Department of Treasury, Internal Revenue Service (IRS), Southwest Region (Activity) and National Treasury Employees Union and National Treasury Employees, Union Chapter 91 (Complainants)




[ v01 p612 ]
01:0612(70)CA
The decision of the Authority follows:


 1 FLRA No. 70
 
 DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE (IRS),
 SOUTHWEST REGION
 Activity
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NATIONAL TREASURY EMPLOYEES
 UNION CHAPTER 91
 Complainants
 
                                            Assistant Secretary
                                            Case No. 64-3896(CA)
 
                            DECISION AND ORDER
 
    ON JANUARY 19, 1979, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR
 PRACTICES AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE
 CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE
 LAW JUDGE'S RECOMMENDED DECISION AND ORDER.  THEREAFTER, THE RESPONDENT
 FILED EXCEPTIONS AND A SUPPORTING BRIEF WITH RESPECT TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR
 MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT REGULATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
 SUBJECT CASE, INCLUDING THE RESPONDENT' EXCEPTIONS AND SUPPORTING BRIEF,
 THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATIONS.  /1/
 
                                 ORDER /2/
 
    PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
 THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE (IRS)
 SOUTHWEST REGION, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INSTITUTING CHANGES IN THE SYSTEM OF EVALUATING THE WORK
 PERFORMANCE OF APPEALS OFFICERS WITHOUT AFFORDING THE NATIONAL TREASURY
 EMPLOYEES UNION, CHAPTER 91, THE EXCLUSIVE REPRESENTATIVE OF THE
 AFFECTED EMPLOYEES, A REASONABLE OPPORTUNITY TO MEET AND CONFER, TO THE
 EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO BE USED
 IN IMPLEMENTING THE CHANGES AND ON THE IMPACT OF SUCH CHANGES ON
 ADVERSELY AFFECTED EMPLOYEES.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERRING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER
 91, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, MEET AND CONFER, TO
 THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO BE
 USED IN IMPLEMENTING CHANGES IN THE SYSTEM OF EVALUATING THE WORK
 PERFORMANCE OF APPEALS OFFICERS, AND ON THE IMPACT OF SUCH CHANGES ON
 ADVERSELY AFFECTED EMPLOYEES.
 
    (B) POST AT ALL DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE
 (IRS), SOUTHWEST REGION, DALLAS, TEXAS, FACILITIES AND INSTALLATIONS
 COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
 BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS,
 THEY SHALL BE SIGNED BY THE REGIONAL COMMISSIONER AND SHALL BE POSTED
 AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
 PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED.  THE REGIONAL COMMISSIONER SHALL TAKE
 REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
 OR COVERED BY OTHER MATERIAL.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
 COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., JUNE 15, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
         POLICIES CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE
 
                FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT INSTITUTE CHANGES IN THE SYSTEM OF EVALUATING THE WORK
 PERFORMANCE OF APPEALS OFFICERS WITHOUT AFFORDING THE NATIONAL TREASURY
 EMPLOYEES UNION, CHAPTER 91, THE EXCLUSIVE REPRESENTATIVE OF THE
 AFFECTED EMPLOYEES, A REASONABLE OPPORTUNITY TO MEET AND CONFER, TO THE
 EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO BE USED
 IN IMPLEMENTING THE CHANGES AND ON THE IMPACT OF SUCH CHANGES ON
 ADVERSELY AFFECTED EMPLOYEES.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
 OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    WE WILL, UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 91, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, MEET AND
 CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
 PROCEDURES TO BE USED IN IMPLEMENTING CHANGES IN THE SYSTEM OF
 EVALUATING THE WORK PERFORMANCE OF APPEALS OFFICERS, AND ON THE IMPACT
 OF SUCH CHANGES ON ADVERSELY AFFECTED EMPLOYEES.
 
                            AGENCY OR ACTIVITY
 
    DATED:  . . .  BY:  . . .
 
                                BY:  . . .
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS:
 FEDERAL LABOR RELATIONS AUTHORITY, ROOM 707, 555 GRIFFIN SQUARE
 BUILDING, GRIFFIN AND YOUNG STREETS, DALLAS, TEXAS, 75202.
 
    STUART E. PARKER
 
    1100 COMMERCE STREET
 
    ROOM 12D27
 
    DALLAS, TEXAS 75242
 
                            FOR THE RESPONDENT
 
    HENRY H. ROBINSON
 
    ROD TANNER
 
    SUITE 104
 
    300 EAST HUNTLAND DRIVE
 
    AUSTIN, TEXAS 78752
 
                            FOR THE COMPLAINANT
 
    BEFORE:  RHEA M. BURROW
 
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING
 WAS HELD ON JULY 25, 1978 IN NEW ORLEANS, LOUISIANA PURSUANT TO
 EXECUTIVE ORDER 11491, AS AMENDED, (HEREINAFTER REFERRED TO AS THE
 ORDER).
 
    THE RESPONDENT IN A COMPLAINT FILED ON DECEMBER 5, 1977 WAS CHARGED
 WITH HAVING VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER, AS AMENDED,
 BY UNILATERALLY IMPLEMENTING A CHANGE IN THE MANNER THAT SUPERVISORY
 REVIEW WAS MADE OF APPEALS OFFICERS /3/ AND THEIR WORK IN THE SOUTHWEST
 REGION, WITHOUT AFFORDING THE COMPLAINANT AN OPPORTUNITY TO NEGOTIATE AS
 TO THE PROCEDURES AND IMPACT AND IMPLEMENTATION RESULTING FROM SUCH
 CHANGE.
 
    UPON THE BASIS OF THE EVIDENCE OF RECORD, INCLUDING THE EVIDENCE
 ADDUCED, THE BRIEFS SUBMITTED BY THE PARTIES AND MY OBSERVATIONS OF THE
 WITNESSES, I MAKE THE FOLLOWING FINDINGS, CONCLUSION AND RECOMMENDATION.
 
                          POSITION OF THE PARTIES
 
    THE MATTER FOR CONSIDERATION IN THIS PROCEEDING IS THE FINAL DECISION
 OF THE RESPONDENT IN REFUSING TO BARGAIN AS TO IMPACT AND IMPLEMENTATION
 OF A DECISION TO CHANGE PROCEDURE ON THE METHOD OF SELECTION FOR
 EVALUATION INDIVIDUAL CASES AND WORK UNIT PRODUCTS OF ITS APPEALS
 OFFICERS BY THEIR SUPERVISORS.  /4/
 
    AS A RESULT OF THE REFUSAL TO BARGAIN THE RESPONDENT IS ALLEGED TO
 HAVE VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
 
    THE RESPONDENT URGED THAT THE EVALUATION OF INDIVIDUAL CASES OR WORK
 UNITS DID NOT CONSTITUTE A UNILATERAL CHANGE IN WORKING CONDITIONS OR
 CHANGE IN PERSONNEL POLICIES AND PRACTICES AFFECTING UNIT EMPLOYEES BUT
 APPLIED ONLY TO MANAGEMENT SUPERVISORS WHO HAD AUTHORITY TO MAKE SUCH
 EVALUATIONS IN THE PAST.  THE DECISION IN ISSUE WAS ONE CONSOLIDATING
 PRIOR PRACTICES AND MAKING IT IMPERATIVE THAT SPECIFIC ITEMS BE
 CONSIDERED IN THE EVALUATION OF WORK OF APPEALS OFFICERS BY THEIR
 SUPERVISORS.
 
                             FINDINGS OF FACT
 
    1.  AT ALL PERTINENT AND MATERIAL TIMES RELEVANT HEREIN, THE
 COMPLAINANT WAS THE EXCLUSIVE REPRESENTATIVE OF RESPONDENT'S EMPLOYEES,
 INCLUDING APPEALS OFFICERS IN THE SOUTHWEST REGION OF INTERNAL REVENUE
 SERVICE, INCLUDING BRANCH OFFICES LOCATED IN OKLAHOMA CITY, OKLAHOMA;
 DENVER, COLORADO;  NEW ORLEANS, LOUISIANA;  AND, HOUSTON AND DALLAS,
 TEXAS.
 
    2.  APPEALS OFFICERS IN THE APPELLATE BRANCH OFFICES SERVE IN
 GOVERNMENT GS GRADES OF 12, 13 AND 14.  THERE IS A BRANCH CHIEF WHO IS
 THE HEAD OF EACH REGIONAL OFFICE AND HE IS ASSISTED BY ONE OR MORE
 ASSOCIATE CHIEFS WHO EACH SUPERVISE A GROUP OF APPEALS OFFICERS IN THE
 GS GRADES INDICATED.  THE ALLEGED VIOLATION IN THIS PROCEEDING
 ORIGINATED IN THE NEW ORLEANS, LOUISIANA OFFICE.
 
    3.  AN APPELLATE BRANCH OFFICE IS THE FORUM FOR RECEIVING TAX CASES
 OR WORK UNITS /5/ THAT HAVE NOT BEEN RESOLVED IN THE IRS'S DISTRICT
 DIRECTOR'S OFFICE.  /6/ APPEALS OFFICERS ARE AMONG THE EMPLOYEES
 STAFFING AN APPELLATE BRANCH OFFICE AND THEIR DUTY IS TO ATTEMPT TO
 RESOLVE THE TAX CONTROVERSY.
 
    4.  APPEALS OFFICERS HOLD CONFERENCES AND MAKE FACTUAL FINDINGS AND
 CONCLUSIONS AS TO DISPOSITION OF TAX CONTROVERSIES BUT DO NOT HAVE
 SETTLEMENT AUTHORITY.  THEIR DECISIONS ARE IN THE STATUS OF
 RECOMMENDATIONS UNTIL APPROVED BY THE BRANCH CHIEF.  THE BRANCH CHIEF
 REVIEWS CASES TO DETERMINE WHETHER THE RECOMMENDATION SUBMITTED TO HIM
 BY THE APPEALS OFFICER IS ACCEPTABLE AND IT ALSO SERVES AS A SOURCE FOR
 GAUGING THE PERFORMANCE OF THE APPEALS OFFICER.
 
    5.  THE WORK OF AN APPEALS OFFICER HAS ALWAYS BEEN SUBJECT TO REVIEW.
  PRIOR TO APRIL 1976 THE BRANCH CHIEFS HAD THE DISCRETION TO REVIEW ANY
 CASE, OPEN OR CLOSED, AT ANY TIME AND TO WHATEVER DEPTH THEIR DISCRETION
 WARRANTED.  THUS, THE APPEALS OFFICERS' TOTAL PERFORMANCE ON A CASE WAS
 SUBJECT TO REVIEW BY THE BRANCH CHIEF.
 
    BETWEEN APRIL 1976 AND NOVEMBER 19, 1976 THE ASSISTANT REGIONAL
 COMMISSIONER LIMITED THE DISCRETION OF BRANCH CHIEFS BY REQUIRING THAT
 THEY REVIEW THOSE CASES IN WHICH THE TIME SPENT BY APPEALS OFFICERS IN
 RELATIONSHIP TO THE DIFFICULTY OF THE CASE SELECTION SYSTEM WAS
 TERMINATED AND ABOUT MARCH 1977 THE REVIEW SYSTEM REVERTED BACK TO WHAT
 IT HAD BEEN BEFORE APRIL 1, 1976, THAT IS, THE BRANCH CHIEF HAD COMPLETE
 DISCRETION TO REVIEW ANY AND ALL CASES TO WHATEVER DEPTH DESIRED.
 
    6.  IN MARCH 1977 THE ASSISTANT REGIONAL COMMISSIONER MET WITH
 APPELLATE BRANCH CHIEFS AND ANNOUNCED THAT THE DISCRETION OF BRANCH
 CHIEFS IN APPEALS OFFICER REVIEW RECOMMENDATIONS WOULD HEREAFTER BE
 LIMITED.  THE PROCEDURES WERE ANNOUNCED AT A STAFF MEETING IN NEW
 ORLEANS ON APRIL 7, 1977.  THE MINUTES OF THIS MEETING STATED IN PART:
 "CHIEF INFORMED APPEALS OFFICERS THAT HE WILL BE SITTING IN ON APPEALS
 CONFERENCES BEGINNING IN MAY.  A MEMO WAS GIVEN TO EACH APPEALS OFFICER
 REGARDING THIS NEW PROCEDURE.  /7/ THE PROCEDURES RELATING TO "REVIEW OF
 APPELLATE WORK UNITS" WERE LATER CODIFIED IN A REGIONAL COMMISSIONER'S
 MEMORANDUM DATED JUNE 3, 1977.  /8/ THE SUPERVISORY MONITORING OF THE
 APPEALS OFFICERS CONFERENCE AT NEW ORLEANS CONSTITUTED A NEW PRACTICE
 AND CHANGE IN POLICY AS DISTINGUISHED FROM THE CONTINUATION OF A PRIOR
 POLICY OR PRACTICE.  LIKEWISE, THE REQUIREMENT THAT MANAGEMENT REVIEW
 ALL CASES TO A MINIMUM DEPTH AS ANNOUNCED TO THE EMPLOYEES IN NEW
 ORLEANS IN APRIL 1977 CONSTITUTED A CHANGE IN THE SAMPLING, THE QUANTITY
 IN THE SAMPLE AND SELECTION OF THE SAMPLING.  /9/
 
    PRIOR TO APRIL 1, 1977, THE BRANCH CHIEF IN EACH OF THE RESPONDENT'S
 APPELLATE BRANCH OFFICES, EXCEPT FOR A LIMITED PERIOD BETWEEN APRIL 1
 AND NOVEMBER 19, 1976, WAS REQUIRED TO CONDUCT AN IN DEPTH REVIEW OF A
 REPRESENTATIVE SAMPLE OF THE WORK OF EACH APPEALS OFFICER THAT HE
 SUPERVISED.  THE REVIEW INCLUDED, AMONG OTHER THINGS, CONSIDERATION OF
 THE QUALITY OF THE DECISION IN EACH CASE, THE PROMPTNESS OF THE
 CONFERENCE HELD WITH THE TAXPAYER, THE PROMPTNESS OF THE FINAL
 DETERMINATION, THE CASE MANAGEMENT AND THE WRITE-UP OF THE CASE.  THE
 SELECTION OF THE CASES TO BE REVIEWED WAS AT THE DISCRETION OF EACH
 BRANCH CHIEF.  BEGINNING ABOUT APRIL 1, 1977, THE RESPONDENT IMPLEMENTED
 A DIFFERENT BASIS FOR THE WORK TO BE REVIEWED BY THE BRANCH CHIEFS. OF
 APPEALS OFFICERS PERFORMANCE EVALUATION.  THE REVIEW INCLUDED:  REVIEW
 OF WORK PLANS OF TEAM UNITS AND UNITS OF $1 MILLION OR MORE;  QUALITY OF
 DECISION;  TIMELINESS OF CONFERENCE AND DECISION;  TIME UTILIZATION USE
 OF SUPPORT PERSONNEL AND EQUIPMENT;  REPORT WRITING AND MAINTENANCE BY
 MANAGERS OF A LOG OF UNITS REVIEWED REFLECTING THE DEPTH OF THE REVIEW.
 FOR EXAMPLE, THE CODIFICATION MEMORANDUM OF JUNE 3, 1977 REQUIRED "(1)
 APPELLATE MANAGERS WILL REVIEW IN GREATER DEPTH THE QUALITY OF
 RECOMMENDATIONS FOR DISPOSITION OF UNITS INVOLVING MORE THAN $500,000 IN
 PROPOSED DEFICIENCIES OR ASSESSMENTS AND ALL UNITS IN WHICH LARGE
 CONCESSIONS ARE PROPOSED.  THEY WILL REVIEW IN DEPTH THE QUALITY OF THE
 RECOMMENDED DECISION ON EACH ISSUE INVOLVING (A) A HIGHLY SENSITIVE
 MATTER;  (B) A TAX SHELTER OR SIMILAR ISSUE REQUIRING NATIONAL
 COORDINATION SUCH AS ISSUES INVOLVING ENTIRE INDUSTRIES OR LARGE GROUPS
 OF TAXPAYERS;  (C) A REPORT TO THE JOINT COMMITTEE ON TAXATION;  (D)
 CONCESSION OR COMPROMISE OF A CIVIL FRAUD PENALTY." THUS, IT IS EVIDENT
 THAT THE IN DEPTH CONSIDERATION AND REVIEW BY ASSOCIATE BRANCH CHIEFS
 FOR CERTAIN TYPES OF ENUMERATED CASES WERE NO LONGER DISCRETIONARY BUT
 MANDATORY.
 
    BOTH BEFORE AND AFTER THE VARIOUS ANNOUNCEMENTS BEGINNING IN LATE
 MARCH AND APRIL 1977 EVENTUATING FINALLY IN THE SO CALLED CODIFICATION
 MEMORANDUM IN JUNE 1977 THE DUTIES AND OBLIGATIONS OF UNIT EMPLOYEES
 REMAINED THE SAME.  STANDARDS OF CASE HANDLING PERFORMANCE, INCLUDING
 TIMELINESS OF CASE HANDLING REMAINED UNAFFECTED.  WHAT WAS ACTUALLY
 CONTEMPLATED AND CHANGED WAS A TERM AND CONDITION OF EMPLOYMENT FOR
 SUPERVISORS IN THAT THEIR WORK AND REVIEW OF APPEALS OFFICERS WORK
 REQUIRED MORE CONCENTRATION AND IN DEPTH REVIEW BY BRANCH CHIEFS.  IT
 REMAINS HOWEVER TO BE CONCLUDED WHETHER THE PROCEDURES, METHODS, AND
 REQUIREMENTS AS TO THE REVIEW OF APPELLATE WORK UNITS HAD ANY
 DISCERNIBLE EFFECT UPON THE APPEALS OFFICERS WORKING CONDITIONS.
 
                        DISCUSSION AND CONCLUSIONS
 
    1.  IN THIS CASE THE UNION DOES NOT CLAIM THAT THE RESPONDENT IS
 OBLIGATED TO NEGOTIATE WITH IT REGARDING THE DECISION TO SELECTIVELY
 MONITOR CONFERENCES OF ITS APPEALS OFFICERS WITH TAXPAYERS FOR THE
 DECISION AS TO THE METHOD OF SELECTION FOR EVALUATION OF THE INDIVIDUAL
 CASES AND THE WORK UNIT PRODUCT OF ITS APPEALS OFFICERS THAT WILL BE
 REVIEWED BY ASSOCIATE BRANCH CHIEFS.  RATHER THE UNION IS SEEKING TO
 NEGOTIATE WITH THE RESPONDENT ONLY AS TO MATTERS CONCERNING PROCEDURES
 AND IMPACT RELATIVE TO THE DECISIONS.
 
    SECTION 19(A)(1) AND (6) OF THE ORDER PROVIDES THAT AGENCY MANAGEMENT
 SHALL NOT (1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE
 EXERCISE OF RIGHTS ASSURED BY THIS ORDER;  AND (6) REFUSE TO CONSULT,
 CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION AS REQUIRED BY THIS
 ORDER.
 
    SECTION 11(A) OF THE ORDER IMPOSES UPON AN AGENCY THE OBLIGATION TO
 MEET AT REASONABLE TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO
 PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
 CONDITIONS OF UNIT EMPLOYEES.
 
    SECTION 11(B) OF THE ORDER, HOWEVER, MAKES IT CLEAR THAT THE
 OBLIGATION TO MEET AND CONFER (IMPOSED BY SECTION 11(A)) DOES NOT
 INCLUDE MATTERS WITH RESPECT TO THE MISSION OF THE AGENCY;  ITS BUDGET;
 ITS ORGANIZATION;  THE NUMBER OF EMPLOYEES ASSIGNED AN ORGANIZATIONAL
 UNIT, WORK PROJECT OR TOUR OF DUTY;  THE TECHNOLOGY OF PERFORMING ITS
 WORK;  OR, ITS INTERNAL SECURITY PRACTICES.
 
    UNDER SECTION 12(B) OF THE ORDER MANAGEMENT OFFICIALS OF THE AGENCY
 RETAIN THE FOLLOWING RIGHTS, AMONG OTHERS, IN ACCORDANCE WITH APPLICABLE
 LAWS AND REGULATIONS;  (1) TO DIRECT EMPLOYEES OF THE AGENCY;  (2) TO
 HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES WITHIN THE AGENCY
 AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST EMPLOYEES;  (3) TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK
 OF WORK OR FOR OTHER LEGITIMATE REASONS;  (4) TO MAINTAIN THE EFFICIENCY
 OF THE GOVERNMENT OPERATIONS ENTRUSTED TO THEM;  (5) TO DETERMINE THE
 METHODS, MEANS AND PERSONNEL BY WHICH SUCH OPERATIONS ARE TO BE
 CONDUCTED.
 
    SECTION 11(A) OF THE ORDER DESCRIBES THE LIMITED AREAS WHICH ARE
 SUBJECT TO THE BARGAINING OBLIGATION ON THE PART OF AGENCIES AND
 EXCLUSIVE REPRESENTATIVES.  THE SECTION HAS BEEN INTERPRETED TO
 ENCOMPASS THOSE MATTERS WHICH MATERIALLY AFFECT AND HAVE A SUBSTANTIAL
 IMPACT ON PERSONNEL POLICIES, PRACTICES AND GENERAL WORKING CONDITIONS.
 
    IN THE CASE OF DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
 FRESNO SERVICE CENTER, A/SLMR, NO. 983, THE ASSISTANT SECRETARY FOR
 LABOR MANAGEMENT RELATIONS ADOPTED THE CONCLUSIONS OF THE ADMINISTRATIVE
 LAW JUDGE HOLDING THAT RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF
 THE ORDER BY UNILATERALLY ALTERING THE METHOD OF SELECTING SAMPLES OF
 THE WORK PRODUCT OF UNIT EMPLOYEES FOR QUALITY REVIEW PURPOSES WITHOUT
 FIRST NOTIFYING AND AFFORDING NTEU AN OPPORTUNITY TO BARGAIN OVER THE
 IMPACT AND IMPLEMENTATION OF SUCH CHANGE.
 
    IN THE CASE OF DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
 SOUTHWEST REGION, DALLAS, TEXAS, A/SLMR 1106, THE ASSISTANT SECRETARY
 HELD:  "CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE NEW
 BASIS FOR SELECTING CASES FOR PERFORMANCE EVALUATION EFFECTED A CHANGE
 IN EMPLOYEE TERMS AND CONDITIONS OF EMPLOYMENT.  THUS, PRIOR TO APRIL 1,
 1976 THE APPEALS OFFICERS WORKING FOR THE RESPONDENT COULD GENERALLY
 EXPECT THAT A CROSS SECTION OF THEIR WORK PRODUCT WOULD FORM THE BASIS
 FOR THEIR PERFORMANCE EVALUATION.  SUBSEQUENT TO APRIL 1, 1976, A SKEWED
 SAMPLE OF THEIR WORK, EITHER LIMITED TO OR WEIGHTED TOWARD THOSE CASES
 WHICH EXCEEDED THE 'TRIGGER POINTS,' WOULD FORM THE BASIS FOR THEIR
 EVALUATION.  IN MY VIEW, THIS CHANGE TO AN UNBALANCED SAMPLE OF WORK
 SELECTED FOR REVIEW IN CONTRAST WITH THE PRIOR SYSTEM INVOLVING BRANCH
 CHIEFS' DISCRETIONARY SELECTIONS, CONSTITUTED A CHANGE IN THE BASE FROM
 WHICH PERFORMANCE EVALUATIONS WERE TO BE MADE AND, THEREFORE, WAS A
 CHANGE IN EMPLOYEE TERMS AND CONDITIONS OF EMPLOYMENT GIVING RISE TO THE
 OBLIGATION OF THE RESPONDENT TO MEET AND CONFER, UPON REQUEST, WITH THE
 EXCLUSIVE REPRESENTATIVE CONCERNING THE IMPACT AND IMPLEMENTATION OF
 SUCH CHANGE."
 
    AS TO THE CASE NOW IN ISSUE, THE DISCRETIONARY SELECTION FOR REVIEW
 OF APPEALS OFFICERS WORK BY ASSOCIATE BRANCH CHIEFS PRIOR TO APRIL 1977
 CHANGED TO THE MORE BALANCED OR SOPHISTICATED SYSTEM OF ALL INCLUSIVE
 REVIEW AND IN DEPTH CONSIDERATION CONTINUED FOR CERTAIN TYPES OF CASES.
 ALSO, THE REVIEW FOR THE FIRST TIME INCLUDED AS OF MAY 1, 1977 THE
 PRACTICE OF SUPERVISORY MONITORING OF APPEALS OFFICERS CONFERENCES WITH
 TAXPAYERS BY ASSOCIATE BRANCH CHIEFS.  IN MY VIEW THIS CHANGE FROM
 DISCRETIONARY TO ALL INCLUSIVE OR BALANCED SAMPLING TOGETHER WITH THE
 MONITORING FOR THE FIRST TIME APPEALS OFFICERS CONFERENCES WITH
 TAXPAYERS CONSTITUTED A CHANGE IN THE BASE FROM WHICH PERFORMANCE
 EVALUATIONS WERE TO BE MADE.  /10/ THIS WAS A CHANGE IN EMPLOYEE TERMS
 AND CONDITIONS OF EMPLOYMENT GIVING RISE TO THE OBLIGATION OF THE
 RESPONDENT TO MEET AND CONFER, UPON REQUEST, WITH THE EXCLUSIVE
 REPRESENTATIVE CONCERNING THE IMPACT AND IMPLEMENTATION OF SUCH CHANGE.
 I CONCLUDE THAT THE RESPONDENT'S FAILURE TO FULFILL ITS BARGAINING
 OBLIGATION TO CONFER AND NEGOTIATE WITH THE COMPLAINANT CONSTITUTED A
 VIOLATION OF SECTION 19(A) (6) OF THE ORDER AND DERIVATIVELY A VIOLATION
 OF SECTION 19(A)(1) OF THE ORDER.
 
                              RECOMMENDATION
 
    HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT VIOLATIVE OF
 SECTIONS 19(A)(1) AND (6) OF THE ORDER BY ITS FAILURE AND REFUSAL TO
 NEGOTIATE WITH COMPLAINANT WITH REGARD TO THE IMPLEMENTATION AND IMPACT
 ON UNIT EMPLOYEES ADVERSELY AFFECTED BY CHANGING THE STANDARDS FOR
 EVALUATING CASE HANDLING PERFORMANCE OF APPEALS OFFICERS FROM A
 DISCRETIONARY BASIS TO AN ALL INCLUSIVE BALANCED SYSTEM, WITH MONITORING
 OF APPEALS OFFICERS CONFERENCES BY BRANCH CHIEFS, I RECOMMEND THAT THE
 ASSISTANT SECRETARY ADOPT THE FOLLOWING ORDER WHICH IS DESIGNED TO
 EFFECTUATE THE POLICIES OF ORDER.
 
                                   ORDER
 
    PURSUANT TO SECTION 6(B) OF THE EXECUTIVE ORDER 11491, AS AMENDED,
 AND SECTION 203.26 OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
 FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF THE
 TREASURY, INTERNAL REVENUE SERVICE, SOUTHWEST REGION, DALLAS, TEXAS,
 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INSTITUTING CHANGES IN THE SYSTEM BY WHICH BRANCH CHIEFS, MONITOR
 APPEALS OFFICERS CONFERENCES WITH TAXPAYERS AND UTILIZE WORK
 ACCOMPLISHED BY APPEALS OFFICERS FOR THE PURPOSE OF EVALUATING THEIR
 PERFORMANCE WITHOUT AFFORDING THE NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 91, THE EXCLUSIVE REPRESENTATIVE OF THE AFFECTED EMPLOYEES, A
 REASONABLE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH
 LAW AND REGULATIONS, ON THE PROCEDURES TO BE USED IN IMPLEMENTING THE
 CHANGE AND ON THE IMPACT OF SUCH CHANGE ON ADVERSELY AFFECTED EMPLOYEES.
 
    (B) IN LIKE OR RELATED MANNER, INTERFERING WITH RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED:
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
 
    (A) UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER
 91;  THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, MEET AND CONFER, TO
 THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO BE
 USED IN IMPLEMENTING A CHANGE IN THE SYSTEM AND MONITORING OF APPEALS
 OFFICERS CONFERENCE WITH TAXPAYERS BY WHICH BRANCH CHIEFS UTILIZE WORK
 ACCOMPLISHED BY APPEALS OFFICERS FOR THE PURPOSE OF EVALUATING THEIR
 PERFORMANCE AND ON THE IMPACT OF SUCH CHANGE ON ADVERSELY AFFECTED
 EMPLOYEES.
 
    (B) UPON REQUEST, REEVALUATE, USING THE PREVIOUS SYSTEM, AS THE BASIS
 TO EVALUATE ANY EMPLOYEE WHOSE CURRENT ANNUAL EVALUATION IS BASED, IN
 WHOLE OR IN PART ON CRITERIA IN EFFECT BETWEEN NOVEMBER 19, 1976 AND
 APRIL 1, 1977 IF THE CASES OR WORK SELECTED FOR REVIEW AND OBSERVATION
 OF APPEALS OFFICERS CONFERENCE WITH TAXPAYERS WERE BASED ON LESS THAN AN
 ALL INCLUSIVE IN-DEPTH REVIEW APPLICABLE UNDER PRESENT STANDARDS.
 
    (C) POST AT ALL DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
 SOUTHWEST REGION, DALLAS, TEXAS, FACILITIES AND INSTALLATIONS COPIES OF
 THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
 ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.  UPON
 RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE REGIONAL COMMISSIONER
 AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
 THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
 OTHER PLACE WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE
 REGIONAL COMMISSIONER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
 NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY OTHER MATERIAL.
 
    (D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
 ASSISTANT SECRETARY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                              RHEA M. BURROW
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JANUARY 19, 1979
 
    WASHINGTON, D.C.
 
    RMB:LE
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
        PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
 
          OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
 
           EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
 
             AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
 
                                  SERVICE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT INSTITUTE CHANGES IN THE SYSTEM BY WHICH BRANCH CHIEFS
 OBSERVE APPEALS OFFICERS CONFERENCES AND UTILIZE THEIR WORK FOR THE
 PURPOSE OF EVALUATING THEIR PERFORMANCE WITHOUT AFFORDING THE NATIONAL
 TREASURY EMPLOYEES UNION, CHAPTER 91, THE EXCLUSIVE REPRESENTATIVE OF
 THE AFFECTED EMPLOYEES, A REASONABLE OPPORTUNITY TO MEET AND CONFER, TO
 THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO BE
 USED IN IMPLEMENTING THE CHANGES AND ON THE IMPACT OF SUCH CHANGES ON
 ADVERSELY AFFECTED EMPLOYEES.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
 OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    WE WILL, UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 91, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, MEET AND
 CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
 PROCEDURES TO BE USED IN IMPLEMENTING A CHANGE IN THE SYSTEM BY WHICH
 BRANCH CHIEFS OBSERVE APPEALS OFFICERS TAX CONFERENCES AND UTILIZE THE
 WORK ACCOMPLISHED BY APPEALS OFFICERS FOR THE PURPOSE OF EVALUATING
 THEIR PERFORMANCE AND ON THE IMPACT OF SUCH CHANGES ON ADVERSELY
 AFFECTED EMPLOYEES.
 
    WE WILL, UPON REQUEST, REEVALUATE, USING THE PRESENT SYSTEM, AS THE
 BASIS TO EVALUATE ANY EMPLOYEE WHOSE CURRENT ANNUAL EVALUATION IS BASED,
 IN WHOLE OR IN PART, ON EVALUATION CRITERIA IN EFFECT BETWEEN NOVEMBER
 19, 1916 AND APRIL 1, 1977, IF THE CASES OR WORK SELECTED FOR REVIEW AND
 OBSERVATION OF APPEALS OFFICERS CONFERENCES WITH TAXPAYERS WERE BASED ON
 LESS THAN AN ALL INCLUSIVE IN-DEPTH REVIEW UNDER THE PRESENT STANDARDS.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .
 
                                BY:  . . .
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
 SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
 ADDRESS IS:  ROOM 2200, FEDERAL OFFICE BUILDING, 911 WALNUT STREET,
 KANSAS CITY, MISSOURI 64106
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ IN ITS EXCEPTIONS, THE RESPONDENT CONTENDED THAT THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED REMEDY IS, IN EFFECT, A RETURN TO
 THE STATUS QUO ANTE AND SHOULD NOT BE REQUIRED AS PART OF THE REMEDIAL
 ORDER HEREIN.  IN THE AUTHORITY'S VIEW, IN THE PARTICULAR CIRCUMSTANCES
 HEREIN WHERE THE VIOLATION FOUND PERTAINS TO AN IMPROPER FAILURE TO MEET
 AND CONFER OVER THE IMPACT AND IMPLEMENTATION OF A MANAGEMENT DECISION
 RATHER THAN THE DECISION ITSELF, IT WILL NOT EFFECTUATE THE PURPOSES AND
 THE POLICIES OF THE ORDER TO REQUIRE A RETURN TO THE STATUS QUO ANTE AS
 PART OF THE REMEDIAL ORDER.  DEPARTMENT OF THE TREASURY, INTERNAL
 REVENUE SERVICE, INDIANAPOLIS, INDIANA, 7 A/SLMR 844, A/SLMR NO. 909
 (1977).
 
    /3/ ALSO KNOWN AS APPEALS CONFEREES.
 
    /4/ AT THE HEARING COMPLAINT'S COUNSEL STATED:  "THE COMPLAINANT IS
 NOT CONTENDING THAT IT CAN BAR OR OTHERWISE PREVENT MANAGEMENT, IF
 MANAGEMENT WANTS TO EVALUATE INDIVIDUAL CASES OR WORK UNITS, THE UNION
 IS NOT CONTENDING THAT, BUT THE UNION IS CONTENDING THAT IF MANAGEMENT
 DOES MAKE THE DECISION TO CHANGE PROCEDURE ON THAT METHOD OF SELECTION
 FOR EVALUATION OF THOSE INDIVIDUAL CASES OR INDIVIDUAL WORK UNITS THEN
 THE UNION HAS A RIGHT TO NEGOTIATE WITH RESPECT TO THE IMPACT AND
 IMPLEMENTATION OF THE CHANGE.
 
    "JUDGE BURROW:  YOU ARE JUST TALKING ABOUT IMPACT AND IMPLEMENTATION?
 
    "MR. ROBINSON:  YES.  WE AREN'T CLAIMING THAT THE BASIC DECISION TO
 EVALUATE OR NOT EVALUATE INDIVIDUAL CASES OR INDIVIDUAL WORK UNITS IS
 SUBJECT TO MANDATORY 11-A NEGOTIATION." TRANSCRIPT, HEREAFTER REFERRED
 TO AS TR. P.13.
 
    /5/ A CASE INVOLVES ONE TAXPAYING ENTITY, WHEREAS A UNIT INVOLVES TWO
 OR MORE TAXPAYING ENTITIES.
 
    /6/ INTERNAL REVENUE SERVICE.
 
    /7/ COMPLAINANT'S EXHIBIT NO. 5.
 
    /8/ SEE, COMPLAINANT'S EXHIBIT NO. 9.
 
    /9/ TR. P. 178.
 
    /10/ IN NORTH ATLAN