ARBITRATION OPINION AND AWARD

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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. Meredith, Arbitrator

APPEARANCES

FOR THE AGENCY: Colleen A. Crane, Attorney

FOR THE UNION: Timothy C. Welsh, Assistant Counsel

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THE PROCEEDINGS

The parties to this proceeding are the National Treasury Employees Union,

Chapter 26 (Union) and the 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 the Union concerning the selection of office space by members of the bargaining unit in the Summit Building in Atlanta. A transcript of the proceedings was provided. I received post hearing briefs on September 26, 2011.

ISSUE

The parties were not able to stipulate to the issues in this case but authorized the arbitrator to determine the issue based on the proposals of the parties and the evidence and arguments presented.

The Union’s proposed statement of the issue is: Whether the agency violated Article 46, Section 9 when it announced its plan to have attorneys restrict their selection of offices to an area where their own business units were located and when it directed criminal tax attorney, Brenda Fitzgerald, to relocate her office to the 6 floor.th

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The Agency’s proposed statement of the issues is: Whether the Agency violated article 46, Section 9, when it moved a bargaining unit employee, Brenda Fitzgerald, from the fourteenth to the sixth floor of the Summit Building.

The evidence established that the Agency agreed with the Union that it would not now or in the near future attempt to require attorneys to locate within their own business units. Thus, I conclude that this issue is not ripe for arbitration at this time. The only action the Agency has taken is to move Brenda Fitzgerald to the 6 floor. Therefore, theth

issue to be decided is:

Whether the Agency violated Article 46, Section 9, when it moved a

bargaining unit employee, Brenda Fitzgerald, from the 14 to the 6 floor.th th

RELEVANT CONTRACT LANGUAGE ARTICLE 46 - MISCELLANEOUS PROVISIONS

Section 9

A. In the event that there is a vacancy or change in office desk/space location, the bargaining unit employees in the lowest identifiable unit where the vacancy occurs shall determine among themselves what the seating arrangements shall be, subject to work related considerations.

B. If the bargaining unit employees cannot reach a decision as to the seating arrangements, the issue will be resolved by seniority. This provision does not authorize a bargaining unit employee to “bump” another employee unless the moves are involuntary and caused by management action. For purposes of this Section, seniority is determined by SCD (Service

computation date) unless NTEU determines that another seniority rule should exist for a particular post of duty.

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FACTUAL BACKGROUND

The attorneys employed by the Office of Chief Counsel generally are assigned either to tax litigation in support of Revenue Agents, general litigation, or criminal tax (CT). In the Atlanta, Georgia Post of Duty (POD), attorneys not involved in criminal tax work are assigned to one of the 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 these groups are outside the bargaining unit.

At the time of this grievance, all bargaining unit attorneys had offices on the 14th

floor of the Summit Building in downtown Atlanta. Non-bargaining unit attorneys, including the supervisor of the criminal tax attorneys, were located on the 6 floor. Theth

attorneys had, for some time, selected their offices by seniority when there were

vacancies. That practice was incorporated into the term agreement as quoted above. In the Atlanta office, the bargaining unit elected to break any ties by seniority in the Chief

Counsel’s office.

In the fall of 2009, the Agency hired two new Chief Counsel attorneys to work in the Small Business/Self-Employed business unit. There were no available offices for these attorneys and, for a time, one worked in a conference room and the other in a cubicle.

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On September 14, 2009, Susan Hyman, Lead Negotiator for the Agency, sent an e-mail message to Larry Anderson, the Chapter 26 Union steward in the Atlanta POD, regarding the office space issue. Ms. Hyman said that the Agency intended to move the two CT attorneys to the 6 floor in order to make room for the new SBSE attorneys on theth fourteenth floor. She also indicated that it was the Agency’s intent to organize the office by business unit and would require attorneys to select offices only within the area of their business unit.

The Union filed a grievance charging that the Agency’s plans would violate Article 49, Section 9 of the NTEU/Chief Counsel agreement. During discussions of the agreement, the Agency agreed that moving all attorneys into their business groups would be too disruptive and stated that “for now and the near future” management would not require SB/SE and LMSB attorneys to move to separate areas. However, the Agency continued to insist that CT attorneys would be moved to the 6 floor. The Unionth

maintained the position that this violated the contract provision and invoked arbitration of the Agency’s action. In the end, one attorney, Brenda Fitzgerald, was required to leave her 14 floor office and relocate to the 6 floor.th th

DISCUSSION

In this contract interpretation case, the Union has the burden of proving that the Agency’s actions violated the parties’ agreement. I find that the Union has met that burden by showing, by a preponderance of the evidence, that the Agency’s designation of

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which attorneys may sit on the 14 floor and which on the 6 floor does not conform withth th the contract provision.

The evidence shows that the members of this bargaining unit have not been

assigned particular offices based on the business unit with which they have worked in the past. The Agency argues that work related considerations now require that the criminal tax lawyer, Ms. Fitzgerald, be moved involuntarily to the sixth floor. I do not find the Agency’s work related consideration to be persuasive.

The Agency offered testimony that the decision to move criminal tax attorneys to the sixth floor was motivated by the need to have two new attorneys on the fourteenth floor near their supervisor and near other, more experienced attorneys.

The Agency presented bargaining history for Article 46, Sec. 9 in the contract which was submitted as Joint Exhibit 3 and which was the first contract negotiated after the field offices became represented by NTEU. During that bargaining, there was

discussion about management’s ability to define the work space available to attorneys and to reserve space for management. The Agency stated that the management would

determine the management needs of the office and assign space to the bargaining unit where it would “give union broad discretion” even though “certain people must be in particular locations subject to work related reason.” The Union agreed that the selection provided by Article 46, Section 9 “would apply once the BU space is determined then it would apply.”

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The bargaining history contained no discussion of what the parties intended by the phrase “work-related considerations” but it was discussed only in the context of

management making an assignment of space to the bargaining unit. This implies that the present situation, in which management seeks to partition the bargaining unit space and assign certain members of the bargaining unit to certain offices within the space

previously available to the bargaining unit was not contemplated by the parties when they negotiated the agreement.

I do not find that the agreement reached in the move of the Manhattan office establishes a precedent for a work related need to seat attorneys by business unit. That agreement was reached in the context of a move to a new office and there is no indication of how the decision was reached that 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 that issue as the proposal and counter-proposal both refer to different floors for different attorneys.

Since the parties did not discuss what kind of work-related considerations would justify the Agency in assigning bargaining unit employees to particular offices, that question must be determined in this matter.

The FLRA has recognized in the bargaining context that “the location where employees perform their duties concerns matter ‘at the very heart’ of conditions of employment”. 64 FLRA 723. The Agency, in order to involve itself in the choice of

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offices of these employees, would need to establish a valid work-related consideration which would affect the ability of the Agency to perform its mission or function.

The Agency has not made such a showing here. Although a manager testified that he would prefer that new employees he supervised be nearby, he acknowledged that the two attorneys who were hired were experienced attorneys who were expected to work with a high degree of independence. Fitzgerald testified that new SB/SE attorneys work independently from the beginning. They may meet more frequently when they are new and their work is reviewed at a somewhat higher frequency. However, with e-mail and shared computer drives, work is rarely reviewed in face-to-face meetings. One Union witness testified that he had worked for ten years with his supervisor on a different floor. Both he and Fitzgerald had worked for supervisors in other states. There are two LB&I attorneys in North Carolina, one a new attorney, who are supervised by the Atlanta office. There were several other examples of attorneys throughout the southeast who are

supervised by someone in another office.

The small advantage which the Agency might or might not gain from putting these two new attorneys into offices on the same floor as their managers is not a sufficient work-related consideration to trump the bargaining language, in an agency which has learned to work efficiently with 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

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constructed office on the 14 floor to an office on the 6 floor which required ath th

reconstruction both of the office space, removing built-ins, and of her furniture. The use of her adaptive furniture in the space for which it was constructed might have been deemed a work-related consideration with somewhat more validity than the issue of keeping two attorneys near their supervisors.

The Agency’s decision to move Ms. Fitzgerald to an office on the 6 floor was notth

shown to be motivated by the kind of work-related consideration contemplated by the parties when they negotiated Article 46, Section 9.

AWARD

The Agency did violate Article 46, Section 9, when it moved a bargaining unit employee, Brenda Fitzgerald, from the fourteenth to the sixth floor of the Summit Building.

The Agency shall allow Ms. Fitzgerald the option to return to her office on the 14 floor and shall follow theth

contract in allocating any offices vacated as a result of Ms. Fitzgerald’s return.

Susan R. Meredith

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