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In the Matter of DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE VIRGINIA-WEST VIRGINIA DISTRICT RICHMOND, VIRGINIA |
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and NATIONAL TREASURY EMPLOYEES UNION CHAPTER 48
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Case No. 97 FSIP 83 |
ARBITRATOR’S OPINION AND DECISION
The Department of the Treasury, Internal Revenue Service, Virginia-West Virginia District, Richmond, Virginia (Employer) 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 National Treasury Employees Union, Chapter 48 (Union or NTEU). After investigation of the request for assistance, which concerns three issues related to the closing of two offices in the District, the Panel directed the parties to mediation-arbitration before the undersigned at the Federal Building, Richmond, Virginia. Accordingly, on July 9, 1997, the undersigned met with the parties and first engaged in mediation. The parties extensively explored settlement possibilities, came close to reaching an agreement, but ultimately were unable to resolve their differences. During the arbitration hearing, each party provided their final proposals and exhibits, and presented supporting arguments and rebuttal statements orally. The record is now closed and I have considered all of the relevant information contained therein.
BACKGROUND
The Employer’s mission is to administer and enforce the internal revenue laws and related statutes. The Union represents, at the local level, approximately 1,300 employees in the Virginia-West Virginia District who work in a variety of professional, administrative, and technical occupations; they are part of a nationwide unit of approximately 98,000 professional and nonprofessional employees that is represented by NTEU. The 54 affected employees in the Richmond District chiefly work as revenue officers, revenue agents, and clerks. These parties are governed by the terms of the master collective bargaining agreement between IRS and NTEU known as NORD IV, which is due to expire on June 30, 1998.
The case arose from negotiations over the impact and implementation of the Employer’s decision, as part of the rent containment program, to close the Midlothian and Enterprise Parkway offices, located in suburban Richmond, Virginia, approximately 7 to 10 miles from the downtown area.(1) The Employer has now closed these offices and relocated the employees to the Federal Building in downtown Richmond.(2)
Preliminarily, the Employer renews its contention that it has no duty to bargain over the Union’s proposal on flexiplace,(3) first raised in its earlier submission to the Panel, because the subject is covered by a comprehensive local flexiplace agreement.(4) In support of its position, the Employer cites Department of Health and Human Services, Social Security Administration, Baltimore Maryland and the American Federation of Government Employees, National Council of Social Security Administration Field Office Locals, Council 220, 47 FLRA 1004 (1993)(SSA), and Sacramento Air Logistics Center, McClellan Air Force Base, California and American Federation of Government Employees, Local 1857 (1993). In SSA, the Federal Labor Relations Authority (FLRA) set forth a framework it will apply for determining whether a matter is "expressly contained in" or "covered by" an existing agreement so as to foreclose further bargaining. The Union counters that the parties did not contemplate office closings and relocations when they entered into the flexiplace agreement. The Union also argues that "bargaining over impact and implementation is allowed no matter whether the issue is covered by or not."
After reviewing the parties’ arguments and the cited rulings of the FLRA, I have determined that I must decline to consider the merits of the Union’s proposal on flexitime because a substantial issue exists concerning the Employer’s obligation to bargain. As no case has been cited, nor located by independent research, that specifically applies the FLRA’s "covered by" framework to the instant facts and circumstances, under the FLRA’s decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988), no other option remains open. Since the parties are exploring a related, if not identical, issue through concurrent reopener negotiations on the subject, however, I believe that they are not left without an avenue for relief in this area.
ISSUES AT IMPASSE
The two remaining issues to be resolved concern parking and voice mail access.
THE PARTIES’ POSITIONS
1. Parking
a. The Employer’s Proposal
The Employer proposes to "canvass parking lots and negotiate [the] most favorable rate possible for affected employees." Free parking was not provided at the Midlothian and Enterprise Parkway locations; spaces were simply available there. In addition, the nine affected employees at the Enterprise Parkway location knew when the office opened that it was temporary, and by extension, that any available no cost parking also was temporary. To provide the $15,360 subsidy the Union proposes would amount to a windfall for the 54 affected employees and create an inequity between them and those among their 750 co-workers in downtown Richmond who drive to work. Instead, the affected employees may be viewed as having had the benefit of free parking over the last 7 years or so, a benefit never offered to those at the downtown location. A 1993 Memorandum discontinued free parking in the region. Employees are not inconvenienced by the change since parking is plentiful within walking distance of the Federal Building. Furthermore, in a previous office relocation involving the Virginia Beach Office, in which employees were relocated to areas without free parking, the Union did not seek to negotiate similar terms. Moreover, the Employer’s proposal to help employees find the most favorable rate possible in proximity to the workplace is consistent with a number of previous Panel decisions on parking. The Union cites the Panel’s decision in Department of Health and Human Services, Social Security Administration, Evansville District Office, Evansville, Indiana and Department of Health and Human Services, Social Security Administration, Cleveland Teleservice Center, Lakewood, Ohio and Local 3448, American Federation of Government Employees, AFL-CIO, Case Nos. 91 FSIP 9 and 18 (August 22, 1991) (HHS), Panel Release No. 316. What the Panel ordered in that case is identical to the Employer’s proposal. The Panel also ordered the employer to provide a $10 per month subsidy for a 1-year period; the subsidy represented a retroactive adjustment to address that employer’s failure to live up to previous agreements on parking; there is no such factor in the instant case.
b. The Union’s Proposal
The Union’s proposal reads:
$15,360 for affected employees in the Midlothian and Enterprise Parkway with NTEU [to] identify those affected employees to whom distributions will be made, and in what amounts. This money will be allocated within 30 days from any award granted. This money is for the purpose of easing the burden of parking costs.
The Union maintains that the status quo at the Midlothian and Enterprise Parkway offices is free parking. Under NORD IV, the Employer is required to include equivalent free parking in its space requests, and to bargain over parking fees, among other subjects, when employees are relocated.(5) Regarding the Virgina Beach office relocation, since it took place under an earlier version of the MCBA without this particular parking clause, it is not relevant for purposes of comparability. In addition, the Employer’s reference to the 1993 Memorandum discontinuing a free parking policy covers the Southeast region; these offices are located in the mid-Atlantic region. Furthermore, the IRS provides free parking for its employees in three Western states, including Idaho and Wyoming. Previous Panel decisions have adopted proposals for free parking and have recognized, in the context of an office relocation, that such measures improve employee morale.(6)
At this stage, the Union is not seeking free parking for employees for an indefinite period even though terms in previous leases would have justified an Employer request for parking spaces before affected employees were relocated. Rather, the amount proposed is a fair way to "soften the blow" during a transition period for these employees who are faced with longer commutes, tolls, and parking fees of at least $45 per month ($2 to $4 per day). The amount does not represent a windfall because free parking originally was an inducement to encourage affected employees to relocate from the downtown office. Among the unit employees who have been adversely affected by such changes, the paralegals, clerks, and aides who do not go into the field and are not eligible for the flexiplace program will experience the greatest impact.
CONCLUSION
Having carefully considered the evidence and arguments on the parking issue, I shall order the adoption of a compromise which combines a modified version of the Employer’s proposal, and a portion of the Union’s proposal as indicated below to resolve the dispute. The Employer’s proposal will be modified by adding a requirement that after the Employer canvasses parking lots, the parties will jointly identify the parking facility where the Employer will negotiate the most favorable rate. The portion of the Union’s proposal that will be adopted provides, as clarified in discussion during the mediation-arbitration procedure, a $4,320, 1-year transition subsidy to ease the burden of parking costs for the six clerks, paralegals, and aides from Midlothian office and the two clerks from Enterprise Parkway office;(7) NTEU will decide on the amounts to be distributed to each unit employee in this group. The $4,320 amount may be reduced proportionately should negotiations under the Employer’s proposal result in a fee that is less than $45 per month. In reaching this decision, I am persuaded that for the great majority of affected employees, the impact of the relocation is mitigated because they travel to field locations from 1 to 4 days per week, are reimbursed for downtown parking expenses on such days, and also have the option of participating in the flexiplace program. The group of eight lower-graded employees, however, are not eligible for such options that might temper the impact of the increase in expenses attributable to the move. The limited subsidy granted is, in my view, consistent with the nationally negotiated rent containment guidelines which suggest seeking alternatives to "soften" the impact of relocations on employees.
2. Voice Mail
a. The Employer’s Position
The Employer asserts that because all affected Midlothian and Enterprise Parkway employees now have access to voice mail for messages from taxpayers and others, the issue has been satisfactorily resolved. In its view, no further relief should be provided. Even though, under the existing system, voice mail box is shared by two to three employees who have access to each others’ messages, this circumstance does not create the problem of improper disclosure, as the Union alleges. Instead, the situation is similar to a secretary’s taking a message from a taxpayer for an absent employee. Employees are aware that information in these telephone messages is not to be broadcast to those who do not have a need to know. Furthermore, in this first year that voice mail has been available, the affected employees are among the 147 employees in the Federal Building who have such service; another 804 employees have no access to voice mail. At the moment, because all voice mail boxes have been distributed, there is no equipment left to meet the Union’s demand or money available to purchase more equipment. In the future, when funds become available, the system might be expanded.
b. The Union’s Proposal
The Union proposes that voice mail: (1) "be provided for all affected employees;" (2) "consist of secured private boxes;" and (3) "be granted with 30 days of an award." The Union contends that the Employer promised to provide employees from the Enterprise Parkway and Midlothian offices with individual voice mail equipment. Currently, 25 former Midlothian office employees are the most severely affected. The existing system is unacceptable because it gives two or three employees access to each others’ messages. Lack of equipment that records each employee’s messages in a separate secured voice mailbox exposes employees to criminal liability for improper disclosures. Such multiple access is inappropriate because taxpayer information is to be protected in accordance with anti-disclosure laws and regulations and the Privacy Act. The Employer should provide a system that protects employees from such liabilities and secures taxpayers’ information. In addition, when employees are in the field, at lunch, or working on flexiplace, the existing equipment makes it difficult to get messages. Since employees are in the field, sometimes for 3 or 4 consecutive days, improving the system would give unit employees the advantage of obtaining their messages reliably by remote access. Furthermore, it is also difficult to get messages from secretaries; such efforts often result in a three-way "phone tag." Previously, the Employer estimated that these improvements for affected employees would cost only $2,500. A responsible management should ask the national office for funding to cover the expense.
CONCLUSION
Having carefully considered the record on this issue, I shall order the adoption of the Union’s proposal, modified only by adding wording to clarify that the period for compliance is 30 days, or as soon as possible under applicable procurement regulations. While the liability concerns raised with respect to the current, multiple-access voice mail system are not substantiated, I am persuaded that the improvement will ensure that employees are able to retrieve their messages in an expeditious manner, thereby enabling them to provide improved service to taxpayers. Furthermore, such service is closer to the private telephone lines that many unit employees had prior to their relocation. Since the Employer states that it has distributed all of the available voice mail equipment, the modification is to ensure an adequate period for obtaining additional equipment.
DECISION
The parties shall adopt the following to resolve their impasse:
1. Parking
(1) first, the Employer will canvass parking lots, then the parties will jointly identify the parking facility where the Employer is to conduct negotiations over the parking rate for unit employees, and finally the Employer will negotiate the most favorable rate possible for affected employees; and (2) the Employer shall provide a $4,320 transition subsidy ($45 times eight employees times 12 months) for the six clerks and technicians from Midlothian and the two clerks from Enterprise Parkway offices. The total sum to be paid may be reduced proportionally to reflect a lower monthly parking fee if one is successfully negotiated.
2. Voice Mail
Voice mail will be provided for all affected employees. Voice mail will consist of secured private boxes. This will be granted within 30 days of an award, or as soon as possible under applicable procurement regulations.
Ellen J. Kolansky
Arbitrator
August 11, 1997
Washington, D.C.
1.Rent containment refers to a program initiated by Congressional mandate encouraging the Agency to seek savings by reducing the amount of office space occupied. At the national level, IRS and NTEU entered into an agreement on guidelines for closing and downsizing offices. The agreement specifies, among other things, that through the partnership process, the parties are to look for alternatives to soften the impact on employees.
2.The closing of the Midlothian office, which opened about 7 years ago, was completed in June 1997; some 45 to 50 unit employees worked there. The Enterprise office, which opened about 6½ years ago as a temporary post of duty during a period of renovation, was scheduled to close on July 10, 1997; nine gift and estate tax attorneys worked there.
3.On the subject of flexiplace, the Union proposes that “[a]ffected employees who are on flexiplace or who elect to participate in flexiplace will be provided with necessary equipment by the Agency within 30 days of the award.”
4.Currently, under the Flexiplace agreement, estate and gift tax attorneys, general program revenue agents, and international revenue agents are among those who may request to participate in the program. Section XIII of that agreement is captioned “Facility and Equipment.” Subparagraph A. provides in relevant part: Management will determine the district’s ability to provide equipment to flexiplace participants. Furniture and equipment will be provided on a funds available basis. 5.Article 11, § 11 of NORD IV provides the following:
6.In Department of Veterans Affairs, Washington, D.C. and National VA Council, American Federation of Government Employees,
AFL-CIO, Panel Case Nos. 90 FSIP 32 and 57 (March 30, 1990), Panel Release No. 292, the Panel adopted the union’s proposal to maintain the status quo of free parking. In
Department of Veterans Affairs, Veterans Affairs Medical Center, Detroit, Michigan and Local 933, American Federation of Government Employees,
AFL-CIO, Panel Case No. 96 FSIP 113 (August 19, 1996), Panel Release No. 390, a Panel-appointed arbitrator ordered a parking fee of $16.25 monthly and $1 daily. The employer had proposed a $50 monthly fee. The arbitrator stated that the lower fee was justified by circumstances including: (1) a new employee tax burden; (2) additional commuting costs; (3) impact of the fee on morale and recruitment; and (4) comparability to another VAMC facility within the commuting area.
7.The $4,320 amount was calculated by multiplying the eight employees times the $45 monthly parking fee times the 12 month coverage period. The other segment of the Union’s $15,360 proposal included $11,040 for the other affected employees; it is excluded from this award.
Since November 1996, under a reopener provision, the parties have been negotiating over substantive changes to the flexiplace agreement. The topic of furniture and other equipment to be provided to flexiplace program participants, the precise issue in dispute in this case, is also under discussion in those negotiations. In addition, the Union filed a group grievance, which has yet to be resolved, on behalf of a large group of employees in the region over the denial of access to surplus furniture and equipment for flexiplace participants.
The Employer has determined that when an office that has provided free IRS parking is being relocated, the local head of the office will include equivalent free parking in its request for space. Employee parking, including reserved and general parking, as well as the fees for such parking, if any, remain an appropriate subject of local bargaining between the parties whenever offices are relocated.