United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF THE TREASURY
CHAPTER 239, NATIONAL
Case No. 04 FSIP 95
DECISION AND ORDER
Chapter 239, National Treasury Employees Union (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 Department of Treasury, Internal Revenue Service, Stockton, California (Employer).
After investigation of the request for assistance, the Panel determined that the dispute, which arises from bargaining over the relocation of employees to a new post of duty (POD) in Stockton, California, should be resolved through written submissions, including rebuttal statements. The parties also were advised that, after considering the entire record, the Panel would take whatever action it deems appropriate to resolve the dispute, which could include the issuance of a binding decision. The parties' final offers and written submissions, including Union's rebuttal statement, were received pursuant to this procedure, and the Panel has now considered the entire record.
The Employer is the nation's tax collection agency and administers the Internal Revenue Code enacted by Congress. Chapter 239 represents approximately 35 bargaining-unit employees at the Stockton POD who are part of a nationwide consolidated bargaining unit of approximately 95,000. These employees work in positions such as revenue agent, revenue officer, customer service representative, and clerk, at grades GS-4 through -13. The master collective bargaining agreement (MCBA) was negotiated in July 2002 and is due to expire in July 2006.
ISSUE AT IMPASSE
The issue in dispute is whether an accordion wall should be placed between the conference room and the break room.
POSITIONS OF THE PARTIES
1. The Employer's Position
The Employer proposes the following: The Agency or Property Manager [i.e., the building owner's representative] will place an accordion door, per Building and Fire Codes between the break room and the conference room if the following conditions are satisfied: (1) the Agency is able to obtain funding for the project; and (2) the Property Manager permits such project to go forward. Furthermore, the Agency's Real Estate & Facilities Management (REFM) Branch, Oakland, California, will request funding for said project at least once annually. The National Treasury Employees Union (NTEU) may make a written request on an annual basis to REFM, Oakland, to obtain the status of the most recent funding request. The aforementioned requests from both the Agency and NTEU will no longer be required if the project gets funded or after the conclusion of Fiscal Year 2007, whichever occurs first.
The parties had initially agreed to install an accordion door but when the projected relocation estimate was received it was $64,000 over the Tenant Improvement Allocation (TIA).1/ Therefore, in an effort to reduce expenses, "the accordion door and other above standard items" were eliminated from the plan. Since the TIA was spent in the initial phases of the POD relocation, and no additional monies are available for tenant improvement, there is no "funding for the accordion door project at the current time." Its proposal is premised upon seeking "funds from other potential sources" to pay for the accordion wall. Nonetheless, this project "would not be a priority of these other funding sources and the Agency cannot ensure that such funding will ever be obtained."
Even presuming the funding problem is solved, obstacles still must be overcome before the Union's proposal could be implemented and the accordion wall installed. For example, the building's owner is currently prohibiting any structural amendments to the Stockton facility.2/ The owner and GSA are disputing the appropriateness of $60,000 in lease-related costs. As a result, the owner "has stated that he will not agree to the installation of the accordion door, or any other alterations to the IRS space until" the monetary dispute is worked out. Since the Employer is not a party to the lease, the $60,000 in lease-related costs is not within its ability to resolve. While such impediments still would have to be overcome before implementing the Union's proposal, the Employer's proposal is ready for execution immediately and creates a reasonable approach for dealing with locating a funding source without placing an undue burden on either party.
2. The Union's Position
The Union proposes that an "accordion wall be placed between the conference room and the break room in the Stockton post of duty." The usefulness of both rooms would be significantly diminished without an accordion wall. Specifically, the
noises produced by [the break room appliances] would disturb individuals or groups attempting to use the conference room area for meetings or study . . . Conversely, the presence of such individuals or groups attempting to carry on meetings obviously 'chills' other employees' enjoyment of the break room.
A significant flaw in the Employer's proposal is that it contains no guarantee that management will make a good faith effort to obtain funding. In addition, the 3-year limitation on requesting funds "is unreasonable in that there is no showing that the need for the accordion wall will diminish at the end of that period." Since the Employer's proposal does not provide any ability to check the Employer's good faith efforts in effecting its proposal, the Panel should implement the Union's proposal.
Having carefully reviewed the evidence and arguments presented in support of the parties' positions, we conclude that an accordion wall should be placed between the conference room and the break room in the Stockton POD. In this regard, we are persuaded by the Union's assessment that the accordion wall would significantly increase the usefulness of both rooms. Furthermore, the Employer preliminarily agreed to install the wall, albeit dependent upon the representations of the building owner/lessor that it could be funded within the TIA. In such circumstances, we do not believe that the question of locating a funding source, standing alone, should preclude our adopting the Union's proposal. At the same time, we are cognizant that the Employer's ability to install an accordion wall is limited by the extent of its discretion.3/ In this instance, that discretion is constrained by the requirement that approval for the project must first be obtained from the building's owner through GSA. The Panel regrets that it has no authority to order GSA to take actions in connection with this situation. Nevertheless, we shall order the Employer to take whatever steps are necessary to install an accordion wall between the conference room and the break room.
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 Employer shall take whatever steps are necessary to install an accordion wall between the conference room and the break room in the Stockton post of duty.
By direction of the Panel.
H. Joseph Schimansky
December 23, 2004
/ The TIA "is a specific allowance provided and financed by the [Owner] for build-out of raw tenant space." The General Services Administration (GSA) sets the TIA amount for each relocation project. The TIA is initially funded by the Owner and then amortized and charged back to the Employer through a higher rental fee over a 5-year period. The TIA for the Stockton move was $306,000. As explained by the Employer, "the construction cost estimate was $370,000, which was $64,000 in excess of the authorized construction budget of $306,000."
/ The lease agreement between GSA and the owner, in relevant part, states that:
Subsequent Tenant Improvements, if applicable, shall be at the Government's sole cost and expense and shall be subject to Lessor's prior written review and approval, "which shall not be withheld unreasonably."
/ In Library of Congress and Congressional Research Employees Association, 15 FLRA 589 (1984), the Federal Labor Relations Authority held that an employer is only obligated to bargain to the extent of its discretion, which could include making recommendations to the ultimate decision-making authority.