ARBITRATION OPINION AND AWARD IN THE MATTER OF THE ARBITRATION BETWEEN NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 26 and INTERNAL REVENUE SERVICE, OFFICE OF CHIEF COUNSEL Atlanta Office Space Hearings Held: July 13, 2011 Atlanta, Georgia Susan R. Meredi, Arbitrator APPEARANCES FOR THE AGENCY: Colleen A. Crane, Attorney FOR THE UNION: Timoy C. Welsh, Assistant Counsel Date of Award: October 17, 2011
2 THE PROCEEDINGS The parties to is proceeding are e National Treasury Employees Union, Chapter 26 (Union) and e Internal Revenue Service, Office of Chief Counsel (Agency). On July 13, 2011, in Atlanta, Georgia, I held a hearing to arbitrate a grievance filed by e Union concerning e selection of office space by members of e bargaining unit in e Summit Building in Atlanta. A transcript of e proceedings was provided. I received post hearing briefs on September 26, 2011. ISSUE The parties were not able to stipulate to e issues in is case but auorized e arbitrator to determine e issue based on e proposals of e parties and e evidence and arguments presented. The Union s proposed statement of e issue is: Wheer e agency violated Article 46, Section 9 when it announced its plan to have attorneys restrict eir selection of offices to an area where eir own business units were located and when it directed criminal tax attorney, Brenda Fitzgerald, to relocate her office to e 6 floor.
3 The Agency s proposed statement of e issues is: Wheer e Agency violated article 46, Section 9, when it moved a bargaining unit employee, Brenda Fitzgerald, from e fourteen to e six floor of e Summit Building. The evidence established at e Agency agreed wi e Union at it would not now or in e near future attempt to require attorneys to locate wiin eir own business units. Thus, I conclude at is issue is not ripe for arbitration at is time. The only action e Agency has taken is to move Brenda Fitzgerald to e 6 floor. Therefore, e issue to be decided is: Wheer e Agency violated Article 46, Section 9, when it moved a bargaining unit employee, Brenda Fitzgerald, from e 14 to e 6 floor. RELEVANT CONTRACT LANGUAGE ARTICLE 46 - MISCELLANEOUS PROVISIONS Section 9 A. In e event at ere is a vacancy or change in office desk/space location, e bargaining unit employees in e lowest identifiable unit where e vacancy occurs shall determine among emselves what e seating arrangements shall be, subject to work related considerations. B. If e bargaining unit employees cannot reach a decision as to e seating arrangements, e issue will be resolved by seniority. This provision does not auorize a bargaining unit employee to bump anoer employee unless e moves are involuntary and caused by management action. For purposes of is Section, seniority is determined by SCD (Service computation date) unless NTEU determines at anoer seniority rule should exist for a particular post of duty.
4 FACTUAL BACKGROUND The attorneys employed by e Office of Chief Counsel generally are assigned eier to tax litigation in support of Revenue Agents, general litigation, or criminal tax (CT). In e Atlanta, Georgia Post of Duty (POD), attorneys not involved in criminal tax work are assigned to one of e IRS operating divisions: LB&I (Large Business and International, formerly knows as Large and Mid-size Business (LMSB) or SB/SE (Small Business and Self-Employed.) There are a few Special Trial attorneys and GLS attorneys who do employment law, but ese groups are outside e bargaining unit. At e time of is grievance, all bargaining unit attorneys had offices on e 14 floor of e Summit Building in downtown Atlanta. Non-bargaining unit attorneys, including e supervisor of e criminal tax attorneys, were located on e 6 floor. The attorneys had, for some time, selected eir offices by seniority when ere were vacancies. That practice was incorporated into e term agreement as quoted above. In e Atlanta office, e bargaining unit elected to break any ties by seniority in e Chief Counsel s office. In e fall of 2009, e Agency hired two new Chief Counsel attorneys to work in e Small Business/Self-Employed business unit. There were no available offices for ese attorneys and, for a time, one worked in a conference room and e oer in a cubicle.
5 On September 14, 2009, Susan Hyman, Lead Negotiator for e Agency, sent an e-mail message to Larry Anderson, e Chapter 26 Union steward in e Atlanta POD, regarding e office space issue. Ms. Hyman said at e Agency intended to move e two CT attorneys to e 6 floor in order to make room for e new SBSE attorneys on e fourteen floor. She also indicated at it was e Agency s intent to organize e office by business unit and would require attorneys to select offices only wiin e area of eir business unit. The Union filed a grievance charging at e Agency s plans would violate Article 49, Section 9 of e NTEU/Chief Counsel agreement. During discussions of e agreement, e Agency agreed at moving all attorneys into eir business groups would be too disruptive and stated at for now and e near future management would not require SB/SE and LMSB attorneys to move to separate areas. However, e Agency continued to insist at CT attorneys would be moved to e 6 floor. The Union maintained e position at is violated e contract provision and invoked arbitration of e Agency s action. In e end, one attorney, Brenda Fitzgerald, was required to leave her 14 floor office and relocate to e 6 floor. DISCUSSION In is contract interpretation case, e Union has e burden of proving at e Agency s actions violated e parties agreement. I find at e Union has met at burden by showing, by a preponderance of e evidence, at e Agency s designation of
which attorneys may sit on e 14 floor and which on e 6 floor does not conform wi e contract provision. The evidence shows at e members of is bargaining unit have not been assigned particular offices based on e business unit wi which ey have worked in e past. The Agency argues at work related considerations now require at e criminal tax lawyer, Ms. Fitzgerald, be moved involuntarily to e six floor. I do not find e Agency s work related consideration to be persuasive. The Agency offered testimony at e decision to move criminal tax attorneys to e six floor was motivated by e need to have two new attorneys on e fourteen floor near eir supervisor and near oer, more experienced attorneys. The Agency presented bargaining history for Article 46, Sec. 9 in e contract which was submitted as Joint Exhibit 3 and which was e first contract negotiated after e field offices became represented by NTEU. During at bargaining, ere was discussion about management s ability to define e work space available to attorneys and to reserve space for management. The Agency stated at e management would determine e management needs of e office and assign space to e bargaining unit where it would give union broad discretion even ough certain people must be in particular locations subject to work related reason. The Union agreed at e selection provided by Article 46, Section 9 would apply once e BU space is determined en it would apply. 6
The bargaining history contained no discussion of what e parties intended by e phrase work-related considerations but it was discussed only in e context of management making an assignment of space to e bargaining unit. This implies at e present situation, in which management seeks to partition e bargaining unit space and assign certain members of e bargaining unit to certain offices wiin e space previously available to e bargaining unit was not contemplated by e parties when ey negotiated e agreement. I do not find at e agreement reached in e move of e Manhattan office establishes a precedent for a work related need to seat attorneys by business unit. That agreement was reached in e context of a move to a new office and ere is no indication of how e decision was reached at LMSB attorneys were on one floor while SB/SE and CT attorneys were one a different floor. There does not seem to have been a dispute about at issue as e proposal and counter-proposal bo refer to different floors for different attorneys. Since e parties did not discuss what kind of work-related considerations would justify e Agency in assigning bargaining unit employees to particular offices, at question must be determined in is matter. The FLRA has recognized in e bargaining context at e location where employees perform eir duties concerns matter at e very heart of conditions of employment. 64 FLRA 723. The Agency, in order to involve itself in e choice of 7
8 offices of ese employees, would need to establish a valid work-related consideration which would affect e ability of e Agency to perform its mission or function. The Agency has not made such a showing here. Alough a manager testified at he would prefer at new employees he supervised be nearby, he acknowledged at e two attorneys who were hired were experienced attorneys who were expected to work wi a high degree of independence. Fitzgerald testified at new SB/SE attorneys work independently from e beginning. They may meet more frequently when ey are new and eir work is reviewed at a somewhat higher frequency. However, wi e-mail and shared computer drives, work is rarely reviewed in face-to-face meetings. One Union witness testified at he had worked for ten years wi his supervisor on a different floor. Bo he and Fitzgerald had worked for supervisors in oer states. There are two LB&I attorneys in Nor Carolina, one a new attorney, who are supervised by e Atlanta office. There were several oer examples of attorneys roughout e soueast who are supervised by someone in anoer office. The small advantage which e Agency might or might not gain from putting ese two new attorneys into offices on e same floor as eir managers is not a sufficient work-related consideration to trump e bargaining language, in an agency which has learned to work efficiently wi attorneys and supervisors in different states. The Agency went to considerable trouble and expense to move Ms. Fitzgerald, who has adaptive furniture for a disability, from her individually designed and
9 constructed office on e 14 floor to an office on e 6 floor which required a reconstruction bo of e office space, removing built-ins, and of her furniture. The use of her adaptive furniture in e space for which it was constructed might have been deemed a work-related consideration wi somewhat more validity an e issue of keeping two attorneys near eir supervisors. The Agency s decision to move Ms. Fitzgerald to an office on e 6 floor was not shown to be motivated by e kind of work-related consideration contemplated by e parties when ey negotiated Article 46, Section 9. AWARD The Agency did violate Article 46, Section 9, when it moved a bargaining unit employee, Brenda Fitzgerald, from e fourteen to e six floor of e Summit Building. The Agency shall allow Ms. Fitzgerald e option to return to her office on e 14 floor and shall follow e contract in allocating any offices vacated as a result of Ms. Fitzgerald s return. Susan R. Meredi