)

)

DEPARTMENT OF THE TREASURY )

INTERNAL REVENUE SERVICE )

HOUSTON DISTRICT )

HOUSTON, TEXAS )

)

and ) Case No. 92 FSIP 40

)

CHAPTER 222, NATIONAL TREASURY)

EMPLOYEES UNION )

___________________________________)

Chapter 222, 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 (Statute), 5 U.S.C. S 7119, between it and the Department of the Treasury, Houston District, Houston, Texas (Employer or IRS).

After investigation of the request for assistance, the Panel determined that the parties' dispute concerning shower facilities should be resolved through a single written submission from each party, with the Panel to take whatever action it deemed appropriate to resolve the impasse. Submissions were made pursuant to the Procedure and the Panel has now considered the entire record.

The Employer administers the Federal tax laws, provides tax information to the public, examines tax returns, and collects delinquent taxes. The Union represents about 1,500 employees in the Houston District who are part of an 85,000-member nationwide consolidated unit. Two of four bargaining-unit employees who work at its Resources Management Division warehouse would be affected by the outcome of the dispute. They fill orders for supplies stored in the warehouse; the other two employees work in air-conditioned offices.

The dispute arose during bargaining over the warehouse's relocation. While no shower was available at the old location, one exists at the new facility, left over from a previous tenant who operated a warehouse for ceramic tile. During mediation, the parties agreed to implement a memorandum of understanding that

would enable employees to use the shower before and after work, and under certain circumstances during the workday while the Panel considered the remaining issue.

Essentially, the dispute concerns whether the availability of a shower would be viewed as a past practice in future negotiations.

1. The Union's Position

The Union proposes the following:

The parties acknowledge the existence of a shower stall at the warehouse facility. The Employer will permit warehouse employees to use it before and after duty hours, and during duty hours as defined in Art. 2, Sec. 1.D.2.

It argues that the Employer should acknowledge that employees will have had the use of a shower at the new location when the parties meet to negotiate over a future warehouse facility move. The Union would not be seen, therefore, as waiving any rights regarding such future negotiations. Furthermore, it believes that the hot and humid Houston climate, and the physical nature of employees' work which involves moving boxes to fill supply orders, demonstrate a need for a shower. Moreover, use of the shower would be helpful to employees who are sometimes called to regular IRS offices where they would be embarrassed to appear in a hot, sweaty condition.

2. The Employer's Position

The Employer would add the following sentence to Article 2, Section l.D.1. of the parties' Memorandum of Understanding concerning the move: "Further, the Union acknowledges that management has not established a new 'working condition' for future moves." Although the new facility has a preexisting shower, it asserts that the amenity should not be viewed as establishing a condition of employment for future moves. Such a result would misserve the public's interest by requiring an expenditure that working conditions in the warehouse do not warrant. Furthermore, if the matter is not clarified through these proceedings, it eventually might be required to rent two warehouses or risk an unfair labor practice charge while the Panel considered the issue on the merits during a future move.

Having considered the circumstances and arguments in this case, we conclude that the parties should adopt the Employer's proposal, primarily because of the manner of the shower's origin. In this regard, while employees at the new warehouse will enjoy the benefits of a shower installed for the use of the previous tenant, we are persuaded that for future moves, if the issue of a shower facility should arise, the parties should be left in the position they would have occupied had there been no shower at the current warehouse. The preexistence of a shower facility, and the Employer's decision to agree not to deprive employees of its use, provide them with a benefit that their exclusive representative may or may not have been able to obtain through bargaining had the Employer contested its necessity. In future moves, the parties would be on an equal footing to discuss the merits and drawbacks of providing shower facilities should none exist.

Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. S 7119, and because of the failure of the parties to resolve their dispute during the course of the proceedings instituted under the Panel's regulations, 5 C.F.R. S 2471.6(a)(2), the Federal Service Impasses Panel, under S 2471.11(a) of its regulations, hereby orders the following:

The parties shall adopt the Employer's proposal.

By direction of the Panel.

Linda A. Lafferty

Executive Director

June 23, 1992

Washington, D.C.