13:0636(106)CA - Treasury, IRS, Chicago, IL and NTEU and NTEU Chapter 10 -- 1984 FLRAdec CA
[ v13 p636 ]
13:0636(106)CA
The decision of the Authority follows:
13 FLRA No. 106
UNITED STATES DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE
SERVICE, CHICAGO, ILLINOIS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 10
Charging Party
Case No. 5-CA-861
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed. Thereafter, the Charging Party and the
General Counsel filed exceptions to the Judge's Decision with supporting
briefs, and the Respondent filed cross-exceptions and opposition to
General Counsel's and Charging Party's exceptions.
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 adopts the Judge's
findings, conclusions and recommendations.
The Authority agrees with the Judge that the General Counsel has not
met the burden of proving that the three acts involved herein were
changes in personnel policies, practices or matters affecting working
conditions.
Taxpayer Delinquent Investigation (TDI) Week was established so that
employees would concentrate on overaged TDI cases for one week. The
Authority agrees with the Judge that TDI week was "a tool to aid
supervisors in implementing (a)n already existing program." The evidence
established that the Respondent's policy of giving priority to overaged
TDI cases was a long-established practice and followed several emphasis
projects dealing with processing overaged cases. TDI week did not add
more TDI cases to inventories of revenue officers; the aging cycle of
TDI cases remained the same; the review process was the usual practice
following emphasis program; and the daily review and monitoring of
cases by the Respondent's supervisors was unchanged. Furthermore, the
revenue officers were already under direction to give priority to
overaged TDI cases.
The Authority also adopts the Judge's finding that working conditions
were not changed by the Respondent's October 27, 1980 memorandum which
directed employees to work on nothing but overaged TDI and Taxpayer
Delinquent Accounts (TDA) cases and which set up field and office
schedules. Thus, no new deadlines were set; no penalties were imposed;
no additional cases were assigned; and no new methods or procedures
were instituted for case handling. Although some reports and reviews
were required in this connection, revenue officers regularly filled out
daily reports and their work was subject to daily review. Also, at the
time of the memorandum, the revenue officers were already directed to
give priority to overaged cases and to divide their time between field
and office work.
Finally, with regard to the allegation that the use of a rubber stamp
by one of the Respondent's supervisors on daily reports submitted by
unit employees was a change of working conditions, the Authority agrees
with the Judge that the rubber stamping of daily reports with "smiley
faces" or "frowns" was feedback similar to that previously given by the
supervisor when he wrote short descriptions such as "good work" or "busy
day" on employees' daily reports. Thus, the use of a rubber stamp,
under the circumstances, did not constitute a change in working
conditions.
In the absence of evidence that the Respondent's actions constituted
a change in personnel policies, practices or matters affecting working
conditions, the Authority concludes that no violation of section
7116(a)(1) and (5) of the Statute has been established. See Naval
Amphibious Base, Little Creek, Norfolk, Virginia, 9 FLRA No. 97(1982);
Department of the Navy, Mare Island Naval Shipyard, Vallejo, California,
9 FLRA No. 99(1982).
ORDER
IT IS ORDERED that the complaint in Case No. 5-CA-861 be, and it
hereby is, dismissed.
Issued, Washington, D.C., January 13, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
UNITED STATES DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE, CHICAGO, ILLINOIS,
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 10,
Charging Party
Case No. 5-CA-861
James F. Gecker,
Attorney for Respondent
James R. Lawrence,
Attorney for Charging Party
Sharon A. Bauer,
Attorney for the General Counsel
Federal Labor Relations Authority
Before: Isabelle R. Cappello
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191(1978), 5 U.S.C. Sec. 7101 et seq.
(Supp. III, 1979) (hereinafter referred to as the "Statute"), and the
Rules and Regulations issued thereunder and published at 45 Fed.Reg.
3486 et seq., 5 CFR 2400 et seq. It was originally consolidated with
Case Nos. 5-CA-810, 811, and 860, and later severed therefrom.
Based on a Charge filed on December 15, 1980, by the National
Treasury Employees Union and its Chapter 10 (hereinafter, "NTEU"), the
Regional Director, Region V, of the Federal Labor Relations Authority
(hereinafter, the "Authority") issued a Complaint and Notice of Hearing
dated February 19, 1981. The Complaint alleges violations by Respondent
Internal Revenue Service (hereinafter "Respondent" or "IRS") of Sections
7116(a)(1) and (5) of the Statute. /1/ Three unilateral acts are
alleged to constitute the violations: implementation of an "Averaged
TDI Emphasis Week" (hereinafter the "TDI Week" allegation); an October
27, 1980 memorandum designating which days revenue officers were to
spend in the office and the type cases to be worked, and the days they
were to spend in the field (hereinafter, the "October 27 Memorandum");
and the use of rubber stamps bearing a "Smiley Face," "Frown Face,"
"Stars," and a "Thank you" to indicate satisfaction or dissatisfaction
with a revenue officers' daily report of collection activities
(hereinafter, the "Rubber Stamps" allegation). The General Counsel of
the Authority alleges that these were changes in the terms and
conditions of employment of revenue officers and were made without
notice to NTEU and an opportunity to bargain concerning said changes.
The bargaining sought is over the impact and implementation of these
alleged changes, and not over their subject matter.
IRS denies that the alleged acts constitute violations of the Statute
and, as an affirmative defense, claims that the Rubber Stamp allegation
was not the subject of a timely unfair labor practice charge.
A hearing on the matter was noticed for April 22, 1981. On April 15,
1981, Respondent filed a Motion to Quash or Revoke Subpenas, which was
referred to this Office for decision. The matter was taken up at the
start of the hearing. In order to allow a full briefing and
consideration of the issues raised by the Motion, a ruling was reserved;
and IRS expressed its willingness to proceed with the hearing. See TR
32.
The hearing was held on April 22 and 23, 1981, in Chicago, Illinois.
The parties appeared, presented evidence, and cross-examined witnesses.
Briefs were filed by the General Counsel on June 17, by the Respondent
on June 20, and by NTEU on June 22, 1981. Based on the record made at
the hearing, my observation of the witnesses, and the briefs, I made the
following findings, conclusions, and recommended order. /2/
Denial of the Motion to Quash or Revoke Subpenas
The subpenas were issued by the Regional Director and served on IRS
employees in all the cases originally consolidated for hearing. See TR
32. Two of the subpenaed employees appeared and testified at this
hearing. See TR 17.
The Authority Regulations relied upon by IRS, in support of its
Motion, are all part of 5 CFR 2429, Miscellaneous and General
Requirements, and provide, in pertinent part, as follows:
5 CFR 2429.7 Subpenas.
(a) Any . . . Regional Director . . . may issue subpenas . . ..
(c) A request for a subpena . . . shall be in writing and filed
with the Regional Director . . . not less than fifteen (15) days
prior to the opening of a hearing . . ..
(d) All requests shall name and identify the witnesses or
documents sought, and state the reasons therefor. The . . .
Regional Director . . . shall grant the request upon the
determination that the testimony or documents appear to be
necessary to the matters under investigation and the request
describes with sufficient particularity the documents sought. . ..
(e) Any person /3/ served with a subpena who does not intend to
comply, shall, within five (5) days after the date of service of
the subpena upon such person, petition in writing to revoke the
subpena. . . .
5 CFR 2429.12 Service of process and papers by the Authority.
(a) Methods of Service. Notice of hearings, reports and
findings, decisions of Administrative Law Judges, complaints,
written rulings on motions, decisions and orders, and all other
papers required by this subchapter to be issued by the . . .
Regional Directors . . . shall be served personally or by
certified mail or by telegraph. (Emphasis added)
(b) Upon whom served. All papers required to be served under
paragraph (a) of this section shall be served upon all counsel of
record. . . . . . .
Section 2427.27 Service; statement of service.
(a) Except as provided in Sec. 2423.10(c) and (d), /4/ any
party filing a document as provided in this subchapter is
responsible for serving a copy upon all counsel of record or other
designated representative(s) of parties. . ..
It is the position of IRS that a request for a subpena is a
"document" which is "fil(ed); and therefore it is entitled to a copy,
under Section 2427.27(a). It is also IRS's position that a subpena is a
"paper" which is "issued;" and therefore it must be served upon it,
under Section 2429.12.
An overall study of the Regulations does not support the
interpretation IRS places upon individual sections. First of all, IRS's
interpretation runs counter to the Authority's policy to protect the
identity of individuals, and the substance of their statements and the
information they submit. This policy is stated in the Part-by-Part
Analysis of Comments and Changes (45 Fed.Reg. 3482, 3483) on the
Regulations and in the Regulations themselves, at 5 CFR 2423.19(e) and
2423.7(d). Were the General Counsel obliged to serve respondent agency
with the documents here in issue, he would have to reveal such
information. This might occur far in advance of the actual hearing,
thereby exposing an employee to the possibility of prolonged and subtle
pressure from a supervisor, and a discomforting situation-- all of which
might be unnecessary, since many cases are settled before hearing.
Secondly, the Regulations explicitly state service requirements as to
documents particularly treated. See 5 CFR 2422.2(e) stating service
requirements for representation petitions, 5 CFR 2423.6.stating service
requirements for petitions to review of negotiability appeals, and 5 CFR
2425.1 stating service requirements for exceptions to arbitration
awards. 5 CFR 2429.7 deals with subpenas, and names no service
requirements. Had the service requirements urged by IRS been intended,
they would have been set forth in 5 CFR 2429.7.
IRS also cites certain "practical considerations" it faces, under its
own regulations, which require IRS employees to obtain written
permission prior to disclosing IRS records or information. See R 11.
The IRS regulations concern records or information with respect to the
administration of laws administered by or concerning the Internal
Revenue Service. See Sec. 301.9000-1(b)(1) of R 11.1. Their relevance
to an employee subpenaed to testify in a proceeding before the
Authority, charging IRS with an unfair labor practice, is obscure. But,
in any event, the statutory right of an employee "to assist any labor
organization" (see Section 7102 of the Statute) would include giving
testimony in support of a proceeding against his agency in which the
labor organization is the charging party; and such a statutory right
would take precedence over an internal agency regulation of the type
here involved. Also, in this case, IRS had sufficient time (15 days) in
which to comply with its own regulations, to the extent they are
applicable to this situation.
IRS worries about "due process rights" if it cannot challenge the
propriety of the request and issuance of subpenas. 5 CFR 2427.7(e)
allows the person served with the subpena to challenged it. And when
the witness is called to testify, the agency may raise objections on the
grounds of materiality, relevancy, undue repetition, and privilege. See
5 CFR 2423.17. This regulatory scheme sufficiently protects due process
rights.
On the above-discussed grounds, the Motion to Quash or Revoke
Subpenas is denied. This disposition makes unnecessary the resolution
of other issues raised by the parties and pertaining to this Motion.
Findings
1. IRS is an agency of the United States Government, and NTEU is
recognized as the exclusive bargaining agent of certain of its
employees, including revenue officers in its Chicago District Office.
Charles Turek is an employee of IRS in the Chicago District Office and
also a Chapter 10 NTEU steward and a designated NTEU spokesman for that
IRS Office. Mr. Turek is an NTEU official who is supposed to receive
written advance notice of proposed changes in personnel policies and
practices and is also one of four officials designated to meet and
confer with IRS management on any such changes. The other three
designated union spokesmen are Michael Peacher, Charles Fagan, and
Evelyn McCarthy. Sharon Thurmond is a Vice President of Chapter 10,
NTEU, and responsible for union-management relations or negotiations and
has never been a union steward.
2. The Chicago District Office of IRS consists of six functionally
distinct divisions. The matters at issue in this case are concerned
solely with actions which took place in the Collective Division. The
basic function of the Collection Division is to secure delinquent
returns and collect delinquent taxes. The Collective Division itself is
divided into three branches-- the East Field Branch, the West Field
Branch and the Technical and Office Compliance Branch. The Chief of the
East Field Branch is Luis A. Rosario. The field branches are further
subdivided into work groups, each of which is headed by a group manager.
There are seven groups within the East Field Branch, including Group 21
which generally covers the downtown Chicago loop area. Sam McKinney,
the Group Manager of group 21, supervises 13 revenue officers-- 1
trainee; 8 in grade GS 12, 3 in grade GS 11, and 2 in grade GS 9. GS 9
is the journeyman grade at which revenue officers are expected to work
with a degree of independence and a minimum level of supervision. The
Collective Division handles a variety of cases, the major area ones
being Taxpayers Delinquent Accounts ("TDA's) Taxpayer Delinquent
Investigation ("TDI's"), Federal Tax Deposit Alerts, Offers, and Other
Investigations. These cases are generally assigned by the group manager
to individual revenue officers who handle most of the day-to-day
technical work of the Collection Division. In accordance with the
position description of the revenue officer and the past practice of the
Chicago District Collection Division, revenue officers spend
approximately 50 percent of their time in the field making contacts with
taxpayer and taxpayer representatives. The bulk of the revenue
officer's work involves the handling and resolution of TDA's and TDI's.
3. In mid-November 1980, /5/ Mr. Turek became aware of a practice
being used in the Collection Division whereby the supervisor would stamp
revenue officers' Forms 795 with a stamp depicting a "Smiley Face". Mr.
Turek first heard of "Smiley Face" by overhearing employee conversations
in an elevator. Mr. Turek contacted Sharon Thurmond, a revenue officer
in the Collection Division, IRS Chicago District Office, who confirmed
that the practice was occurring. Ms. Thurmond provided the Union with
sanitized copies of her Forms 795 depicting "Smiley Faces", "Stars" and
"Thank You" stamps. Ms. Thurmond further informed Mr. Turek that TDI
Week had been declared for the Chicago District, and that Ms. Thurmond's
supervisor had assigned revenue officers certain days to be in the field
and certain days to be in the office. NTEU has not received advance
notice from IRS as to the use of rubber stamps, TDI Week, or designation
of days for being in and out of the office.
4. On November 20, following the conversation with Ms. Thurmond, Mr.
Turek, on behalf of NTEU, requested negotiation with IRS on said
subjects. Mr. Turek requested negotiation due to the NTEU's perceived
adverse impact of these practices, and because NTEU considered them to
be changes in personnel policies and practices. On November 28, Mr.
William Wade, a management spokesperson, acknowledged receipt of the
Union's request to negotiate.
5. On December 1, Mr. Turek again requested negotiation on the three
practices in the Collection Division. On December 17, NTEU received a
response from Mr. Wade stating that it was agreed that such nonverbal
evaluations as "Smiley Faces" should not be made, and that steps would
be taken to ensure that evaluations are properly specific. Mr. Wade
agreed that "changes" regarding the "Smiley Face" practice, and
designation of days in and out of the office, would be cancelled.
6. On December 23, Mr. Turek reiterated the union's request to
negotiate. On February 11, 1981, Mr. Turek received a letter from
Beverly Weber, Chief of Labor Management Relations, refusing to
negotiate on the three issues. On February 12, 1981, Mr. Turek again
restated the Union's position and again requested negotiations. Mr.
Turek did not receive a response to his February 12, 1981 request.
Respondent never negotiated with the Union, as requested, on any of the
three practices identified by the Union as changes in personnel policies
and practices.
TDI Week
7. TDI Week was established for one week in September, wherein
revenue officers emphasized overaged TDI cases. Assignment was made of
some revenue officers to work with other revenue officers who had a high
number of TDI's in order to get the initial contact made. This
assignment was apparently made on a volunteer basis. See R 15.
Normally, in the past, TDI cases were worked in conjunction with, and
simultaneously with other case assignments on field visits. During TDI
Week, revenue officers with a backlog of overaged TDI cases were not to
work on other types of cases, even if the other type cases were
delinquent. Upon completion of TDI Week a "special TDI review" was
conducted by group managers, on all open TDI cases. (R 9 and 15) Such
reviews are usual following special programs, to see if individuals and
groups are meeting expectations.
8. As a means of assuring that case work is kept current, IRS, long
ago, adopted an "aging" concept with respect to TDI cases. A TDI which
is not closed within one year after issuance of the case at the Kansas
City Service Center is considered an "overaged" case. Overaged TDI's
are priority cases which are supposed to be handled in a priority manner
by the revenue officers to whom they had been assigned. The priority
treatment of overaged TDI's is necessitated by the risk that further
delays will result in increased tax liabilities, loss of relevant
documents and tax records, uncollectable taxes, and lost revenues to the
Government.
9. The Chicago District Collection Division has historically had a
problem in timely resolution of TDI cases. As reflected in a June
statistical report of overaged TDI's, 22.9 percent of the Chicago
District TDI's were then overaged. This was nearly twice the national
and regional norms, and four times worse than the next poorest
performance in the region.
10. In an attempt to reduce the overage problem and stimulate the
timely resolution of TDI's, the Chicago District Collection Division has
instituted several emphasis projects. Beginning in the fall of 1978 and
continuing until March 1979, the Division conducted a TDI emphasis
project which involved setting aside Wednesdays for exclusive work on
TDI cases by revenue officers. As noted in an April 2, 1979 memorandum
from the Chief, Collection Division, this approach met with only limited
success, and additional efforts were needed to strengthen the on-going
TDI Program. In addition to a more careful monitoring of TDI
inventories, the memorandum required group managers to conduct a group
meeting and counsel revenue officers on proper procedures governing the
handling of TDI cases, and management's expectations concerning the
timely resolution of such cases. Certain job aids attached to the
memorandum were distributed to revenue officers in April or May of 1979
as a part of this emphasis project. However, the June statistical
report of overaged TDI's shows that this approach did not cure the
problem.
11. In an effort to reduce the overaged TDI inventory in the East
Field Branch, Branch Chief Luis Rosario issued a memorandum dated July
24, declaring the week of September 8-12 to be TDI Week, during which
period each revenue officer was to "take all necessary and possible
actions on the TDI's assigned to him/her to the exclusion of any other
type of work, until all his/her assigned TDI's were totally current, or
closed." (R 9) The memorandum was issued well in advance of September 8,
in order to give revenue officers the opportunity to reduce their TDI
inventories in advance and to clear other priorities, so that their
efforts could be concentrated on priority TDI's during the designated
week.
12. The implementation of TDI Week was carried out at a group level.
Mr. McKinney, the Group Manager of Group 21 within the East Field
Branch, advised the revenue officers in his group of TDI Week by his
memorandum dated August 7. In his memorandum he stated: "I could
suggest that if an individual revenue officer closes each TDI assigned
to them, that a helping hand be given to others toward the reduction of
their assignments." (R 15) Group meetings were conducted during which
Mr. McKinney discussed the importance of timely resolving TDI's, and the
effective use of available techniques to enable revenue officers to
promptly resolve the cases. Paul Hockberger, another Group Manager
within the East Field Branch, also implemented the Branch emphasis
period within his group.
13. Since nearly all overaged TDI cases to be handled during TDI
Week were cases that had previously been assigned to revenue officers,
and had been a part of the existing inventories of individual revenue
officers for some time, the impact of TDI week on an individual revenue
officer depended largely upon how current that revenue officer's cases
were being maintained. Several higher-graded revenue officers in Mr.
McKenney's group were current on their TDI's and they were permitted to
work on other priority matters during TDI Week. Revenue officers who
had overaged TDI's in their inventories either worked exclusively on
TDI's, or emphasized them during the designated week. Similarly, within
Mr. Hockberger's group, revenue officers with a large inventory of
overaged TDI's were expected to concentrate their work on those cases
during the week, while those revenue officers who maintained a
relatively current inventory were expected to work on their other cases
as well.
14. Sharon Thurmond, a revenue officer in Mr. McKinney's group, was
the only revenue officer who testified concerning the effect of TDI week
upon the terms and conditions of employment. She acknowledged that
there have been other TDI emphasis type programs in the past, and that
such emphasis periods occur when an abundance of overaged TDI's are
present within the existing inventories. During TDI Week, Ms. Thurmond
was on a detail to the Technical Office and Compliance Branch. Ms.
Thurmond did not work on a single TDI case during TDI Week and, since
she was not present in any group within the East Field Branch during
that week, she had no first-hand knowledge of the actual implementation
of TDI Week; and she did not offer any testimony on that subject. Ms.
Thurmond testified, however, that TDI Week affected her working
conditions in that she was required to make up TDI Week upon the
completion of her detail and her return to the group. But the daily
reports which Ms. Thurmond filled out herself, and which reflect the
amount of time spent each day on the various categories of cases, show
that there was no single day, much less an entire week, in which Ms.
Thurmond worked exclusively on TDI cases. While Ms. Thurmond contended
that she emphasized TDI cases during October, the daily reports she
prepared reflected, at most, a marginal increase in time spent on TDI
cases.
15. Aside from the TDI emphasis period at issue in this case, the
Chicago District Collection Division has instituted various other
emphasis projects in the past. In addition to the prior TDI emphasis
project, which took place from the fall of 1978 to March 1979, there
were emphasis projects instituted in connection with the 100 percent
penalty program, the narcotics program, a race track messenger services
program, and as a part of the returns preparers program. All of these
special emphasis programs required that revenue officers put aside their
other work in order to work on the priority items being emphasized.
16. Even in the absence of a specific emphasis period, the different
types of cases handled by revenue officers each have internal time
constraints. Since the failure to meet the requisite time constraints
could result in the loss of revenues or otherwise prejudice the
government's interests, Section P-5-2 of the Internal Revenue Manual
"IRM") provides: "Collection management is expected to see that
particular emphasis on the closing of old cases is maintained . . .." (R
4.1) Similarly, Section 210 of the Group Manager's Handbook, which is
also a part of the IRM, requires managers to ensure that work is kept
"current," and that "priority cases receive proper attention." (R 5.2)
This is considered to be one of the most important policies practiced
within IRS. When a case remains unresolved after its due date, or after
the completion of the "aging cycle," the case attains priority status.
Management has always established and enforced work priorities.
Individual revenue officers who fail to complete their cases in a timely
manner are counselled or directed by their managers to complete the
case. It is when the inventories of revenue officers throughout the
Division contain a high number of delinquent or overaged cases, that
emphasis projects for a group have been instituted as a means of
complying with IRS policies concerning the maintenance of a current
workload, and the prompt resolution of priority matters.
The October 27 Memorandum
17. On October 27, Mr. McKinney issued a memorandum to the revenue
officers under his supervision. The memorandum initially noted the
large number of overaged TDA's and TDI's in the group inventory, and
related the past efforts which were designed to remedy the problem.
Since Mr. McKinney gave the following orders in his memorandum:
beginning November 1, initiate no actions on non-overaged cases;
beginning November 3, prepare a weekly report via a "buck slip" on the
number of overaged TDI's and TDA's by unit and taxpayer count; on
November 24 and December 22, prepare a status report listing overaged
taxpayer cases and proposed or taken actions to resolve them, including
a proposed resolution date; expect an ad hoc review of each officer's
case assignments to determine the officer's involvement and to give case
direction if there is none; make effective initial contact and follow
through on short deadlines; spend the first four days of the first week
in November and the first three days of the first week in December, in
the office taking closing actions on prior contact cases and organizing
priorities; be in the field by 9:00 a.m. to 4:30 p.m., on Monday
through Thursday, on the second and third week November, with call backs
and appointments to be made before 9:00 a.m. or on Fridays; and
emphasize TDI's and then work on a "first-in, first-out" basis. Mr.
McKinney concluded his memorandum with the statement: "If there are
individual problems come to me, and we can work to resolve them
together." (R 17.2) Mr. McKinney issued the memorandum in an attempt to
enforce compliance with existing general guidelines requiring revenue
officers to give priority treatment to priority cases. Revenue officers
had been verbally instructed at group meetings, for almost a year,
concerning the policy of working overaged cases first, but these
guidelines were not being followed by revenue officers.
18. Prior to the issuance of the October 27 memorandum, existing IRS
policy statements required that overaged cases be worked first as
priority matters; and management has always exercised its authority to
establish and enforce work priorities and to direct revenue officers,
where necessary, to complete their cases in a timely manner. See
finding 16, above. This general authority has included the authority to
direct revenue officers concerning where they perform their work. In
accordance with the revenue officer's position description, as well as
established IRS practice, revenue officers are supposed to spend roughly
50 percent of their time in the field. Prior to his October 27,
memorandum, Mr. McKinney has directed revenue officers, both
individually and as a group, to spend additional time in the field, on
numerous occasions. Revenue officers are required to advise management
concerning the specific times they spend in the office and in the field
by properly filling out a sing-out register. Based upon his reviews of
the sign-out register and Forms 795, Daily Report of Collection
Activity, Mr. McKinney has been able to determine whether or not a
revenge agent has been meeting established standards and, where
necessary, he has instructed revenue officers as to when they should be
in the field. In fact, prior to the issuance of the October 27
memorandum, two employees in Mr. McKinney's group were under specific
instructions as to when they should be in the field. Mr. McKinney has
likewise exercised his managerial authority to direct employees as to
specific days they will spend in the office or field, and specific cases
they will work on during that day, through the use of a Program Planner.
In addition, pursuant to a branch-wide policy established in May,
revenue officers were required to secure the prior approval of their
group managers in order to leave the office to go to the field after
1:30 p.m.
19. Ms. Thurmond was the only employee to testify concerning the
impact of the October 27, 1980 memorandum upon the terms and conditions
of the employment of revenue officers under Mr. McKinney's supervision.
The changes described by her were:
Well, number one, no contact on non-overage cases will be
initiated. A weekly report on the number of overage TDI and TDA
cases. Normally we do not turn in weekly reports on that. We do
not normally turn in status reports on all overage cases and
proposed or taken actions to resolve the cases, including a
proposed resolution date. And it says the first week in November,
"I want every revenue officer to spend four days in the office
taking closing actions on prior contact cases and organizing work
priorities." Normally we are not told when to be out in the field.
Normally we are not told specifically what to work on. "I want
everyone in the field from 9 a.m. to 4:30." This is Monday through
Thursday. Normally we are not told between what hours we will or
will not be the office. (TR 117-118)
Ms. Thurmond testified that employees to whom she talked found it
difficult to comply with the schedule. She found it difficult, and did
not follow it. This concerned her, as she could have been disciplined
for non-compliance. In fact, she was not disciplined, or even spoken to
about her non-compliance. Although she testified that the memorandum
required her to spend many more days in the field, during November, the
sign-out register shows that she spent only five days in the field, in
November, compared to eight days in each of the months of August and
October, thus casting doubt on her testimony. She made no attempt to
discuss her alleged difficulties with Mr. McKinney, as suggested in his
October 28 memorandum. I find that Ms. Thurmond exaggerated both her
difficulties, and concern about the schedule.
Rubber Stamps
20. In accordance with the long-established national practice within
the Collection Division, revenue officers are required to fill out a
Form 795, Daily Report of Collection Activity. The IRM provides that
revenue officers are to complete this form on daily basis, either at the
close of business, or as soon as possible on the following day. The
revenue officer is required to provide various items of information on
the Form 795, including his or her name, date, the cases and types of
cases that worked on that day, the cases disposed of, returns obtained,
monies collected, and the current inventory of cases in each of the
various case categories. In preparing the Form 795, the revenue officer
is accounting for the work performed on each particular day.
21. An original plus two copies of the Form 795 are prepared by the
revenue officer. The revenue officer retains one copy for control
purposes. The original and one copy, together with remittances,
returns, disposed cases, and other items, are sent to the group clerk.
The group clerk retains certain items, indicating on the Form 7954 what
is kept, and then routes both the original and the copy to the teller.
The teller stamps both the original and the copy and retains the
original, together with all remittances and returns. The stamped copy
is then routed to the group manager, who reviews the form and then
returns it to the revenue officer by placing it in the revenue officer's
mail drop folder.
22. Each revenue officer has a "mail drop folder," maintained in a
cabinet for the convenience of the employee and the manager. (TR 219)
Revenue officers check their mail drop folders for their mail and
telephone messages, on a daily basis. After Mr. McKinney stamped the
Forms 795, he would place them in these folders of the employees. Their
Forms 795 would then be picked up by the revenue officers. Also kept on
each revenue officer is a "performance folder drop file" which may
contain Forms 6067. This form is called an "Individual Performance
Folder Record." (R 13) Form 6067 rates the performance of a revenue
officer on a particular case, positively and negatively, using 10
factors "two of which are "Utilization of time" and "Independence." A
Form 6067 is not filed out of every case, but only on an ad hoc basis,
when a case warrants some kind of special comment. Ratings for
promotion are done on a Form 3861B, "Revenue Officer Promotion
Appraisal." (R 12). In preparing the Form 3861B, Mr. McKinney
"generally" does not putt out Forms 795 to see what, in fact, the
revenue officer had done. (TR 246) Instead, he uses the "performance
folder drop file" which contains the Forms 6067, or narratives written
up and shared with employees.
23. The group manager is expected to review the Forms 795 in order
to keep track of what the revenue officers under his supervision are
doing with their time and with their cases. The Forms provide feedback
to the group manager as to the daily activities of his revenue officers;
and it gives the group manager an opportunity to review work that he
otherwise would not get a chance to review.
24. Depending upon the information contained in the Form 795, Mr.
McKinney forms positive or negative judgments concerning the revenue
officer's job performance. For example, where a revenue officer has
made numerous contacts on a particular day, the group manager tends to
form a positive judgment concerning the performance of the employee on
the day. Conversely, where the Form 795 indicates that no contacts were
made on a given day or on several days, this might cause some concern on
the part of the group manager as to what that employee was doing on
those days.
25. It has been Mr. McKinney's practice to provide feedback to his
revenue officers of the judgments he has formed as a result of his
review of the Forms 795. On occasion, Mr. McKinney has given verbal
feedback to his subordinates, stating, for example, that revenue officer
did a good job on a particular day, or had a busy day, or did good work.
Mr. McKinney has also provided feedback in written form by writing
comments such as "good work," or "busy day" on the Form 795 prior to
returning the form to the revenue officer. In lieu of writing out
comments on the Form 795, Mr. McKinney also utilized rubber stamps as a
means of providing this feedback. These stamps consisted of a "Smiley
Face", a "Frown Face", and "Thank, You," and a star.
26. Mr. McKinney's practice of utilizing rubber stamps as a feedback
method commenced at the time he became the Group Manager for Group 21 in
November 1979 and continued until November or December 1980. Sharon
Thurmond was in Mr. McKinney's group in November 1979; but she did not
become aware of the use of these stamps until January, 1980. Mr.
McKinney kept no records and maintained no statistics in connection with
his use of the stamps. His intended use was to provide positive or
negative feedback to the revenue officer. He never informed the revenue
offices of the purpose or use of the stamps.
27. Two revenue officers, who received these stamps on their Forms
795, testified -- Ms. Thurmond and Paul Hockberger. Ms. Thurmond's
impression of a "Smiley Face" or a star was that "you did good." (TR 97)
Mr. Hockberger's reaction was that the stamps conveyed a positive or
negative feedback. Mr. Hockberger felt no effect from the stamps on his
working conditions. Coworkers of Ms. Thurmond discussed with her
"whether they were really necessary, what the reasons were behind them,
why he was doing it." (TR 112) Nobody really appreciated this feedback
technique. Ms. Thurmond was concerned about what the stamps might mean,
in the end.
28. Mr. McKinney's current practice is to provide feedback to
revenue officers by writing comments on the Forms 795.
Discussion and Conclusions
It is undisputed, in this proceeding, that IRS may not, under the
Statute, change working conditions of revenue officers without giving
NTEU adequate notice and an opportunity to bargain concerning them, and
that IRS gave no such notice and opportunity as to the three situations
here involved. The controlling issue her is whether the actions taken
constituted changes. The preponderance of the evidence supports the
position of IRS, that they were not changes sufficient to invoke
bargaining obligations. Basically, they were variations of existing
practices, with no substantial impact on the revenue officers.
1. TDI Week was "merely a tool to aid supervisors in implementing on
already existing program," to give priority status to overaged TDI
cases. See findings 8-16, above and page 4 of Judge Nash's decision in
Department of the Navy et al., 4 FLRA No. 78(1980), where the Authority
upheld his dismissal of an unfair labor practice complaint, involving
management establishment of a new checklist. IRS's policy, to give
priority to overaged TDI cases, is of long standing; and various
management tools have been utilized to implement it-- emphasis
Wednesdays over a several-month period in 1978-1979, when only TDI cases
were worked; careful monitoring of TDI inventories; counselling
sessions with revenue officers; and distribution of certain job aids.
TDI Week was not set up to assign any additional TDI cases to the
inventories of revenue officers, although some officers, with a closed
inventory, did lend a hand to others, apparently on a volunteer basis.
The aging cycle of TDI cases remained the same. While a special review
was conducted following TDI Week, this is the usual practice following
any emphasis program, to determine whether it worked. Furthermore, the
work of revenue officers has always been subjected to daily review and
their caseload monitored by supervisors. While no previous TDI emphasis
program had spanned five consecutive days, the 1978-1979 TDI emphasis
program involved many more TDI emphasis days. While revenue officers
lacked some of their usual independence, during TDI Week, in processing
cases, setting up appointments, and carrying out priorities, they were
already under direction to give priority to overaged TDI cases, and had
ample time to rearrange their schedules.
The cases cited by the General Counsel, at page 15 of his brief, are
all distinguishable. In Department of Treasury, Internal Revenue
Service, Jacksonville District, 3 FLRA No. 103(1980), the respondent was
held to have changed the date on which cases became overaged. No such
such change was made here. In National Labor Relations Board, A/SLMR
No. 246(1973), time targets were reinstituted which had, for the most
part, been ignored in the past. The record here does not support a
finding that IRS has ever ignored its time targets; indeed, it has kept
insisting that they be met, through various programs and devices. In
U.S. Department of the Treasury, Internal Revenue Service, Cleveland,
Ohio, A/SLMR No. 972(1978) the issue involved whether the use of a newly
developed, work-measurement program, to strike averages and develop
employee evaluation criteria, was a change. See page 16 of Judge
Scalzo's decision. Here, no new criteria was involved.
2. The October 27 memorandum represented yet another effort, not
significantly different from other efforts, to rid Group 21 of its
excessive inventory of overaged cases. No new deadlines were set. No
new penalties were imposed. No additional cases were assigned. No new
methods or procedures were instituted for case handling. Some
additional reports were required and reviews scheduled, but there is no
indication that they imposed a substantial burden upon revenue officers,
who customarily fill out daily reports and are subjected to daily review
of their work. No significant loss of independence was suffered,
because the revenue officers were already supposed to adjust their
schedules to give priority to overaged cases and to divide their time,
about fifty-fifty, between field and office. It was not unusual for
individual officers or the group of officers in Group 21 to be under
orders as to how to schedule their field and office work, and as the
emphasis to be given to type of cases in their workload. Management has
always kept a close check and control over how revenue officers are
dividing their field and office work.
Both the General Counsel and NTEU argue that the October 27
memorandum prevented revenue officers from working in the most efficient
manner. This argument is rejected. Having an excessive number of
overaged cases in their inventory was also inefficient; and the October
27 memorandum was directed toward alleviating this situation.
The cases cited by the General Counsel and NTEU do not advance their
cause. See GCBr 17 and NTEUBr 9-10. Both cite the IRS Jacksonville
case, 3 FLRA No. 103 already distinguished in this decision. NTEU also
cites Norfolk Naval Shipyard and International Federation of
Professional and Technical Engineers, Local One, 3 FLRA No. 15 (1980), a
case which involves a significant change for employees, in that they
were denied free access to work files for the purpose of responding to
evaluations by management concerning their work performance. No change
of comparable import occurred here. The General Counsel again cites
National Labor Relations Board, A/SLMR No. 246 (1973), which has already
been distinguished.
3. The rubber-stamping of daily collection reports was just another
way of conveying the positive and negative feedback to revenue officers,
which was more customarily given as a pat on the back, or as a "good
work" type of verbal comment. The only revenue officers to testify
concerning their use seemed to understand their meaning. While the
revenue officers did not appreciate this childish method of feedback,
neither did it overly concern them. There is no evidence that the use
of stamps effected any formal evaluation of the revenue officers.
Because of this disposition of the rubber-stamping allegation, it is
unnecessary to resolve the issue raised by IRS as to the timeliness of
the charge concerning it. See RBr 27-28.
Ultimate Findings and Order
Respondent has not engaged in the unfair labor practices charged;
and the Complaint should be, and it hereby is dismissed.
Isabelle R. Cappello
Administrative Law Judge
Dated: August 27, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a) provides, in pertinent part, that 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; . . . (and) (5) to refuse to consult or negotiate
in good faith with a labor organization as required by this chapter. .
.."
/2/ The following abbreviations will be used in this decision. "TR"
refers to the transcript. "GC" refers to exhibits of the General
Counsel, and "R" to those of Respondent, with multipage exhibits
referenced by the exhibit number followed by the page number. "GCBr"
refers to the brief of the General Counsel, "RBr" to that of Respondent,
and "NTEUBr" to that of NTEU.
/3/ "Person" is defined, in Section 7103 of the Statute, to include
an "agency." The Regulations provide that the statutory definitions are
used therein. See 5 CFR 2421.2.
/4/ 5 CFR 2423.10(c) and (d) pertain to charging parties and their
rights to obtain a review of a Regional Director's decision not to issue
a complaint.
/5/ Dates in these findings are in 1980, unless otherwise specified.