[ v04 p488 ]
04:0488(68)CA
The decision of the Authority follows:
4 FLRA No. 68
INTERNAL REVENUE SERVICE
WASHINGTON, D.C.
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Complainant
Case No. 5-CA-150
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
ENGAGED IN THE UNFAIR LABOR PRACTICES 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 (5 CFR 2423.29) 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 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'S EXCEPTIONS, THE AUTHORITY
HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE, INDIANAPOLIS
DISTRICT SHALL:
1. CEASE AND DESIST FROM:
(A) DEALING DIRECTLY WITH UNIT EMPLOYEES AT THE SOUTH BEND, INDIANA
OFFICE REPRESENTED BY THE NATIONAL TREASURY EMPLOYEES UNION WITH RESPECT
TO PERSONNEL POLICIES AND PRACTICES OR OTHER MATTERS AFFECTING THE
WORKING CONDITIONS OF EMPLOYEES IN THAT OFFICE.
(B) INSTITUTING CHANGES IN THE USE OF ON-SITE LIVE CASE REVIEWS AND
TEST CHECKS BETWEEN TRAVEL VOUCHERS, SIGN OUT SHEETS AND TIME SHEETS OF
UNIT EMPLOYEES WITHOUT NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION,
THE EXCLUSIVE BARGAINING 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 ONLY WITH THE NATIONAL TREASURY
EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, WITH
REGARD TO PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
THE WORKING CONDITIONS OF EMPLOYEES IN THE SOUTH BEND, INDIANA OFFICE.
(B) UPON REQUEST, MEET AND NEGOTIATE WITH THE NATIONAL TREASURY
EMPLOYEES UNION CONCERNING THE PROCEDURES TO BE UTILIZED IN IMPLEMENTING
ANY CHANGES IN LIVE ON-SITE CASE REVIEWS AND TEST CHECKS BETWEEN TRAVEL
VOUCHERS AND SIGN OUT SHEETS AND TIME SHEETS AND THEIR IMPACT ON
ADVERSELY AFFECTED EMPLOYEES.
(C) POST AT ITS SOUTH BEND, INDIANA 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 INDIANAPOLIS, INDIANA 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.
(D) 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., OCTOBER 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 DEAL DIRECTLY WITH UNIT EMPLOYEES OF THE SOUTH BEND,
INDIANA OFFICE REPRESENTED EXCLUSIVELY BY THE NATIONAL TREASURY
EMPLOYEES UNION, WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES, OR
OTHER MATTERS AFFECTING THE WORKING CONDITIONS OF EMPLOYEES IN THE SOUTH
BEND, INDIANA OFFICE.
WE WILL NOT INSTITUTE CHANGES CONCERNING THE PROCEDURES TO BE
UTILIZED IN IMPLEMENTING ANY CHANGES IN LIVE ON-SITE CASE REVIEWS AND
TEST CHECKS BETWEEN TRAVEL VOUCHERS AND SIGN OUT AND TIME SHEETS 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 NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH ONLY WITH THE
NATIONAL TREASURY EMPLOYEES UNION, WITH RESPECT TO PERSONNEL POLICIES
AND PRACTICES, OR OTHER MATTERS AFFECTING THE GENERAL WORKING CONDITIONS
OF EMPLOYEES IN THE SOUTH BEND, INDIANA OFFICE.
(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 5, WHOSE
ADDRESS IS: SUITE A-1359, 175 WEST JACKSON BOULEVARD, CHICAGO, ILLINOIS
60604, AND WHOSE TELEPHONE NUMBER IS (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
JAMES E. ROGERS, JR., ESQUIRE
FOR THE RESPONDENT
SHEILA REILLY, ESQUIRE
FOR THE GENERAL COUNSEL
MR. RONALD R. HICKS
FOR THE CHARGING PARTY
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DECISION
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 A CHARGE FILED ON JUNE 27, 1979, BY THE NATIONAL TREASURY
EMPLOYEES UNION (HEREINAFTER CALLED THE UNION), A COMPLAINT AND NOTICE
OF HEARING WAS ISSUED ON NOVEMBER 6, 1979. THE COMPLAINT ALLEGES THAT
THE INTERNAL REVENUE SERVICE, WASHINGTON, D.C. (HEREINAFTER CALLED
RESPONDENT) 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 INSTITUTING ON-SITE CASE REVIEWS
BY THE BRANCH 2 CHIEF WITH INDIVIDUAL EMPLOYEES AND THE ANALYSIS OF THE
TRAVEL RECORDS TOGETHER WITH OTHER RECORDS REFLECTING TIME USAGE OF ITS
EMPLOYEES WITHOUT FURNISHING THE UNION WITH ADVANCE NOTICE AND AFFORDING
IT AN OPPORTUNITY TO BARGAIN CONCERNING SUCH CHANGES AND/OR THE
IMPLEMENTATION OF SUCH CHANGES. IN ADDITION, THE COMPLAINT ALLEGES THAT
RESPONDENT BY-PASSED THE UNION IN MEETING WITH AND/OR BARGAINING
DIRECTLY WITH UNIT EMPLOYEES IN THE SOUTH BEND, INDIANA OFFICE
CONCERNING CHANGES IN THE ON-SITE CASE REVIEW AND OTHER MATTERS REFERRED
TO ABOVE, WITHOUT INFORMING THE UNION AND PROVIDING IT WITH AN
OPPORTUNITY TO BE PRESENT AT THE MEETING.
RESPONDENT'S ANSWER ADMITS JURISDICTION BUT DENIED ALL OTHER
ALLEGATIONS OF THE COMPLAINT.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON JANUARY 15, 1980 IN
INDIANAPOLIS, INDIANA. 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 HEREIN. /1/
UPON THE BASIS OF THE ENTIRE RECORD, /2/ INCLUDING MY OBSERVATION OF
THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT
AND CONCLUSIONS.
FINDINGS OF FACT
RESPONDENT AND THE UNION, WHICH IS THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF THE EMPLOYEES INVOLVED HEREIN, ARE PARTIES TO A
COLLECTIVE BARGAINING AGREEMENT COVERING ALL MATERIAL PERIODS. THE
CONTRACT IS A MULTI-DISTRICT AGREEMENT WHICH INCLUDES RESPONDENT'S
INDIANAPOLIS, INDIANA DISTRICT. THE SOUTH BEND, INDIANA OFFICE FALLS
WITHIN THE INDIANAPOLIS DISTRICT. CHAPTER 49 OF THE UNION REPRESENTS
EMPLOYEES IN THE INDIANAPOLIS DISTRICT, WHICH INCLUDES THE ENTIRE STATE
OF INDIANA.
AS PART OF THE IN-DEPTH VISITS REQUIRED TO BE MADE BY RESPONDENT'S
BRANCH CHIEFS TO THEIR RESPECTIVE OFFICES, CHIEF, EXAMINATION BRANCH 2,
STANLEY NOVACK, VISITED THE SOUTH BEND, INDIANA OFFICE DURING MAY 1979
TO EVALUATE THE GROUP MANAGER LOUIS GERECZ, TO MONITOR THE OFFICE AND
PREPARE REPORTS INVOLVING THE OPERATIONS OF THE OFFICE. DURING THIS
VISIT, ON MAY 24, 1979, REVENUE AGENT WILLIAM LILE WAS SELECTED FOR A
"LIVE ON-SITE REVIEW" OF TWO CASES ON WHICH HE WAS WORKING. LILE WAS
CALLED INTO THE OFFICE OF GROUP MANAGER GERECZ WHERE HE MET WITH GERECZ
AND NOVACK AND ANSWERED QUESTIONS REGARDING THE TWO SPECIFIC CASES.
ACCORDING TO LILE, HE WAS TOLD TO BRING IN FOR INSPECTION TWO SPECIFIC
FILES, ONE INVOLVING A SALE OF A FARM AND THE OTHER CONCERNING TWO
RELATED CORPORATIONS AND THEIR COMMON 100% SHAREHOLDER. THE FARM CASE
ACCORDING TO LILE SHOWED MORE HOURS THAN USUAL FOR A CASE WITH ITS AUDIT
CODE AND INDICATED QUITE A BIT OF TRAVEL. THE CORPORATION CASE HAD BEEN
PREVIOUSLY REVIEWED AND TECHNICAL ERRORS IN HANDLING THE CASE HAD BEEN
POINTED OUT TO LILE. LILE RECALLED THAT NOVACK ASKED HIM HOW HE USED
THE FORM 4318, AN AUDIT PLANNING GUIDE USED TO OUTLINE THE AREAS OF
AUDIT CONCERN AND TO SUMMARIZE AND CONCLUDE THE ISSUES IN AUDIT. LILE
RESPONDED THAT HE USED WORK PAPERS IN CONNECTION WITH THE FORM 4318 AND
DID NOT GENERALLY COMPLETE THE FORM UNTIL HE HAD FINISHED WITH THE CASE.
ALSO LILE RECALLED OFFERING SOME EXPLANATION AS TO THE AMOUNT OF TIME
SPENT ON THE FARM SALE CASE. IN RESPONSE TO QUESTIONS FROM NOVACK
REGARDING TIME SPENT ON THE CORPORATION CASE, LILE STATED THAT HE HAD A
PROBLEM ALLOCATING TIME CHARGED TO THE CASE BETWEEN THE CORPORATIONS AND
THE INDIVIDUAL SHAREHOLDER. NOVACK RESPONDED THAT TOO MUCH TIME HAD
BEEN CHARGED TO THE AUDIT OF THE CORPORATE SHAREHOLDERS AND LILE AGREED
THAT PERHAPS THE CASE FILE DID NOT JUSTIFY THE AMOUNT OF TIME SPENT ON
THE CASE. LILE TESTIFIED THAT AFTER THE MEETING GERECZ TOLD HIM NOT TO
WORRY ABOUT IT.
WITH REGARD TO ANY SUCH SIMILAR MEETINGS, LILE STATED THAT THE ONLY
TIME HE HAD BEEN ASKED BY A GROUP SUPERVISOR TO COME INTO HIS OFFICE TO
DISCUSS A PROBLEM ON A CASE WAS WHEN HE HAD REQUESTED SUCH A MEETING.
HE ALSO TESTIFIED THAT THE FORM 4502, ON WHICH A REVENUE AGENT WOULD
RECORD HIS TIME SPENT ON A CASE, WAS REVIEWED AT THE END OF THE MONTH
AND AT CASE LOAD REVIEWS WHICH OCCURRED WHEN A CASE WAS CLOSED OR HAD
BEEN IN PROCESS FOR OVER THREE MONTHS OR WHEN REQUESTED BY THE
INDIVIDUAL REVENUE AGENT. HE ALSO TESTIFIED THAT HE HAD NEVER BEFORE
HAD A CASE REVIEW BY A BRANCH CHIEF AND THAT HE WAS INTIMIDATED.
BOTH GERECZ AND NOVACK RECALLED THE MEETING WITH LILE IN THEIR
TESTIMONY. ALTHOUGH THE SUBSTANCE OF THE MEETING DIFFERS IN SOME
RESPECTS FROM THAT RECALLED BY LILE, THERE IS NO QUESTION THAT THE
MEETING WAS HELD FOR THE PURPOSE OF CONDUCTING A "LIVE ON-SITE REVIEW."
GERECZ AND NOVACK TESTIFIED THAT THE LILE CASES WERE SELECTED FROM THE
AGENT'S FORM 4502 TIME REPORT AND THERE WAS A HIGH PROBABILITY THAT TIME
REPORTS WERE USED.
SOUTH BEND GROUP MEMBERS WERE INFORMED BY GERECZ, PRIOR TO NOVACK'S
VISIT IN MAY, THAT THE VISIT WAS FOR THE PURPOSE OF EVALUATING THE
PERFORMANCE OF THE GROUP MANAGER AND NOT TO EVALUATE GROUP MEMBERS.
DURING THE VISIT, ACCORDING TO NOVACK, HE DECIDED TO LOOK AT A CASE
BEING HANDLED BY A REVENUE AGENT. NOVACK TESTIFIED THAT THE PURPOSE OF
LOOKING AT THE LIVE CASE WAS TO REVIEW THE IMPACT AND INFLUENCE THE
GROUP MANAGER HAD IN DIRECTING AND GUIDING INDIVIDUAL REVENUE AGENTS.
IN REVIEWING THE GROUP'S 4502S HE DECIDED TO LOOK AT A CASE BEING
HANDLED BY A REVENUE AGENT. UPON REVIEWING THE CASE, SEVERAL QUESTIONS
AROSE WHICH GERECZ WAS NOT PREPARED TO ANSWER AND AGENT LILE WAS CALLED
IN. THE MEETING, ACCORDING TO NOVACK, LASTED FIFTEEN TO TWENTY MINUTES,
THERE WAS OPEN DISCUSSION AND ONCE THE QUESTIONS HE HAD WERE RESOLVED,
LILE WAS THANKED FOR COMING IN AND EXCUSED.
GROUP MANAGERS AS SUPERVISORS ARE REQUIRED IN THE NORMAL COURSE OF
THEIR DUTIES TO INSURE THAT EMPLOYEES' SIGN OUT SHEETS, TRAVEL VOUCHERS,
MONTHLY REPORTS AND OTHER ITEMS RELATING TO AN INDIVIDUAL AGENT'S
INVESTIGATION AGREE WITH THEIR TIME USAGE. GROUP MANAGERS ALSO SIGN
TRAVEL VOUCHERS AS AUTHORIZING AGENTS AND HAVE A RESPONSIBILITY TO
CERTIFY THE ACCURACY OF THE VOUCHER.
SOMETIME AROUND JUNE 17, 1979, UNION PRESIDENT GENE FRIEDMAN WAS
CONTACTED BY A STEWARD FROM THE SOUTH BEND OFFICE, WILLIAM LONIEWSKI,
AND ASKED WHETHER RESPONDENT COULD MAKE CHANGES WITHOUT NOTIFICATION.
ACCORDING TO FRIEDMAN, THERE IS AN ESTABLISHED PROCEDURE IN CHAPTER 49
BY WHICH THE UNION WOULD BE NOTIFIED OF ANY CHANGES IN PERSONNEL
POLICIES OR WORKING CONDITIONS. FRIEDMAN'S UNCONTESTED TESTIMONY IS
THAT RESPONDENT IS REQUIRED TO ADVISE THE PRESIDENT OF THE UNION OF ANY
CHANGES, OR IN HIS ABSENCE, ADVISE SOMEONE APPOINTED BY HIM. IN ANY
EVENT, LONIEWSKI TOLD FRIEDMAN THAT THE SOUTH BEND OFFICE EMPLOYEES HAD
BEEN TOLD AT THEIR REGULARLY SCHEDULED JUNE 15, 1979 GROUP MEETING THAT
THERE WAS TO BE "A NEW ON-SITE CASE REVIEW" STARTED IMMEDIATELY.
FRIEDMAN STATED THAT LONIEWSKI ALSO TOLD HIM THAT RESPONDENT "WAS GOING
TO HAVE THE BRANCH CHIEF COME IN AND REVIEW THE CASES AND COMPARE THEM
WITH THE SIGN OUT SHEET AND THE TIME SHEETS AND EVERY WAY THAT POSSIBLY
WAS IMAGINABLE IN THE ENTIRE FOLDER, AND THAT THE BRANCH CHIEF WOULD BE
DOING THIS ON-SITE REVIEW."
AT THE TIME OF THE MEETING REFERRED TO ABOVE, MR. LONIEWSKI WAS A
UNION STEWARD AND REVENUE AGENT IN THE SOUTH BEND OFFICE. ACCORDING TO
LONIEWSKI, AT THE GROUP MEETING HELD ON JUNE 15, MR. GERECZ STATED THAT
WHAT HE WAS "ABOUT TO DO" YOU COULD TAKE WITH A GRAIN OF SALT. HE
EXPLAINED THAT EACH NEW BRANCH MANAGER HAD HIS OWN WAY OF DOING THINGS
AND THAT IN THE FUTURE THERE WOULD "BE LIVE CASE REVIEWS CONDUCTED BY
MR. NOVACK IN ORDER TO GET TO KNOW THE AGENTS BETTER." GERECZ ALSO
EXPLAINED THE PROCEDURE REGARDING THESE LIVE CASE REVIEWS. THE
PROCEDURE, ACCORDING TO LONIEWSKI, "WAS THAT MR. NOVACK WOULD COME TO
THE OFFICE AND CALL AN AGENT BACK TO THE GROUP MANAGER'S OFFICE. HE
WOULD SELECT AT RANDOM A CASE FROM THE TIME REPORT OF A REVENUE AGENT.
THE REVENUE AGENT WOULD COME BACK WITH THE REPORT, THE WORK PAPERS, THE
TOTAL FILE, AND MR. NOVACK WOULD CHECK THE TIME REPORT, THE SIGN OUT
SHEET, THE TRAVEL VOUCHER AND THE CASE FILE AS FAR AS WORK PAPERS GO."
GERECZ ADDED THAT HE WOULD BE DOING A PORTION OF THIS LATER BY CHECKING
AGENTS' TIME REPORTS, SIGN OUT SHEETS AND TRAVEL VOUCHERS.
RESPONDENT DOES NOT DENY THAT THE UNION WAS NOT GIVEN NOTIFICATION OF
THIS CHANGE IN PROCEDURES, BUT MAINTAINS THAT UNION STEWARD LONIEWSKI
WAS PRESENT AT THE JUNE 15 MEETING. MR. GERECZ'S MINUTES FROM THE JUNE
15 REGULARLY SCHEDULED GROUP MEETING SHOW, IN PERTINENT PART:
TRAVEL VOUCHER AND TIME SHEET COMPARISON EFFECTIVE WITH JUNE, 1979,
TEST CHECKS WILL BE
MADE BETWEEN THE TRAVEL VOUCHERS, SIGN OUT SHEETS, AND TIME SHEETS.
THE EXTENT OF THESE
CHECKS WILL DEPEND ON THE FINDINGS. IF NO DISCREPANCIES ARE NOTED,
THE CHECKS WILL BE
CURTAILED.
LIVE CASE REVIEW
ADVISED THAT THERE WILL BE LIVE CASE REVIEWS MADE IN THE FUTURE TO
MAKE CERTAIN THAT THE
AUDIT PROGRAM IS FUNCTIONING ACCORDING TO MANUAL PROCEDURES. A CHECK
WILL BE MADE OF THE
DIRECTION OF THE AUDIT, THE WORKPAPERS PREPARED AND THE ACTION TO BE
TAKEN ON THE ISSUES
RAISED.
IN A JUNE 27, 1979 LETTER FROM GERECZ TO NOVACK, GERECZ MADE THE
FOLLOWING OBSERVATIONS REGARDING THE JUNE 15 MEETING AND THE SUBJECT OF
LIVE CASE REVIEWS:
THE SUBJECT OF LIVE CASE REVIEWS WAS RAISED BY ME AT THE GROUP
MEETING STATING THAT I WOULD
BE MAKING LIVE CASE REVIEWS FOR THE PURPOSE OF CHECKING THE PROGRESS
AND DIRECTION OF THE
AUDIT AND TO GIVE INSTRUCTIONS IF NEEDED. TOLD THEM THAT WHEN YOU
WERE HERE YOU MADE A LIVE
CASE REVIEW TO SHOW ME WHAT TO LOOK FOR AND AS A RESULT OF THAT LIVE
CASE REVIEW, YOU FOUND
AREAS ON WHICH TO COMMENT. THE AGENT'S NAME OR THE AREAS OF COMMENT
WERE NOT DISCUSSED. THE MEMORANDUM ADDED THAT COMMENTS WERE MADE BY
ONE
AGENT REGARDING THE PURPOSE OF THE LIVE CASE REVIEWS. THE AGENT,
APPARENTLY LONIEWSKI, QUESTIONED THE RIGHT OF RESPONDENT TO MAKE THIS
SORT OF CHECK.
ADMITTEDLY, GROUP SUPERVISOR GERECZ HAD NOT CONDUCTED LIVE CASE
REVIEWS PRIOR TO HIS INSTRUCTIONS TO DO SO BY CHIEF, EXAMINATION BRANCH
2, NOVACK, SOMETIME IN MAY 1979. WITH REGARD TO THE MEETING GERECZ
TESTIFIED THAT HE STATED HE WAS GOING TO BE MAKING LIVE CASE REVIEWS IN
THE FUTURE, AT THE INSTRUCTION OF BRANCH CHIEF NOVACK. HOWEVER,
LONIEWSKI'S CREDITED TESTIMONY IS THAT NOVACK, THE BRANCH CHIEF, WOULD
PERFORM THE REVIEW AND IT APPEARS THAT SUCH REVIEW WOULD BE CONDUCTED IN
MUCH THE SAME MANNER AS THE LILE REVIEW. IN ANY EVENT, THERE IS NO
QUESTION THAT THE LIVE CASE REVIEWS WOULD BE A NEW SUPERVISORY REVIEW IN
THE SOUTH BEND OFFICE. ALTHOUGH RESPONDENT PRESENTED TESTIMONY THAT
REVENUE AGENTS HAD INDEED MET WITH BRANCH CHIEFS ON CASES OVER A
PROTRACTED PERIOD OF TIME, IT PRESENTED NO EVIDENCE TO ESTABLISH THAT
ANY OF THESE MEETINGS COULD OR SHOULD BE CLASSIFIED AS LIVE CASE
REVIEWS. ON THE CONTRARY, THE EVIDENCE SHOWED THAT SUCH MEETINGS WERE A
RESULT OF A PARTICULAR AGENT REQUESTING HELP ON A DIFFICULT CASE. A
FURTHER FACTOR ACCORDING TO GERECZ WAS THAT THE LIVE CASE REVIEW WAS
UNSCHEDULED AND WOULD BE KNOWN BY THE AGENT IMMEDIATELY BEFORE THE
REVIEW WAS CONDUCTED.
BOTH GERECZ AND NOVACK TESTIFIED THAT DISCIPLINARY ACTION AGAINST AN
AGENT COULD RESULT FROM THE QUALITY OF EXAMINATION REVEALED THROUGH THE
LIVE CASE REVIEW. GERECZ STATES SPECIFICALLY THAT DEROGATORY OR
COMPLIMENTARY COMMENTS ON DEFICIENCIES FOUND DURING THE LIVE CASE REVIEW
WOULD BE PUT IN THE REVENUE AGENT'S DROP FILE, WHICH IS KEPT AS A PART
OF HIS RECORD.
GROUP MANAGER GERECZ STATED THAT PRIOR TO JUNE 15, 1980 HE REVIEWED
CLOSED CASES AS SUBMITTED AND CASES IN PROCESS OVER THREE MONTHS AT HIS
QUARTERLY WORK LOAD REVIEW. HE ALSO ASKED AGENTS MONTHLY ABOUT THEIR
DIRECTION ON CASES FOR WHICH SUCH TIME HAD BEEN CHARGED ON THE FORM
4502. HE FURTHER TESTIFIED THAT HE HAD NOT REVIEWED A LIVE CASE OTHER
THAN THOSE THREE MONTHS OLD OR OLDER AND "QUICKIE" CASES, WHERE THERE
WAS A PRIORITY TO HAVE THE CASE CLOSED WITHIN A CERTAIN TIME PERIOD OF
LESS THAN THREE MONTHS.
RONALD BEYERS, GERECZ'S PREDECESSOR AS GROUP MANAGER AT SOUTH BEND,
TESTIFIED THAT THE ONLY OPEN CASES HE REVIEWED WERE THOSE IN PROCESS TOO
LONG OR THOSE WITH CERTAIN TECHNICAL ISSUES WHICH REQUIRED DISCUSSION
WITH THE AGENT INVOLVED ON HOW TO CLOSE THE CASE OR SOLVE THE PROBLEM.
THIS REVIEW WAS DONE ON BOTH A DAY-TO-DAY AND ON WORK REVIEW QUARTERLY
WITH AGENTS. WHILE BEYERS TESTIFIED THAT HE HAD PASSED ON INSTRUCTIONS
FROM HIGHER LEVEL MANAGEMENT THAT TRAVEL VOUCHERS, MONTHLY REPORTS, AND
SIGN OUT SHEETS SHOULD AGREE, HE NEVER CROSS-CHECKED OR COMPARED THESE
ITEMS WITH ONE ANOTHER.
AGENT LONIEWSKI TESTIFIED THAT GROUP MANAGER GERECZ HAD, PRIOR TO
JUNE 15, COMPARED THE TIME REPORT WITH THE SIGN OUT SHEETS, BUT NOT WITH
THE TRAVEL VOUCHERS. ACCORDING TO LONIEWSKI, HE WAS AWARE OF WHAT
PAPERS WERE COMPARED AT VARIOUS TIMES BECAUSE THE COMPARISONS WERE MADE
KNOWS TO HIM AT CASE AND WORK LOAD REVIEWS.
DISCUSSION AND CONCLUSIONS
IT HAS LONG BEEN ESTABLISHED IN THE PUBLIC SECTOR 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 CHANGES AND/OR THE IMPACT AND MANNER OF IMPLEMENTATION OF SUCH
CHANGES. VETERANS ADMINISTRATION HOSPITAL, CHARLESTON, SOUTH CAROLINA,
A/SLMR NO. 87; NATIONAL LABOR RELATIONS BOARD, A/SLMR NO. 246; 78TH
DIVISION (TRAINING), KILMER USAR CENTER, EDISON, NEW JERSEY, 1 FLRA 97.
IT IS ALSO WELL SETTLED THAT DISREGARD OF AN EXCLUSIVE REPRESENTATIVE
AND ATTEMPTS TO DEAL WITH EMPLOYEES INDIVIDUALLY CONCERNING GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES IS AN ACT IN DEROGATION OF THE
EXCLUSIVE BARGAINING REPRESENTATIVE'S RIGHTS TO REPRESENT EMPLOYEES.
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION HOSPITAL, MUSKOGEE,
OKLAHOMA, 3 A/SLMR 492; A/SLMR NO. 301; INTERNAL REVENUE SERVICE,
OGDEN SERVICE CENTER, 7 A/SLMR 569; A/SLMR NO. 864; DEPARTMENT OF THE
TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, MIDWEST REGION, 8
A/SLMR 724, A/SLMR NO. 1070.
CONTRARY TO RESPONDENT'S CONTENTION THAT THE INSTITUTION OF LIVE CASE
REVIEWS AT THE SOUTH BEND OFFICE WAS ONLY A REAFFIRMATION OF EXISTING
DISTRICT POLICY, THE RECORD DISCLOSED THAT PRIOR TO MAY 24, 1979, AGENTS
IN THE SOUTH BEND OFFICE HAD NOT BEEN SUBJECT TO LIVE CASE REVIEWS BY
EITHER THE BRANCH 2 CHIEF OR THE GROUP MANAGER. WHILE THESE AGENTS WERE,
OF COURSE, SUBJECT TO SUPERVISION FROM THE GROUP MANAGER SUCH CASE
REVIEWS WERE LIMITED TO REVIEWS ON A "QUICKIE" BASIS, ON CASES WHICH
WERE IN PROCESS FOR OVER THREE MONTHS AT THE SUPERVISOR'S QUARTERLY WORK
LOAD OR ON PRIORITY CASES REQUIRED TO BE CLOSED WITHIN A CERTAIN PERIOD
OF TIME. OTHERWISE, REVIEWS BY THE GROUP MANAGER OR BRANCH 2 CHIEF WERE
CONDUCTED ONLY WHEN THE AGENT ASKED FOR HELP. IN ADDITION, PRIOR TO
THAT TIME REVIEWS WERE NOT "UNSCHEDULED".
SIMILARLY, WHILE AGENTS WERE SUBJECT TO REVIEW BY THE GROUP MANAGER
OF THE FORM 4502 TIME REPORT, SIGN OUT SHEETS AND TRAVEL VOUCHERS, THERE
IS NO EVIDENCE THAT THESE WERE EVER COMPARED IN OTHER THAN QUARTERLY
WORK LOAD REVIEWS OR AS PART OF THE GROUP MANAGER'S OVERALL
RESPONSIBILITY FOR CHECKING SUCH REPORTS IN ORDER TO ASCERTAIN WHETHER
THE REPORTS CONFORMED WITH TRAVEL REGULATIONS. IN ADDITION, PRIOR TO
JUNE 1979 NO CHECKS BETWEEN TRAVEL VOUCHERS, SIGN OUT SHEETS AND TIME
SHEETS HAD BEEN DONE BY EITHER GERECZ OR BEYERS. ACCORDING TO BEYERS HE
HAD NEVER CROSS-CHECKED OR COMPARED THE TRAVEL ITEMS WITH ONE ANOTHER
AND GERECZ TESTIFIED THAT HE HAD REVIEWED THE FORM 4502 ONLY MONTHLY.
/3/
THE MEETING OF JUNE 15, 1979 ESTABLISHES THAT RESPONDENT INTENDED TO
INITIATE BOTH THE LIVE CASE REVIEWS AND COMPARISON OF TRAVEL ON
OCCASIONS OTHER THAN THE SINGLE REVIEW OF THE TWO LIVE CASES OF AGENT
LILE. GROUP MANAGER GERECZ'S STATEMENT THAT "THERE WILL BE LIVE CASE
REVIEWS MADE IN THE FUTURE" AT THAT TIME COULD REASONABLY HAVE BEEN
CONSTRUED BY GROUP EMPLOYEES TO MEAN THAT THE REVIEWS WOULD BE
CONDUCTED
BY THE BRANCH CHIEF SINCE THE INITIAL REVIEW OF THE LILE CASES WAS DONE
IN THAT MANNER. IN ANY EVENT, RESPONDENT DOES NOT CONTEST THE FACT THAT
ON-SITE LIVE CASE REVIEWS WERE TO BE CONDUCTED. IT IS IMMATERIAL
WHETHER OR NOT THEY WERE TO BE CONDUCTED BY THE BRANCH CHIEF OR GROUP
SUPERVISOR BECAUSE NEITHER HAD DONE SO IN THE PAST. FINALLY,
RESPONDENTS' ARGUMENT THAT SUCH REVIEWS WERE CONDUCTED IN OTHER OFFICES
OF THE INDIANAPOLIS DISTRICT IS NOT CONVINCING. FIRST, THE EVIDENCE OF
THESE REVIEWS IS NOT SUFFICIENT TO CONVINCE THE UNDERSIGNED THAT SUCH A
PRACTICE EXISTED. FURTHERMORE, THE RECORD CLEARLY SHOWS THAT SUCH
REVIEWS HAD NOT BEEN CONDUCTED IN THE SOUTH BEND OFFICE.
BASED UPON THE FOREGOING CONSIDERATIONS, I FIND THAT THE JUNE 15,
1979 ANNOUNCEMENT REGARDING THE INSTITUTION OF LIVE CASE REVIEWS AND
TEST CHECKS BETWEEN TRAVEL VOUCHERS, SIGN OUT SHEETS AND TIME SHEETS AND
THE MAY 24, 1979 ON-SITE LIVE CASE REVIEW CONSTITUTED CHANGES IN THE
METHOD OF REVIEW OF REVENUE AGENTS' WORK IN THE SOUTH BEND, OFFICE.
WHILE THESE REVIEWS ARE CLEARLY WITHIN THE PURVIEW OF SUPERVISORY
DISCRETION THEY HAD NOT BEEN PREVIOUSLY UNDERTAKEN. FURTHERMORE, THE
ABSENCE OF REVIEWS SINCE THE FILING OF THE CHARGE HEREIN BEARS ONLY ON
THE REMEDY AND NOT ON THE ANNOUNCED CHANGES. IT IS THE CHANGE WITHOUT
NOTICE TO THE UNION AND WITHOUT GIVING IT AN OPPORTUNITY TO BARGAIN OVER
IMPACT AND IMPLEMENTATION WHICH IS IN DEROGATION OF THE UNION'S
REPRESENTATIONAL STATUS IN THIS MATTER. MOREOVER, THE DISREGARD OF THE
EXCLUSIVE REPRESENTATIVE WHEN ANNOUNCING THE CHANGES IS ALSO IN
DEROGATION OF ITS RIGHTS UNDER THE STATUTE.
THE RECORD HEREIN SUPPORTS A FINDING THAT THE ANNOUNCED CHANGES AND
THE ACTUAL ON-SITE LIVE CASE REVIEW DID HAVE A SUBSTANTIAL IMPACT ON THE
EMPLOYEES' WORKING CONDITIONS. FURTHERMORE, THE ABSENCE OF REVIEWS
SINCE THE ANNOUNCEMENT WITHOUT A DEFINITIVE STATEMENT THAT SUCH REVIEWS
WOULD NOT BE UNDERTAKEN BY SUPERVISION LEAVES THE AFFECTED EMPLOYEES
WITH NO WAY OF KNOWING WHAT THE FUTURE HOLDS WITH RESPECT TO ADHERENCE
TO THE JUNE 15 ANNOUNCEMENT.
UNDER ALL THE CIRCUMSTANCES AND FOR THE REASONS STATED ABOVE, IT IS
FOUND THAT RESPONDENT'S ACTIONS IN ANNOUNCING ON-SITE LIVE CASE REVIEWS,
TEST CHECKS BETWEEN TRAVEL VOUCHERS, SIGN OUT SHEETS, AND TIME SHEETS
AND THE LIVE ON-SITE CASE REVIEW OF MAY 24, 1979 WITHOUT GIVING THE
UNION PRIOR NOTIFICATION THEREOF AND THE OPPORTUNITY TO REQUEST
BARGAINING WITH RESPECT TO IMPACT AND IMPLEMENTATION AND ITS BY-PASSING
THE EMPLOYEES EXCLUSIVE REPRESENTATIVE IN ANNOUNCING THE JUNE 15 CHANGE
CONSTITUTED VIOLATIONS 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 INTERNAL REVENUE SERVICE, INDIANAPOLIS DISTRICT SHALL:
1. CEASE AND DESIST FROM:
(A) DEALING DIRECTLY WITH UNIT EMPLOYEES AT THE SOUTH BEND, INDIANA
OFFICE REPRESENTED BY THE NATIONAL TREASURY EMPLOYEES UNION WITH RESPECT
TO PERSONNEL POLICIES AND PRACTICES OR OTHER MATTERS AFFECTING THE
WORKING CONDITIONS OF EMPLOYEES IN THAT OFFICE.
(B) INSTITUTING CHANGES IN THE USE OF ON-SITE LIVE CASE REVIEWS AND
TEST CHECKS BETWEEN TRAVEL VOUCHERS, SIGN OUT SHEETS AND TIME SHEETS OF
UNIT EMPLOYEES WITHOUT NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION,
THE EXCLUSIVE BARGAINING 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 ONLY WITH THE NATIONAL TREASURY
EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, WITH
REGARD TO PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
THE WORKING CONDITIONS OF EMPLOYEES IN THE SOUTH BEND, INDIANA OFFICE.
(B) UPON REQUEST, MEET AND NEGOTIATE WITH THE NATIONAL TREASURY
EMPLOYEES UNION CONCERNING THE PROCEDURES TO BE UTILIZED IN IMPLEMENTING
ANY CHANGES IN LIVE ON-SITE CASE REVIEWS AND TEST CHECKS BETWEEN TRAVEL
VOUCHERS AND SIGN OUT SHEETS AND TIME SHEETS AND THEIR IMPACT ON
ADVERSELY AFFECTED EMPLOYEES.
(C) POST AT ITS SOUTH BEND, INDIANA 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 INDIANAPOLIS, INDIANA 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.
(D) 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.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: JUNE 30, 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 DEAL DIRECTLY WITH UNIT EMPLOYEES OF THE SOUTH BEND,
INDIANA OFFICE REPRESENTED EXCLUSIVELY BY THE NATIONAL TREASURY
EMPLOYEES UNION, WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES, OR
OTHER MATTERS AFFECTING THE WORKING CONDITIONS OF EMPLOYEES IN THE SOUTH
BEND, INDIANA OFFICE.
WE WILL NOT INSTITUTE CHANGES CONCERNING THE PROCEDURES TO BE
UTILIZED IN IMPLEMENTING ANY CHANGES IN LIVE ON-SITE CASE REVIEWS AND
TEST CHECKS BETWEEN TRAVEL VOUCHERS AND SIGN OUT AND TIME SHEETS 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 NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH ONLY WITH THE
NATIONAL TREASURY EMPLOYEES UNION, WITH RESPECT TO PERSONNEL POLICIES
AND PRACTICES, OR OTHER MATTERS AFFECTING THE GENERAL WORKING CONDITIONS
OF EMPLOYEES IN THE SOUTH BEND, INDIANA OFFICE.
. . .
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM 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 5, WHOSE
ADDRESS IS: ROOM 1638, DIRKSEN FEDERAL BUILDING, 219 SOUTH DEARBORN
STREET, CHICAGO, ILLINOIS 60604.
--------------- FOOTNOTES$ ---------------
/1/ ALTHOUGH GRANTED AN EXTENSION OF TIME TO FILE ITS BRIEF, THE
CHARGING PARTY'S BRIEF WAS UNTIMELY FILED AND HAS NOT BEEN CONSIDERED BY
THE UNDERSIGNED.
/2/ AT THE HEARING, RESPONDENT MOVED TO COMPEL THE REGIONAL DIRECTOR
TO RESPOND TO INTERROGATORIES SERVED ON HIM JANUARY 3, 1980, WHICH HAD
NOT BEEN ANSWERED. AT THAT TIME THE MOTION WAS DENIED WITHOUT PREJUDICE
TO RENEW IT IN BRIEF. IN HIS BRIEF, RESPONDENT RENEWED ITS CONTENTION
THAT THE RESPONSES SHOULD BE ORDERED WHENEVER THE ENDS OF JUSTICE WOULD
BE BEST SERVED. THE RESPONSE OF THE REGIONAL DIRECTOR ON JANUARY 7,
1980 DENIED THE REQUEST FOR INTERROGATORIES SINCE HE CONSIDERED IT A
MOTION FOR PRE-TRIAL DISCOVERY WITHIN THE MEANING OF SECTION 2423.21 OF
THE AUTHORITY'S INTERIM RULES AND REGULATIONS AND THAT THE REGULATIONS
DO NOT PROVIDE FOR PRE-TRIAL DISCOVERY. RESPONDENT'S MOTION BEFORE THE
UNDERSIGNED MERELY APPEALS THE REGIONAL DIRECTOR'S DENIAL. HOWEVER,
THERE WAS, IN MY VIEW, NO SHOWING BY RESPONDENT THAT THE ENDS OF JUSTICE
WOULD NOT BE SERVED BY DENYING ITS RENEWAL OF THE REQUEST AT THE
HEARING. FURTHERMORE, RESPONDENT MADE NO SHOWING THAT THE
INTERROGATORIES WERE, AS IT CONTENDED, NECESSARY FOR IT TO ESTABLISH A
COMPLETE DEFENSE IN THIS CASE. ON THE CONTRARY, RESPONDENT ABLY
DEFENDED ITS POSITION IN THIS MATTER. IN VIEW OF THE ABOVE, I WILL NOT,
THEREFORE, REVERSE MY EARLIER RULING THAT THE REQUEST FOR WRITTEN
INTERROGATORIES BASED ON RESPONDENT'S, POSITION APPEARED TO BE A MOTION
FOR PRE-TRIAL DISCOVERY NOT PROVIDED FOR IN THE REGULATIONS.
/3/ IN ITS BRIEF, RESPONDENT CONTENDS THAT THE FINDING OF A VIOLATION
BASED ON THE ACTIONS OF THE GROUP MANAGER IN CONDUCTING ON-SITE REVIEWS
WOULD BE IN VIOLATION OF THE REQUIREMENTS OF DUE PROCESS. RESPONDENT
MAINTAINS THERE IS NO ALLEGATION THAT SUCH REVIEWS BY THE SOUTH BEND
GROUP MANAGER OR THE RIGHT OF THE GROUP MANAGER TO PERFORM THE REVIEWS
ARE IN DISPUTE. THE EVIDENCE PRESENTED COMPORTS WITH THE COMPLAINT IN
THAT IT CLEARLY ESTABLISHES THAT THE CHIEF, EXAMINATION BRANCH 2,
INSTITUTED THE TWO PROCEDURES TO BE CARRIED OUT BY THE GROUP MANAGER AND
THAT SUCH PROCEDURES HAD NOT PREVIOUSLY BEEN IN EFFECT IN SOUTH BEND.
IN THE OPINION OF THE UNDERSIGNED SUCH EVIDENCE IS SUFFICIENT TO MEET
DUE PROCESS REQUIREMENTS.