DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE FRESNO SERVICE CENTER FRESNO, CALIFORNIA and CHAPTER 97, 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
FRESNO SERVICE CENTER
CHAPTER 97, NATIONAL TREASURY
Case No. 97 FSIP 102
DECISION AND ORDER
Chapter 97, 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 the Treasury, Internal Revenue Service, Fresno Service Center, Fresno, California (Employer or FSC).
After investigation of the request for assistance, the Panel determined that the dispute, which concerned two alternative work schedules (AWS) issues arising during renegotiations of a local AWS agreement, should be resolved through an informal conference between a Panel representative and the parties. If no settlement were reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendation for resolving the matter. 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.
Pursuant to the Panel's determination, Panel Member Dolly M. Gee met with the parties on September 22, 1997, at the Employer’s office in Fresno, California, but they were unable to resolve the one remaining issue.(1) Subsequent to the meeting, at Ms. Gee’s request, the parties submitted written statements in support of their final proposals. Ms. Gee has reported to the Panel, and it has now considered the entire record.
The Employer is responsible for processing Federal tax returns and related documents received from taxpayers in Central and Southern California. The Union represents approximately 5,600 full-time and 2,000 seasonal General Schedule (GS) employees who are part of a nationwide, consolidated bargaining unit of approximately 98,000. They occupy various administrative and clerical positions in pay grades GS-2 through -11. The parties are covered by a master collective-bargaining agreement (MCBA) known as NC IV, which is due to expire on June 30, 1998.
ISSUE AT IMPASSE
The parties essentially disagree over the procedure that should be used to restrict employees’ choice of scheduled off days under a 5/4-9 CWS.
POSITIONS OF THE PARTIES
1. The Employer's Position
The Employer proposes to add the following paragraph to wording previously agreed to by the parties (section 3.E.):
When the days off for a 5/4-9 work schedule are listed as "any day 25 [percent]," the number of employees who may be off on any given day is limited to no more than 25 [percent]. An employee may bid for any day off in the pay period. However, if there is an odd number of people and an unacceptable balance occurs, management has the right to restrict the days off to the percentages listed.(2) Example: If there are [five] perm[anent employees] bidding for 5/4-9 and each bids a Monday or Friday off, management may, based on workload demands, deny the person with the least seniority a Monday or Friday. That person may receive a Tuesday, Wednesday, or Thursday off.
This proposal balances employees’ interest in having flexibility in their work schedules and the Employer’s in operational efficiency. In this regard, it is "[i]ndisputabl[e]" that, with the addition of a 4-10 CWS option and the increase in the number of work units whose employees can work a CWS, fewer employees would work Mondays and Fridays, the "busiest and heaviest workload days for a majority of the 400 work units." Given "the nature" of the FSC’s work, at least 75 percent of its workforce needs to be present on any given day. If more than 25 percent of employees working a 5/4-9 CWS in a unit are consistently allowed to take the same day off, it will "ultimately impact  the service provided the taxpaying public." To ensure that 75 percent of the workforce is at work each day, it proposes strictly to limit to 25 percent the number of employees on a 5/4-9 CWS who can be off on any Monday or Friday. This restriction is consistent with those in place at other Service Centers such as the Brookhaven Service Center in New York, the Austin Service Center in Texas, the Ogden Service Center in Utah, and the Kansas City Service Center in Kansas. It also is consistent with earlier Panel decisions.(3) It is "inexplicable" why the Union would agree to such a restriction for employees working a 4-10 CWS, but not for those under a 5/4-9 CWS.
As for the Union’s proposal, it violates § 6122(a) of the Federal Employees Flexible and Compressed Work Schedules Act (Act), which "mandates" that an election by an employee is "subject to the Agency’s authority to ensure that the duties of their positions are fulfilled."(4) The proposal also violates Article 43, § 1B(2)(p) of the MCBA, and § 6130(a) of the Act, by providing for the resolution of disputes over the selection of days off through negotiations. This MCBA provision expressly provides for arbitration as the forum for resolving AWS disputes, while § 6130(a) of the Act subjects the AWS agreement to the terms of the MCBA. Moreover, the proposal is inconsistent with the parties’ past practice of resolving AWS disputes through the contractual grievance and arbitration procedures. To the extent that the proposal allows for employees to stay on their selected schedules pending the resolution of disputes, it is contrary to the MCBA which would allow FSC to assign the employee to another off day. Further, under § 6131 of the Act, only disputes over the implementation and termination of AWS are subject to negotiations, and not those over "AWS contract applications" such as the Employer’s "enforcement of the 25 percent limitation."
On the merits, the Union’s proposal is "shortsighted and unreasonable." In this regard, it allows employees on a 5/4-9 CWS to select their off days "without limitation," which "disregards the Agency’s mission requirements." Also, it interferes with management’s efforts to ensure that "productivity is not harmed." The Union does not give reasons for its proposal other than "political" ones. Finally, the proposal is unacceptable because it allows employees to stay on their selected schedules while disputes are being resolved, which "would destroy efficiency."
2. The Union's Position
The Union proposes the following addition to section 3.E.:
Should an odd number of employees in a unit select a 5/4-9 schedule with Monday or Friday as their off day, the least senior employees will be assigned to either a Monday or Friday off in accordance with past practice, notwithstanding the 25 [percent] distribution rate on Mon[day]/Fri[day] off.
Should the assignment of an odd number [of] employees to a Monday/Friday day off combined with the selection of a Monday or Friday day off for those employees selecting a 4/10 work schedule result in fewer employees than needed to perform the necessary work in a unit on either day (Mon[day] or Fri[day]), management will notify the Union, and the Union may request to bargain in good faith over the resolution of the matter. It is understood by the parties that a failure to resolve this matter through bargaining in good faith between the parties may be referred to the FMCS and to the Federal Service Impasses Panel, if necessary. In units where management identifies such a situation, existing AWS schedules will continue in effect pending resolution of the dispute.
Employees opting for a 5/4-9 schedule may select a Tuesday, Wednesday, or Thursday as their day off, provided that day has not been identified as a critical cycle day by the parties.
Employees may not be involuntarily assigned to Tuesday, Wednesday or Thursday off unless specifically agreed elsewhere in this Agreement.
Its proposal preserves the parties’ "long-standing past practice" of permitting all employees to select a Monday or Friday every other week as their off day under a 5/4-9 CWS; this was so even when the number of employees selecting a 5/4-9 CWS was a number "not evenly divisible by four." In practice, when an odd number of employees opted to work a 5/4-9 CWS, more than 25 percent of them have been allowed to select every other Monday or Friday as their off day. It is clear, therefore, that the "25 percent language" was "intended to mean an equal distribution between the four options for off days." Since it would be "the exception rather than the rule" that an even number of employees in each work unit would elect to work a 5/4-9 CWS, the interpretation the parties have given such language has been that "‘no less than 25 percent’ rather than ‘no more than 25 percent’" may be off on Mondays or Fridays.
Notwithstanding this interpretation, the number of employees who would be off on any given Monday or Friday would not "vary significantly from the 25 percent goal." In those situations where the Employer believes it is unable to get the work done because of the number of employees that are off, the Union proposes that the parties negotiate over changes to the employees’ off days; the employees, however, would remain on their selected schedules until the matter is resolved. In this regard, during the many years employees have been working CWSs, the parties have been able to resolve all problems that have arisen by: (1) getting employees voluntarily to change their schedules; (2) assigning supervisors to do the work; and (3) temporarily detailing employees from a work area where "the work is slow." Overall, its proposal "is more reasonable and consistent with the policies of the Panel."
The Employer’s proposal, on the other hand, gives management "carte blanche" to assign 5/4-9 employees to other than a Monday or Friday off, and is contrary to past practice. Since the reason an employee selects a 5/4-9 CWS is to get a 3-day weekend every other week, the Employer’s proposal represents a "significant loss of a CWS option." Moreover, the "new restriction" sought by the Employer is not necessary given that the parties have already agreed that: (1) the 4-10 CWS option will not be available in all work units and (2) there will be a limit on the number of employees who can be off on days identified as "critical." Finally, it is "speculative" that problems will arise without a strict 25-percent rule.
Upon careful review of the evidence and arguments presented by the parties, we shall order the adoption of a modified version of the Union’s proposal. Regarding the parties’ 25-percent rule, we note that the Employer does not dispute the Union’s claim that, in practice, the rule has been applied loosely when an odd number of employees in a work unit has elected to work a 5/4-9 CWS. Nor do we believe that it has demonstrated a need for changing their past practice at this time. In this regard, the Employer does not provide evidence that the practice has, for example, reduced productivity or had a negative impact on customer service. Therefore, its concern that such problems will arise if the rule is not strictly applied once the 4-10 CWS option is added appears to be speculative. This is also why we support the Union’s proposal that existing schedules should remain in effect if disputes arise concerning adverse impact. The Employer cites no applicable provision of the MCBA that would be violated by adopting such wording, nor is any otherwise apparent.
On another aspect of the dispute resolution process, however, we find it necessary to modify the Union’s proposal. In our view, disputes over the scheduling of days off should be resolved through the expedited arbitration procedure set forth in the MCBA. This is consistent with Article 43, § 1B(2)(p) of the MCBA, which requires that the parties use expedited arbitration to resolve AWS disputes. Moreover, we are not persuaded by the Union’s argument that negotiations resulting in future impasses would provide a more efficient and effective way of resolving them. Finally, we will also modify the Union’s proposal to specify that empl