U.S. Federal Labor Relations Authority

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United States of America




In the Matter of









Case No. 97 FSIP 117



      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 the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, between it and the Department of the Treasury, Internal Revenue Service (IRS), Philadelphia Service Center, Philadelphia, Pennsylvania (Employer).(1)

      After investigation of the request for assistance, which concerned whether a pilot 5/4-9 AWS should become "permanent" for employees in the Computer Operations Branch (COB),(2) the Panel directed the parties to meet informally with Panel Representative Sharon O. Steele for the purpose of resolving any outstanding issues. The parties were advised that if no settlement were reached, Ms. Steele would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

      Ms. Steele met with the parties on September 23, 1997, in Philadelphia, Pennsylvania. During the informal conference, the parties agreed to continue the 5/4-9 AWS for all employees in the COB except for approximately 68 computer operators and systems analysts who operate and monitor the computer systems. Settlement efforts continued through October 7, 1997, but the parties remained deadlocked. At Ms. Steele’s request, the parties submitted written statements in support of their final positions. Ms. Steele has reported to the Panel, and it has now considered the entire record.


      The Employer’s mission is to process Federal 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. The Union represents a nationwide, consolidated bargaining unit consisting of approximately 98,000 professional and nonprofessional employees. The parties’ master collective bargaining agreement (MCBA) is due to expire on June 30, 1998. A local AWS agreement runs concurrently with the MCBA.

    The dispute arose after the parties agreed to implement a 5/4-9 AWS in the COB on a trial basis in April 1996. At that time, employees electing AWS were permitted to select the starting and ending times of their shifts. In January 1997, the Employer agreed to continue the AWS trial period while the parties were negotiating over whether the schedule should be made permanent, but required that AWS employees be placed on fixed starting and ending times. The record appears to indicate that there is no AWS option currently available to COB employees on the midnight (or graveyard) shift (12 to 8:30 a.m.); and, in accordance with the changes implemented by the Employer in February 1997, AWS employees on the day shift work from 7 a.m. to 4:30 p.m, while those on the night (or swing) shift work from 3 p.m. until 12:30 a.m.


      The parties essentially disagree over whether computer operators and systems analysts in the COB should continue to have a 5/4-9 AWS option.


1. The Employer's Position

     The Employer "requests that the Panel determine" that AWS "is not appropriate" for computer operators and systems analysts primarily for two reasons: (1) the current staffing level in the COB "strains" its "ability to maintain adequate coverage of all essential computer systems," especially during the summer and winter holiday and end-of-year processing periods; and (2) the trial AWS "has resulted in employees working overlapping shifts," making it difficult for management to find appropriate work for AWS employees to perform. Concerning the former, there has been a 30-percent reduction in staffing within the COB since Fiscal Year 1988, including five employees who left in February 1997. AWS "exacerbates the shortage of operators and analysts because each [A]WS employee is unavailable for duty for 1 workday during each 2-week period." As to the overlapping of shifts, the Union’s recent survey indicates that 39 employees would avail themselves of the 5/4-9 option under the Union’s proposal. By the Employer’s calculations, this would produce over 8,000 hours of overlapping time annually during which employees would have "little, if any, appropriate work" to perform.

    The Union’s proposal "fails to address the Agency’s specific concerns regarding holiday periods and end-of-year processing periods, existing variable schedule requirements, and overlapping hour unproductive time." In particular, because of reduced coverage due to AWS during the critical holiday and end-of-year periods, leave requests may have to be denied, "with resulting resentment and loss of morale." Although the Union "verbally agreed" during the informal conference to suspend AWS during the end-of-year processing period, "its proposal does not reflect this commitment." Further, the Union’s suggestions concerning the tasks that employees could perform to minimize the impact of overlapping shifts on productivity "are normally performed by employees during their shifts." Finally, the summary of the Union’s survey purporting to demonstrate the comparability of its proposal to the practices at other IRS Service Centers is "very cursory" and "unreliable." Among other things, the results "do not reflect whether the inquiry related to the specific organizations or occupations at issue in this case."

2. The Union's Position

     The Union essentially proposes that: (1) employees in the COB not currently covered by the parties’ local AWS agreement be given the option of working a 5/4-9 AWS; (2) current non-workdays remain the same unless a change is requested by the employee, and available non-workdays be assigned to employees based on seniority; (3) there be a total of nine possible starting and ending times for operators and analysts to select from (three on each shift; only the 6 a.m. day shift would not be available for operators); (4) employees permanently assigned to the graveyard shift would begin the shift on Sunday after midnight; and (5) employees may not select Saturday as their non-workday. Considerations of fairness dictate that operators and analysts be given the same AWS options as the other employees within the COB, other branches in the Philadelphia Service Center, and other IRS Service Centers. In this connection, the Union surveyed shift managers and section chiefs at the nine other IRS Service Centers around the country. Six currently offer operators and analysts "a form of" AWS, including options for a 4-10 or 5/4-9 schedule. In addition, when employees in the COB were working the AWS under the pilot program which was in effect until February 1997, they were "more productive, more focused, less apt to use sick leave and better able to meet the varied needs and responsibilities of their families."

     As to the Employer’s contentions, "there is absolutely no evidence" that the varied starting and ending times under the pilot program created "considerable difficulty in planning and scheduling work," or hardship for shift managers. Its claim that the operators "are experienced and versed in certain systems and therefore, the risk of adverse impact is higher if certain employees are not available," if anything, "is a result of poor management" and not AWS. On the matter of minimum staffing coverage, the Employer’s assessment gives "an unrealistic picture" of what is necessary in the COB, and deviates "from the manner in which the work has been performed for several years." Finally, the assertion that there is no meaningful work for operators and analysts to perform during the overlapping shift hour "is absurd." Not only has the Union demonstrated that the work employees currently accomplish during this time is "precisely" what is in their position descriptions, and also performed during the overlapping hour at other service centers, but "management has displayed an unwillingness to explore any of the options" the Union has provided to cover "all contingencies."


    Having carefully considered the evidence and arguments in this case, in our view neither party has demonstrated that its position should serve as the basis for settling the dispute. Accordingly, for the reasons that follow, we shall essentially order the Employer to continue to provide the AWS options currently available to computer operators and systems analysts in the COB. The only modification to the status quo that we believe is warranted is the suspension of AWS during the end-of-year processing period.

    We preface our rationale for imposing this compromise solution by noting that the issue in this case is being decided under the requirements of the Statute, and not the Act.(3) Therefore, as in any other case under the Statute, the parties share equally the burden of demonstrating why their respective positions should be adopted, particularly where, as here, both sides propose to change the status quo. As indicated above, however, overall neither party has effectively supported its position to change the current AWS arrangements. In this regard, since February 1997, computer operators and systems analysts have had AWS options, albeit with starting and ending times determined by management, but the Employer has provided little more than speculation regarding any negative impact on productivity or service to its customers. The Union, on the other hand, would have the Panel expand the current AWS options to include a variety of different starting and ending times after apparently acquiescing in the Employer’s decision to scale back the initial AWS pilot program implemented in May 1996. Although it is unclear why the Union agreed to this at the time, we are nevertheless persuaded on the basis of the record that the initial AWS pilot became administratively burdensome for COB managers. Further, we conclude that reimplementing some of its more troubling features, as proposed by the Union, would be inappropriate for the same reason.

      The Employer has stated that the Union "verbally agreed" during the informal conference to suspend AWS during the end-of-year processing period because this "is a particularly busy and demanding period" within the COB. We are unable to confirm whether this occurred, but believe that there is sufficient merit in the suggestion to modify the status quo for this purpose. The number of pay periods in the end-of-year processing period, however, cannot be precisely determined from the record. Therefore, the wording in our Order is intended to accommodate a suspension of AWS for as many pay periods as is necessary to cover the end-of-year processing period.


    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: (1) maintain the current AWS options and shift schedule available to computer operators and analysts in the Computer Operations Branch; and (2) suspend AWS for computer operators and analysts during the end-of-year processing pay period(s).


By direction of the Panel.

H. Joseph Schimansky

Executive Director

November 14, 1997

Washington, D.C.

1.The Union initially requested that the matter be considered as an impasse arising from an agency head determination to terminate an alternative work schedule (AWS) under the Federal Employees Flexible and Compressed Work Schedules Act (the Act), 5 U.S.C. § 6120 et seq. The Union later amended its filing when the Employer did not produce the necessary determination from the head of the agency, as required under the Act, and requested that the matter be considered under the Statute.

2.The COB provides computer services to over 8,000 internal IRS customers through 5 mainframe computer systems on a 24-hours-per-day, 365-days-per-year basis.

3.Under the Act, the burden of demonstrating that an existing AWS has caused an adverse agency impact falls on employers. See 128 CONG. REC. H3999 (daily ed. July 12, 1982) (statement of Rep. Ferraro); and 128 CONG. REC. S7641 (daily ed. June 30, 1982) (statement of Sen. Stevens). Under § 6131(b), "adverse agency impact" is defined as:

(1) a reduction of the productivity of the agency;

(2) a diminished level of the services furnished to the public by the agency; or

(3) an increase in the cost of agency operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed work schedule).