12:0445(87)CA - IRS and IRS Detroit District and NTEU and NTEU Chapter 24 -- 1983 FLRAdec CA
[ v12 p445 ]
12:0445(87)CA
The decision of the Authority follows:
12 FLRA No. 87
INTERNAL REVENUE SERVICE AND
INTERNAL REVENUE SERVICE, DETROIT
DISTRICT
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 24
Charging Party
Case Nos. 5-CA-719
5-CA-729
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
one of the unfair labor practices alleged in the consolidated complaint,
and recommending that it be ordered to cease and desist therefrom and
take certain affirmative action. The Judge further found that the
Respondent had not engaged in the other alleged unfair labor practices
and recommended dismissal of the complaint with respect to them. The
General Counsel filed exceptions to the Judge's Decision, and the
Respondent filed an opposition thereto, as well as exceptions to
portions of the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions, and recommended Order, as modified below.
The Judge found, inter alia, that the Respondent violated section
7116(a)(1) and (5) of the Statute /1/ by failing to provide a unit
employee with 80 days' notice of its intent to withhold his within-grade
increase as provided for in the parties' negotiated agreement. /2/ In
this regard, he found that the Respondent had "breached the (parties')
collective bargaining agreement" and, "in the absence of any reasonable
justification," that such action "was tantamount to a unilateral change
in established conditions of employment and hence a violation of
(s)ections 7116(a)(1) and (5) of the Statute." The Authority disagrees.
Subsequent to the issuance of the Judge's Decision herein, the Authority
held that a single instance of failure or refusal by a party to comply
with a contractual provision does not under the Statute "constitute a
rejection of the collective bargaining agreement in violation of section
7116(a)(5) and (1)." /3/ Similarly, it is concluded that the failure
herein to comply with a contractual provision requiring specific advance
notice of the Respondent's intent to withhold a within-grade increase is
not a rejection of the agreement which would constitute a violation of
section 7116(a)(1) and (5). Thus, the ; Authority concludes that the
remaining portion of the complaint in Case No. 5-CA-729, alleging a
breach of the parties' negotiated agreement, must be dismissed.
ORDER
IT IS ORDERED that the consolidated complaint in Case Nos. 5-CA-719
and 5-CA-729 be, and it hereby is, dismissed in its entirety.
Issued,Washington, D.C., July 29, 1983.
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos.: 5-CA-719, 5-CA-729
James E. Rogers, Jr., Esquire
For the Respondent
Sandra J. Lebold, Esquire
For the General Counsel
Lynn Sylvester, Esquire
For the Charging Party
Before: BURTON S. STERNBURG
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, Sec. 7101 et
seq., and the Rules and Regulations issued thereunder, Fed. Reg., Vol.
45, No. 12, January 17, 1980, 5 C.F.R.Chapter XIV, Part 2411 et seq.
Pursuant to charges filed on September 25, 1980, in Case No. 5-CA-719
and October 2, 1980, in Case No. 5-CA-729, by Chapter 24, National
Treasury Employees Union, (hereinafter called the Union or NTEU), a
Consolidated Complaint and Notice of Hearing was issued on January 9,
1981, by the Regional Director for Region V, Federal Labor Relations
Authority, Chicago, Illinois. The Consolidated Complaint, which was
amended on January 28, 1981, alleges that the Internal Revenue Service
and Internal Revenue Service, Detroit District, (hereinafter called the
Respondent or IRS), violated Sections 7116(a)(1), (2), (5) and (8) of
the Federal Service Labor-Management Relations Statute, (hereinafter
called the Statute), by virtue of its actions in (1) issuing an
unfavorable performance appraisal to Mr. John Geukes because of his
union activities, (2) issuing an unfavorable performance appraisal and
denying a within grade step increase to Mr. Robert Braun because of his
union activities, (3) denying Mr. Braun's request for Union
representation at an interview which Mr. Braun believed could result in
the imposition of discipline, and (4) patently violating a provision of
the collective bargaining contract in effect between the Union and the
Respondent.
A hearing was held in the captioned matter on March 12, 1981, in
Detroit, Michigan. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel and the
Respondent submitted post-hearing briefs on May 22, 1981, 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,
conclusions and recommendations.
Findings of Fact
Allegation of Complaint with Respect to Mr. Braun:
The Union is the exclusive collective bargaining representative of
Respondent's non-managerial employees working in the Detroit District
Office which includes a satellite facility in Pontiac, Michigan. The
Union and the Respondent are parties to a Multi-District Collective
Bargaining Agreement which was executed on January 31, 1977. The
Multi-District Agreement which was applicable to the Detroit District
Office provides in Article 10 as follows:
Annual Performance Ratings and Acceptable Level of Competence
Determinations
Section 1
Acceptable level of competence determinations and annual performance
ratings will be made in a fair and objective manner . . . and will be
made only on the basis of the work requirements of the particular
position of specific work standards as may have been established by the
Employer for the position; provided, however, that a determination that
an employee is not performing at an acceptable level of competence will
not be used to dispose of questions of misconduct. Section 2
At least ninety days prior to the date an employee is eligible for a
within grade increase the Employer will review the work of the employee.
When a supervisor's review leads to the conclusion that the employee's
work is not at an acceptable level of competence, the supervisor will
provide to the employee, in writing, at least eighty (80) days before
the employee is eligible for the within grade increase, the following:
a. An explanation of those aspects of performance in which the
employee's services fall below an acceptable level;
b. Advise as to what the employee must do to bring his/her
performance up to the acceptable level;
c. A statement that his/her performance may be determined as
being at an unacceptable level unless improvement to an acceptable
level is shown;
d. A statement that he/she has a period of not more than
eighty (80) days in which to bring his/her performance up to an
acceptable level.
Mr. Robert Braun, one of the alleged discriminatees herein, began
working for the Respondent in 1973 as a temporary GS-5 employee. During
the ensuing years he was consistently promoted until he reached a GS-11
in 1978. During the period 1973-1978 Mr. Braun received a number of
letters of commendation from various management officials. In 1978 and
1979, he was designated Acting Group Manager on several occasions by his
then supervisor, Group Manager Louis Deamer. On May 4, 1979, Mr. Deamer
issued Mr. Braun a "Revenue Officer Promotion Appraisal" covering the
period of April 27, 1978 to April 27, 1979. In the ten categories
appearing on the appraisal form, Mr. Braun was awarded three "5"'s and
seven "4"'s. According to the record, "5" is the highest mark or rating
an employee may receive.
On May 22, 1979, Mr. Braun filed a grievance wherein he alleged that
higher level management had violated IRS regulations by giving special
or preferential treatment to a delinquent taxpayer whose legal
representative was a former IRS official. Concurrently with the filing
of the grievance, Mr. Braun personally referred the matter to the IRS
Inspection Division citing Mr. Roger Laws, Chief of the Collection
Division as the responsible party.
On May 25, 1979, Mr. Braun filed a second grievance wherein he
protested the insertion of a negative recordation in his personnel file
by Group Manager Deamer. The negative recordation accused Mr. Braun of
failing to follow instructions. The grievance further alleged that the
negative recordation was in reprisal for his action in filing the prior
grievance on May 22, 1979.
On June 15, 1979, Mr. Braun filed a third grievance which was
predicated on the manner in which management, i.e. Mr. Deamer and Mr.
Laws, were conducting discussions of his prior grievance which had been
filed on May 25, 1979.
In August 1979, Mr. Deamer, Mr. Braun's immediate supervisor, began
preparing a form which requested an incentive award for Mr. Braun.
However, the form was never completed due to the fact that Mr. Deamer
transferred to another office prior to completing and submitting the
recommendation. According to the record, Mr. Laws made it clear to both
employees and their respective supervisors that he deemed the appraisals
accorded to the employees to be too high and that he wanted the future
appraisals done in a manner different from that utilized in the past.
Mr. Deamer differed with Mr. Laws on the matter of appraisals and
requested a transfer to a non-supervisory position in another office.
On or about September 21, 1979, Mr. Braun received a Promotion
Appraisal for the period August 10, 1978 through August 10, 1979. The
appraisal form contained three "4's" and seven "3's". The narrative
portion of the appraisal was for the most part complimentary. The
evaluation, however, had the effect of downgrading Mr. Braun from the
"Best Qualified List" to the "Highly Qualified List" for promotion.
Also, in September of 1979, Mr. Braun complained to the General
Accounting Office about the manner in which the IRS was conducting
seizures of delinquent tax payers' property. The General Accounting
Office assigned Mr. Braun a specific file number. Mr. Braun later gave
the file number to the Union's Local President who in turn published the
number in the Union's newsletter called the Wolverine. The Union
newsletter invited all interested union members to utilize the number
when submitting information bearing on the matter to the GAO and their
respective congressmen and senators.
On October 18, 1979, Mr. Braun filed a grievance over his September
1979, Promotion Appraisal contending that it removed him from the "Best
Qualified list". At the instant hearing herein, Mr. Braun acknowledged
that the September appraisal was in line with the new policy announced
by Mr. Laws respecting lower and more realistic appraisals.
On December 20, 1979, Mr. Braun personally wrote a note directly to
the Regional Commissioner wherein he claimed that there was an
inconsistency between his job description and a memorandum issued by the
Chief of the Field Branch, Roger Laws. Thereafter, following the
exchange of a number of written communications between Mr. Braun and
Respondent concerning the December 20, 1979, note, Mr. Braun was given a
written recordation on February 14, 1980, for bypassing the chain of
command and going directly to the Regional Commissioner with his
problems.
On April 4, 1980, Mr. Braun received a Performance Appraisal which
contained one "4", eight "3's" and one "2". The appraisal removed Mr.
Braun from the "Highly Qualified" list for promotion. The appraisal was
given to him by his new supervisor, Kenneth Isenogle. /4/ On May 2,
1980, Mr. Braun filed a grievance wherein he alleged that the appraisal
was not prepared in a fair and objective manner. The grievance
requested as a remedy that "quality of work" be raised from a "3" to a
"4" and that "job attitude" be raised from a "2" to a "3". The
grievance was subsequently processed through the fourth step of the
grievance procedure and on September 11, 1980, the "2" in "job attitude"
was raised to a "3", thereby restoring him to the "highly qualified"
list.
On June 26, 1980, and August 7, 1980, Mr. Isenogle issued "Individual
Performance Folder Records" to Mr. Braun. The "Individual Performance
Folder Records" involve a review of an individual employee's case
inventory and criticism and comments on the way the employee handled his
respective cases and case inventory. Although not entirely clear from
the record, it appears that "Performance Appraisals" are only issued
when there is a higher level vacancy available and that "Individual
Performance Folder Records" are issued periodically, irrespective of
whether or not there is a higher level vacancy. /5/ The June 26, 1980,
Performance Folder Record contained five "1's" and the August 7, 1980,
Performance Folder Record contained four "1's". The August 7, 1980,
Performance Folder Record, which is included in the record in its
entirety, contains a four page narrative of Mr. Braun's alleged
deficiencies in handling some twelve specific cases.
On August 21, 1980, Mr. Isenogle issued a memorandum to Mr. Braun
which informed him that he would not be given his within grade increase
which was due on August 23, 1980. The memorandum went on to cite twelve
cases as examples of Mr. Braun's failure to demonstrate job knowledge,
utilization of time, job attitude and dependability. Mr. Braun's
alleged deficiencies in the above regard were set forth in detail in
each of the twelve cases cited. The letter went on to inform Mr. Braun
that since he was not given a 60 day notice due to administrative
delays, his performance would be closely observed during the next sixty
day period. Mr. Braun was further informed that at the end of the sixty
day period, if a new evaluation indicated that his work deficiencies had
been corrected he would be granted his within grade promotion
retroactive to August 24, 1980. The record discloses that subsequently,
in November of 1980, Mr. Braun was denied his within grade increase.
/6/
On September 3, 1980, Mr. Braun received a Performance Appraisal
which contained nine "3's", two "2's" and one "1". The "2's" were in
the utilization of time and dependability and the "1" was in job
attitude. His overall job performance on a scale of 1 to 5 was rated as
being a "2". The narrative portion of the appraisal indicates that Mr.
Braun was considered a "marginal" employee. Additionally, the narrative
portion of the appraisal set forth specific examples of Mr. Braun's
alleged deficiencies which were the basis of the low marks on the
appraisal.
On September 13, 1980, Mr. Isenogle prepared a Performance Folder
Record for Mr. Braun which contained six "1's". The eight page
narrative attached to the performance folder set forth in detail Mr.
Braun's alleged shortcomings with regard to the performance aspects of
his work in connection with a number of cited cases and past ;
instructions given concerning the proper method of disposing of cases.
On September 22, 1980, Mr. Isenogle summoned Mr. Braun into his
office for purposes of discussing the September 13, 1980, Performance
Folder Record. According to the uncontradicted testimony of Mr.
Isenogle, he informed Mr. Braun at the time that he wanted to go over a
follow-up review of Mr. Braun's cases. Mr. Braun then orally requested
Union representation at the meeting. Upon receiving a denial from Mr.
Isenogle, Mr. Braun put his request in writing. This request was also
denied. Thereafter the meeting was held and Mr. Braun remained silent
for most of the meeting. According to Mr. Braun, he remained silent and
did not make any comments because he felt that anything he said would be
turned around and used against him.
Aside from eliciting a general denial from Mr. Braun that his work
had not deteriorated since April of 1979 when he had received
outstanding appraisals and presenting a personal tabulation made by Mr.
Braun which indicated that his case production, case load and
collections had not changed since April of 1979, the General Counsel
presented no probative evidence to rebut the specific deficiencies of
Mr. Braun which were relied upon by Respondent's manager, Mr. Isenogle,
in the narrative portions of the various negative Performance Folder
Records and/or Performance Appraisals awarded to Mr. Braun since April
of 1979.
With respect to Respondent's action in admittedly failing to adhere
to Article 10 of the collective bargaining agreement which calls for 80
days advance notice of intention to withhold a within-grade increase in
salary, the record discloses that the validity of Article 10 had been
successfully challenged by Respondent in a prior proceeding before the
Assistant Secretary of Labor under Executive Order 11491. Thus the
decision of the Assistant Secretary in Internal Revenue Service, Detroit
District, Detroit, Michigan and National Treasury Employees Union, Case
No. 52-06923, makes it clear that disputes with regard to the merits of
a denial of a within grade wage increase are not subject to contract
grievance procedures since there exists a statutory appeals procedure
for such disputes. Although the record indicates that the grievant had
not received the 80 day notice called for in the collective bargaining
contract, no finding was made that the notice requirements of Article
10, Section 2, were null and void. In this latter connection, it is
noted that the Decision of the Civil Service Commission dated September
28, 1975 included in the record as an attachment to Respondent's motion
to dismiss, indicates that the Federal Personnel Manual, Chapter 501,
Subchapter 4-9.b. instructs Agencies to establish procedures which will
ensure that affected employees have at least a 60 day notice of intent
to withhold within-grade wage increase. Allegations of the Complaint
with Respect to Mr. John Geukes:
Mr. John Geukes has been employed as a Revenue Officer at
Respondent's Pontiac, Michigan, office for some twenty-five years. For
the last ten years Mr. Geukes has served as a union steward and has been
involved in the filing of many grievances in such capacity.
Prior to 1980, Mr. Geukes' work performance was considered adequate.
Thus, according to Mr. Geukes' uncontested testimony and the record
evidence, Mr. Geukes during his career with Respondent t received three
superior performance awards, three adopted suggestion awards, a high
quality step increase and an annual outstanding rating letter from the
District Director. In this latter connection, Mr. LeRoy Willis, Mr.
Geukes' supervisor from March 1979 through December 1979, testified that
Mr. Geukes' work was very good and very professional despite his heavy
caseload.
With regard to his union activity, Mr. Geukes testified, without
contradiction, that during the past few years his grievance activity in
connection with his union steward post increased significantly. Thus,
according to Mr. Geukes, where he normally processed some ten grievances
a year, the number during the past two years increased three-fold. Mr.
Geukes pointed out that he was the union steward in charge of Mr.
Braun's grievances and frequently participated in the heated discussions
thereon through the four steps of the grievance procedure.
Additionally, Mr. Geukes testified that he was an active participant in
the Union's efforts to protest the seizure quota policy of the
Respondent, a matter first raised individually by Mr. Braun. He was
also one of ten signatories to a letter to a congressional oversight
committee which protested Respondent's policy with regard to seizures of
delinquent tax payers' assets. In addition to the foregoing, Mr. Geukes
in December 1979, signed a protest letter directed to the Regional
Director of the IRS wherein a number of employees protested the removal
of his immediate supervisor, Group Manager LeRoy Willis. /7/ At an
earlier date, Mr. Geukes spoke out at a labor-management meeting and
complained about the removal of Group Manager Deamer, who had been Mr.
Braun's supervisor.
In January of 1980, Mr. Roger Ryskamp became a Group Manager in
Pontiac, Michigan. According to the record, he was first selected to be
a supervisor in September 1979, and the Pontiac, Michigan, assignment
was his first permanent managerial assignment. He replaced Group
Manager LeRoy Willis and, accordingly, became Mr. Geukes' immediate
supervisor.
On March 20, 1980, Mr. Ryskamp issued an Individual Performance
Record to Mr. Geukes which consisted of an "annual review" of his cases.
Mr. Ryskamp gave Mr. Geukes "3's" in the three categories that he chose
to check off on the form, i.e. utilization of time, quality of work, and
job attitude. In the narrative attached to the report, Mr. Ryskamp
noted, among other things, that Mr. Geukes was carrying a heavy load of
cases and that he appreciated the fact that Mr. Geukes' position as
union steward took up a great deal of his time. Accordingly, in order
to allow time for both work and Mr. Geukes' union duties, Mr. Ryskamp
further noted that he intended to reduce Mr. Geukes' case load. /8/
Accompanying the narrative was an 18 page "Revenue Officer Inventory
Analysis" which set forth Mr. Ryskamp's comments and suggestions with
respect to the status of Mr. Geukes' cases and the manner in which Mr.
Geukes was, or should be, handling the various collection activities
involved.
On July 17, 1980, Mr. Ryskamp issued a new "Individual Performance
Folder Record" to Mr. Geukes which was a "100% Follow-Up Review" of Mr.
Geukes' case inventory from March through the middle of June 1980. Mr.
Geukes' received an evaluation containing one "3", one "2" and four
"1's". The attached narrative to the evaluation set forth twenty-one
cases which were still in Mr. Geukes' case inventory since the last
evaluation on March 20, 1980. In each of the twenty-one cases listed,
Mr. Ryskamp set forth chapter and verse with respect to what collection
activities or procedures should have been taken in each and every case.
Mr. Ryskamp further noted that in many of the cases there had been no
change since his prior analysis in March of 1980 or that Mr. Geukes had
failed to follow the instructions given in the March 1980 analysis.
Subsequently, Mr. Geukes submitted a rebuttal to the twenty-one case
analysis of Mr. Ryskamp. Admittedly, Mr. Ryskamp did not pay much
attention to the rebuttal since he was not obligated to and because many
of the actions taken by Mr. Geukes on the particular cases and cited as
support for the rebuttal had occurred after he had finished his analysis
of the Mr. Geukes' case inventory. Mr. Geukes rebuttal, which is
included in the record as an exhibit, indicates that many of his actions
in the particular cases relied upon by Mr. Ryskamp in his July
evaluation did in fact occur after Mr. Ryskamp had completed his
analysis.
Mr. Ryskamp acknowledged that prior to presenting the low evaluation
to Mr. Geukes he first read the evaluation over the telephone to Mr.
Laws, the Branch Chief, who approved of his action.
Mr. Ryskamp denies that Mr. Geukes' union activity played any part in
his decision to give him the July 17, 1980, low evaluation.
According to Mr. Geukes, early in July, during an informal early
morning discussion prior to starting work, Mr. Ryskamp informed him that
he wished he, Mr. Geukes, would put as much enthusiasm into his IRS work
as he did in his Union work. Mr. Ryskamp does not recall making the
aforementioned comment to Mr. Geukes.
Discussion and Conclusions
Section 2423.18 of the Authority's Rules and Regulations imposes upon
the General Counsel the burden of proving the allegations of the
Complaint by a preponderance of the evidence. On the basis of the
record as a whole, I find that the General Counsel has failed to carry
this burden with respect to the allegations of the Complaint dealing
with the issuance of an unfavorable appraisal and subsequent denial of a
within grade promotion to Mr. Braun, and the issuance of an unfavorable
appraisal to Mr. Geukes.
The General Counsel has established that both Mr. Geukes and Mr.
Braun participated in Union activities prior to receiving poor
appraisals and/or a denial of a within grade promotion from Mr. Ryskamp
and Mr. Isenogle who were their respective supervisors and that both
employees had always been rated as either outstanding or at least
satisfactory employees. Pointing to their past ratings and the timing
of their union activities, the General Counsel urges a finding that the
recent poor appraisals or evaluations were in retaliation for such union
activities.
While, admittedly, the timing as well as their past high ratings make
the case suspicious, I can not, without more, find that the recent poor
appraisals were based in part on their union activities and hence
violative of the Statute. Thus, the record indicates that the poor
appraisals occurred after Mr. Laws had complained about the manner in
which his Group Managers were evaluating or appraising the employees
under their respective supervision and after the Group Managers had been
through a training program or meeting concerning employee evaluations.
In fact, Mr. Deamer, who had been responsible for Mr. Braun's earlier
highly complimentary appraisals, saw fit to take a non-supervisory
position rather than to adhere to Mr. Laws' standards concerning
employee appraisals. Additionally, it is noted that the poor appraisals
were not made by Mr. Deamer and Mr. Willis who had made the past
satisfactory appraisals, but by two new group managers who might have,
and apparently did have, different criterion for evaluating revenue
officers.
In view of the foregoing considerations, the absence of any evidence
of union animus, and particularly the absence of any probative evidence
to rebut the detailed critical comments of Mr. Ryskamp and Mr. Isenogle
with respect to the manner, methods and means Mr. Braun and Mr. Geukes
handled or should have handled the respective cases included in their
case inventories, I can not find, as urged by the General Counsel that
the poor appraisals given Mr. Braun and Mr. Geukes, and the denial of a
within grade increase to Mr. Braun were based in part upon their
participation in union activities. /9/ Accordingly, I shall recommend
that the 7116(a)(1) and (2) allegations of the complaint predicated on
the awarding of unsatisfactory appraisals to Mr. Geukes and Mr. Braun,
and the denial of a within grade wage increase to Mr. Braun, be
dismissed.
Turning now to the alleged violation of Sections 7116(a)(1) and (8)
predicated on Mr. Isenogle's refusal to accede to Mr. Braun's request
for union representation at the follow up review of Mr. Braun's case
inventory analysis held on September 22, 1980, I find that Mr.
Isenogle's action in the aforementioned respect was not violative of the
Statute.
In Internal Revenue Service, Detroit, Michigan, 5 FLRA No. 53,
coincidently a case involving the same parties herein, the Federal Labor
Relations Authority held that case reviews, such as the one involved
herein, were not examinations in connection with an investigation within
the meaning of Section 7116(a)(2)(B) of the Statute. Although the
General Counsel contends that the instant case is distinguishable since
the work review involved herein was of a follow up nature and not the
regular periodic scheduled work evaluation considered by the Authority
in the aforecited decision. The General Counsel would further
distinguish the instant case on the ground that during the preceding six
month period Mr. Braun had been receiving consistently lower appraisals
or evaluations than he had ever received in the past and had also been
denied a within grade promotion. In view of the foregoing, it appears
to be the General Counsel's position that Mr. Braun had more to fear in
the way of discipline than an employee faced with his usual periodic
scheduled case review or analysis.
Be it a periodic scheduled case review or a follow up case review, an
employee always runs the risk of receiving some type of disciplinary
action for the manner in which he handled his case inventory during the
preceding months or days. However, it is not the threat or risk of
discipline which is the controlling element under Section 7114(a)(2)(B)
of the Statute, but rather the type of meeting, interview, etc. The
meeting, conference, or interview must rise to an "examination . . . in
connection with an investigation", before the threat of discipline or
risk even comes into consideration. In the absence of a finding that
the meeting, etc., is an examination in connection with an
investigation, the fact that the employee might fear discipline is of no
import. Cf. AAA Equipment Service Co. v. NLRB, 598 F2d 1142, where a
similar conclusion was reached in the private sector.
Accordingly, in view of the above considerations and since the
Authority has determined that case reviews are not examinations in
connection with an investigation, I find that the Respondent was not
under any obligation to accede to Mr. Braun's request for union
representation at the September 22, 1980, meeting and I shall therefore
recommend that the Section 7116(a)(1) and (8), allegations of the
complaint, which are predicated upon Respondent's refusal to accord Mr.
Braun union representation, be dismissed.
With respect to the Section 7116(a)(1) and (5) allegation of the
complaint, Respondent stipulated that Mr. Braun did not receive the 80
day notice of intent to withhold his within grade wage increase as
provided for in Article 10, Section 2 of the collective bargaining
agreement. Respondent, however, takes the position that in view of the
earlier decision of the Assistant Secretary in Case No. 52-06923,
wherein it was determined that the denial of a within grade wage
increase was not subject to the grievance procedure since there existed
a statutory appeals procedure, Article 10 was null and void and it, the
Respondent, was therefore not obligated to follow the procedures set
forth therein.
Apart from the fact that the earlier decision of the Assistant
Secretary was made under Executive Order 11491, as amended, I find no
basis in the Assistant Secretary's decision for concluding, as urged by
Respondent, that the 80 day notice requirement of Article 10, Section 2,
was declared, implicitly or otherwise, null and void. In fact the
Assistant Secretary's decision only addressed the arbitrability of the
denial of a within grade wage increase.
Accordingly, and since the notice requirement is unrelated to the
merits of the denial of a within grade increase, I find that the 80 day
notice requirement set forth in Article 10, Section 2, of the collective
bargaining agreement was not declared null and void. I further find
that having failed to give the required 80 day notice, Respondent
breached the collective bargaining agreement.
Having concluded that a contract breach occurred, and in the absence
of any reasonable justification for Respondent's action in this regard,
/10/ I find that Respondent's action was tantamount to a unilateral
change in established conditions of employment and hence a violation of
Sections 7116(a)(1) and (5) of the Statute. /11/
In view of the above findings and conclusions, it is hereby
recommended that the Authority issue the following order which is
designed to remedy the Section 7116(a)(1) and (5) violation of the
Statute found herein.
ORDER
Pursuant to Section 7118(a)(7)(A) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7118(a)(7)(A), and Section
2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
2423.29(b)(1), the Authority hereby orders that the Internal Revenue
Service and Internal Revenue Service, Detroit District, Detroit,
Michigan shall:
1. Cease and desist from:
(a) Unilaterally changing the provision of the collective
bargaining agreement with the National Treasury Employees Union by
failing to give 80 days notice of intent to withhold a within
grade wage increase to Robert Braun or any other employee.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Post at its various offices in the Detroit Michigan
District wherein unit employees are located, copies of the
attached notice marked "Appendix". Copies of said notice, to be
furnished by the Regional Director for Region 5, after being
signed by the District Director, shall be posted by
representatives of the Detroit, Michigan, District immediately
upon the receipt thereof and be maintained by such representatives
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) 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.
IT IS FURTHER ORDERED that the remaining allegations of the complaint
be, and they hereby are, dismissed.
BURTON S. STERNBURG
Administrative Law Judge
Dated: July 21, 1981
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 CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally change the provisions of the collective
bargaining agreement with the National Treasury Employees Union by
failing to give 80 days notice of intent to withhold a within grade wage
increase to Robert Braun or any other employee. WE WILL NOT in any like
or related manner, interfere with, restrain or coerce unit employees
represented by Chapter 24, National Treasury Employees Union, in the
exercise of their rights assured by the Statute.
(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 any employees have any
questions concerning this Notice or compliance with its provisions, they
may communicate directly with the Regional Director of the Federal Labor
Relations Authority, Region 5, whose address is: 175 W. Jackson Blvd.,
Suite A-1359, Chicago, Illinois 60604, and whose telephone number is:
(312) 886-3468.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ As found by the Judge, the employee was given a 60-day period in
which to correct his work deficiencies and was advised that he would
receive a within-grade increase retroactive to the date of his
eligibility if the deficiencies were corrected. The increase was denied
approximately three months thereafter.
/3/ Federal Aviation Administration, Alaskan Regional Office, 7 FLRA
No. 23 (1981). See also U.S. Customs Service, Region VII, Los Angeles,
California, 10 FLRA No. 47 (1982); Harry S. Truman Memorial Veterans
Hospital, Columbia, Missouri, 11 FLRA No. 90 (1983).
/4/ The record reveals that Mr. Isenogle, although a supervisor, was
a dues paying member of the Union.
/5/ According to Mr. Isenogle the Individual Performance Folder
Record is a work review which is generally conducted about twice a year.
Further, according to Mr. Isenogle, if he is concerned about an
employee's performance, he would conduct work reviews more often. Upon
the completion of a work review, the supervisor would present same to
the employee involved for comment and discussion.
/6/ Mr. Braun filed a complaint with the Merit System Protection
Board wherein he contended that he was denied the within grade increase
because of his "whistle blower" activities, i.e. contacting the GAO
about the IRS's collection policies. Based on Mr. Braun's action in
this respect, Respondent contends that Section 7116(d) bars any further
action before the Authority with respect to his within-grade wage
increase. Inasmuch as the basis of the instant complaint is the denial
of a within grade wage increase because of union activities, as opposed
to "whistle blower" activities, the identical issues will not be
litigated in both forums. Accordingly, I find Respondent's position to
be without merit and deny the motion for dismissal predicated thereon.
/7/ The letter accused Branch Chief Roger Laws of "scalp hunting" to
impress his superiors. The letter was not written on the Union's
letterhead and Mr. Geukes acknowledges that he wrote the letter as an
employee.
/8/ The record reveals that Mr. Ryskamp subsequently reduced Mr.
Geukes' case load by transferring seventeen cases from his case
inventory.
/9/ In order to make such a finding, it is incumbent on the General
Counsel to prove that the reasons set forth for the poor appraisals or
the denial of the within grade wage increase were either a sham or
amounted to disparate treatment of union activists. The mere denial
from the alleged discriminatees, falls short of disproving the specifics
relied upon by Respondent's Group Managers for the poor appraisals
and/or the denial of Mr. Braun's within grade wage increase. In the
case of Mr. Geukes, who has been a union steward for over ten years, I
find that his written rebuttal to Mr. Ryskamp's criticism to be an
insufficient basis for discrediting the validity of his appraisal since
many of the actions set forth in his rebuttal occurred subsequent to the
date that the analysis of cases was made by Mr. Ryskamp.