Department of Treasury, Internal Revenue Service, Jacksonville District (Respondent) and National Treasury Employees Union (Charging Party)
[ v03 p631 ]
03:0631(103)CA
The decision of the Authority follows:
3 FLRA No. 103
DEPARTMENT OF TREASURY,
INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 4-CA-50(1)
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT RESPONDENT HAD ENGAGED
IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, 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 TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THEREFORE, PURSUANT TO SEC. 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (45 F.R. 3511, JANUARY 17, 1980) AND SEC. 7118 OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135),
THE AUTHORITY HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE
MADE AT THE HEARING AND FINDS THAT NO PREJUDICAL 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'S
EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
ORDER
PURSUANT TO SEC. 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY'S
RULES AND REGULATIONS AND SEC. 7118 OF THE STATUTE, THE AUTHORITY HEREBY
ORDERS THAT THE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT SHALL:
1. CEASE AND DESIST FROM:
INSTITUTING CHANGES IN THE TIME SCHEDULES FOR THE PROCESSING OF CASES
BY UNIT EMPLOYEES WITHOUT NOTIFING THE NATIONAL TREASURY EMPLOYEES
UNION, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, AND AFFORDING IT
THE OPPORTUNITY TO BARGAIN CONCERNING THE IMPLEMENTATION OF SUCH CHANGES
AND THEIR IMPACT ON ADVERSELY AFFECTED EMPLOYEES.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) UPON REQUEST, MEET AND NEGOTIATE WITH THE NATIONAL TREASURY
EMPLOYEES UNION CONCERNING THE PROCEDURES TO BE UTILIZED IN IMPLEMENTING
ANY CHANGES IN TIME SCHEDULES FOR THE PROCESSING OF CASES AND THEIR
IMPACT ON ADVERSELY AFFECTED EMPLOYEES.
(B) POST, AT ITS MIAMI, FLORIDA FACILITY, 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 DISTRICT DIRECTOR FOR THE JACKSONVILLE, FLORIDA DISTRICT, AND SHALL
BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND OTHER PLACES WHERE
NOTICES ARE CUSTOMARILY POSTED. THE DISTRICT DIRECTOR SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR
COVERED BY ANY 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., JULY 17, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, 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 OF 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 TIME SCHEDULES FOR THE PROCESSING OF
CASES FOR UNIT EMPLOYEES WITHOUT FIRST NOTIFING THE NATIONAL TREASURY
EMPLOYEES UNION, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF OUR
EMPLOYEES, AND AFFORDING IT THE OPPORTUNITY TO BARGAIN CONCERNING THE
IMPLEMENTATION OF SUCH CHANGES AND THEIR IMPACT ON ADVERSELY AFFECTED
EMPLOYEES.
WE WILL, UPON REQUEST, MEET AND NEGOTIATE WITH THE NATIONAL TREASURY
EMPLOYEES UNION CONCERNING THE PROCEDURES TO BE UTILIZED IN IMPLEMENTING
ANY CHANGES IN TIME SCHEDULES FOR THE PROCESSING OF CASES AND THEIR
IMPACT ON ADVERSELY AFFECTED EMPLOYEES.
(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 DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 4, WHOSE
ADDRESS IS: SUITE 501, NORTH WING, 1776 PEACHTREE STREET, NW., ATLANTA,
GEORGIA 30309.
CERTIFICATE OF SERVICE
COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES BELOW:
MS. MATHILDE L. GENOVESE, ESQUIRE
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
REGION IV, SUITE 501, NORTH WING
1776 PEACHTREE STREET, N.W.
ATLANTA, GEORGIA 30309
FORREST W. HUNTER, ESQUIRE
OFFICE OF THE CHIEF COUNSEL
INTERNAL REVENUE SERVICE
POST OFFICE BOX 1070
ROOM 824, 275 PEACHTREE STREET
ATLANTA, GEORGIA 30301
TIMOTHY C. WELSH, ESQUIRE
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
SUITE 430, 2801 BUFORD HIGHWAY
ATLANTA, GEORGIA 30329
MR. ROBERT TOBIAS
GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
WASHINGTON, D.C. 20006
MR. SEYMOUR X. ALSHER
REGIONAL DIRECTOR
FEDERAL LABOR RELATIONS AUTHORITY
1776 PEACHTREE STREET, N.W.
SUITE 501, NORTH WING
ATLANTA, GEORGIA 30309
MS. MATHILDE L. GENOVESE, ESQUIRE
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
REGION IV, SUITE 501, NORTH WING
1776 PEACHTREE STREET, N.W.
ATLANTA, GEORGIA 30309
FOR THE GENERAL COUNSEL
FORREST W. HUNTER, ESQUIRE
OFFICE OF CHIEF COUNSEL
INTERNAL REVENUE SERVICE
POST OFFICE BOX 1070
ROOM 824, 275 PEACHTREE STREET
ATLANTA, GEORGIA 30301
FOR THE RESPONDENT
TIMOTHY C. WELSH, ESQUIRE
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
SUITE 430, 2801 BUFORD HIGHWAY
ATLANTA, GEORGIA 30329
FOR THE CHARGING PARTY
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
SECTION 7101, ET SEQ., AND THE INTERIM RULES AND REGULATIONS ISSUED
THEREUNDER, FED. REG., VOL. 44, NO. 147, JULY 30, 1979, 5 C.F.R. CHAPTER
XIV, PART 2411, ET SEQ.
PURSUANT TO AN AMENDED CHARGE FIRST FILED ON APRIL 2, 1979, BY THE
NATIONAL TREASURY EMPLOYEES UNION (HEREINAFTER CALLED THE UNION OR
CHARGING PARTY), A COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON OCTOBER
11, 1979. THE COMPLAINT ALLEGES THAT THE DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT (HEREINAFTER CALLED THE
RESPONDENT OR IRS) VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (HEREINAFTER CALLED THE
STATUTE) BY VIRTUE OF ITS ACTIONS IN UNILATERALLY ADOPTING NEW TIME
SCHEDULES FOR THE PROCESSING OF CASES WITHOUT GIVING PRIOR NOTICE TO THE
UNION AND AFFORDING THE UNION AN OPPORTUNITY TO CONSULT OR NEGOTIATE
CONCERNING THE IMPACT AND/OR IMPLEMENTATION OF THE CHANGE.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON JANUARY 7 AND 8, 1979,
IN CORAL GABLES, FLORIDA. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO
BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE
EVIDENCE BEARING ON THE ISSUES HEREIN. ALL PARTIES SUBMITTED BRIEFS
WHICH HAVE BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND
CONCLUSIONS.
FINDINGS OF FACT
IRS AND THE UNION, WHICH IS THE EXCLUSIVE BARGAINING REPRESENTATIVE
OF THE EMPLOYEES INVOLVED HEREIN, ARE PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT COVERING THE PERIOD JANUARY 31, 1977 THROUGH JANUARY 31, 1981.
THE CONTRACT IS A MULTI-DISTRICT AGREEMENT WHICH INCLUDES RESPONDENT'S
JACKSONVILLE, FLORIDA DISTRICT. THE MIAMI, FLORIDA OFFICE OF THE
RESPONDENT FALLS WITHIN THE JACKSONVILLE DISTRICT. THE UNION HAS FIVE
SEPARATE CHAPTERS IN THE STATE OF FLORIDA WHICH COMPOSE THE "JOINT
COUNCIL". HENRY COLEAS IS THE CHAIRMAN OF THE JOINT COUNCIL AND IN SUCH
CAPACITY IS THE CHIEF SPOKESMAN FOR ALL THE EMPLOYEES REPRESENTED BY THE
UNION IN IRS'S JACKSONVILLE DISTRICT. ACCORDING TO THE UNCONTESTED
TESTIMONY OF MR. COLEAS, HE, AS CHAIRMAN OF THE JOINT COUNCIL, IS THE
ONLY UNION REPRESENTATIVE AUTHORIZED TO RECEIVE NOTICE OF ANY PROPOSED
CHANGES IN WORKING CONDITIONS. MR. COLEAS FURTHER TESTIFIED, WITHOUT
CONTRADICTION, THAT HE DID NOT RECEIVE ANY NOTICE FROM THE RESPONDENT
CONCERNING THE ALLEGED CHANGES IN WORKING CONDITIONS WHICH OCCURRED IN
BRANCH VI OF RESPONDENT'S MIAMI DISTRICT OFFICE.
THE MIAMI OFFICE OF THE IRS IS DIVIDED INTO A NUMBER OF BRANCHES,
AMONG WHICH IS EXAMINATION BRANCH VI WHEREIN THE ALLEGED UNILATERAL
CHANGES UNDERLYING THE INSTANT COMPLAINT OCCURRED. EXAMINATION BRANCH
VI IS FURTHER DIVIDED INTO EIGHT GROUPS, EACH OF WHICH IS UNDER THE
SUPERVISION OF A GROUP MANAGER, WHO IN TURN IS ANSWERABLE TO THE CHIEF
OF EXAMINATION BRANCH VI. /1/ AT THE TIME OF THE EVENTS HEREIN, MR.
WILLIAM ALLEN WAS THE CHIEF OF EXAMINATION BRANCH VI AND MR. ED KAHN AND
MR. DAVID AT VARIOUS TIMES HELD THE POSITION OF GROUP MANAGER FOR THE
ESTATE AND GIFT TAX GROUP.
AS INDICATED BY THE RESPECTIVE NAMES OF THE GROUPS, EACH GROUP IS
RESPONSIBLE FOR CHECKING THE DIFFERENT TYPES OF TAX RETURNS FILED WITH
THE INTERNAL REVENUE SERVICE. THUS, SOME GROUPS CHECKED INDIVIDUAL TAX
RETURNS, WHILE OTHER GROUPS WERE RESPONSIBLE FOR CHECKING PARTNERSHIP,
CORPORATION OR ESTATE AND GIFT TAX RETURNS. ACCORDING TO THE RECORD,
THE WORK OF THE ESTATE AND GIFT TAX GROUP IS OF A MORE TIME CONSUMING
NATURE THAN THE WORK OF THE SEVEN OTHER GROUPS SINCE THE INFORMATION
NECESSARY TO VERIFY OR CHECK THE ESTATE RETURNS WAS OFTEN NOT READILY OR
IMMEDIATELY AVAILABLE BECAUSE THE DECEDENT INVOLVED WAS NOT A FLORIDA
RESIDENT. IN THESE CIRCUMSTANCES, THE ATTORNEYS IN THE ESTATE TAX GROUP
WOULD HAVE TO SECURE THE DECEDENTS PAST TAX RECORDS FROM OTHER IRS
DISTRICTS BEFORE THEY HAD SUFFICIENT INFORMATION TO PROCEED WITH THE
ESTATE TAX AUDIT. THE RECORD INDICATES THAT OBTAINING COPIES OF THE
PAST RETURNS AND OTHER PERTINENT MATERIALS FROM OTHER IRS DISTRICTS WAS
A FRUSTRATING AND TIME CONSUMING ACTIVITY. ACCORDINGLY, A FINAL AUDIT OF
AN ESTATE TAX RETURN BY ESTATE AND GIFT TAX PERSONNEL, ASIDE FROM OTHER
TECHNICAL PROBLEMS THAT MIGHT BE INVOLVED, GENERALLY TOOK MUCH LONGER
THAN THE TAX AUDITS PERFORMED BY THE ATTORNEYS OR AUDITORS WORKING IN
THE OTHER TAX GROUPS IN EXAMINATION BRANCH VI.
IN PERFORMING THEIR DAY TO DAY WORK, THE ATTORNEYS WORKING IN THE
ESTATE AND GIFT TAX GROUP OF EXAMINATION BRANCH VI WERE GOVERNED BY,
AMONG OTHER THINGS, THE "AUDIT TECHNIQUE HANDBOOK FOR ESTATE TAX
EXAMINERS" AND THE "INTERNAL REVENUE MANUAL FOR ESTATE AND GIFT TAX".
EXCERPTS FROM BOTH DOCUMENTS WHICH APPEAR IN THE RECORD AS GENERAL
COUNSEL'S EXHIBITS 3 & 4 SPEAK OF AN "18 MONTHS CYCLE" FOR THE
COMPLETION OF AN ESTATE TAX AUDIT.
THE GROUP MANAGERS OF EXAMINATION BRANCH VI IN PERFORMING THEIR DAY
TO DAY SUPERVISORY DUTIES WERE GOVERNED BY THE "HANDBOOK FOR AUDIT GROUP
MANAGERS", "HANDBOOK FOR EXAMINATION BRANCH MANAGERS" AND VARIOUS
SUPPLEMENTAL MEMORANDA ISSUED BY THE IRS WHICH CLARIFIED, EXPANDED AND
EMPHASIZED VARIOUS PROVISIONS, TECHNIQUES AND EVALUATION FORMS SET FORTH
IN THE HANDBOOKS. THE AFOREMENTIONED HANDBOOKS AND SUPPLEMENTAL
MEMORANDA, APPEARING IN THE RECORD AS RESPONDENT'S EXHIBITS 1-8, IMPOSED
UPON THE GROUP MANAGERS THE RESPONSIBILITY FOR CONDUCTING PERIODIC
"ON-THE-JOB-VISITS", "WORKLOAD REVIEWS" AND "CASE REVIEWS", ALL OF WHICH
WERE DESIGNED TO INSURE THAT THE VARIOUS CASES ASSIGNED TO THE EMPLOYEES
WITHIN THE RESPECTIVE GROUPS WOULD BE TIMELY PROCESSED WITHOUT ANY UNDUE
DELAYS. THE GROUP MANAGERS WERE FURTHER CHARGED WITH THE RESPONSIBILITY
OF RECORDING, ON VARIOUS FORMS SUPPLIED BY THE IRS, THE SUBSTANCE OF THE
PERIODIC REVIEWS AS WELL AS THE CASE HANDLING AGREEMENTS OR
UNDERSTANDINGS REACHED THEREIN. ADDITIONALLY, THE GROUP MANAGERS WERE
RESPONSIBLE FOR FILLING OUT VARIOUS FORMS WHICH EVALUATED THE
PERFORMANCE OF THE INDIVIDUAL EMPLOYEES IN A NUMBER OF CATEGORIES. /2/
THE EVALUATIONS WENT FROM UNSATISFACTORY TO OUTSTANDING. DUE TO THE
DIFFERENT NATURE OF THE TAX RETURNS INVOLVED, I.E. INDIVIDUAL,
CORPORATE, PARTNERSHIP, ESTATE AND GIFT TAX, ETC., THE RECORD INDICATES
THAT THE CRITICAL TIME ELEMENTS FOR PROCESSING THE CASES DIFFERED
SUBSTANTIALLY AMONG THE TAX GROUPS IN EXAMINATION BRANCH VI. /3/
ACCORDING TO THE PRINTED INSTRUCTIONS, THE GROUP MANAGERS WERE TO KEEP
COPIES OF THE ABOVE DESCRIBED DOCUMENTATION AND HAVE THE AFFECTED
EMPLOYEE INITIAL SAME. WITH RESPECT TO THE REQUIRED DOCUMENTATION,
RESPONDENT'S EXHIBIT 1 STATES, AMONG OTHER THINGS, THAT:
5. AN OUTSTANDING PERFORMANCE REFLECTED IN WRITING WOULD EXPRESS
MANAGEMENT'S APPRECIATION
FOR A JOB WELL DONE AND COULD BE USED TO SUPPORT AN EMPLOYEE
PERFORMANCE EVALUATION.
WITH RESPECT TO THE GROUP MANAGERS' COMPLIANCE WITH THE HANDBOOKS AN
SUPPLEMENTAL MEMORANDA, THE RECORD INDICATES THAT WITH THE EXCEPTION OF
THE ESTATE AND GIFT TAX GROUP MANAGER, THE GROUP MANAGERS OF THE OTHER
GROUPS WITHIN EXAMINATION BRANCH VI RELIGIOUSLY FOLLOWED THE PROCEDURES
AND ACCEPTED THE OBLIGATIONS AND/OR RESPONSIBILITIES SET FORTH THEREIN.
CONTRARY TO THE PRACTICES FOLLOWED BY THE OTHER GROUP MANAGERS IN
EXAMINATION BRANCH VI, MR. ED KAHN, WHO HAD BEEN GROUP MANAGER OF THE
ESTATE AND GIFT TAX GROUP FOR MANY YEARS PRIOR MARCH 14, 1979, GENERALLY
HONORED THE ESTABLISHED PROCEDURES MORE IN THE BREACH THAN OBSERVANCE.
THUS, THE RECORD FURTHER INDICATES THAT MR. KAHN SELDOM, IF EVER,
CONDUCTED ANY FORMAL WORKLOAD OR CASE REVIEWS OR FORMALLY FILLED OUT THE
REQUIRED DOCUMENTARY REPORTS. RATHER, MR. KAHN APPEARS TO HAVE ALLOWED
THE VARIOUS EMPLOYEES WITHIN HIS GROUP AND UNDER HIS SUPERVISION TO
HANDLE THEIR VARIOUS ASSIGNED CASES ON THEIR OWN AND ONLY INTERJECTED
HIMSELF IN THEIR DAY TO DAY WORK WHEN FACED WITH AN INQUIRY ON A
PARTICULAR CASE FROM AN OUTSIDE SOURCE OR WHEN AN INDIVIDUAL EMPLOYEE
REQUESTED ASSISTANCE, DUE TO THE ADVANCED AGE OF A PARTICULAR CASE. AS
A GENERAL RULE, MR. KAHN DID NOT PERIODICALLY REVIEW HIS GROUP'S CASE
LOAD AND ATTEMPT TO SET ANY TARGET DATES FOR THE COMPLETION OF THE CASES
BEING HANDLED BY THE EMPLOYEES WITHIN THE ESTATE AND GIFT TAX GROUP.
ALTHOUGH NOT REQUIRED BY MR. KAHN, A NUMBER OF THE EMPLOYEES WITHIN THE
ESTATE AND GIFT TAX GROUP, DID ON PERIODIC BASIS, VOLUNTARILY SUBMIT
INFORMAL REPORTS OF THE STATUS OF THEIR RESPECTIVE CASE LOADS.
MR. ALLEN, WHO WAS THE CHIEF OF EXAMINATION BRANCH VI DURING THE
PERIOD JUNE 1977-AUGUST 1979, AND MR. KAHN'S SUPERVISOR, BECAUSE AWARE
OF MR. KAHN'S LAX ADHERENCE TO THE IRD HANDBOOKS AND SUPPLEMENTAL
MEMORANDA IN THE LATE SPRING OF 1978 AND THEREAFTER UNSUCCESSFULLY
ATTEMPTED TO CORRECT MR. KAHN'S DEFICIENCIES IN THIS REGARD.
MR. ALLEN DID NOT MAKE A PLANNED FURTHER OPERATIONAL REVIEW OF MR.
KAHN'S ESTATE AND GIFT TAX GROUP DUE TO THE FACT THAT HE HAD BEEN
NOTIFIED THAT AN ANALYST FROM THE JACKSONVILLE DISTRICT OFFICE HAD
SCHEDULED A SIMILAR REVIEW OF THE ESTATE AND GIFT TAX GROUP FOR THE FALL
OF 1978. SUCH REVIEW OCCURRED IN NOVEMBER OF 1978. THE WRITTEN REPORT
OF THE REVIEW, DATED JANUARY 3, 1979, NOTED RM. KAHN'S DEFICIENCIES AS
SET FORTH IN DETAIL ABOVE.
ON MARCH 14, 1979, MR. ALLEN, CHIEF OF EXAMINATION BRANCH VI, BEING
CONCERNED WITH THE NUMBER OF OVERAGE CASES IN BRANCH VI AND IN ORDER TO
INSURE THAT HIS NEW GROUP MANAGERS WERE MONITORING THE CASE LOADS IN
THEIR RESPECTIVE GROUPS, WITHOUT ANY PRIOR NOTICE OR CONSULTATION WITH
THE UNION, ISSUED A MEMORANDUM ENTITLED "TIME SPAN OF EXAMINATION -
OVERAGE CASES". THE MEMORANDUM WHICH WAS DIRECTED TO "ALL BRANCH VI
GROUP MANAGERS" WITH COPIES TO "ALL BRANCH VI EMPLOYEES", PROVIDED THAT
DURING WORKLOAD REVIEWS EXAMINERS ESTABLISH ESTIMATED COMPLETION DATES
FOR ALL CASES LESS THAN SIX MONTHS OLD AND THAT GROUP MANAGERS ESTABLISH
COMPLETION DATES FOR ALL CASES WHICH HAD BEEN IN PROCESS FOR OVER SIX
MONTHS. ADDITIONALLY, WITH RESPECT TO THE CASES OVER SIX MONTHS OLD,
THE GROUP MANAGERS WAS INSTRUCTED TO GIVE "SPECIFIC DIRECTIONS TO
FACILITATE APPROPRIATE CLOSINGS OF THESE EXAMINATIONS AND YOUR DIRECTION
SHOULD BE RECORDED BY THE EXAMINER AND MAINTAINED IN THE CASE FILE".
LASTLY, THE MARCH 14TH MEMORANDUM WENT ON TO STATE AS FOLLOWS:
3. WHEN A REGULAR PROGRAM CASE HAS BEEN IN PROCESS FOR TWELVE MONTHS
. . . THE CASE WILL
BE DISCUSSED WITH THE BRANCH CHIEF. EACH GROUP MANAGER SHOULD
PROVIDE ME WITH A LIST, AT THE
BEGINNING OF EACH MONTH, REFLECTING THE CASES WHICH NEED TO BE
DISCUSSED TO FACILITATE
SCHEDULING THIS DISCUSSION. THE EXAMINER AND THE GROUP MANAGER
SHOULD BRING THE FOLLOWING
INFORMATION TO FACILITATE OUR DISCUSSION . . . /4/
SUBSEQUENT TO MARCH 14, THE ATTORNEYS IN THE ESTATE AND GIFT TAX
GROUP WERE SUBJECTED TO PERIODIC WORKLOAD REVIEWS DURING WHICH
COMPLETION DATES WERE SET FOR THEIR RESPECTIVE CASES. THE RECORD
REVEALS, HOWEVER, THAT AS A GENERAL RULE THE COMPLETION DATES WERE NOT
HARD AND FAST AND THAT THE ATTORNEYS HAD NO PROBLEM EXTENDING THE
COMPLETION DATES AS THE CIRCUMSTANCES SURROUNDING OR UNDERLYING ANY
PARTICULAR CASE CHANGED. THE RECORD FURTHER REVEALS THAT EVEN THOUGH A
NUMBER OF THE ATTORNEYS IN THE ESTATE AND GIFT TAX GROUP HAD CASES IN
PROCESS FOR OVER 12 MONTHS, NONE OF THEM WERE EVER SCHEDULED FOR A
DISCUSSION WITH THE BRANCH CHIEF CONCERNING SUCH CASES.
ACCORDING TO MR. ALLEN, THE MARCH 14, 1979, MEMORANDUM WAS DESIGNED
TO ALLEVIATE THE EXISTING CASE BACK LOG BY MAKING HIM AWARE OF THE
PROBLEMS HOLDING UP THE OVERAGE CASES AND ALLOWING HIM TO UTILIZE HIS
POWER AS CHIEF OF THE BRANCH TO CUT ANY RED TAPE THAT MIGHT BE INVOLVED.
ADDITIONALLY, MR. ALLEN WANTED TO EMPHASIZE TO SEVERAL NEW GROUP
MANAGERS THE OBLIGATIONS IMPOSED UPON THEM BY THE VARIOUS IRS GROUP
MANAGER HANDBOOKS. MR. ALLEN FURTHER TESTIFIED THAT HE HAD NO INTENTION
OF HAVING ALL CASES OVER TWELVE MONTHS OLD DISCUSSED WITH HIM, JUST
THOSE THAT WERE BEING HELD UP BY SOME OTHER REGION, ETC. MR. ALLEN'S
INTENTIONS IN THE ABOVE RESPECT WERE NEVER CONVEYED TO THE EMPLOYEES.
AS NOTED SUPRA, MR. ALLEN NEVER GAVE ANY NOTICE TO THE UNION PRIOR TO
THE ISSUANCE OF THE MARCH 14TH MEMORANDUM. IN FACT THE UNION ONLY
LEARNED OF THE MARCH 14TH MEMORANDUM WHEN NTEU CHAPTER 77 PRESIDENT PAUL
TANNENBAUM RECEIVED A COPY IN HIS CAPACITY AS AN ATTORNEY IN THE ESTATE
AND GIFT TAX GROUP. HE THEREAFTER INFORMED MR. HENRY COLEAS, THE CHIEF
SPOKESMAN AND CHAIRMAN OF THE JOINT COUNCIL, WHO IN TURN APPROACHED
MR.ALLEN. MR. ALLEN TOOK THE POSITION THAT THERE HAD BEEN NO CHANGE IN
CONDITIONS OF EMPLOYMENT AND THAT NEGOTIATIONS WERE NOT IN ORDER. MR.
COLEAS THEN CONCLUDED THAT SINCE MR. ALLEN WAS THE DISTRICT DIRECTOR'S
REPRESENTATIVE, FURTHER ATTEMPTS TO BARGAIN OVER THE MATTER WOULD BE
FUTILE.
IN THE NORMAL COURSE OF EVENTS, FOLLOWING THE COMPLETION OF AN AUDIT
IN THE ESTATE TAX GROUP BY AN ATTORNEY, THE COMPLETED AUDIT IS THEN
FORWARDED BY THE GROUP MANAGER TO THE REVIEW COMMITTEE IN JACKSONVILLE,
FLORIDA. SHOULD THE COMMITTEE DISAGREE WITH THE MANNER AND METHODS
UTILIZED BY THE AUDIT ATTORNEY, IT WOULD THEN RETURN THE AUDIT THROUGH
THE GROUP MANAGER FOR CORRECTION PER THEIR INSTRUCTIONS. ACCORDING TO A
NUMBER OF ESTATE AND GIFT TAX ATTORNEYS, /5/ THE ADDED PRESSURE OF A
DECREASE IN THE TIME ALLOWED FOR THE PROCESSING OF THEIR CASES COULD
LEAD TO ERRORS AND OMISSIONS WHICH IN TURN WOULD INCREASE THE
PROBABILITIES OF HAVING THEIR AUDITS RETURNED BY THE REVIEW COMMITTEE.
IF SUCH A RESULT OCCURRED, THEY WERE CONCERNED THAT IT MIGHT WELL IMPACT
ON THEIR PROMOTIONAL POSSIBILITIES.
DISCUSSION AND CONCLUSIONS
IT IS WELL SETTLED THAT AN EMPLOYER MAY NOT CHANGE PERSONNEL
POLICIES, PRACTICES, OR WORKING CONDITIONS WITHOUT FIRST PROVIDING THE
COLLECTIVE BARGAINING REPRESENTATIVE WITH ADVANCE NOTICE OF THE PROPOSED
CHANGES AND ALLOWING THE COLLECTIVE BARGAINING REPRESENTATIVE AN
OPPORTUNITY TO NEGOTIATE CONCERNING THE PROPOSED AND/OR THE IMPACT AND
MANNER OF IMPLEMENTATIONS OF SUCH CHANGES. VETERANS ADMINISTRATION
HOSPITAL, CHARLESTON, SOUTH CAROLINA, A/SLMR NO. 87; NATIONAL LABOR
RELATIONS BOARD, A/SLMR NO. 246; 78TH DIVISION (TRAINING), KILMAR USAR
CENTER, EDISON, NEW JERSEY, 1 FLRA 97. IN NATIONAL LABOR RELATIONS
BOARD, SUPRA, A CHANGE IN TIME SCHEDULES FOR THE PROCESSING OF CASES
WITHOUT GIVING THE UNION THERE INVOLVED AN OPPORTUNITY TO BARGAIN
THEREON WAS HELD TO BE VIOLATIVE OF SECTIONS 19(A)(6) AND (1) OF
EXECUTIVE ORDER 11491, AS AMENDED. ACCORDINGLY, THE SOLE ISSUE TO BE
DECIDED IS WHETHER OR NOT THERE WAS IN FACT A CHANGE IN THE TIME
ALLOTTED FOR THE PROCESSING OF CASES IN THE ESTATE AND GIFT TAX GROUP.
/6/
THE RECORD IS CLEAR THAT PRIOR TO MARCH 4, 1979, THE ATTORNEYS IN THE
ESTATE AND GIFT TAX GROUP WORKED INDEPENDENTLY WITHOUT ANY MEANINGFUL
SUPERVISION IN THE AREA OF TIMETABLES FOR THE COMPLETION OF CASES.
THEIR ONLY DEADLINES FOR THE PROCESSING OF CASES APPEARED IN THE
HANDBOOK FOR ESTATE EXAMINERS AND THE IRS MANUAL FOR ESTATE AND GIFT
TAX. BOTH THE AFOREMENTIONED DOCUMENTS SPEAK OF AN 18 MONTHS CYCLE FOR
THE COMPLETION OF CASES. ACCORDINGLY, IT APPEARS THAT A CASE WAS NOT
CONSIDERED OVERAGE IN THE ESTATE AND GIFT TAX GROUP UNTIL IT EXCEEDED 18
MONTHS. THIS REMAINED THE PRACTICE UNTIL MARCH 14, 1979, WHEN EACH
ATTORNEY RECEIVED A COPY OF MR. ALLEN'S MEMORANDUM. THEREAFTER, THE
GROUP MANAGER, WHO WAS THEN MR. DAVID, ESTABLISHED COMPLETION DATES FOR
ALL CASES IN PROCESS OVER SIX MONTHS. ADDITIONALLY, ALL CASES IN PROCESS
OVER 12 MONTHS WERE TO BE DISCUSSED WITH THE BRANCH CHIEF.
ALTHOUGH THE MEMORANDUM DID NOT EXPRESSLY STATE THAT THE EXISTING "18
MONTHS CYCLE" WAS BEING ABANDONED, IT DOES IMPLICITLY INDICATE SUCH A
CONCLUSION. THUS, IT IS NOTED THAT THE OPTIMUM TIME FOR PROCESSING A
CASE APPEARS TO BE 12 MONTHS SINCE AN ESTATE AND GIFT TAX ATTORNEY WAS
NOW FACED WITH THE OPTION OF COMPLETING A CASE WITHIN SUCH TIME FRAME OR
APPEARING BEFORE THE BRANCH CHIEF AND JUSTIFYING THE REASONS FOR DELAY.
FURTHER SUPPORT FOR THIS CONCLUSION IS FOUND IN THE TITLE OF THE
MEMORANDUM, I.E. "TIME SPAN OF EXAMINATIONS - OVERAGE CASES" AND THE
FACT THAT THE GROUP MANAGER DID IN FACT SET COMPLETION DATES FOR ALL
CASES 6 MONTHS OLD.
BASED UPON THE FOREGOING CONSIDERATIONS, I FIND THAT THE MARCH 14,
1979, MEMORANDUM AND SUBSEQUENT ACTIONS OF THE GROUP MANAGER CONSISTENT
THEREWITH CONSTITUTED A CHANGE IN THE EXISTING TIME FRAME FOR THE
PROCESSING OF CASES IN THE ESTATE AND GIFT TAX GROUP. THE FACT THAT
THIS MIGHT NOT HAVE BEEN THE INTENT OF MR. ALLEN DOES NOT ALTER SUCH
CONCLUSION, PARTICULARLY IN VIEW OF THE FACT THAT HE DID NOT SEE FIT TO
CONVEY TO EITHER THE ATTORNEYS IN THE GROUP OR THE GROUP MANAGER HIS
MOTIVES FOR THE MARCH 14TH MEMORANDUM.
SIMILARLY, I FIND THAT THE FACT THAT THE COMPLETION DATES WERE EASILY
CHANGED AND THAT NONE OF THE ATTORNEYS WERE SUBJECTED TO MEETINGS WITH
THE CHIEF OF THE BRANCH TO BE OF NO IMPORT. THE ABSENCE OF ENFORCEMENT
BEARS SOLELY ON REMEDY AND NOT THE CHANGE. IT IS THE CHANGE WITHOUT
NOTICE TO THE UNION AND AN OPPORTUNITY TO BARGAIN OVER IMPACT AND
IMPLEMENTATION WHICH IS IN DEROGATION OF THE UNION'S REPRESENTATIONAL
STATUS.
LASTLY, CONTRARY TO THE CONTENTION OF THE RESPONDENT, I FIND THAT A
CHANGE IN THE TIME FRAME FOR THE PROCESSING OF CASES DOES HAVE A
SUBSTANTIAL IMPACT ON THE EMPLOYEES WORKING CONDITIONS. THE ABSENCE OF
ENFORCEMENT OF SAME CARRIES LITTLE WEIGHT IN THE ABSENCE OF ANY
STATEMENT FROM THE SUPERVISORY HIERARCHY ASSURING CONTINUANCE OF SUCH
PRACTICE. IN THE ABSENCE OF SUCH A STATEMENT THE AFFECTED EMPLOYEES
HAVE NO WAY OF KNOWING WHAT THE FUTURE HOLDS WITH RESPECT TO ADHERENCE
TO THE MARCH 14TH MEMORANDUM.
UNDER ALL THE CIRCUMSTANCES AND FOR THE REASONS STATED ABOVE, I FIND
THAT RESPONDENT'S ACTIONS IN CHANGING THE TIME FRAME FOR THE PROCESSING
OF CASES WITHOUT GIVING THE UNION PRIOR NOTIFICATION THEREOF AND THE
OPPORTUNITY TO REQUEST BARGAINING WITH RESPECT TO IMPACT AND
IMPLEMENTATION CONSTITUTED A VIOLATION OF SECTIONS 7116(A)(1) AND (5) OF
THE STATUTE.
ORDER
PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
RULES AND REGULATIONS, 45 FED. REG. 3482, 3510(1980), IT IS HEREBY
ORDERED THAT THE DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT SHALL:
1. CEASE AND DESIST FROM:
INSTITUTING CHANGES IN THE TIME SCHEDULES FOR THE PROCESSING OF CASES
BY UNIT EMPLOYEES WITHOUT NOTIFYING THE NATIONAL TREASURY EMPLOYEES
UNION, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, AND AFFORDING IT
THE OPPORTUNITY TO BARGAIN CONCERNING THE IMPLEMENTATION OF SUCH CHANGES
AND THEIR IMPACT ON ADVERSELY AFFECTED EMPLOYEES.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) UPON REQUEST, MEET AND NEGOTIATE WITH THE NATIONAL TREASURY
EMPLOYEES UNION CONCERNING THE PROCEDURES TO BE UTILIZED IN IMPLEMENTING
ANY CHANGES IN TIME SCHEDULES FOR THE PROCESSING OF CASES AND THEIR
IMPACT ON ADVERSELY AFFECTED EMPLOYEES.
(B) POST AT ITS MIAMI, FLORIDA FACILITY, 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 DISTRICT DIRECTOR FOR THE JACKSONVILLE, FLORIDA DISTRICT, AND SHALL
BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE DISTRICT DIRECTOR
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY 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.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 29, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE CHANGES IN TIME SCHEDULES FOR THE PROCESSING OF
CASES FOR UNIT EMPLOYEES WITHOUT FIRST NOTIFYING THE NATIONAL TREASURY
EMPLOYEES UNION AND AFFORDING IT THE OPPORTUNITY TO BARGAIN CONCERNING
THE IMPLEMENTATION OF SUCH CHANGES AND THEIR IMPACT ON ADVERSELY
AFFECTED EMPLOYEES.
WE WILL UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION MEET
AND NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES UNION CONCERNING THE
PROCEDURES TO BE UTILIZED IN IMPLEMENTING ANY CHANGES IN TIME SCHEDULES
FOR THE PROCESSING OF CASES AND THEIR IMPACT ON ADVERSELY AFFECTED
EMPLOYEES.
(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 DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 4, WHOSE
ADDRESS IS: SUITE 501, NORTH WING, 1776 PEACHTREE STREET, NW., ATLANTA,
GEORGIA 30309.
SERVICE SHEET
"DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE BURTON S.
STERNBURG WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
LINDA ENOCH
MS. MATHILDE L. GENOVESE, ESQUIRE
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
REGION IV, SUITE 501, NORTH WING
1776 PEACHTREE STREET, N.W.
ATLANTA, GEORGIA 30309
FORREST W. HUNTER, ESQUIRE
OFFICE OF CHIEF COUNSEL
INTERNAL REVENUE SERVICE
POST OFFICE BOX 1070
ROOM 824, 275 PEACHTREE STREET
ATLANTA, GEORGIA 30301
TIMOTHY C. WELSH, ESQUIRE
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
SUITE 430, 2801 BUFORD HIGHWAY
ATLANTA, GEORGIA 30329
REGULAR MAIL:
FEDERAL LABOR RELATIONS AUTHORITY
1900 "E" STREET, N.W., ROOM 7469
WASHINGTON, D.C. 20424
ONE COPY TO EACH REGIONAL DIRECTOR
OFFICE OF THE GENERAL COUNSEL
1900 "E" STREET, N.W., ROOM 7469
WASHINGTON, D.C. 20424
ASSISTANT DIRECTOR
LABOR-MANAGEMENT RELATIONS
U.S. OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET, N.W.
WASHINGTON, D.C. 20415
MR. ROBERT TOBIAS
GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
WASHINGTON, D.C. 20006
/1/ THE GROUPS COMPRISING EXAMINATION BRANCH VI WERE AS FOLLOWS:
ESTATE AND GIFT TAX GROUP, SPECIAL ENFORCEMENT GROUP, (4) FIELD AUDIT
GROUPS AND (2) OFFICE AUDIT GROUPS.
/2/ THE CATEGORIES INCLUDED SCHEDULING, EXAMINATION TECHNIQUES,
UTILIZATION OF TIME, COOPERATION, INITIATIVE, ETC.
/3/ THE RECORD INDICATES THAT IN THE FIELD AUDIT GROUP A CASE WAS
CONSIDERED OVERAGE WHEN IT REACHED 6 MONTH. IN THE OFFICE AUDIT GROUP
THE CRITICAL TIME WAS 120 DAYS.
/4/ THE DISCUSSIONS WITH THE BRANCH CHIEF WERE TO BEGIN DURING THE
MONTH OF MAY 1979.
/5/ TWO OTHER ATTORNEYS IN THE BRANCH TESTIFIED THAT THEY DID NOT
FEEL ANY ADDITIONAL PRESSURE FROM THE MARCH 14TH MEMORANDUM AND
CONTINUED TO PROCESS THEIR CASES AS USUAL.
/6/ GENERAL COUNSEL IN HER POST-HEARING BRIEF ALLUDES TO THE
INSTITUTION OF THE WORK-LOAD REVIEWS AS A CHANGE IN PAST PRACTICE AND
APPEARS TO BE URGING THAT THE UNDERSIGNED ADMINISTRATIVE LAW JUDGE FIND
A SEPARATE VIOLATION OF SECTIONS 7116(A)(1) AND (5) PREDICATED THEREON.
TO THE EXTENT THAT THIS IS GENERAL COUNSEL'S POSITION, I FIND SUCH
POSITION TO BE PROCEDURALLY DEFECTIVE. IN SUPPORT OF THIS CONCLUSION,
IT IS NOTED THAT (1) THE COMPLAINT SPECIFICALLY LIMITED THE UNLAWFUL
UNILATERAL CHANGE IN WORKING CONDITIONS TO THE ADOPTION OF NEW TIME
SCHEDULES FOR THE PROCESSING OF CASES, (2) GENERAL COUNSEL INDICATED AT
THE HEARING THAT THE SUBMISSION OF EVIDENCE WITH RESPECT TO THE
WORK-LOAD OR CASE REVIEWS WAS FOR PURPOSES OF ESTABLISHING THE
IMPLEMENTATION OF THE NEW TIME SCHEDULES, AND (3) NO MOTION WAS MADE
DURING THE HEARING TO AMEND THE COMPLAINT TO CONFORM TO THE EVIDENCE.
ACCORDINGLY, IN VIEW OF THE FOREGOING, MY DECISION WILL BE CONFINED
SOLELY TO THE ISSUE SET FORTH IN THE COMPLAINT, I.E. ALLEGED UNILATERAL
CHANGE IN TIME SCHEDULES FOR PROCESSING CASES.