DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE PHILADELPHIA SERVICE CENTER PHILADELPHIA, PENNSYLVANIA and CHAPTER 71, NATIONAL TREASURY EMPLOYEES UNION





United States of America



BEFORE THE FEDERAL SERVICE IMPASSES PANEL





_______________________________________

)

In the Matter of )

)

DEPARTMENT OF THE TREASURY )

INTERNAL REVENUE SERVICE )

PHILADELPHIA SERVICE CENTER )

PHILADELPHIA, PENNSYLVANIA )

)

)

and ) Case No. 92 FSIP 15

)

)

CHAPTER 71, NATIONAL TREASURY )

EMPLOYEES UNION )

)

_______________________________________)





DECISION AND ORDER

Chapter 71, National Treasury Employees Union (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of the Treasury, Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania (Employer).(1)



After investigation of the request for assistance, the Panel directed the parties to meet informally with Staff Associate Harry E. Jones for the purpose of resolving any outstanding issues. The parties were advised that if no settlement were reached, Mr. Jones would notify the Panel of the status of the dispute, including the final offers of the parties and his recommendations for resolving the issues. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.



Mr. Jones met with the parties on June 29, 1992, at the Panel's offices in Washington, D.C. At that proceeding, the parties were unable to reach agreement on the outstanding issues. Negotiations continued through July 7, 1992, but the parties remained deadlocked. At Mr. Jones' request, written briefs were submitted, which set forth the parties' respective final positions. Mr. Jones has reported to the Panel, and it has now considered the entire record.



BACKGROUND



The Employer's mission is to process tax returns and related documents and correspondence. The Philadelphia Service Center is a large pipeline operation which employs approximately 5,000 clerical and administrative employees during peak season. Employees range in grade from GS-2 through -12 and are part of a nationwide bargaining unit represented by NTEU. The parties' master agreement is due to expire in June 1994.



In June 1987, the parties executed a local agreement which provided for the implementation of alternative work schedules (AWS) at the facility. In essence, the agreement allowed employees in a number of designated work groups(2) the option of working a 5/4-9 schedule(3) and provided employees in a relatively small number of test units the option of working a 4-10 schedule.(4) The 4-10 test was to run for a 6-month period, with a review to be conducted after 3 months. At the conclusion of the test period, the 4-10 option was to be implemented on a permanent basis in all of the test units except those where it was "proven to be unsuccessful." It was also agreed that negotiations over expanding the availability of the 4-10 option would begin on May 1, 1988. The AWS agreement, which expired on January 27, 1989, has been rolled over each year since then and remains in effect pending the outcome of the instant Panel proceedings.



ISSUES



The parties are at impasse over the availability of various alternative work schedule options. Other issues include starting times, off days, workstation availability, change of schedule, and the establishment of a permanent umpire.



1. The Union's Position



The Union proposes continuation of the existing agreement modified to provide for expansion of the 4-10 option to a larger group of employees, with implementation to be accomplished through a two-step process.(5) The first step would require the parties to poll employees in units where the 5/4-9 option already exists to determine whether there are any units where all employees in the unit prefer either (1) a 5/4-9 schedule, (2) a 4-10 schedule, or (3) a straight-8 schedule.(6) Once these units are identified, they would be scheduled accordingly. If, however, the employees in a unit are not unanimous in their preference, then the second step would become operative. Under this step, at least 30 percent of the employees in the unit would have to express a desire to work a 4-10 schedule in order for the option to become available; the 5/4-9 and straight-8 options would also remain available to employees of those units.



Under this proposal, employees rated below "fully successful" would not be eligible to participate in the 4-10 option. Also, the Employer would not have to implement the second step of the proposal in those units where workstation availability would be a problem. In addition, the Employer would not be required to implement "Option #2" in those units where the work hours of the supervisor or lead employee(7) could not be arranged so that the "vast majority" of unit employees' work time is supervised by one or both.



With respect to off days, in units designated under "Option #1," all reasonable efforts would be made to maximize the number of employees who could be off from work on either Monday or Friday, with IRS seniority to be applied in the selection of off days. In work units established in accordance with "Option #2," an employee not changing his or her work schedule would retain his or her present day off; however, employees moving to a 4-10 schedule, new employees entering the unit, and any 5/4-9 employee wishing to change his or her off day would all be placed in a pool, with off days selected in accordance with IRS seniority. With respect to start times, the Union proposes that those employees who move to a 4-10 schedule be required to begin work at 6 a.m., absent just cause.



It is further proposed that the parties select a permanent umpire in the Philadelphia area to resolve disputes which may arise with respect to the interpretation of this agreement; such matters would be handled in accordance with the expedited arbitration procedure set forth in the parties' master agreement. Finally, although the parties have agreed on an expiration date, it is proposed that the Employer have the right to reopen the agreement during the seventh month following implementation so that any unforeseen circumstances may be addressed.



The Union maintains that its proposal would require minimal changes to the existing AWS agreement, thereby maintaining a sense of continuity. Since the 4-10 experiment was successful in all test units, expansion of that option to other employees at the facility is reasonable; in this regard, it is emphasized that AWS options are a form of noneconomic compensation for service center employees, the vast majority of whom work in lower graded occupations. Also, at other comparable service centers (Andover, Massachusetts; Fresno, California; and Memphis, Tennessee), employees may select their work schedule from among the three options. In its view, expansion of AWS options is likely to have a positive effect on employee morale and should enhance overall productivity.



In describing the specifics of its proposal, the Union stresses that it has built into it a number of provisions designed specifically to address concerns raised by the Employer at the informal conference. First, the 30 percent expression of interest required under "Option #2" is likely to prevent the disruption which might occur if the 4-10 option were expanded to only a small number of employees in a work unit. Moreover, elimination of the 4-10 option when "the vast majority" of the scheduled work time cannot be covered by either a supervisor or a lead employee is fair and reasonable. Also, denial of the 4-10 option to those employees rated below "fully successful" should assure that they are adequately supervised; moreover the proposed elimination of the 4-10 option where shortage of workstations would occur should protect against lost productivity due to overlap in employee schedules. Finally, a 6 a.m. start time, absent just cause, for those employees moving to a 4-10 schedule should accommodate the Employer's concern about supervisory coverage.



In the Union's view, supervisory coverage for units having varied work schedules could be accomplished by staggering the tours of duty of supervisors and lead employees; on those few occasions when there is no scheduled supervisory coverage, acting supervisors could be utilized in accordance with past practice. Furthermore, those portions of its proposal which provide for assignment of off days on the basis of IRS seniority is equitable. In addition, establishment of a permanent umpire for expedited dispute resolution should be beneficial to both parties. Finally, allowing the Employer to reopen the AWS agreement during the seventh month after implementation should allow the parties an opportunity to address problem areas and to fine-tune the agreement.



The Employer's proposal, on the other hand, could be disruptive, as employees who no longer wish to work a 4-10 schedule would have to be reassigned to another unit; in this regard, since the Employer's proposal would retain the provision which allows an employee to change his or her schedule four times per year, the workplace could be in a constant state of flux. Moreover, those provisions requiring units to revert to mixed 5/4-9 and straight-8 units when the staffing level drops below 80 percent is unfair, since the vast majority of employees would be penalized due to circumstances beyond their control; in this same vein, the 80 percent figure appears to arbitrary, as no evidence has been offered to demonstrate why the 4-10 option becomes unworkable at that point. Requiring all employees in an exclusively 4-10 unit to have the same day off appears to be overly restrictive; likewise, provisions requiring (1) that all 5/4-9 employees in a mixed 5/4-9 and 4-10 unit have the same day off, and (2) that all 4-10 employees in a mixed 5/4-9 and 4-10 unit have the same day off also appear to be unnecessary. Furthermore, the provision allowing the Employer to cap at 20 percent the number of employees who can be off on any given day in a 5/4-9 and straight-8 unit is a take back, since the current agreement does not contain such a limitation. Allowing all three options to be made available in one unit at the facility does not provide an adequate basis for evaluating such an arrangement, as there are approximately 500 separate work units at the facility. Overall, the Employer's proposal appears to be based on mere speculation that allowing employees to select their schedules from among three options will result in increased costs of supervision as well as disruption to the pipeline operation.



2. The Employer's Position

In essence, the Employer's proposal provides for retention of the 4-10 option in those units where it is currently in place as well as the creation of three other types of work units: (1) an exclusively 4-10 unit; (2) a mixed 5/4-9 and 4-10 unit; and (3) a mixed 5/4-9 and straight-8 unit. It also provides that "any employee being offered an alternative work schedule may choose to work a 5-day, 8-hour per day tour of duty." Moreover, it is proposed that in one unit at the Service Center, employees would be given the option of selecting their work schedules from among the 4-10, 5/4-9, and straight-8 options.(8)



In an exclusively 4-10 unit, all employees (1) would work a 4-10 schedule, (2) would have the same days off, and (3) would start at the same time. This type of unit could exist only if there is more than one unit performing the same type of work. Should staffing in the unit fall below 80 percent, with no qualified replacements, it would revert to a mixed 5/4-9 and straight-8 unit. The second type of unit, one where employees have the option of working either a 5/4-9 or a 4-10 schedule, would be established only if (1) there is a lead position in the unit, and (2) there is more than one unit performing the same type of work. Under this arrangement, all employees selecting a 5/4-9 schedule would have the same starting time and the same day off, with the day off being the same as one of those selected by the 4-10 employees in the unit. Should staffing fall below 80 percent, the unit would revert to a mixed 5/4-9 and straight-8 unit. Finally, in a unit where employees have the option of working either a 5/4-9 or a straight-8 schedule, the Employer again proposes restrictions on days off and starting times. With respect to the former, the Employer proposes that employees' off days be divided equally among the nonwork days authorized for the unit. Moreover, it could limit to 20 percent the number of unit employees off on any given day. Selection of days off would be determined through application of an employee's Service Computation Date, with ties being broken by unit seniority.

The Employer's proposal also contains a number of provisions, similar to those in the existing agreement, which address administration of the proposed AWS program. Employees in travel or training status would adhere to the tour of duty of the organizational segment to which they are assigned; however, employees attending training classes would "have their AWS schedule interrupted for the duration of the training." Furthermore, an employee who is temporarily reassigned or voluntarily detailed would be assigned to the regular tour of duty in the new work unit but would have the option of working an AWS if one is available; employees permanently reassigned would work the schedule of the new unit, and those involuntarily detailed would retain their existing schedules, absent a compelling reason to the contrary. Also, an employee would have four opportunities per year to change his or her work schedule;(9) these options may be exercised at any time during the year, provided that 10 work days' notice is given prior to the change. Availability of starting times would be determined by management based on the availability of workstations and managerial coverage for the unit. For newly-created organizational segments, AWS provisions would be negotiated for the affected bargaining-unit employees within 2 weeks of the activation of the unit. It is proposed that the agreement remain in effect until June 30, 1994, with an automatic 1-year rollover provision; should either party wish to modify or terminate the agreement, 10 months notice, prior to the expiration date, would be required.(10) Finally, the Employer rejects the idea of a permanent umpire as proposed by the Union.



The Employer maintains that its proposal is preferable, as it would expand AWS availability without any increase in costs. In this regard, it is asserted that the Union's proposal, which would allow employees in a number of units to select from among the 4-10, 5/4-9, and straight-8 options, would result in an increase in the cost of providing supervision. Thus, "the reason for proposing not to include an 8-hour schedule in the same unit which has a 4-10 schedule is to avoid the additional cost of providing supervision for the total number of hours per week which would be incurred if the two work schedules were offered in the same unit." Moreover, although use of a lead employee for supervisory duties is an element of each party's proposal, under the Employer's plan, the lead employee would provide supervisory coverage for only "half the time" as would be required under the Union's proposal. This would allow the lead to focus on his or her regular duties, thereby maintaining a higher level of productivity. Furthermore, limiting alternative work schedules to certain times of the year recognizes the fluctuation in workload which the service center routinely experiences.



By allowing the 4-10 option only if another unit performs the same work, no disruption to the pipeline operation would occur. Moreover, those provisions which require units to revert to a mixed 5/4-9 and straight-8 unit when the staffing level drops below 80 percent could help minimize productivity losses. Provisions requiring: (1) that all 4-10 employees in an exclusive 4-10 unit have the same off day and the same starting time; (2) that a lead position be authorized in a mixed 5/4-9 and 4-10 unit as a condition of its existence; (3) that all 5/4-9 employees in a mixed 5/4-9 and 4-10 unit have same day off; (4) that all 4-10 employees in a mixed 5/4-9 and 4-10 unit have same day off; and (5) that starting times in mixed 5/4-9 and 4-10 units be restricted, should minimize need for additional supervisory coverage. Moreover, the provision allowing the Employer to cap at 20 percent the number of employees who can be off on any given day in a mixed 5/4-9 and straight-8 unit should help minimize disruption to pipeline operation, while restrictions on starting times in those units should allow for more efficient operation. Furthermore, the provision which preserves the right of management to determine starting times based on the availability of workstations and supervisory coverage is reasonable, and allowing all three options to be made available in one unit should allow for evaluation of the arrangement before it is adopted on an expanded basis.



Allowing employees to select their work schedules from among the 4-10, 5/4-9, and straight-8 options, as proposed by the Union, could increase costs. It may also require that supervisors and lead employees rearrange their schedules in order to maximize coverage. Adoption of a 4-10 work schedule in a "one-of-a-kind" unit could slow the workflow in other units, since the facility is a pipeline operation. Moreover, as mentioned above, utilizing lead employees for full-time supervisory coverage could reduce the lead's productivity with respect to his or her regular duties. The Union's proposal fails to address the time period during which compressed work schedules would be in effect; in this regard, 4-10 and 5/4-9 schedules may be more difficult to manage during peak season. Furthermore, that portion of the Union's proposal requiring that every reasonable effort be made to maximize the number of employees who can be off on Monday and Friday may contribute to uneven workflow. Finally, the Union's proposal may have a disruptive effect on the workplace if workstations are not available for employees who work expanded hours.



CONCLUSIONS



Having considered the evidence and arguments in this case, we conclude that a modified version of the Union's proposal provides the most acceptable resolution to the impasse. In reaching this conclusion, we find no evidence to support the Employer's allegations that allowing employees to select from among the three work schedule options would result in increased costs to the agency. The Employer's proposal appears to be overly rigid, as it would require that employees seeking to change from a 4-10 work schedule be reassigned to another work unit; since the Employer's proposal would also retain that portion of the current agreement which allows an employee to change his or her schedule four times per year, under this arrangement, the workplace could be in a constant state of flux. Moreover, those provisions requiring a unit to revert to a mixed 5/4-9 and straight-8 unit when the staffing level drops below 80 percent are unfair, since the vast majority of employees would be penalized due to circumstances beyond their control; in addition, we believe the 80 percent figure to be arbitrary, as no evidence has been offered to demonstrate why the 4-10 option becomes unworkable at that point. Also, the provision which requires all employees in an exclusively 4-10 unit to have the same day off is, in our view, overly restrictive. We agree with the Union that the provision allowing the Employer to cap at 20 percent the number of employees who can be off on any given day in a mixed 5/4-9 and straight-8 unit is a take back since the current agreement does not contain such a limitation. Overall, the Employer's proposal is poorly constructed, is internally inconsistent, and is apparently based on speculation that allowing employees to select their schedules from among three options will result in increased costs of supervision as well as disruption to its operation.



The Union's proposal, on the other hand, provides a reasonable balance between the competing interests in this case. In reaching this conclusion, we note in particular the unrefuted evidence which demonstrates that this arrangement has been implemented successfully at least three other IRS service centers without adverse consequences. Moreover, given that implementation of the 4-10 option was successful in all of the units in which it was tested, we see no reason not to expand this benefit to other bargaining-unit employees at the Philadelphia Service Center. In our view, implementation of this proposal can be readily accomplished by having lead employees and acting supervisors share supervisory duties, as needed. Furthermore, we are convinced that the Union has built sufficient safeguards into its proposal which should effectively balance the Employer's mission requirements with the interests of employees. In this regard, provisions such as a required 30 percent expression of interest and elimination of the 4-10 option for poor performers should ensure that productivity is not sacrificed. Finally, while the Panel favors, in principle, the idea of establishing a permanent umpire, we believe, nevertheless, that the parties have not provided us with enough evidence upon which to base a decision on this issue. Accordingly, we order the parties to resume negotiations over that portion of the dispute.



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 the proceeding 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 Union's final offer except for that portion relating to the establishment of a permanent umpire. The parties shall resume negotiations over that portion of the dispute.



By direction of the Panel.







Linda A. Lafferty

Executive Director







August 17, 1992

Washington, D.C.

1. 1/ The Union had originally requested that the matter be considered as an impasse arising from an agency determination not to establish a compressed work schedule under the Federal Employees Flexible and Compressed Work Schedules Act. By letter dated April 3, 1992, the Union amended its filing and requested that the matter be considered under the Statute.

2. 2/ The service center consists of several large divisions. These divisions are separated into branches, branches are divided into sections, and sections are broken down into units. There are approximately 500 separate work units at the facility.

3. 3/ Under a 5/4-9 schedule, an employee works eight 9-hour days and one 8-hour day during a 2-week pay period; the employee is off on the tenth day.

4. 4/ Under a 4-10 schedule, an employee works four 10-hour days per week; the fifth day is an off day.

5. 5/ The Union has labeled these as "Option #1" and "Option #2." In our view, these are misnomers. They are actually two separate steps of an overall procedure for expanding 4-10 availability.

6. 6/ This refers to a schedule where an employee works 8 hours per day, 5 days per week.

7. 7/ A lead employee is one who is a member of the bargaining unit who performs limited supervisory functions, as necessary.

8. 8/ The Employer, in its supporting statement of position, makes reference to proposed limitations on the time periods during which AWS would be operative in certain units. Although the Employer has submitted an attachment to its final offer "which shows how its proposal applies to each organizational segment involved in the Union's proposal," there is nothing in the Employer's actual final offer which addresses the duration of alternative work schedules.

9. 9/ This portion of the Employer's proposal is somewhat confusing.

Article 5, Paragraph H, reads as follows:



Employees will have four opportunities a year to elect to go onto an alternative work schedule, or to change their tour of duty within an alternative work schedule. For purposes of this computation, the year begins on the effective date of this agreeme