[ v01 p612 ]
01:0612(70)CA
The decision of the Authority follows:
1 FLRA No. 70
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE (IRS),
SOUTHWEST REGION
Activity
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION CHAPTER 91
Complainants
Assistant Secretary
Case No. 64-3896(CA)
DECISION AND ORDER
ON JANUARY 19, 1979, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR
PRACTICES AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE
CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE
LAW JUDGE'S RECOMMENDED DECISION AND ORDER. THEREAFTER, THE RESPONDENT
FILED EXCEPTIONS AND A SUPPORTING BRIEF WITH RESPECT TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR
MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT REGULATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
SUBJECT CASE, INCLUDING THE RESPONDENT' EXCEPTIONS AND SUPPORTING BRIEF,
THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS. /1/
ORDER /2/
PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE (IRS)
SOUTHWEST REGION, SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING CHANGES IN THE SYSTEM OF EVALUATING THE WORK
PERFORMANCE OF APPEALS OFFICERS WITHOUT AFFORDING THE NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 91, THE EXCLUSIVE REPRESENTATIVE OF THE
AFFECTED EMPLOYEES, A REASONABLE OPPORTUNITY TO MEET AND CONFER, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO BE USED
IN IMPLEMENTING THE CHANGES AND ON THE IMPACT OF SUCH CHANGES ON
ADVERSELY AFFECTED EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERRING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER
91, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, MEET AND CONFER, TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO BE
USED IN IMPLEMENTING CHANGES IN THE SYSTEM OF EVALUATING THE WORK
PERFORMANCE OF APPEALS OFFICERS, AND ON THE IMPACT OF SUCH CHANGES ON
ADVERSELY AFFECTED EMPLOYEES.
(B) POST AT ALL DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE
(IRS), SOUTHWEST REGION, DALLAS, TEXAS, FACILITIES AND INSTALLATIONS
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS,
THEY SHALL BE SIGNED BY THE REGIONAL COMMISSIONER AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR 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 OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., JUNE 15, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE CHANGES IN THE SYSTEM OF EVALUATING THE WORK
PERFORMANCE OF APPEALS OFFICERS WITHOUT AFFORDING THE NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 91, THE EXCLUSIVE REPRESENTATIVE OF THE
AFFECTED EMPLOYEES, A REASONABLE OPPORTUNITY TO MEET AND CONFER, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO BE USED
IN IMPLEMENTING THE CHANGES AND ON THE IMPACT OF SUCH CHANGES ON
ADVERSELY AFFECTED EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 91, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, MEET AND
CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
PROCEDURES TO BE USED IN IMPLEMENTING CHANGES IN THE SYSTEM OF
EVALUATING THE WORK PERFORMANCE OF APPEALS OFFICERS, AND ON THE IMPACT
OF SUCH CHANGES ON ADVERSELY AFFECTED EMPLOYEES.
AGENCY OR ACTIVITY
DATED: . . . BY: . . .
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 QUESTIONS 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:
FEDERAL LABOR RELATIONS AUTHORITY, ROOM 707, 555 GRIFFIN SQUARE
BUILDING, GRIFFIN AND YOUNG STREETS, DALLAS, TEXAS, 75202.
STUART E. PARKER
1100 COMMERCE STREET
ROOM 12D27
DALLAS, TEXAS 75242
FOR THE RESPONDENT
HENRY H. ROBINSON
ROD TANNER
SUITE 104
300 EAST HUNTLAND DRIVE
AUSTIN, TEXAS 78752
FOR THE COMPLAINANT
BEFORE: RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING
WAS HELD ON JULY 25, 1978 IN NEW ORLEANS, LOUISIANA PURSUANT TO
EXECUTIVE ORDER 11491, AS AMENDED, (HEREINAFTER REFERRED TO AS THE
ORDER).
THE RESPONDENT IN A COMPLAINT FILED ON DECEMBER 5, 1977 WAS CHARGED
WITH HAVING VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER, AS AMENDED,
BY UNILATERALLY IMPLEMENTING A CHANGE IN THE MANNER THAT SUPERVISORY
REVIEW WAS MADE OF APPEALS OFFICERS /3/ AND THEIR WORK IN THE SOUTHWEST
REGION, WITHOUT AFFORDING THE COMPLAINANT AN OPPORTUNITY TO NEGOTIATE AS
TO THE PROCEDURES AND IMPACT AND IMPLEMENTATION RESULTING FROM SUCH
CHANGE.
UPON THE BASIS OF THE EVIDENCE OF RECORD, INCLUDING THE EVIDENCE
ADDUCED, THE BRIEFS SUBMITTED BY THE PARTIES AND MY OBSERVATIONS OF THE
WITNESSES, I MAKE THE FOLLOWING FINDINGS, CONCLUSION AND RECOMMENDATION.
POSITION OF THE PARTIES
THE MATTER FOR CONSIDERATION IN THIS PROCEEDING IS THE FINAL DECISION
OF THE RESPONDENT IN REFUSING TO BARGAIN AS TO IMPACT AND IMPLEMENTATION
OF A DECISION TO CHANGE PROCEDURE ON THE METHOD OF SELECTION FOR
EVALUATION INDIVIDUAL CASES AND WORK UNIT PRODUCTS OF ITS APPEALS
OFFICERS BY THEIR SUPERVISORS. /4/
AS A RESULT OF THE REFUSAL TO BARGAIN THE RESPONDENT IS ALLEGED TO
HAVE VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
THE RESPONDENT URGED THAT THE EVALUATION OF INDIVIDUAL CASES OR WORK
UNITS DID NOT CONSTITUTE A UNILATERAL CHANGE IN WORKING CONDITIONS OR
CHANGE IN PERSONNEL POLICIES AND PRACTICES AFFECTING UNIT EMPLOYEES BUT
APPLIED ONLY TO MANAGEMENT SUPERVISORS WHO HAD AUTHORITY TO MAKE SUCH
EVALUATIONS IN THE PAST. THE DECISION IN ISSUE WAS ONE CONSOLIDATING
PRIOR PRACTICES AND MAKING IT IMPERATIVE THAT SPECIFIC ITEMS BE
CONSIDERED IN THE EVALUATION OF WORK OF APPEALS OFFICERS BY THEIR
SUPERVISORS.
FINDINGS OF FACT
1. AT ALL PERTINENT AND MATERIAL TIMES RELEVANT HEREIN, THE
COMPLAINANT WAS THE EXCLUSIVE REPRESENTATIVE OF RESPONDENT'S EMPLOYEES,
INCLUDING APPEALS OFFICERS IN THE SOUTHWEST REGION OF INTERNAL REVENUE
SERVICE, INCLUDING BRANCH OFFICES LOCATED IN OKLAHOMA CITY, OKLAHOMA;
DENVER, COLORADO; NEW ORLEANS, LOUISIANA; AND, HOUSTON AND DALLAS,
TEXAS.
2. APPEALS OFFICERS IN THE APPELLATE BRANCH OFFICES SERVE IN
GOVERNMENT GS GRADES OF 12, 13 AND 14. THERE IS A BRANCH CHIEF WHO IS
THE HEAD OF EACH REGIONAL OFFICE AND HE IS ASSISTED BY ONE OR MORE
ASSOCIATE CHIEFS WHO EACH SUPERVISE A GROUP OF APPEALS OFFICERS IN THE
GS GRADES INDICATED. THE ALLEGED VIOLATION IN THIS PROCEEDING
ORIGINATED IN THE NEW ORLEANS, LOUISIANA OFFICE.
3. AN APPELLATE BRANCH OFFICE IS THE FORUM FOR RECEIVING TAX CASES
OR WORK UNITS /5/ THAT HAVE NOT BEEN RESOLVED IN THE IRS'S DISTRICT
DIRECTOR'S OFFICE. /6/ APPEALS OFFICERS ARE AMONG THE EMPLOYEES
STAFFING AN APPELLATE BRANCH OFFICE AND THEIR DUTY IS TO ATTEMPT TO
RESOLVE THE TAX CONTROVERSY.
4. APPEALS OFFICERS HOLD CONFERENCES AND MAKE FACTUAL FINDINGS AND
CONCLUSIONS AS TO DISPOSITION OF TAX CONTROVERSIES BUT DO NOT HAVE
SETTLEMENT AUTHORITY. THEIR DECISIONS ARE IN THE STATUS OF
RECOMMENDATIONS UNTIL APPROVED BY THE BRANCH CHIEF. THE BRANCH CHIEF
REVIEWS CASES TO DETERMINE WHETHER THE RECOMMENDATION SUBMITTED TO HIM
BY THE APPEALS OFFICER IS ACCEPTABLE AND IT ALSO SERVES AS A SOURCE FOR
GAUGING THE PERFORMANCE OF THE APPEALS OFFICER.
5. THE WORK OF AN APPEALS OFFICER HAS ALWAYS BEEN SUBJECT TO REVIEW.
PRIOR TO APRIL 1976 THE BRANCH CHIEFS HAD THE DISCRETION TO REVIEW ANY
CASE, OPEN OR CLOSED, AT ANY TIME AND TO WHATEVER DEPTH THEIR DISCRETION
WARRANTED. THUS, THE APPEALS OFFICERS' TOTAL PERFORMANCE ON A CASE WAS
SUBJECT TO REVIEW BY THE BRANCH CHIEF.
BETWEEN APRIL 1976 AND NOVEMBER 19, 1976 THE ASSISTANT REGIONAL
COMMISSIONER LIMITED THE DISCRETION OF BRANCH CHIEFS BY REQUIRING THAT
THEY REVIEW THOSE CASES IN WHICH THE TIME SPENT BY APPEALS OFFICERS IN
RELATIONSHIP TO THE DIFFICULTY OF THE CASE SELECTION SYSTEM WAS
TERMINATED AND ABOUT MARCH 1977 THE REVIEW SYSTEM REVERTED BACK TO WHAT
IT HAD BEEN BEFORE APRIL 1, 1976, THAT IS, THE BRANCH CHIEF HAD COMPLETE
DISCRETION TO REVIEW ANY AND ALL CASES TO WHATEVER DEPTH DESIRED.
6. IN MARCH 1977 THE ASSISTANT REGIONAL COMMISSIONER MET WITH
APPELLATE BRANCH CHIEFS AND ANNOUNCED THAT THE DISCRETION OF BRANCH
CHIEFS IN APPEALS OFFICER REVIEW RECOMMENDATIONS WOULD HEREAFTER BE
LIMITED. THE PROCEDURES WERE ANNOUNCED AT A STAFF MEETING IN NEW
ORLEANS ON APRIL 7, 1977. THE MINUTES OF THIS MEETING STATED IN PART:
"CHIEF INFORMED APPEALS OFFICERS THAT HE WILL BE SITTING IN ON APPEALS
CONFERENCES BEGINNING IN MAY. A MEMO WAS GIVEN TO EACH APPEALS OFFICER
REGARDING THIS NEW PROCEDURE. /7/ THE PROCEDURES RELATING TO "REVIEW OF
APPELLATE WORK UNITS" WERE LATER CODIFIED IN A REGIONAL COMMISSIONER'S
MEMORANDUM DATED JUNE 3, 1977. /8/ THE SUPERVISORY MONITORING OF THE
APPEALS OFFICERS CONFERENCE AT NEW ORLEANS CONSTITUTED A NEW PRACTICE
AND CHANGE IN POLICY AS DISTINGUISHED FROM THE CONTINUATION OF A PRIOR
POLICY OR PRACTICE. LIKEWISE, THE REQUIREMENT THAT MANAGEMENT REVIEW
ALL CASES TO A MINIMUM DEPTH AS ANNOUNCED TO THE EMPLOYEES IN NEW
ORLEANS IN APRIL 1977 CONSTITUTED A CHANGE IN THE SAMPLING, THE QUANTITY
IN THE SAMPLE AND SELECTION OF THE SAMPLING. /9/
PRIOR TO APRIL 1, 1977, THE BRANCH CHIEF IN EACH OF THE RESPONDENT'S
APPELLATE BRANCH OFFICES, EXCEPT FOR A LIMITED PERIOD BETWEEN APRIL 1
AND NOVEMBER 19, 1976, WAS REQUIRED TO CONDUCT AN IN DEPTH REVIEW OF A
REPRESENTATIVE SAMPLE OF THE WORK OF EACH APPEALS OFFICER THAT HE
SUPERVISED. THE REVIEW INCLUDED, AMONG OTHER THINGS, CONSIDERATION OF
THE QUALITY OF THE DECISION IN EACH CASE, THE PROMPTNESS OF THE
CONFERENCE HELD WITH THE TAXPAYER, THE PROMPTNESS OF THE FINAL
DETERMINATION, THE CASE MANAGEMENT AND THE WRITE-UP OF THE CASE. THE
SELECTION OF THE CASES TO BE REVIEWED WAS AT THE DISCRETION OF EACH
BRANCH CHIEF. BEGINNING ABOUT APRIL 1, 1977, THE RESPONDENT IMPLEMENTED
A DIFFERENT BASIS FOR THE WORK TO BE REVIEWED BY THE BRANCH CHIEFS. OF
APPEALS OFFICERS PERFORMANCE EVALUATION. THE REVIEW INCLUDED: REVIEW
OF WORK PLANS OF TEAM UNITS AND UNITS OF $1 MILLION OR MORE; QUALITY OF
DECISION; TIMELINESS OF CONFERENCE AND DECISION; TIME UTILIZATION USE
OF SUPPORT PERSONNEL AND EQUIPMENT; REPORT WRITING AND MAINTENANCE BY
MANAGERS OF A LOG OF UNITS REVIEWED REFLECTING THE DEPTH OF THE REVIEW.
FOR EXAMPLE, THE CODIFICATION MEMORANDUM OF JUNE 3, 1977 REQUIRED "(1)
APPELLATE MANAGERS WILL REVIEW IN GREATER DEPTH THE QUALITY OF
RECOMMENDATIONS FOR DISPOSITION OF UNITS INVOLVING MORE THAN $500,000 IN
PROPOSED DEFICIENCIES OR ASSESSMENTS AND ALL UNITS IN WHICH LARGE
CONCESSIONS ARE PROPOSED. THEY WILL REVIEW IN DEPTH THE QUALITY OF THE
RECOMMENDED DECISION ON EACH ISSUE INVOLVING (A) A HIGHLY SENSITIVE
MATTER; (B) A TAX SHELTER OR SIMILAR ISSUE REQUIRING NATIONAL
COORDINATION SUCH AS ISSUES INVOLVING ENTIRE INDUSTRIES OR LARGE GROUPS
OF TAXPAYERS; (C) A REPORT TO THE JOINT COMMITTEE ON TAXATION; (D)
CONCESSION OR COMPROMISE OF A CIVIL FRAUD PENALTY." THUS, IT IS EVIDENT
THAT THE IN DEPTH CONSIDERATION AND REVIEW BY ASSOCIATE BRANCH CHIEFS
FOR CERTAIN TYPES OF ENUMERATED CASES WERE NO LONGER DISCRETIONARY BUT
MANDATORY.
BOTH BEFORE AND AFTER THE VARIOUS ANNOUNCEMENTS BEGINNING IN LATE
MARCH AND APRIL 1977 EVENTUATING FINALLY IN THE SO CALLED CODIFICATION
MEMORANDUM IN JUNE 1977 THE DUTIES AND OBLIGATIONS OF UNIT EMPLOYEES
REMAINED THE SAME. STANDARDS OF CASE HANDLING PERFORMANCE, INCLUDING
TIMELINESS OF CASE HANDLING REMAINED UNAFFECTED. WHAT WAS ACTUALLY
CONTEMPLATED AND CHANGED WAS A TERM AND CONDITION OF EMPLOYMENT FOR
SUPERVISORS IN THAT THEIR WORK AND REVIEW OF APPEALS OFFICERS WORK
REQUIRED MORE CONCENTRATION AND IN DEPTH REVIEW BY BRANCH CHIEFS. IT
REMAINS HOWEVER TO BE CONCLUDED WHETHER THE PROCEDURES, METHODS, AND
REQUIREMENTS AS TO THE REVIEW OF APPELLATE WORK UNITS HAD ANY
DISCERNIBLE EFFECT UPON THE APPEALS OFFICERS WORKING CONDITIONS.
DISCUSSION AND CONCLUSIONS
1. IN THIS CASE THE UNION DOES NOT CLAIM THAT THE RESPONDENT IS
OBLIGATED TO NEGOTIATE WITH IT REGARDING THE DECISION TO SELECTIVELY
MONITOR CONFERENCES OF ITS APPEALS OFFICERS WITH TAXPAYERS FOR THE
DECISION AS TO THE METHOD OF SELECTION FOR EVALUATION OF THE INDIVIDUAL
CASES AND THE WORK UNIT PRODUCT OF ITS APPEALS OFFICERS THAT WILL BE
REVIEWED BY ASSOCIATE BRANCH CHIEFS. RATHER THE UNION IS SEEKING TO
NEGOTIATE WITH THE RESPONDENT ONLY AS TO MATTERS CONCERNING PROCEDURES
AND IMPACT RELATIVE TO THE DECISIONS.
SECTION 19(A)(1) AND (6) OF THE ORDER PROVIDES THAT AGENCY MANAGEMENT
SHALL NOT (1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE
EXERCISE OF RIGHTS ASSURED BY THIS ORDER; AND (6) REFUSE TO CONSULT,
CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION AS REQUIRED BY THIS
ORDER.
SECTION 11(A) OF THE ORDER IMPOSES UPON AN AGENCY THE OBLIGATION TO
MEET AT REASONABLE TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO
PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS OF UNIT EMPLOYEES.
SECTION 11(B) OF THE ORDER, HOWEVER, MAKES IT CLEAR THAT THE
OBLIGATION TO MEET AND CONFER (IMPOSED BY SECTION 11(A)) DOES NOT
INCLUDE MATTERS WITH RESPECT TO THE MISSION OF THE AGENCY; ITS BUDGET;
ITS ORGANIZATION; THE NUMBER OF EMPLOYEES ASSIGNED AN ORGANIZATIONAL
UNIT, WORK PROJECT OR TOUR OF DUTY; THE TECHNOLOGY OF PERFORMING ITS
WORK; OR, ITS INTERNAL SECURITY PRACTICES.
UNDER SECTION 12(B) OF THE ORDER MANAGEMENT OFFICIALS OF THE AGENCY
RETAIN THE FOLLOWING RIGHTS, AMONG OTHERS, IN ACCORDANCE WITH APPLICABLE
LAWS AND REGULATIONS; (1) TO DIRECT EMPLOYEES OF THE AGENCY; (2) TO
HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES WITHIN THE AGENCY
AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST EMPLOYEES; (3) TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK
OF WORK OR FOR OTHER LEGITIMATE REASONS; (4) TO MAINTAIN THE EFFICIENCY
OF THE GOVERNMENT OPERATIONS ENTRUSTED TO THEM; (5) TO DETERMINE THE
METHODS, MEANS AND PERSONNEL BY WHICH SUCH OPERATIONS ARE TO BE
CONDUCTED.
SECTION 11(A) OF THE ORDER DESCRIBES THE LIMITED AREAS WHICH ARE
SUBJECT TO THE BARGAINING OBLIGATION ON THE PART OF AGENCIES AND
EXCLUSIVE REPRESENTATIVES. THE SECTION HAS BEEN INTERPRETED TO
ENCOMPASS THOSE MATTERS WHICH MATERIALLY AFFECT AND HAVE A SUBSTANTIAL
IMPACT ON PERSONNEL POLICIES, PRACTICES AND GENERAL WORKING CONDITIONS.
IN THE CASE OF DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
FRESNO SERVICE CENTER, A/SLMR, NO. 983, THE ASSISTANT SECRETARY FOR
LABOR MANAGEMENT RELATIONS ADOPTED THE CONCLUSIONS OF THE ADMINISTRATIVE
LAW JUDGE HOLDING THAT RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF
THE ORDER BY UNILATERALLY ALTERING THE METHOD OF SELECTING SAMPLES OF
THE WORK PRODUCT OF UNIT EMPLOYEES FOR QUALITY REVIEW PURPOSES WITHOUT
FIRST NOTIFYING AND AFFORDING NTEU AN OPPORTUNITY TO BARGAIN OVER THE
IMPACT AND IMPLEMENTATION OF SUCH CHANGE.
IN THE CASE OF DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
SOUTHWEST REGION, DALLAS, TEXAS, A/SLMR 1106, THE ASSISTANT SECRETARY
HELD: "CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE NEW
BASIS FOR SELECTING CASES FOR PERFORMANCE EVALUATION EFFECTED A CHANGE
IN EMPLOYEE TERMS AND CONDITIONS OF EMPLOYMENT. THUS, PRIOR TO APRIL 1,
1976 THE APPEALS OFFICERS WORKING FOR THE RESPONDENT COULD GENERALLY
EXPECT THAT A CROSS SECTION OF THEIR WORK PRODUCT WOULD FORM THE BASIS
FOR THEIR PERFORMANCE EVALUATION. SUBSEQUENT TO APRIL 1, 1976, A SKEWED
SAMPLE OF THEIR WORK, EITHER LIMITED TO OR WEIGHTED TOWARD THOSE CASES
WHICH EXCEEDED THE 'TRIGGER POINTS,' WOULD FORM THE BASIS FOR THEIR
EVALUATION. IN MY VIEW, THIS CHANGE TO AN UNBALANCED SAMPLE OF WORK
SELECTED FOR REVIEW IN CONTRAST WITH THE PRIOR SYSTEM INVOLVING BRANCH
CHIEFS' DISCRETIONARY SELECTIONS, CONSTITUTED A CHANGE IN THE BASE FROM
WHICH PERFORMANCE EVALUATIONS WERE TO BE MADE AND, THEREFORE, WAS A
CHANGE IN EMPLOYEE TERMS AND CONDITIONS OF EMPLOYMENT GIVING RISE TO THE
OBLIGATION OF THE RESPONDENT TO MEET AND CONFER, UPON REQUEST, WITH THE
EXCLUSIVE REPRESENTATIVE CONCERNING THE IMPACT AND IMPLEMENTATION OF
SUCH CHANGE."
AS TO THE CASE NOW IN ISSUE, THE DISCRETIONARY SELECTION FOR REVIEW
OF APPEALS OFFICERS WORK BY ASSOCIATE BRANCH CHIEFS PRIOR TO APRIL 1977
CHANGED TO THE MORE BALANCED OR SOPHISTICATED SYSTEM OF ALL INCLUSIVE
REVIEW AND IN DEPTH CONSIDERATION CONTINUED FOR CERTAIN TYPES OF CASES.
ALSO, THE REVIEW FOR THE FIRST TIME INCLUDED AS OF MAY 1, 1977 THE
PRACTICE OF SUPERVISORY MONITORING OF APPEALS OFFICERS CONFERENCES WITH
TAXPAYERS BY ASSOCIATE BRANCH CHIEFS. IN MY VIEW THIS CHANGE FROM
DISCRETIONARY TO ALL INCLUSIVE OR BALANCED SAMPLING TOGETHER WITH THE
MONITORING FOR THE FIRST TIME APPEALS OFFICERS CONFERENCES WITH
TAXPAYERS CONSTITUTED A CHANGE IN THE BASE FROM WHICH PERFORMANCE
EVALUATIONS WERE TO BE MADE. /10/ THIS WAS A CHANGE IN EMPLOYEE TERMS
AND CONDITIONS OF EMPLOYMENT GIVING RISE TO THE OBLIGATION OF THE
RESPONDENT TO MEET AND CONFER, UPON REQUEST, WITH THE EXCLUSIVE
REPRESENTATIVE CONCERNING THE IMPACT AND IMPLEMENTATION OF SUCH CHANGE.
I CONCLUDE THAT THE RESPONDENT'S FAILURE TO FULFILL ITS BARGAINING
OBLIGATION TO CONFER AND NEGOTIATE WITH THE COMPLAINANT CONSTITUTED A
VIOLATION OF SECTION 19(A) (6) OF THE ORDER AND DERIVATIVELY A VIOLATION
OF SECTION 19(A)(1) OF THE ORDER.
RECOMMENDATION
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT VIOLATIVE OF
SECTIONS 19(A)(1) AND (6) OF THE ORDER BY ITS FAILURE AND REFUSAL TO
NEGOTIATE WITH COMPLAINANT WITH REGARD TO THE IMPLEMENTATION AND IMPACT
ON UNIT EMPLOYEES ADVERSELY AFFECTED BY CHANGING THE STANDARDS FOR
EVALUATING CASE HANDLING PERFORMANCE OF APPEALS OFFICERS FROM A
DISCRETIONARY BASIS TO AN ALL INCLUSIVE BALANCED SYSTEM, WITH MONITORING
OF APPEALS OFFICERS CONFERENCES BY BRANCH CHIEFS, I RECOMMEND THAT THE
ASSISTANT SECRETARY ADOPT THE FOLLOWING ORDER WHICH IS DESIGNED TO
EFFECTUATE THE POLICIES OF ORDER.
ORDER
PURSUANT TO SECTION 6(B) OF THE EXECUTIVE ORDER 11491, AS AMENDED,
AND SECTION 203.26 OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, SOUTHWEST REGION, DALLAS, TEXAS,
SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING CHANGES IN THE SYSTEM BY WHICH BRANCH CHIEFS, MONITOR
APPEALS OFFICERS CONFERENCES WITH TAXPAYERS AND UTILIZE WORK
ACCOMPLISHED BY APPEALS OFFICERS FOR THE PURPOSE OF EVALUATING THEIR
PERFORMANCE WITHOUT AFFORDING THE NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 91, THE EXCLUSIVE REPRESENTATIVE OF THE AFFECTED EMPLOYEES, A
REASONABLE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, ON THE PROCEDURES TO BE USED IN IMPLEMENTING THE
CHANGE AND ON THE IMPACT OF SUCH CHANGE ON ADVERSELY AFFECTED EMPLOYEES.
(B) IN LIKE OR RELATED MANNER, INTERFERING WITH RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED:
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER
91; THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, MEET AND CONFER, TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO BE
USED IN IMPLEMENTING A CHANGE IN THE SYSTEM AND MONITORING OF APPEALS
OFFICERS CONFERENCE WITH TAXPAYERS BY WHICH BRANCH CHIEFS UTILIZE WORK
ACCOMPLISHED BY APPEALS OFFICERS FOR THE PURPOSE OF EVALUATING THEIR
PERFORMANCE AND ON THE IMPACT OF SUCH CHANGE ON ADVERSELY AFFECTED
EMPLOYEES.
(B) UPON REQUEST, REEVALUATE, USING THE PREVIOUS SYSTEM, AS THE BASIS
TO EVALUATE ANY EMPLOYEE WHOSE CURRENT ANNUAL EVALUATION IS BASED, IN
WHOLE OR IN PART ON CRITERIA IN EFFECT BETWEEN NOVEMBER 19, 1976 AND
APRIL 1, 1977 IF THE CASES OR WORK SELECTED FOR REVIEW AND OBSERVATION
OF APPEALS OFFICERS CONFERENCE WITH TAXPAYERS WERE BASED ON LESS THAN AN
ALL INCLUSIVE IN-DEPTH REVIEW APPLICABLE UNDER PRESENT STANDARDS.
(C) POST AT ALL DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
SOUTHWEST REGION, DALLAS, TEXAS, FACILITIES AND INSTALLATIONS COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE REGIONAL COMMISSIONER
AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACE 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 OTHER MATERIAL.
(D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 19, 1979
WASHINGTON, D.C.
RMB:LE
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE CHANGES IN THE SYSTEM BY WHICH BRANCH CHIEFS
OBSERVE APPEALS OFFICERS CONFERENCES AND UTILIZE THEIR WORK FOR THE
PURPOSE OF EVALUATING THEIR PERFORMANCE WITHOUT AFFORDING THE NATIONAL
TREASURY EMPLOYEES UNION, CHAPTER 91, THE EXCLUSIVE REPRESENTATIVE OF
THE AFFECTED EMPLOYEES, A REASONABLE OPPORTUNITY TO MEET AND CONFER, TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO BE
USED IN IMPLEMENTING THE CHANGES AND ON THE IMPACT OF SUCH CHANGES ON
ADVERSELY AFFECTED EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 91, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, MEET AND
CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
PROCEDURES TO BE USED IN IMPLEMENTING A CHANGE IN THE SYSTEM BY WHICH
BRANCH CHIEFS OBSERVE APPEALS OFFICERS TAX CONFERENCES AND UTILIZE THE
WORK ACCOMPLISHED BY APPEALS OFFICERS FOR THE PURPOSE OF EVALUATING
THEIR PERFORMANCE AND ON THE IMPACT OF SUCH CHANGES ON ADVERSELY
AFFECTED EMPLOYEES.
WE WILL, UPON REQUEST, REEVALUATE, USING THE PRESENT SYSTEM, AS THE
BASIS TO EVALUATE ANY EMPLOYEE WHOSE CURRENT ANNUAL EVALUATION IS BASED,
IN WHOLE OR IN PART, ON EVALUATION CRITERIA IN EFFECT BETWEEN NOVEMBER
19, 1916 AND APRIL 1, 1977, IF THE CASES OR WORK SELECTED FOR REVIEW AND
OBSERVATION OF APPEALS OFFICERS CONFERENCES WITH TAXPAYERS WERE BASED ON
LESS THAN AN ALL INCLUSIVE IN-DEPTH REVIEW UNDER THE PRESENT STANDARDS.
(AGENCY OR ACTIVITY)
DATED: . . .
BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
ADDRESS IS: ROOM 2200, FEDERAL OFFICE BUILDING, 911 WALNUT STREET,
KANSAS CITY, MISSOURI 64106
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ IN ITS EXCEPTIONS, THE RESPONDENT CONTENDED THAT THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED REMEDY IS, IN EFFECT, A RETURN TO
THE STATUS QUO ANTE AND SHOULD NOT BE REQUIRED AS PART OF THE REMEDIAL
ORDER HEREIN. IN THE AUTHORITY'S VIEW, IN THE PARTICULAR CIRCUMSTANCES
HEREIN WHERE THE VIOLATION FOUND PERTAINS TO AN IMPROPER FAILURE TO MEET
AND CONFER OVER THE IMPACT AND IMPLEMENTATION OF A MANAGEMENT DECISION
RATHER THAN THE DECISION ITSELF, IT WILL NOT EFFECTUATE THE PURPOSES AND
THE POLICIES OF THE ORDER TO REQUIRE A RETURN TO THE STATUS QUO ANTE AS
PART OF THE REMEDIAL ORDER. DEPARTMENT OF THE TREASURY, INTERNAL
REVENUE SERVICE, INDIANAPOLIS, INDIANA, 7 A/SLMR 844, A/SLMR NO. 909
(1977).
/3/ ALSO KNOWN AS APPEALS CONFEREES.
/4/ AT THE HEARING COMPLAINT'S COUNSEL STATED: "THE COMPLAINANT IS
NOT CONTENDING THAT IT CAN BAR OR OTHERWISE PREVENT MANAGEMENT, IF
MANAGEMENT WANTS TO EVALUATE INDIVIDUAL CASES OR WORK UNITS, THE UNION
IS NOT CONTENDING THAT, BUT THE UNION IS CONTENDING THAT IF MANAGEMENT
DOES MAKE THE DECISION TO CHANGE PROCEDURE ON THAT METHOD OF SELECTION
FOR EVALUATION OF THOSE INDIVIDUAL CASES OR INDIVIDUAL WORK UNITS THEN
THE UNION HAS A RIGHT TO NEGOTIATE WITH RESPECT TO THE IMPACT AND
IMPLEMENTATION OF THE CHANGE.
"JUDGE BURROW: YOU ARE JUST TALKING ABOUT IMPACT AND IMPLEMENTATION?
"MR. ROBINSON: YES. WE AREN'T CLAIMING THAT THE BASIC DECISION TO
EVALUATE OR NOT EVALUATE INDIVIDUAL CASES OR INDIVIDUAL WORK UNITS IS
SUBJECT TO MANDATORY 11-A NEGOTIATION." TRANSCRIPT, HEREAFTER REFERRED
TO AS TR. P.13.
/5/ A CASE INVOLVES ONE TAXPAYING ENTITY, WHEREAS A UNIT INVOLVES TWO
OR MORE TAXPAYING ENTITIES.
/6/ INTERNAL REVENUE SERVICE.
/7/ COMPLAINANT'S EXHIBIT NO. 5.
/8/ SEE, COMPLAINANT'S EXHIBIT NO. 9.
/9/ TR. P. 178.
/10/ IN NORTH ATLANTIC REGION, INTERNAL REVENUE SERVICE, DEPARTMENT
OF THE TREASURY, A/SLMR 1129 THE SECRETARY ADOPTED THE FINDING AND
CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE THAT THE MONITORING OF
CONFERENCES CONSTITUTED A CONTINUATION OF AN ESTABLISHED PRACTICE AND
THE RESPONDENT WAS UNDER NO OBLIGATION TO NEGOTIATE WITH THE COMPLAINANT
ON THE MATTER.