United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Chapters 65, 83, and 251 of the 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. § 7119, between it and the Department of the Treasury, Internal Revenue Service (IRS), Washington, D.C. (Employer).

    After investigating the request for assistance, the Panel determined that the dispute, which concerns five issues arising from negotiations regarding Employer-provided fitness centers, should be resolved through an informal conference between a Panel representative and the parties. If no settlement was reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendations for resolving the matter. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Pursuant to the Panel's determination, Panel Representative (Labor Relations Specialist) Bridget Sisson held an informal conference with the parties on February 16, 1999, at the Panel’s offices in Washington, D.C.⁽¹⁾ Although the parties explored settlement possibilities during the informal conference, the dispute remained unresolved. The parties submitted their final offers to Ms. Sisson, who reported to the Panel, and it has now considered the entire record.

    The mission of the Employer is to administer and enforce tax laws and assist taxpayers in understanding and meeting their tax responsibilities. The employees affected by the dispute in this case are represented in three bargaining units for which the Union holds exclusive recognition.⁽²⁾ The employees affected by the dispute in this case work in a variety of positions including revenue agent, revenue officer, tax law specialist, computer specialist, procurement specialist, management analyst, program analyst, and secretary, in grades GS-4 through -14. There are also a number of employees in various building-maintenance positions in grades through WG-11. The two consolidated units (Chapters 65 and 83) are covered by a collective bargaining agreement (NORD V) that is scheduled to expire on June 30, 2002. The Office of Chief Counsel bargaining unit (Chapter 251) is covered by a collective bargaining agreement that expired in 1995, has continually rolled over since then, and is about to be renegotiated.

    The dispute in this case involves two fitness centers: One is in the Employer’s Headquarters building in downtown Washington, D.C.; the other is in an Employer-occupied building in the suburb of New Carrollton, Maryland. In the past, the former center was operated by a contractor and available at no cost to employees. During the fall of 1998, that fitness center was refurbished and the Employer entered into an interagency agreement with the Federal Occupational Health Service (FOHS) under the Public Health Service at the Department of Health and Human Services to operate the center. That interagency agreement also applies to the fitness center that first opened in December 1998 in the New Carrollton building.

    Both fitness centers are open Monday through Friday, except holidays, from 7 a.m. to 7 p.m. Both have a staff that includes fitness specialists. They offer comparable equipment and services that include a wide variety of exercise and weight equipment; a daily program of aerobics classes at lunchtime and in the late afternoon; monthly seminars on subjects such as health, fitness, and nutrition; assistance in developing individual exercise programs; and fitness evaluations.

    The parties disagree over five issues: (I) membership fees and level of service, (II) duration of agreement, (III) medical certification, (IV) methods of payment, and (V) the women’s locker room at the New Carrollton fitness center.

    a. The Employer’s Position

    The Employer’s proposal is as follows:

IRS provides site, utilities, equipment, and equipment maintenance for duration of NORD V - through 6/30/02.

$210,000 annual subsidy for employee memberships for duration of NORD V (7/98-6/30/02). $840,000 total contribution during NORD V.

Employee fee based on difference between actual center costs (excluding rent, utilities, custodial, equipment replacement) and $210,000 annual subsidy divided by number of members.

Any surplus employee fees to be used to reduce future employee fees.

Levels of service will be adjusted to keep fees stable.

Employees will not be charged retroactively for funding shortfalls.

The subsidy proposed continues the status quo with respect to the Employer’s financial support of fitness-center services; the Employer paid $210,000 per year to the contractor who previously operated the fitness center in the Headquarters building. The cost of providing fitness-center services to employees has increased because there are now two, one of which is new and the other renovated. This proposal affords a means of containing the Employer’s costs: membership fees are keyed to the cost of providing fitness center services and the proposal affords flexibility to reduce services should costs rise. Providing fitness-center services free of charge to employees is inconsistent with the current policy of the IRS that its financial support for fitness centers not exceed rent and maintenance. Although this proposal moves the practice into closer alignment with the IRS policy, it is more generous toward employees because it continues to subsidize the cost of the fitness-center service provider. Employees benefit from the existence of two fitness centers because they are afforded increased access.

    Contrary to the Union’s claim, the Employer’s proposal does not adversely affect employees who moved to New Carrollton because a single fee will grant entry to both fitness centers. Providing fitness center services free of charge is not an employee retention issue. Although fitness centers are beneficial, they are a quality of life issue and not necessary to Agency operations; the only employees who have a fitness requirement are not in the bargaining unit. The Union’s contention that low or no fees will increase use of the fitness centers is speculative. In a previous decision, the Panel rejected a proposal that an employer provide fitness center membership to employees free of charge.⁽³⁾

    b. The Union’s Position

    The three chapters propose the following wording:

1. The Agency will provide fitness center services to bargaining[-]unit employees at 1111 Constitution Avenue and New Carrollton Federal Building at no charge to the employees.

2. The Agency will continue to provide fitness center services equal to or better than those enumerated in the Agency’s undated statement of work called Agency Submission 2.⁽⁴⁾

Chapters 83 and 251 offer as an alternative proposal:

In the past, there was no charge to employees who used the fitness center at the Headquarters building; thus, no membership fee represents the status quo that should continue. The Employer promised employees who relocated to New Carrollton that their working conditions would be at the same, or a better, level than those in their previous locations. The vast majority of relocated employees had previously been in buildings that were a 5-minute walk from the downtown headquarters building and had access to that fitness center. Other Treasury bureaus located in the Washington, D.C., area do not charge employees a fee for employer-provided fitness centers. If a fee is necessary, however, Chapters 83 and 251 contend that equity demands that lower-graded employees should not pay as much as higher-graded employees. In addition, service levels should be stable from year to year; any fee increases should only reflect employee pay increases.

    The Employer’s proposal would require employees to pay for a service that was previously free without any appreciable improvement in the level of service provided. The fact that there are now two fitness centers should not serve as a justification for exacting a fee because the expansion is the result of the Employer’s decision to relocate employees to New Carrollton. Furthermore, a membership fee will discourage use of the fitness centers; since the Employer began charging a fee, membership has dropped. Finally, use of fitness centers should be encouraged because it is beneficial in reducing employee stress and absenteeism due to illness.

    Upon careful review of the evidence and arguments on this issue, we shall order the parties to adopt a compromise solution under which members of the fitness center will pay a fee that reflects differences in pay grades; the fee will be set at $12 per month for employees at grades GS-11, WG-14, and WL-12 and above, and $6 per month for employees in grades GS-10, WG-13, or WG-11 and below; the Employer will maintain service at currently established levels; and the Employer may use any surplus membership fees to offset its expenses relating to fitness-center operations.

    We are persuaded that employees should pay a fee for membership in the fitness centers for the following reasons. While recognizing that the Employer has previously provided comparable service to employees at no charge, data submitted by the parties show that the prevailing practice among Federal employers in the Washington, D.C., area is to require employees to pay a fee for such services. The data also indicate that membership fees of private fitness centers are often significantly higher than those proposed in this case. The access to equipment, classes, and services that the fitness centers afford employees is a benefit in terms of both its convenience and monetary value. In our view, however, the fee structure should reflect differences in pay levels to facilitate membership by lower-paid employees. Thus, we believe that the fee schedule being imposed is reasonable because it balances the equities presented: The fees are lower than those generally charged other Federal employees in the area, but this is warranted since the employees affected by this dispute must now pay for a service that previously was available free of charge.

    To promote fitness-center membership and stability, service should be maintained at levels equal to or better than those identified in the Employer’s initial agreement with FOHS. Because the fees set forth above are modest, and we are not ordering any provision for increasing fees on a periodic basis, we conclude that any fee income that exceeds the Employer’s costs in providing fitness-center services should be used to offset the Employer’s expense relating to operating the facilities.

II. Duration of the Agreement

    a. The Employer’s Position

    The Employer’s proposal is:

This agreement will become effective the sooner of head-of-agency approval or thirty-one days from imposition by the Federal Service Impasses Panel, and shall remain in effect for the duration of NORD V.

There shall be a mid-point reopener.

The agreement reached should be prospective. A mid-point reopener is warranted where, as here, substantial portions of the agreement are being imposed by a third party. Since many things may change in the next few years, a reopener will afford flexibility to address them.

    b. The Union’s Position

    The three chapters propose as follows:

The parties agree that this agreement will be effective retroactive to October 1, 1998, and will remain in effect for the life of NORD V.

Because the parties have spent a considerable amount of time negotiating this agreement, it should remain in effect for the duration of NORD V. In addition, the agreement should be retroactive to the time that the Employer implemented fees and other new requirements at the fitness centers; this will allow employees to recoup money lost as a consequence of the Employer’s unilateral actions. As to the Employer’s proposal, there is no need for a midpoint reopener; the agreement should be adequate for the duration of NORD V. Other changes that may occur in the next few years are unlikely to affect the fitness centers.

    After a thorough consideration of the record on this issue, we conclude that the parties should adopt a modified version of the Employer’s proposal. In this regard, we are persuaded that the agreement should be prospective and allow for a mid-point reopener. In our view, retroactive application is more appropriately pursued in the unfair labor practice forum. It is also undesirable because it would create a significant potential for grievances. As to a reopener, we find that the parties should have the flexibility to revisit issues after experience is gained in operating two fitness centers, collecting membership fees, and using FOHS as the service provider. Moreover, a reopener offers a safety valve should the lack of any provision for periodic increases in fitness-center fees prove problematic.

    a. The Employer’s Position

     The Employer proposes to "work with FOHS to develop as many payment plans as possible." FOHS, not the Employer, collects the membership fees for the fitness center. Because it lacks control over FOHS, the Employer cannot bind FOHS to specific payment methods; however, it can seek to influence FOHS to provide as many options as possible.

    b. The Union’s Position

    Chapter 65 takes the position, consistent with its view that there should be no membership fees, that the issue of payment methods is irrelevant. Although Chapters 83 and 251 agree that there should be no membership fees, they propose the following in the event that the Panel orders a fee:

The method of payment for such fees shall at least consist of these options as follows:

1) pay in full by check or money order

2) monthly payment by credit card

3) monthly payment by check or money order

4) internal transfer through Agency credit union with copy of internal transfer as proof of payment

5) payroll allotment through Agency credit union.

Employees should have as many payment options as possible. For privacy reasons, they should not have to show their "pay stubs" to FOHS contractors and personnel.

    Upon careful consideration of the evidence and arguments presented by the parties, we shall order the adoption of a compromise solution that requires the Employer to make every reasonable effort to obtain payment options from FOHS. In directing this compromise, it is our view that while the Employer should take responsibility for obtaining a variety of payment methods from FOHS, the scope of that responsibility should reflect the extent of the Employer’s control over FOHS. Therefore, the compromise wording will identify a minimum with respect to the payment methods the Employer will seek, and will require it to make every reasonable effort to obtain those, among others.

    a. The Employer’s Position

    The Employer proposes to "establish multi-level screening procedures. Specifically, no screening, mini-screening, comprehensive screening." These screening options would allow employees to choose not to obtain medical certification and avoid the associated expense. The level of service provided a member of the fitness center should correspond to the level of screening that the member selects. Since fitness center personnel cannot develop exercise programs for members without health-related information, the guidance offered should match the level of information made available. The Union’s proposal that the Employer reimburse employees for their costs in obtaining medical certifications required by FOHS when it took over operation of the fitness centers should be rejected. Because the Employer did not force employees to join the fitness center, employees could have avoided the cost of a medical certification simply by not joining. In addition, it is unclear that appropriated funds can be used to reimburse employees for what is essentially a personal expense. Furthermore, employees may have derived a medical benefit from obtaining the certification beyond the mere purpose of joining the fitness center. With respect to the Union’s proposal that the Employer provide medical certifications, the health units located in the Employer’s buildings no longer provide such service.

    b. The Union’s Position

    The following wording is proposed by the three chapters:

The Agency will not require medical certification for employees as a condition for using the fitness centers. If the FSIP determines that medical certification is necessary, the Agency will either provide the services for obtaining such medical certification at no cost to the employee or the Agency will reimburse employees for incurring expenses in obtaining such medical certification if the Agency does not provide that service.

Employees who have incurred costs in securing a medical certification will be reimbursed in full by the Agency.

Although contractors who operated the Headquarters fitness center before the advent of FOHS required a medical certification for an initial membership, none required subsequent certifications. When FOHS took over operation of the fitness centers, certain employees were required to provide a certification from a physician regardless of whether they had previously provided one. Some employees incurred substantial expense in obtaining a certification while others chose to forgo membership instead. If the Employer imposes a requirement for medical certification on employees, it should provide the service or bear the expense. The Employer should also reimburse employees who previously incurred such expenses as a condition of fitness center membership.

    After reviewing the evidence and arguments presented, we believe that a modified version of the Employer’s proposal should serve as the basis for settling this issue. The modified version provides employees a more detailed description of the three health-screening options than set forth in the Employer’s proposal. In our view, this balances the fitness centers’ need for medical information to guide members responsibly about appropriate exercise programs and the employees’ need to protect their privacy and control expenditures for medical care. Also, the Employer’s proposal is responsive to the Union’s stated desire that employees be permitted a fitness-center membership option without a screening requirement. We reject the Union’s proposal that the Employer pay the cost of obtaining medical certifications because it would entail reimbursing employees for routine medical care provided by private physicians, and the legality of such reimbursement is dubious. In this regard, the FLRA has determined that reimbursement for private physicians for routine employee medical care exceeds the statutory authorization for medical services under 5 U.S.C. § 7901.⁽⁵⁾ In modifying the Employer’s proposal to provide a more detailed description of the options available, we have relied on documents submitted by the Employer that set forth the options it contemplates providing fitness-center members.

    a. The Employer’s Position

    The Employer proposes to "explore and analyze bench configurations for the NCFB ladies’ locker room." In response to previous complaints by the Union regarding the number of lockers in, and size of, the women’s locker room at the New Carrollton fitness center, the Employer worked with the General Services Administration (GSA) to remedy the problems raised. Within the given space, GSA did all that it could to alleviate the problems the Union identified. At this point, further enlargement would impinge on space outside the fitness center and may not be feasible. The configuration of the benches, however, could be studied.

    b. The Union’s Position

    Chapter 65, which represents employees at the New Carrollton location, proposes the following:

The Agency will expand the women’s locker room at the New Carrollton Federal Building fitness center by doubling the size of the amount of open space available for changing and doubling the length and width of benches with no reduction in the existing space for showers, toilets, sinks, and the number of lockers.

The women’s locker room is cramped and the benches are too small, particularly for larger women; it is not "user friendly." The Employer failed to consult with the Union regarding the expansion that was undertaken in response to earlier Union complaints. Simply reconfiguring the locker room within its existing confines probably will not solve the continuing problems.

    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 pursuant to the Panel’s regulations, 5 U.S.C. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

    The parties shall adopt the following wording:

The Employer will provide site, utilities, equipment and equipment maintenance.

Any surplus employee fees will be used to reduce expense to Employer of providing fitness centers.

The Employer will continue to provide fitness center services at levels equal to or better than those enumerated in the statement of work that the Employer provided to Federal Occupational Health Service.

The monthly fee charged to employees will be: $12 for employees at grades GS-11, WG-14, or WL-12 and above; $6 for employees at grades GS-10, WG-13, or WL-11 and below. There will be no up-front fee imposed on any employee.

    The parties shall adopt the following wording:

The effective date of this agreement shall be the earlier of the date of agency-head approval or thirty-one days from its imposition by the Federal Service Impasses Panel. This agreement shall remain in effect for the duration of NORD V.

At the request of either party, this agreement may be reopened one time during its term. Any request to reopen shall be made during a thirty day period beginning on the eighteen-month anniversary of its effective date.

    The parties shall adopt the following wording:

The parties shall adopt the following wording:

    The parties shall adopt the Employer’s proposal.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

March 16, 1999

Washington, D.C.

1.On February 10, 1999, Ms. Sisson and the parties toured the two fitness centers that are the focus of the dispute.

2.Chapters 65 and 83 serve as representatives of professional and nonprofessional employees who are assigned to the Employer’s national office and are included in nationwide, consolidated units. Chapter 251 represents a bargaining unit consisting of professional and nonprofessional employees assigned to the Employer’s Office of Chief Counsel.

3.In Department of the Army, U.S. Army Garrison, Headquarters, Fort Buchanan, Fort Buchanan, Puerto Rico and Locals 2614 and 3118, American Federation of Government Employees, AFL-CIO, Case No. 95 FSIP 98 (February 21, 1996), Panel Release No. 384, the union had proposed no fee and the employer a flat fee of $225 per year. The Panel resolved the dispute by adopting a compromise provision that mandated a sliding scale fee based on employees’ salaries; for employees paid $22,500 or less, the fee was $125 and for employees paid over $22,500, the fee was $225.

4.Agency Submission 2 is a statement of work that was provided by the Employer to FOHS and forms the basis for their interagency agreement; it itemizes the equipment in the fitness centers and describes the level of service desired by the Employer. According to the Employer, it was derived from the contract with the vendor who operated the Headquarters’ fitness center prior to the advent of FOHS as the service provider.

5.See, e.g., Professional Airways Systems Specialist, District No. 6, PASS/MEBA and U.S. Department of the Navy, U.S. Marine Corps, Marine Corps Air Station, Cherry Point, North Carolina, 54 FLRA 1130, 1138-39 (1998).