United States of America 

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE WASHINGTON, D.C.
and  NATIONAL TREASURY EMPLOYEES UNION	Case No. 03 FSIP 178

 
DECISION AND ORDER 

    The National Treasury Employees Union (Union or NTEU), 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, Washington, D.C. (Employer or IRS). 

    After investigation of the request for assistance, the Panel determined that the dispute, which involves the implementation of a maxiflex pilot program, should be resolved through an informal conference with Panel Member Grace Flores-Hughes.  The parties were informed that if no settlement was reached, Member Flores-Hughes would notify the Panel of the status of the dispute, including the parties’ final offers and her recommendations for resolving the impasse.  After considering this information, the Panel would resolve the dispute by taking whatever action it deems appropriate, which could include the issuance of a binding decision. 

    Pursuant to this procedural determination, Member Flores-Hughes convened a meeting with the parties on April 15, 2004.  During that session, numerous issues were resolved.  At its close, however, four issues remained in dispute.  The parties submitted post-conference statements in support of their final offers on these issues.  Member Flores-Hughes has reported to the Panel and it has now considered the entire record, including the parties’ post-conference statements of position.  

BACKGROUND
 

    The Employer’s mission is to fairly enforce tax laws, respect taxpayer rights, collect taxes and help educate the taxpayer.  The Union represents a bargaining unit which consists of approximately 90,000 professional and non-professional employees stationed at facilities and offices nationwide.  The parties are covered by a National Agreement (NA) that went into effect on July 1, 2002, for a 4-year term ending June 30, 2006.  During the course of bargaining their successor NA, the parties executed a Memorandum of Understanding on February 11, 2002, wherein they agreed to negotiate separately over the terms and conditions of a pilot program for a maxiflex work schedule.  Those negotiations led to this request for assistance.  The parties already have agreed to test a maxiflex work schedule among a pre-determined group of approximately 4,000 bargaining-unit employees who will have the option of working that schedule for a 1-year period.

ISSUES

    The parties disagree over: (1) whether employees who currently have a flexiplace work arrangement would be eligible to participate in the maxiflex pilot program; (2) the maximum number of hours an employee may work each day under a maxiflex schedule; (3) the definition of “core hours” and whether “situational maxiflex” (special maxiflex work schedule arrangements) should be available to employees; and (4) the number of non-core hour days in each bi-weekly pay period. 

1.     Combining a Maxiflex Work Schedule with Flexiplace  

    a.     The Union’s Position  

    The Union proposes that employees who currently work under a flexiplace arrangement in accordance with Article 50, Section 1C of the NA, be eligible to participate in the maxiflex pilot from an alternative worksite.  In its view, the purpose of the pilot program is to study how well maxiflex schedules work among the test group and, therefore, this is an appropriate time to experiment with different variables, such as the effect of combining two work schedule programs.  Permitting such experimentation also would ensure adequate participation in the pilot because those who currently have flexiplace are not likely to abandon their flexiplace arrangement to work an office-based maxiflex schedule.  This is particularly true for two key groups of employees, revenue officers and revenue agents, many of whom have flexiplace arrangements.  Without the information that its proposal would provide, the parties would be inhibited in their assessment of the maxiflex work schedule after the pilot concludes. 

    Safeguards exist for the Employer to ensure that work schedules are compatible with its mission.  In this regard, ultimately, management would have control in determining the feasibility of combining the schedules because it retains the discretion to approve work schedule requests submitted by employees.  In addition, the Employer would have the right to initiate termination of a combined flexiplace/maxiflex work arrangement before the 1-year pilot ends, if it has evidence that the combination of the two is having an adverse impact upon agency operations.  Finally, the Union’s proposal is supported by a report on flexiplace issued by the Office of Personnel Management (OPM) and the General Services Administration, dated May 30, 2001, which states that “hours of work flexibility is a critical element in the effectiveness of teleworking programs.” The report recommends that a Government-wide policy be developed requiring agencies to “adopt maximum flexibility in determining work schedules for employees, including those who telework to optimize the effectiveness of these arrangements.”  Its proposal would help meet this objective by enhancing work hour flexibility for those on flexiplace. 

b.     The Employer’s Position

    The Employer proposes that “(e)mployees may not simultaneously participate in the Maxiflex Pilot and Flexiplace programs established under Article 50, of the National Agreement.”  Limiting employees to one type of alternative work schedule (AWS) at a time would allow the parties to obtain “the best possible data during the test period,” and provide a better test environment than mixing maxiflex and flexiplace.  In the past, the Employer has “rolled out” other AWSs without adequate measurements, which turned out to be a mistake; management now is trying to correct this defect with the maxiflex pilot.  Managers also have serious concerns about the impact of flexiplace on productivity; allowing employees who have flexiplace to participate in the maxiflex pilot would introduce another variable into the analysis of the impact of maxiflex.  For these reasons, it would be preferable to test at a later point a combination of maxiflex and flexiplace work schedules, after the results of the maxiflex pilot are known. 

CONCLUSIONS

    Having thoroughly considered the evidence and arguments presented by the parties on this issue, we are persuaded that the maxiflex pilot should include participants in the flexiplace program.  The Employer’s concern about the negative effect of combining maxiflex and flexiplace is largely speculative.  In this regard, there is no prohibition within Article 50 of the NA against employees working both flexiplace and an AWS,[1]^/ and no evidence in the record to show either that there are problems with flexiplace, or that employees who currently combine flexiplace with a 4/10 compressed work schedule (CWS) are having difficulties with productivity or serving the needs of taxpayers.  Moreover, by effectively excluding revenue agents and revenue officers from participating in the maxiflex pilot, the Employer’s proposal appears to make the pilot less meaningful.  The Union’s proposal, on the other hand, would determine how well maxiflex works with flexiplace and, in our view, the appropriate time to test their compatibility is during the 1-year pilot.  Finally, there are adequate protections in place for the Employer, which has the discretion to approve work schedule requests for the pilot and take steps under 5 U.S.C. § 6131(c)(3)(A) of the Federal Employees Flexible and Compressed Work Schedules Act if it has evidence that the combination of maxiflex and flexiplace is having an adverse impact on agency operations.  Accordingly, we shall order the adoption of the Union’s proposal. 

2.   The Maximum Number of Hours an Employee May Work Under the Maxiflex Pilot Program

         a.     The Union’s Position  

    The Union proposes that employees be able to “elect to work up to a maximum of 10 hours per day (excluding credit hours[2]/), Monday through Friday, subject to supervisory approval.”  The effect of the proposal would be to permit employees who participate in the pilot the option of working a maximum of 12 hours a day (10 hours plus 2 credit hours), on any day of the week, Monday through Friday.  Ultimately, the Employer would retain control over the number of hours an employee works because credit hours require supervisory approval.  Its proposal would provide for a more flexible schedule than the current work schedule options available to employees while enhancing service to the public, and should be included as an element of the maxiflex pilot to test the feasibility of working 12-hour days.  In other agreements between the parties, the Employer has allowed employees to work 12-hour days, or longer.  Having the flexibility to work a 12-hour day would help employees contend with work exigencies, which may require longer workdays.  With respect to benefiting the Employer’s mission, lengthening the workday would permit employees to meet at the taxpayer’s convenience.  In this regard, some taxpayers, especially small business owners, prefer to meet with IRS employees before or after the taxpayer’s business hours.  

    b.     Adopt the Employer’s Position  

    The Employer proposes that employees in the maxiflex pilot be able to “elect to work up to a maximum of 10 hours per day (including credit hours), Monday through Friday, subject to prior supervisory approval.”  Limiting employees to 10-hour workdays should prove less fatiguing than working a longer day.  In fact, even the Union has recognized that working any shift longer than 8 hours poses health and safety issues for employees, which is why Article 28 of the NA permits additional break time for employees who work 9 and 10-hour shifts. 

CONCLUSIONS 

    After carefully considering the parties’ proposals and positions on this issue, we conclude that the impasse should be resolved on the basis of a modified version of the Union’s proposal.  In our view, it makes better business sense for management to at least have the option of authorizing a workday that is longer than 10 hours to foster productivity and enhance service to taxpayers.  Maxiflex schedules are intended to provide greater flexibility for employees and managers and, therefore, we see no reason to exclude the option of a 12-hour day from the test.  The Union’s proposal shall be modified, however, to make it clear that the option of working up to 12 hours per day is subject to prior supervisory approval.  In this regard, the Union’s wording does not mention the timing of such approval, and our modification would make it clear that advance approval by a supervisor is necessary for an employee to work a longer day.  This should help to prevent situations where an employee works a 12-hour day and then, after the fact, attempts to obtain supervisory consent. 

3.     Definition of Core Hours and “Situational Maxiflex” for Employees

        a.     The Union’s Position

         The Union defines “core hours” as: 

(t)he hours during the workday, workweek or pay period in which all employees covered by this Maxiflex Pilot must be available to perform work or be on approved absence.  If, however, the employee makes a request to work a special maxiflex schedule due to personal circumstances or to complete a time-sensitive work project (i.e. Situational Maxiflex), the core hours will be defined according to the specific schedule which has been requested and approved by the employee’s manager.

In its view, “situational maxiflex” would give employees and managers the flexibility to react to unplanned events that occur during the course of an employee’s work life.  Where the Employer’s workload changes, or an employee has an emergency, management could approve an adjustment to the work schedule.  By doing so, employees would not have to use their leave time, thereby remaining available to perform work.  The proposal would allow maximum flexibility for both parties, with management retaining the ability to manage workload.  The Employer also would retain control over work schedules because supervisors have the authority to approve or deny individual requests. 

    b.     The Employer’s Position

        Under the Employer’s proposal, core hours are defined as “the hours during the workday, workweek or pay period in which all employees covered by this Maxiflex Pilot must be present for work or be on approved absence.”  Its wording should be adopted because it is identical to the definition of core hours used by OPM in its Handbook of Alternative Work Schedules, and its meaning appears clear and unambiguous.  There is no need for “situation maxiflex,” as proposed by the Union, because the Employer already has the authority to modify work schedules to accommodate exigencies and unforeseen events. 

CONCLUSIONS

        Having fully reviewed the record developed by the parties on this issue, we shall order that the dispute be resolved on the basis of the Employer’s position.  In our view, the Union’s proposed definition of core hours as the time during a workday when employees must be “available to perform work” is unclear, particularly when applied to employees who are working under a flexiplace arrangement.  In addition, a separate provision for “situational maxiflex” appears to be unnecessary because supervisors already have the ability to accommodate variations to work schedules that may be needed due to workload exigencies or employee emergencies.  Furthermore, since employees may request changes in their maxiflex schedules quarterly, additional flexibility to alter schedules more frequently appears unnecessary.  Finally, including a provision for “situational maxiflex” may encourage ad hoc schedule changes.  If situational maxiflex is approved too frequently, it could dilute the accuracy of the maxiflex pilot results. 

4.     Number of Non-core Hour Days in a Bi-weekly Pay Period

       a.    The Union’s Position

        The Union proposes that “employees may request any day (up to 2 days per pay period) as their non-core hour day[3]/ subject to prior supervisory approval and consistent with the provisions of this agreement.”  Its proposed wording is similar to the practice under the 4/10 CWS currently available to employees, so the Employer should be accustomed to managing work schedules that include 2 non-core hour days in a bi-weekly pay period.  Employees merely would be permitted to “retain their current level of benefits without increasing managerial burden.”  Since employees are required to select their work schedules each quarter and adhere to them, managers would have ample advance notice of an employee’s hours.  As with all other work schedules, under the maxiflex pilot management would retain control over whether to approve or deny an employee request to work 1 or 2 non-core hour days a pay period.

       b.    The Employer’s Position

    The Employer proposes that core hours for the maxiflex pilot should be from 9 a.m. to 2:30 p.m. “on 9 workdays of the bi-weekly pay period.”[4]/  Employees would be able to “request any 1 day of the pay period as their non-core hour day subject to prior supervisory approval and consistent with the provisions of this agreement.”  Limiting non-core hour days to 1 per pay period would reduce the burden on management to coordinate work schedules that meet the needs of the agency.  Moreover, management is more likely to approve bi-weekly work schedules that have 9, rather than 8, core-hour days because it would be assured of employees’ presence for work on all but 1 day each pay period.  Since few employees currently work the 4/10 CWS, which gives them 2 non-core hour days each pay period, even if they are permitted the option under the maxiflex pilot, employees probably would not request such schedules.

 CONCLUSIONS

     Upon through examination of the parties’ positions on this issue, we find that the dispute over the number of non-core hour days in a pay period should be resolved on the basis of the Union’s position.  In this regard, the Employer’s proposal for 1 non-core hour day each pay period is more restrictive than what is currently available to employees, and essentially would make the maxiflex pilot little more than a 5-4/9 CWS.  A maxiflex work schedule with such limitations may reduce employees’ participation in the pilot by requiring them to relinquish scheduling flexibilities they currently enjoy.  The Union’s proposal, on the other hand, is consistent with a current work-schedule option that offers employees the ability to schedule 2 non-core hour days each bi-weekly pay period, and would not provide a disincentive to participation in the maxiflex pilot Program.  Therefore, we shall order the adoption of the Union’s proposal. 

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 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: 

1.    Combining a Maxiflex Work Schedule with Flexiplace

     The parties shall adopt the Union’s proposal.

2.    The Maximum Number of Hours an Employee May Work in a Workday Under
      the Maxiflex  Pilot Program

     The parties shall adopt the Union’s proposal, modified as follows:  “Employees may elect to work up to a maximum of 10-hours per day (excluding credit hours), Monday through Friday, subject to prior supervisory approval.” 

3.    Definition of Core Hours and “Situational Maxiflex” for Employees

  The parties shall adopt the Employer’s definition of core hours, and the Union shall withdraw its proposal for “situational maxiflex.” 

4.    Number of Non-core Hour Days in a Bi-weekly Pay Period

     The parties shall adopt the Union’s proposal. 

By direction of the Panel.

Ellen J. Kolansky
Acting Executive Director

June 16, 2004
Washington, D.C.

---

[1]/     Article 50, Section 1.C., states, specifically, that for those on flexiplace, the configuration of their work schedules shall not be limited “as long as the scheduling is not disruptive to the work that remains in the office nor cause[s] an unreasonable burden on those who choose not to work a flexiplace arrangement.”  

[2]/   The parties have agreed that employees participating in the maxiflex pilot will be permitted to earn a maximum of 2 credit hours per regularly-scheduled workday.

[3]/   On a “non-core hour day” an employee does not have to be present for work.  For example, under a 4/10 CWS, an employee works 4 10-hour days with 1 regularly scheduled day off (RDO); the RDO is the employees’ non-core hour day for that week.  Two such non-core hour days in a bi-weekly pay period are permitted under a 4/10 CWS. 

[4]/   The Union has agreed to core hours from 9 a.m. to 2:30 p.m.  Only the number of non-core hour days in the Employer’s proposal is in dispute.  Although the Employer asserts in its supporting statement that the Union, in January 2004, agreed to 9 core-hour days in a bi-weekly pay period, the Employer has not been able to provide any evidence that the parties signed off on such wording.  Moreover, the Union maintained during the informal conference that the number of core-hour days remains in dispute.