United States of America


In the Matter of








Case Nos. 90 FSIP 173

and 90 FSIP 213


Chapter 32, National Treasury Employees Union (Union), filed requests for assistance with the Federal Service Impasses Panel (Panel) to consider two negotiation impasses under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of the Treasury, Internal Revenue Service, Denver District Office, Denver, Colorado (IRS or Employer). The Union's requests have been consolidated for the purpose of this Decision and Order.

After investigation of the requests for assistance, the Panel directed the parties to meet informally with Member Charles A. Kothe for the purpose of resolving the issues at impasse in both cases. The parties were advised that if no settlement were reached, Member Kothe would report to the Panel on the status of the disputes and his recommendations for resolving the issues. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasses including the issuance of a binding decision. No final settlements having been reached, the Panel has considered the entire record in the cases.


The Employer's mission is to administer the Federal tax laws, and includes such functions as providing tax information to the public, examining tax returns, and collecting delinquent taxes. The Union represents approximately l,000 employees, part of a nationwide-consolidated unit of about 60,000, in such jobs as tax auditor, revenue officer and agent, taxpayer service representative, and clerk-typist. The parties' collective-bargaining agreement expires in June 1994.


The impasse in Case No. 90 FSIP 173 arose from a reopener provision in a Memorandum of Understanding negotiated by the parties concerning alternative work schedules (AWS). The issue at impasse is the extent to which employees in the Automated Collection System (ACS) and Taxpayer Service (TPS) Divisions shall have the option of participating in a 4-10 AWS.(1) The impasse in Case No. 90 FSIP 213 arose from the parties' decision to reopen negotiations for the purpose of amending a previous Memorandum of Understanding governing smoking policy. Although the parties agree that smoking in Employer-controlled areas of buildings eventually should be completely prohibited, they are at impasse over the length of the phase-out period.


Case No. 90 FSIP 173

    1. The Union's Position

The Union proposes that the 4-10 option be made available to: (1) all bargaining-unit employees in the ACS Division, and (2) all bargaining-unit employees in the TPS Division, other than front-line assistors. It argues that there is adequate work available for employees on a 4-10 schedule in both divisions, and no evidence that the quality of service to the public would suffer. In this regard, the results of a 4-10 experiment conducted by the Employer should be disregarded because it "did not compile the test data as it agreed to in the Memorandum of Understanding." This resulted in a test which was incomplete, and summary test results which contain obvious inconsistencies. The test results "are invalid and were designed by the Agency to show a complete failure of 4-10," and support its contention that the Employer's opposition to its proposal is a product of personal bias. Moreover, the Employer's reluctance to agree to a 4-10 option "is confusing," particularly in the ACS Division, given that those employees "are currently working 10-hour days." Finally, should its proposal be adopted, the Employer's ability to accomplish its mission would continue to be ensured because the parties' current agreement gives it the right to deny any AWS request for bona fide workload considerations.

    2. The Employer's Position

The Employer proposes that: (1) in the ACS Division, two employees from each of four branch teams be given the option of working a 4-10 schedule; if more than two employees request such a schedule, IRS seniority would determine the two participating employees; and (2) no employees in the TPS Division be given a 4-10 option. The nature of the work performed in the ACS Division, which involves the handling by telephone of "sensitive and urgent" tax collection issues, requires that an adequate number of ACS Division employees be available during peak business hours. The efficiency of the operation "is hindered when there is a reduced workforce," as would be the case under the Union's proposal. Although it realizes that "this is not the most efficient means of operating the ACS [Division] call site," it offers to permit two ACS Division employees on each team to request a 4-10 schedule "in the spirit of compromise." Any additional employees not available during peak business hours would "significantly affect the call site's ability to accomplish [its] mission."

With respect to the TPS Division, at current staff levels the adoption of a 4-10 program is incompatible with its mission of achieving voluntary tax collection compliance through education and assistance to taxpayers. In this regard, the results of a recent experiment involving 10 employees participating in a 4-10 schedule in the TPS Division showed: (1) additional salary costs for seasonal employees called to duty to compensate for participating employees' days off; (2) increases in average leave usage for those employees compared with those on regular schedules; and (3) reductions in productivity and increases in the error rate of participating employees versus the division as a whole. Moreover, statistics compiled from the Pittsburgh District Office, where 4-10 schedules for employees in the TPS Division are available, indicate that the level of service is significantly lower than in the Denver District. This is additional evidence that the Union's proposal should be rejected.


Case No. 90 FSIP 213

Through the assistance of Member Kothe, the parties have reached virtual agreement on a new policy which would eliminate smoking in all areas controlled by the Employer. Pursuant to their understanding, these areas are divided into Categories A, B, and C. The Union essentially proposes that: (1) all areas controlled by the Employer be smoke-free within 24 months, and that the status quo be maintained in the interim; and (2) if moves into new buildings occur during that period, the Employer consider designating smoking areas in the new locations. The Employer, on the other hand, proposes that, 30 days after the parties receive the Panel's decision, smoking be phased out: (1) immediately in Category A; (2) after 6 months in Category B; and (3) after 18 months in Category C areas. The Union favors a longer phase-out period to maximize the effectiveness of smoking cessation programs, and generally to lessen the adverse impact on smokers. The Employer, however, believes that a shorter phase-out period would more appropriately balance the interests of smokers and nonsmokers.


Having considered the evidence and arguments in these cases, including the recommendations of Member Kothe, we turn first to the issue concerning AWS. With respect to the availability of 4-10 schedules in the ACS Division, we shall order that the parties adopt the Employer's position to settle this part of their dispute. In this regard, we are persuaded that permitting a maximum of two employees in each branch team to participate would reasonably balance the interests of bargaining-unit employees with the Employer's mission requirements. As to their availability in the TPS Division, the Employer relies heavily on the results of the 4-10 experiment it recently conducted in support of its view that such schedules would be totally inappropriate. The record indicates, however, that the experiment was not conducted in accordance with the terms agreed to by the parties in their Memorandum of Understanding. Accordingly, we have given the results of the study little weight in our deliberations. Thus, the Employer's arguments as to the suitability of the 4-10 option for employees in the TPS Division appear to be speculative, particularly in light of the fact that it retains the right to deny any AWS request on the basis of bona fide workload considerations.

Accordingly, we shall order the parties to adopt a compromise position regarding 4-10 work schedules in the TPS Division whereby two employees from each team within the Problem Resolution Program, Technical Backup, Written Accounts Referral, and Quality Assurance groups shall have the option of working such schedules. If more than two employees request such a schedule, IRS seniority shall determine the two participating employees from within each team. As we indicated with respect to the ACS Division, we believe that this compromise represents a reasonable balancing of the equities involved. We note that, in addition to the parties' agreement permitting the Employer to deny AWS requests when it concludes that its mission would be adversely affected, the Federal Employees Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. 6120 et seq., provides for the termination of AWS programs which cause an adverse agency impact.(2) We find that these provisions adequately protect the Employer's mission requirements.

Concerning the remaining issue, we are persuaded that a compromise should be adopted to settle the parties' impasse over the length of the phase-out period for the elimination of smoking in Employer-controlled areas. In this regard, we shall order that 30 days after the date of this Decision and Order, smoking shall cease completely within: (1) 6 months for areas in Category A; (2) 12 months for Category B; and (3) 21 months in Category C. In our view, a minimum of 6 months should be provided to enable smokers who work in Category A areas to participate in smoking cessation programs before completely eliminating their access to Employer-controlled designated-smoking areas. Moreover, a 21-month