplace/maxiflex work arrangement before the 1-year pilot ends, if
it has evidence that the combination of the two is having an adverse impact upon
agency operations. Finally, the
Union’s proposal is supported by a report on flexiplace issued by the Office
of Personnel Management (OPM) and the General Services Administration, dated May
30, 2001, which states that “hours of work flexibility is a critical element
in the effectiveness of teleworking programs.” The report recommends that a
Government-wide policy be developed requiring agencies to “adopt maximum
flexibility in determining work schedules for employees, including those who
telework to optimize the effectiveness of these arrangements.”
Its proposal would help meet this objective by enhancing work hour
flexibility for those on flexiplace.
The Employer’s Position
The Employer proposes
that “(e)mployees may not simultaneously participate in the Maxiflex Pilot and
Flexiplace programs established under Article 50, of the National Agreement.”
Limiting employees to one
type of alternative work schedule (AWS) at a time would allow the parties to
obtain “the best possible data during the test period,” and provide a better
test environment than mixing maxiflex and flexiplace.
In the past, the Employer has “rolled out” other AWSs without
adequate measurements, which turned out to be a mistake; management now is
trying to correct this defect with the maxiflex pilot.
Managers also have serious concerns about the impact of flexiplace on
productivity; allowing employees who have flexiplace to participate in the
maxiflex pilot would introduce another variable into the analysis of the impact
of maxiflex. For these reasons, it would be preferable to test at a later
point a combination of maxiflex and flexiplace work schedules, after the results
of the maxiflex pilot are known.
Having thoroughly considered the evidence and arguments presented by the parties
on this issue, we are persuaded that the maxiflex pilot should include
participants in the flexiplace program. The
Employer’s concern about the negative effect of combining maxiflex and
flexiplace is largely speculative. In
this regard, there is no prohibition within Article 50 of the NA against
employees working both flexiplace and an AWS,/
and no evidence in the record to show either that there are problems with
flexiplace, or that employees who currently combine flexiplace with a 4/10
compressed work schedule (CWS) are having difficulties with productivity or
serving the needs of taxpayers. Moreover,
by effectively excluding revenue agents and revenue officers from participating
in the maxiflex pilot, the Employer’s proposal appears to make the pilot less
meaningful. The Union’s proposal,
on the other hand, would determine how well maxiflex works with flexiplace and,
in our view, the appropriate time to test their compatibility is during the
1-year pilot. Finally, there are
adequate protections in place for the Employer, which has the discretion to
approve work schedule requests for the pilot and take steps under 5 U.S.C. §
6131(c)(3)(A) of the Federal Employees Flexible and Compressed Work
Schedules Act if it has evidence that the combination of maxiflex and flexiplace
is having an adverse impact on agency operations.
Accordingly, we shall order the adoption of the Union’s proposal.
2. The Maximum Number of Hours an Employee May Work Under the Maxiflex Pilot Program
The Union’s Position
The Union proposes that employees be able to “elect to work up to a maximum of
10 hours per day (excluding credit hours/),
Monday through Friday, subject to supervisory approval.”
The effect of the proposal would be to permit employees who
participate in the pilot the option of working a maximum of 12 hours a day (10
hours plus 2 credit hours), on any day of the week, Monday through Friday.
Ultimately, the Employer would retain control over the number of hours an
employee works because credit hours require supervisory approval. Its proposal would provide for a more flexible schedule than
the current work schedule options available to employees while enhancing service
to the public, and should be included as an element of the maxiflex pilot to
test the feasibility of working 12-hour days.
In other agreements between the parties, the Employer has allowed
employees to work 12-hour days, or longer.
Having the flexibility to work a 12-hour day would help employees contend
with work exigencies, which may require longer workdays.
With respect to benefiting the Employer’s mission, lengthening the
workday would permit employees to meet at the taxpayer’s convenience.
In this regard, some taxpayers, especially small business owners, prefer
to meet with IRS employees before or after the taxpayer’s business hours.
b. Adopt the Employer’s Position
The Employer proposes that employees in the maxiflex pilot be able to “elect
to work up to a maximum of 10 hours per day (including credit hours), Monday
through Friday, subject to prior supervisory approval.”
Limiting employees to 10-hour workdays should prove less fatiguing
than working a longer day. In fact,
even the Union has recognized that working any shift longer than 8 hours poses
health and safety issues for employees, which is why Article 28 of the NA
permits additional break time for employees who work 9 and 10-hour shifts.
After carefully considering the parties’ proposals and positions on this
issue, we conclude that the impasse should be resolved on the basis of a
modified version of the Union’s proposal.
In our view, it makes better business sense for management to at least
have the option of authorizing a workday that is longer than 10 hours to foster
productivity and enhance service to taxpayers.
Maxiflex schedules are intended to provide greater flexibility for
employees and managers and, therefore, we see no reason to exclude the option of
a 12-hour day from the test. The
Union’s proposal shall be modified, however, to make it clear that the option
of working up to 12 hours per day is subject to prior supervisory
approval. In this regard, the Union’s
wording does not mention the timing of such approval, and our modification would
make it clear that advance approval by a supervisor is necessary for an employee
to work a longer day. This should
help to prevent situations where an employee works a 12-hour day and then, after
the fact, attempts to obtain supervisory consent.
3. Definition of Core Hours and “Situational Maxiflex” for Employees
a. The Union’s Position
The Union defines “core hours” as:
(t)he hours during the workday, workweek or pay period in which all employees covered by this Maxiflex Pilot must be available to perform work or be on approved absence. If, however, the employee makes a request to work a special maxiflex schedule due to personal circumstances or to complete a time-sensitive work project (i.e. Situational Maxiflex), the core hours will be defined according to the specific schedule which has been requested and approved by the employee’s manager.
its view, “situational maxiflex” would give employees and managers
the flexibility to react to unplanned events that occur during the course of an
employee’s work life. Where the
Employer’s workload changes, or an employee has an emergency, management could
approve an adjustment to the work schedule.
By doing so, employees would not have to use their leave time, thereby
remaining available to perform work. The
proposal would allow maximum flexibility for both parties, with management
retaining the ability to manage workload. The
Employer also would retain control over work schedules because supervisors have
the authority to approve or deny individual requests.
Employer’s proposal, core hours are defined as “the hours during the
workday, workweek or pay period in which all employees covered by this Maxiflex
Pilot must be present for work or be on approved absence.”
Its wording should be adopted because it is identical to the
definition of core hours used by OPM in its Handbook of Alternative Work
Schedules, and its meaning appears clear and unambiguous.
There is no need for “situation maxiflex,” as proposed by the Union,
because the Employer already has the authority to modify work schedules to
accommodate exigencies and unforeseen events.
Having fully reviewed
the record developed by the parties on this issue, we shall order that the
dispute be resolved on the basis of the Employer’s position. In our view, the Union’s proposed definition of core hours
as the time during a workday when employees must be “available to perform
work” is unclear, particularly when applied to employees who are working under
a flexiplace arrangement. In
addition, a separate provision for “situational maxiflex” appears to be
unnecessary because supervisors already have the ability to accommodate
variations to work schedules that may be needed due to workload exigencies or
employee emergencies. Furthermore,
since employees may request changes in their maxiflex schedules quarterly,
additional flexibility to alter schedules more frequently appears unnecessary.
Finally, including a provision for “situational maxiflex” may
encourage ad hoc schedule changes. If
situational maxiflex is approved too frequently, it could dilute the accuracy of
the maxiflex pilot results.
4. Number of Non-core Hour Days in a Bi-weekly Pay Period
a. The Union’s Position
The Union proposes that “employees may request any day (up to 2 days per pay period) as their non-core hour day/ subject to prior supervisory approval and consistent with the provisions of this agreement.” Its proposed wording is similar to the practice under the 4/10 CWS currently available to employees, so the Employer should be accustomed to managing work schedules that include 2 non-core hour days in a bi-weekly pay period. Employees merely would be permitted to “retain their current level of benefits without increasing managerial burden.” Since employees are required to select their work schedules each quarter and adhere to them, managers would have ample advance notice of an employee’s hours. As with all other work schedules, under the maxiflex pilot management would retain control over whether to approve or deny an employee request to work 1 or 2 non-core hour days a pay period.
The Employer proposes that core hours for the maxiflex pilot should be from 9 a.m. to 2:30 p.m. “on 9 workdays of the bi-weekly pay period.”/ Employees would be able to “request any 1 day of the pay period as their non-core hour day subject to prior supervisory approval and consistent with the provisions of this agreement.” Limiting non-core hour days to 1 per pay period would reduce the burden on management to coordinate work schedules that meet the needs of the agency. Moreover, management is more likely to approve bi-weekly work schedules that have 9, rather than 8, core-hour days because it would be assured of employees’ presence for work on all but 1 day each pay period. Since few employees currently work the 4/10 CWS, which gives them 2 non-core hour days each pay period, even if they are permitted the option under the maxiflex pilot, employees probably would not request such schedules.
Upon through examination of the parties’ positions on this issue, we
find that the dispute over the number of non-core hour days in a pay period
should be resolved on the basis of the Union’s position.
In this regard, the Employer’s proposal for 1 non-core hour day each
pay period is more restrictive than what is currently available to employees,
and essentially would make the maxiflex pilot little more than a 5-4/9 CWS.
A maxiflex work schedule with such limitations may reduce employees’
participation in the pilot by requiring them to relinquish scheduling
flexibilities they currently enjoy. The
Union’s proposal, on the other hand, is consistent with a current
work-schedule option that offers employees the ability to schedule 2 non-core
hour days each bi-weekly pay period, and would not provide a disincentive to
participation in the maxiflex pilot Program.
Therefore, we shall order the adoption of the Union’s proposal.
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:
a Maxiflex Work Schedule with Flexiplace
The parties shall adopt the Union’s proposal.
The Maximum Number of Hours an Employee May Work in a Workday Under
the Maxiflex Pilot Program
The parties shall adopt the Union’s proposal, modified as follows:
“Employees may elect to work up to a maximum of 10-hours per day
(excluding credit hours), Monday through Friday, subject to prior supervisory
Definition of Core Hours and “Situational Maxiflex” for Employees
Number of Non-core Hour Days in a Bi-weekly Pay Period
The parties shall adopt the Union’s proposal.
By direction of the Panel.
Ellen J. Kolansky
Acting Executive Director
June 16, 2004
Article 50, Section 1.C., states, specifically, that for those on
flexiplace, the configuration of their work schedules shall not be limited
“as long as the scheduling is not disruptive to the work that remains in
the office nor cause[s] an unreasonable burden on those who choose not to
work a flexiplace arrangement.”
/ The parties have agreed that employees participating in the maxiflex pilot will be permitted to earn a maximum of 2 credit hours per regularly-scheduled workday.
On a “non-core hour day” an employee does not have to be present
for work. For example, under a
4/10 CWS, an employee works 4 10-hour days with 1 regularly scheduled day
off (RDO); the RDO is the employees’ non-core hour day for that week.
Two such non-core hour days in a bi-weekly pay period are permitted
under a 4/10 CWS.