16:0845(119)CA - IRS and NTEU -- 1984 FLRAdec CA
[ v16 p845 ]
16:0845(119)CA
The decision of the Authority follows:
16 FLRA No. 119
INTERNAL REVENUE SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-952
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed
exceptions, the Charging Party filed exceptions and an opposition to the
Respondent's exceptions, and the General Counsel filed a motion to
strike portions of the Respondent's brief in support of exceptions. /1/
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 herein.
In agreement with the Judge's conclusion, the Authority finds that
the Respondent violated section 7116(a)(1) and (5) of the Statute by its
failure to give the Union adequate prior notice of the implementation of
its Taxpayer Compliance Measurement Program (TCMP), and by its refusal
to bargain at the Union's request concerning procedures to be utilized
in implementing such change and concerning appropriate arrangements for
employees affected thereby. In so finding, the Authority notes that
where an agency in exercising a management right under section 7106 of
the Statute decides to change a condition of employment of unit
employees, there exists a statutory duty to negotiate if such change
results in more than a de minimis impact upon unit employees or such
impact is reasonably foreseeable. U.S. Government Printing Office, 13
FLRA No. 39 (1983) and Department of Health and Human Services, Social
Security Administration, Chicago Region, 15 FLRA No. 174 (1984). The
Authority finds that the implementation of the TCMP had an impact on
unit employees that was more than de minimis. /2/
The Judge's recommended Order would require the Respondent to cease
and desist from instituting a TCMP in the future involving employees
represented by the Union without first notifying the Union and, upon
request, bargaining with the Union regarding the impact and
implementation of TCMP in question in its EP Division and giving
retroactive effect to any agreement reached with the Union. The Union
has requested that the Authority issue a status quo ante remedy, while
the Respondent opposes such request.
While, contrary to the Respondent's position, use of a status quo
ante remedy is not precluded where bargaining is limited to impact and
implementation, /3/ the Authority concludes that a status quo ante
remedy is not warranted in the circumstances of this case. In this
regard, the Authority concludes that an order requiring the Respondent
to bargain upon request concerning appropriate arrangements to be made
for employees who have been affected by the implementation of the
expired Taxpayer Compliance Measurement Program in the EP Division will
best effectuate the purpose and policies of the Statute, noting that
TCMP was designed as a temporary program, and that the expiration of
TCMP has obviated the necessity of ordering the Respondent to
reinstitute the program or to bargain concerning the procedures used to
implement the program. The following order is based solely on the facts
in this case. The Authority has not relied, as the Judge appears to do,
on prior cases where the Respondent has been found to have violated the
Statute.
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 shall:
1. Cease and desist from:
(a) Instituting a Taxpayer Compliance Measurement Program, or any
like or related program involving employees in its Employee Plans
Division, /4/ without first notifying the National Treasury Employees
Union, the employees' exclusive representative, and affording it the
opportunity to bargain concerning the procedures which management will
observe in effecting such change and concerning appropriate arrangements
for employees affected by such change.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request, negotiate with the National Treasury Employees
Union, the employees' exclusive representative, concerning the
procedures which management will observe in any future implementation of
a Taxpayer Compliance Measurement Program, or any like or related
program, in the Employee Plans Division, and concerning appropriate
arrangements for employees affected by such change.
(b) Upon request, negotiate with the National Treasury Employees
Union, the employees' exclusive representative, concerning appropriate
arrangements to be made for employees who have been affected by the
implementation in the Employee Plans Division of the Taxpayer Compliance
Measurement Program which expired on or about November 15, 1981.
(c) Post at all 19 Internal Revenue Service Districts which have an
Employee Plans Division copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the appropriate Regional
Commissioners, or their designees, and shall be posted and maintained
for 60 consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that said
Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director, Region
III, 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., December 18, 1984
/s/ Henry B. Frazier III
Henry B. Frazier III, Acting
Chairman
/s/ Ronald W. Haughton
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute a Taxpayer Compliance Measurement Program, or
any like or related program involving employees in the Employee Plans
Division, without first notifying the National Treasury Employees Union,
the employees' exclusive representative, and affording it the
opportunity to bargain concerning the procedures which management will
observe in effecting such change and concerning appropriate arrangements
for employees affected by such change.
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, negotiate with the National Treasury Employees
Union, the employees' exclusive representative, concerning the
procedures which management will observe in any future implementation of
a Taxpayer Compliance Measurement Program, or any like or related
program, in the employee Plans Division, and concerning appropriate
arrangements for employees affected by such change.
WE WILL, upon request, negotiate with the National Treasury Employees
Union, the employees' exclusive representative, concerning appropriate
arrangements to be made for employees who have been affected by the
implementation in the Employee Plans Divisions of the Taxpayer
Compliance Measurement Program which expired on or about November 15,
1981.
(Agency or Activity)
Dated: By:
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Federal Labor Relations Authority, Region III, whose address
is: P.O. Box 33758, Washington, D.C., 20033-0758, and whose telephone
number is: (202) 653-8456.
-------------------- ALJ$ DECISION FOLLOWS --------------------
INTERNAL REVENUE SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-952
Michael S. Sussman
Attorney for Respondent
Peter Sutton
Clara A. Williamson
Attorneys for the General Counsel,
Federal Labor Relations Authority
Frank D. Ferris
For the Charging Party
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, Chapter 71 of Title 5 of the U.S. Code
(hereinafter referred to as the Statute), and the rules and regulations
issued thereunder and published in 45 Fed.Reg. 3482-3524
(1/17/80), 5 CFR 2421 et seq.
Pursuant to a charge filed on March 10, 1980, by the National
Treasury Employees Union (hereinafter, NTEU or the Union), a Complaint
and Notice of Hearing was issued on October 30, 1980, by the Regional
Director, Region III, of the Federal Labor Relations Authority
(hereinafter, the Authority).
The Complaint alleges that on or about September 19, 1979, the
Internal Revenue Service (hereinafter, IRS or the Respondent), issued a
Manual Transmittal which established the Taxpayer Compliance Measurement
Program (hereinafter, TCMP) in the Employee Plans Division (hereinafter,
EP Division) of IRS, and subsequently implemented the program without
negotiation with the Union, in violation of Sections 7116(a)(1) and (5)
of the Statute. /1/
Respondent claims that it had no obligation to bargain over the
matter and, therefore, has not violated the Statute.
A hearing was held on January 8 and 9, 1981, in Washington, D.C. All
parties were afforded a full opportunity to be heard and introduce
evidence. IRS, the Union, and the General Counsel submitted briefs, on
March 6. The General Counsel's Motion to Correct the Transcript is
unopposed, and is granted.
Upon the basis of the entire record, my observation of the witnesses
and their demeanor, and the briefs, the following findings of fact,
conclusions, and recommendations are made.
FINDINGS OF FACT /2/
Background
1. NTEU is the collective bargaining agent for all professional
employees of IRS, with some exceptions, in its District, Regional, and
National Offices. Included are professionals in the EP Division. At
all times material herein, IRS and the NTEU have been parties to a
collective bargaining agreement. Frank Ferris is the Union's chief
negotiator.
2. On or about September 19, 1979 IRS issued Manual Transmittal
7(10)00-50 transmitting new Manual Sections 7(10)90 et seq., which
established TCMP, in the EP Division of IRS.
3. On January 2, TCMP was implemented in the EP Division on a
nationwide basis, except in the Atlanta District where it was
implemented on July 1. TCMP is scheduled to expire, in the EP Division,
on November 15, 1981.
4. IRS has some 19 Districts, each of which has an EP Division.
District Offices specifically mentioned at the hearing were Atlanta,
Jacksonville (now merged with Atlanta), Baltimore, Los Angeles, and San
Francisco. Pittsburgh (apparently a sub-office) was also mentioned.
5. The EP Division was set up in 1975. It was formerly known as the
Pension Trust Division. It has two functions-- determination of whether
employee benefit plans are qualified under the law; and examination of
the plans to insure that they are operating properly. Determination
work is performed at the IRS office. Examination work is performed at
the premises of the taxpayer, or his representative, and requires travel
from the office for 75 to 100 percent of the workday.
6. TCMP is a type of examination described by IRS as an "enforcement
and long-range research program designed to provide measurements and to
determine the major characteristics of (its) workload for use by the
Service in evaluating alternative applications of its limited
resources." See page 7 of Joint Exhibit 5 to Jt 1. TCMP, for the EP
Division, is set forth in a 33 page document and utilizes a new Form
6080, /3/ containing 313 questions to be answered.
7. Since approximately 1975, and up until the January 2
implementation of TCMP, the primary duty of EP Division personnel had
been determination work. This was the direct result of the passage of
the Employment Retirement Income Security Act of 1974 (ERISA), which
mandated the submission of employee benefit plans to IRS for review in
the light of ERISA's requirements. Passage of ERISA created a logjam in
EP Divisions referred to as the "ERISA crunch" (TR 81). For
approximately two years, the work of some EP personnel was "basically
100 percent determination." (TR 104).
8. Nationwide figures show the following percents of direct work
time (excluding such non-work time as leave and training) were spent on
determination and examination work, in the EP Division, out of direct
operational time: (TABLE OMITTED) The high percent of determination
work during FY 1978 was caused by the ERISA crunch.
9. In the Atlanta District, the following breakdown in time spent on
examination and determination work was shown by IRS records: (TABLE
OMITTED)
10. The personnel doing the determination and examination work in
the EP Division are in several classifications. Their position
descriptions all state that both type of duties are to be performed and
that "some travel" is required. See e.g. Jt 3.4, to which a "Note" is
affixed to the effect that: "As part of the special review program
concerning EP determinations, for the temporary period through
approximately 12-31-77, the duties of this position may consist of
substantially all determination work." (Jt 3.5).
11. Recruiting material for persons interested in becoming IRS
agents contain statements that agents "are required, by the nature of
their work, to spend a considerable portion of their time away from the
office," the extent depending upon the duty station. (A 10). A vacancy
announcement, dated August 22, 1979, announced approximately 75 percent
travel at Nashville, TN. One dated May 14, 1979 announced approximately
50 percent travel at Greensboro, NC.
12. Some EP personnel were hired off-the-street. Others transferred
from the Examination Division (formerly Audit), which examines
taxpayer's returns on the taxpayer's premises. TCMP was first
implemented in the Examination Division, so some personnel transferring
to the EP Division had had experience with TCMP.
13. The Union did not request bargaining over TCMP implementation in
the Examinations Division.
14. In the EP Division, the normal progression is schooling in
determination work; determination work for six months to two years;
schooling for three weeks in examinations work; and then travel to
perform examination work. TCMP is another type of examination and
requires, basically, the examination of the same type of records.
15. Personnel selected for TCMP were sent to a three or four day
schooling session on the procedures to be used in filling out Form 6080.
This form is designed to be read by a computer. TCMP personnel were
schooled in such matters as the necessity of keeping the answers within
the margins on the form, so that the computer can read them. Only TCMP
trained personnel are allowed to do TCMP examinations.
Implementation and impact of TCMP
16. About the time TCMP was implemented in the EP Divisions, several
Districts (Atlanta and Los Angeles were specifically mentioned at the
hearing) divided bargaining unit employees into two groups, one to
perform only determination work, and the other to perform only
examination work. In smaller offices (Baltimore and Pittsburgh were
specifically mentioned) only some agents were selected for TCMP work,
while others did only determination work, during the ERISA crunch. In
Baltimore, the ERISA crunch lasted from 1975 to June 1978. Between June
1978 and June 1979, Baltimore agents performed a combination of
examination and determination work-- 75 or 85 percent being
examinations. In July 1979, and for a couple of months thereafter,
Baltimore agents performed almost all determination work because the
employee plans had to be amended to comply with final ERISA regulations.
17. The choice of employees for TCMP work varied. Some were asked
their preference; others were not. Some were "chomping at the bit" to
get into TCMP work; but nothing was done for them (TR 374, 390).
Experience was supposed to be a basis for the selection; but this was
not always so, in practice. Some selected were very experienced, for
example George Nixon, in the Atlanta District, who had performed TCMP in
the Examinations Division. In contrast, Larry Green, in the Atlanta
District, had primarily done determination work up until being assigned
to TCMP.
18. Mr. Nixon performed virtually nothing but determination work,
from 1976 to June 1980. He performed examination work during this
period, only on "a very limited basis." (TR 36-37).
19. Mr. Green started work for IRS in 1975, in the EP Division.
Prior to TCMP implementation in the Atlanta District, he spent about 95
percent of his time on determination work. Since TCMP implementation in
July 1980, in the Atlanta District, he has performed virtually all
examination work.
20. Hal Dubin, also in the Atlanta District, went from 100 percent
determination work to 100 percent examination work, in July 1980. His
travel went from none, prior to TCMP, to an average of 70 percent, for a
period of time.
21. It was stipulated that, if called to testify, John Baker would
have given similar testimony to that of Mr. Green, Mr. Nixon, and Mr.
Dubin, and that after the July 1980 TCMP implementation in Atlanta, he
spent 75 to 80 percent of his time in a travel status.
22. IRS adduced a summary of technical time reports on Mr. Nixon,
Mr. Dubin, and Mr. Green that indicated they spent 26.9 to 53.7 percent
of their time on "Examination Time," in FY 1979 (10/78 to 9/79) and 31.6
to 76 percent of their time on "Examination Time" in FY 1980 (10/79 to
9/80). See A5 /4/ and TR 179. The summary was prepared for the purpose
of the hearing. The technical time reports were not themselves adduced,
so that the accuracy of the summary could be properly tested on cross
examination of the IRS witness who prepared the summary. To the extent
that the summary conflicts with the sworn testimony of Mr. Green, Mr.
Dubin, and Mr. Nixon, the sworn testimony is credited as being more
reliable. These three witnesses testified to far lower percentages of
time spent on examination work, up to July 1980. See findings 18, 19,
and 20, supra.
23. Implementation of TCMP, in EP Divisions, created the following
changes:
a. For some employees, travel went from virtually none to
substantial.
b. TCMP examinations are more rigid and in-depth ones; and 10
to 15 percent of the information needed to complete the TCMP Form
6080 is information which the employees did not previously have to
discover.
c. TCMP examinations allow the exercise of less judgment on
the part of the examining agent, as to the scope, structure and
intensity of the examination. On non-TCMP examinations, an agent
may decide what areas to probe and even "survey" some returns,
that is, not audit them at all. (TR 130). All aspects of a TCMP
examination must be followed. Appraisals of employees for
promotions is based, on part, on the employees ability to
"recognize examination issues of consequence." (Jt. 4, 140).
d. All TCMP examinations are reviewed for error, whereas
non-TCMP examinations are mostly subjected to random review.
e. TCMP examinations require more time to complete. /5/
Initially, unfamiliarity with the Form 6080 was a part of the
problem. But they also take longer because of the number of
questions, the complexity of closing and reporting procedures, and
the fact that even questions of de minimis effect must be answered
which previously could be overlooked. A TCMP examination runs
about three days. A non-TCMP one, more often than not, takes one
day. "Utilization of time" is another factor used to appraise
agents for promotion. (Jt 4, 140).
Notice to the Union of TCMP and refusal to bargain
24. Employees had heard rumors as early as 1976, that TCMP would be
established.
25. These rumors reached Mr. Ferris, around late November 1979, from
local chapters inquiring about increased travel that would result from
TCMP implementation.
26. In early December 1979, Mr. Ferris contacted IRS for
information. IRS and Union representatives met on December 31, 1979.
IRS confirmed that TCMP was being implemented in the EP Division. IRS
acknowledged that TCMP would require employees to be in the field and
away from their offices 75 percent of the time, and that this was more
travel than had been required in the past, in the EP Division. (TR 17).
Mr. Ferris requested a copy of the IRS regulations on TCMP and stated
that impact and implementation proposals would be submitted by January
10.
27. After the December 1979 meeting, Mr. Ferris mailed out copies of
the September 19, 1979 Manual Transmittal to the local chapters of the
Union. He received back 20 to 25 responses, an unusually large
response. All but one indicated a concern about significantly more
travel. Many expressed concern that there were employees who had never
done examinations before, whereas others were very familiar with the
work, and what was going to be done about this disparity in backgrounds.
A couple addressed the issue of what sort of refresher training would
be given. A few addressed the issue of how they could get out of
traveling at all. Some no longer had second cars and asked whether GSA
vehicles would be available. One chapter addressed the issue that some
employees had child care responsibilities, and had been assured that
they would not have to travel when they switched from another IRS
Division. /6/
28. On January 16, the Union forwarded its "initial" bargaining
proposals to IRS and requested a delay in implementation of TCMP in the
EP Division. (Joint Exhibit No. 6 to Jt 1).
29. By letter dated February 11, IRS replied that it had no
obligation to bargain, over TCMP impact and implementation, that
examinations have always been considered a part of the Employee Plans
agents' work, and that an overwhelming majority of the agents have been
doing examinations and traveling as required. (Jt 1.7)
ISSUES
1. Whether the introduction of TCMP in the EP Divisions constituted
a unilateral change in the condition of employment of IRS agents; and,
if so, was it de minimis.
2. Whether NTEU was given adequate notice of TCMP implementation in
the EP Divisions.
3. Whether, as part of any remedy, retroactive effect should be
ordered for any agreement reached by the parties.
4. Whether new issues were raised at the hearing.
DISCUSSION AND CONCLUSIONS
A preponderance of the evidence establishes that the TCMP
implementation at issue created substantial changes in conditions of
employment; that the implementation took place without adequate notice
being given to the Union to negotiate over its impact and
implementation; that an appropriate remedy includes retroactive effect;
and that no new issues were raised at the hearing.
No new issues were raised at the hearing.
Respondent argues that the General Counsel raised issues at the
hearing which were not contained in the Charge and Complaint. See IRS
Br. 15-19. The alleged new issue is the changes resulting from the use
of Form 6080. See Finding 6, supra, and footnote 3 thereto. From 6080
is the new form devised for use in the TCMP in EP Divisions. Since both
the Charge and the Complaint refer to TCMP implementation as the
gravamen of the violation, testimony as to the changes brought about by
the use of the new form is well within the issue presented. The fact
that the Charge refers to an admission, by an agency representative,
that increased travel would result from TCMP implementation, should not
have misled Respondent into believing that increased travel would be the
only change asserted. It just happened to be the only change that was
listed as admitted by the agency representative.
TCMP implementation did constitute a substantial change in conditions
of employment for some employees in EP Divisions of IRS. delete
As implemented, TCMP impacted substantially upon conditions of
employment of some employees. Increased travel was one such impact--
for some employees travel increased from virtually none, to virtually
all of their workday. While all the agents knew that travel to perform
examination work was a part of their position description, some had not,
in fact, been assigned to perform such travel over a significant period
of time. Some were anxious to have these travel opportunities. Others,
had commitments which made such travel requirements burdensome. This
varying reaction was a reasonable foreseeable situation resulting from
TCMP implementation.
TCMP created other changes as well. For example, agents' work was
subjected to increased review; less judgment and more time were
required for TCMP examinations; agents with little examination
experience were called upon to compete with others of considerable
experience; and an opportunity for schooling was offered to some and
foreclosed to others.
Respondent's attempt to minimize these changes does not succeed.
While overall nationwide averages may show minimal change after TCMP
implementation, in some offices the changes were substantial. While all
the agents knew, or should have known, that their position descriptions
called upon them to perform examination-travel work, some apparently
switched to a particular EP Division upon assurances that they would not
have to travel. See Finding 27, supra. While Form 6080 may be
characterized as just another type of examination form, it required a
three or four day training course to fill out properly, use of more
documentation, less judgment and more time to complete, and a 100
percent review rather than a random one. While only three agents, all
from Atlanta, testified about the effect of TCMP upon employment
conditions, some 20 or 25 agents expressed concerns about various
aspects of TCMP implementation to the Union's chief negotiator.
The Union was not given adequate notice of the TCMP implementation at
issue.
IRS does not dispute that an agency must give adequate notice to the
bargaining agent for its employees, before implementing changes it has a
right to make, so that bargaining may ensue as to the impact and
implementation of the change. Instead, it argues, that the Union had
adequate notice, and cites vacancy announcements indicating substantial
travel was expected of applicants at Nashville, TN, and Greensboro, NC;
notices during employee interviews that travel was normal; and
recruiting materials which stated that considerable travel was expected.
See IRSBr 12-14. While this might be notice of new travel requirements
to new employees, it is no notice at all to the Union or to employees
already on the payroll. And no notice to anyone of the other changes
brought about by TCMP implementation. See Finding 23b-e, supra.
The Authority has recently held that "chance knowledge of (a Union's)
agent" is not considered "appropriate advance notice to that agent or
other union official as a union representation." USAF, Air Force
Logistics Command and Local 2221, AFGE, 4 FLRA 70 (1980). The first
notice received by the Union's agent, here, came through rumors reported
from employees. Implementation of TCMP was begun on January 2-- two
days after Respondent confirmed that TCMP was to be implemented and gave
the Union's chief negotiator a copy of the program. Implementation
began, on January 2, even through the Union informed Respondent, on
December 31, 1979, that impact and implementation proposals would be
submitted by January 18. No reason was shown why a delay in
implementation could not have been effected while bargaining ensued over
impact and implementation of TCMP in EP Divisions. A delay was effected
in the Atlanta District, but for reasons unrelated to bargaining. In
any event, on February 11, IRS refused to bargain over the issue at all.
Under these circumstances, no adequate notice can be found.
The remedy should include retroactive relief.
The General Counsel and the Union both urge a cease and desist order,
an order to bargain, and a posting thereof. In addition, the Union
urges that retroactive effect be given to any agreement it is able to
reach over the impact and implementation of the changes resulting from
the implementation of TCMP in EP Divisions. The Union urges, as one
ground for giving retroactive effect, the fact that this is the fifth
time since 1977 that Respondent has been found "guilty" of an unfair
labor practice in unilaterally implementing a change in the method used
to select work for evaluative review. (UBr 17). Another ground urged
is the "virtually irreparable harm that has been done to some employees"
(Br 17), including any possible changes made, or to be made on employee
evaluations; reassignments so that employees have been denied the
opportunity to practice each of their two major functions (examination
and determination work); and denial of training opportunities that are
now over. The Union refers to 5 U.S.C. 7116(a)(7)(B) as authority for
giving retroactive effect to any agreement it can negotiate on impact
and implementation of TCMP, EP Divisions. Since the TCMP in EP
Divisions is due to expire in September 1981, the Union argues that
prospective effect only, to any relief ordered, would "make a folly of
the entire proceedings." (UBr 18).
The Union's arguments are persuasive. At the time TCMP was
implemented in EP Divisions (January 1980), Respondent was well aware
that a change in work review procedures is subject to
impact-and-implementation negotiations. See, e.g., Dept. of Treasury,
IRS, Southwest Region and NTEU and NTEU Chapter 91, 1 FLRA 70 (1970) and
Dept. of Treasury, IRS, Fresno Service Center, A/SLMR No. 983 (1978).
The change here, from random to complete review of all examinations was
a change of some substance. Ordering only prospective relief for a
change that is due to expire on September 1981 would be a
slap-on-the-wrist remedy of little import to Respondent, at this stage.
Also, the agents selected for TCMP work have, since implementation,
had their work subjected to more review and have been required to
increase their travel. Those not selected have lost a training
opportunity. Those in offices where they have been assigned to all
examination, or all determination work may have lost skill in types of
work described in their position descriptions as part of their job.
Under these circumstances, the request by the Union for an order
giving retroactive effect to any agreement negotiated, should be
granted. Such an order will carry out the purpose of the Statute, to
promote collective bargaining, and is well within the broad power of the
Authority to impose. See 5 U.S.C. 7118(a)(7)(C).
Since the unilateral implementation of TCMP took place nationwide, in
the EP Divisions, the relief ordered shall be nationwide as well.
On the basis of the above, I find and conclude that Respondent has
violated Sections 7116(a)(1) and (5) of the Statute; and I recommend
the entry of the following:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority, the Internal Revenue Service is
ordered to:
1. Cease and desist from:
(a) Instituting a Taxpayer Compliance Measurement Program
involving employees represented exclusively by the National
Treasury Employees Union, without first notifying the exclusive
representative and affording it the opportunity to meet and
confer, to the extent consonant with law and regulations,
concerning the implementation of such Program and its impact on
affected employees; and
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights guaranteed by the Federal Service Labor-Management
Relations Statute. 2. Take the following affirmative action:
(a) Upon request by the National Treasury Employees Union, meet
and confer to the extent consonant with law and regulations, on
the impact and implementation of the Taxpayer Compliance
Measurement Program, Employees Plans Division;
(b) Give retroactive effect to any agreement reached with the
National Treasury Employees Union on the impact and implementation
of the Taxpayer Compliance Measurement Program, Employee Plans
Division.
(c) Post at all Internal Revenue Service facilities and
installations, nationwide, copies of the "Notice to All
Employees," marked "Appendix," on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms,
they shall be signed by the appropriate Regional Commissioner and
shall be posted and maintained for a period of 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily
posted. The Regional Commissioner shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by
any other materials; and
(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.
/s/ Isabelle R. Cappello
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: April 24, 1981
Washington, DC
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 fail and refuse to negotiate in good faith with the
National Treasury Employees Union in regard to the impact and
implementation of the institution of the Taxpayer Compliance Measurement
Program (TCMP) in the Employee Plans Division.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights guaranteed under
the Federal Service Labor-Management Relations Statute.
WE WILL, upon request, negotiate in good faith with the National
Treasury Employees Union concerning the impact and implementation of the
institution of the Taxpayer Compliance Measurement Program (TCMP) in the
Employee Plans Division, and will give retroactive effect to any
agreement reached.
(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 its provisions, they may communicate directly with the Regional
Director for the Federal Labor Relations Authority whose address is:
1133 15th Street, N.W., Suite 300, Washington, DC 20005. Telephone No.:
(202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) makes it an unfair labor practice for an
agency "to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter."
One such "right," in Section 7102 of the Statute, is the right "(1)
to act for a labor organization in the capacity of a representative and
the right, in that capacity, to present the views of the labor
organization to heads of agencies" and "(2) to engage in collective
bargaining with respect to conditions of employment through
representatives chosen by employees under this chapter."
Section 7116(a)(5) makes it an unfair labor practice "to refuse to
consult or negotiate in good faith with a labor organization as required
by this chapter."
/2/ References to the record will be as follows. "TR" refers to the
transcript. "Jt" refers to the exhibits offered by the General Counsel
and identified as "Joint Exhibits" by the reporter, on the back of the
first page of each exhibit. The Joint Exhibits also bear a designation
of "General Counsel," on the first page of each exhibit, and were so
referred to throughout the hearing. Jt 1 is the stipulation of the
parties; and it has attachments which are identified as "Joint
Exhibits" 1 through 7. "A" refers to IRS exhibits, which the reporter
designated as "Agency" exhibits. "U" refers to the Union's exhibits.
"GCBr" refers to the General Counsel's brief. "IRSBr" refers to the IRS
brief. "UBr" refers to the Union's brief. Multi page exhibits will be
referenced by the exhibit number followed by the page number. All dates
refer to 1980, unless otherwise indicated.
/3/ Form 6080 is not itself specifically mentioned in the Charge or
the Complaint. Both the Charge and the Complaint refer to TCMP
implementation, without notice or bargaining, as the gravamen of the
action. IRS argues that the General Counsel and the Union are
foreclosed from adducing evidence as to changes brought about by the use
of Form 6080. The Charge, after naming TCMP as the basis of the Charge,
then states: "By the admission of the agency representative in a
discussion with Mr. Frank Ferris, NTEU Director of Training and
Negotiations, the implementation of this program will result in the
employees now spending 75% of their time traveling in the field. In the
past travel was virtually non-existent." Joint Exhibit 1 to Jt 1.
/4/ A5 is mistakenly marked as having been received in evidence at
the hearing. It was not. See TR 181-185, 209-212, and 275. Its
exclusion was based upon its untrustworthiness, having been a summary
prepared specifically for the hearing and not being supported by
production of the underlying documents. However, it appears that the
document should have been received under 5 CFR 2423.17, the rules of
evidence applicable to these proceedings. Rule 2423.17 seems to require
even untrustworthy documents to be received in evidence, unless they are
"immaterial, irrelevant, unduly repetitious or customarily privileged."
A5 fits none of the stated criteria for exclusion. Accordingly, A5 is
received into evidence.
/5/ Three agents, who perform both TCMP and non-TCMP examinations, so
testified. An IRS witness, who had prepared Form 6080, but had never
done examinations in the EP Division, considered the TCMP examination to
be little different from any other type. Another IRS witness confirmed
that an TCMP examination took "just a little bit" more time. (TR 382).
The testimony of the three agents with actual experience is more
credible.
/6/ Mr. Ferris testified to these 20 to 25 responses. He was a
credible witness. It was his duty, as the Union's chief negotiator, to
solicit and receive such comments, and to act upon them. Accordingly,
the truth of what he was told is credited.