09:0437(54)CA - Treasury, IRS, Detroit, MI and NTEU and NTEU Chapter 24 -- 1982 FLRAdec CA
[ v09 p437 ]
09:0437(54)CA
The decision of the Authority follows:
9 FLRA No. 54
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
DETROIT, MICHIGAN
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 24
Charging Party
Case Nos. 5-CA-164
5-CA-192
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
IN THE ABOVE-ENTITLED PROCEEDINGS, FINDING THAT THE RESPONDENT, INTERNAL
REVENUE SERVICE, DETROIT, MICHIGAN (IRS), HAD ENGAGED IN CERTAIN UNFAIR
LABOR PRACTICES AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND
TAKE CERTAIN AFFIRMATIVE ACTIONS. THE JUDGE FURTHER FOUND THAT THE
RESPONDENT HAD NOT ENGAGED IN OTHER ALLEGED UNFAIR LABOR PRACTICES AND
RECOMMENDED DISMISSAL OF THE COMPLAINT WITH RESPECT TO THEM. THEREAFTER
THE GENERAL COUNSEL AND IRS FILED EXCEPTIONS TO THE JUDGE'S DECISION AND
ORDER, AND AN OPPOSITION BRIEF WAS FILED BY IRS.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) 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 ORDER, AND THE ENTIRE RECORD IN THE SUBJECT CASE,
THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS. /1/
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 AND ITS
DETROIT DISTRICT SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING ANY CHANGE IN THE METHOD OF REPORTING ORAL REPLY
OFFICER RECOMMENDATIONS WITH RESPECT TO EMPLOYEES REPRESENTED BY THE
NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 24, IN THE DETROIT DISTRICT OFFICE OF THE INTERNAL REVENUE
SERVICE, WITHOUT FIRST NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 24, AND AFFORDING THEM
THE OPPORTUNITY TO NEGOTIATE TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, CONCERNING THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING
SUCH CHANGE, AND CONCERNING THE IMPACT SUCH CHANGE WILL HAVE ON
ADVERSELY AFFECTED EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR 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 STATUTE:
(A) UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 24, NEGOTIATE TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE PROCEDURES TO BE USED
IN IMPLEMENTING THE CHANGE IN THE REQUIREMENT THAT ORAL REPLY OFFICER
RECOMMENDATIONS BE MADE ORALLY RATHER THAN IN WRITTEN FORM IN THE
DETROIT DISTRICT OFFICE OF THE INTERNAL REVENUE SERVICE, AND CONCERNING
THE IMPACT OF SUCH CHANGE ON ADVERSELY AFFECTED EMPLOYEES.
(B) POST AT THE DETROIT DISTRICT OFFICE OF THE INTERNAL REVENUE
SERVICE, AND AT THE VARIOUS POSTS OF DUTY ASSOCIATED WITH THE DETROIT
DISTRICT OFFICE, 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 COMMISSIONER OF THE INTERNAL REVENUE
SERVICE, AND BY THE DISTRICT DIRECTOR, DETROIT DISTRICT OFFICE, INTERNAL
REVENUE SERVICE, AND SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE
DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES ARE CUSTOMARILY POSTED. REASONABLE STEPS
SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR, REGION V, FEDERAL LABOR RELATIONS
AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS HEREBY FURTHER ORDERED THAT THE COMPLAINT IN CASE NO.
5-CA-192, BE AND HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JULY 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, 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 AND TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE ANY CHANGE IN THE METHOD OF REPORTING ORAL REPLY
OFFICER RECOMMENDATIONS WITH RESPECT TO EMPLOYEES REPRESENTED
EXCLUSIVELY BY THE NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL
TREASURY EMPLOYEES UNION, CHAPTER 24, IN THE DETROIT DISTRICT OFFICE OF
THE INTERNAL REVENUE SERVICE, WITHOUT NOTIFYING THE NATIONAL TREASURY
EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 24, AND
WITHOUT AFFORDING THEM AN OPPORTUNITY TO NEGOTIATE TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO BE OBSERVED IN
IMPLEMENTING SUCH CHANGE, AND ON THE IMPACT SUCH CHANGE WILL HAVE ON
ADVERSELY AFFECTED EMPLOYEES. WE WILL NOT IN ANY LIKE OR RELATED MANNER
INTERFERE WITH, RESTRAIN OR COERCE OUR EMPLOYEES IN THE EXERCISE OF
THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE. WE WILL, UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY
EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 24,
CONCERNING THE PROCEDURES TO BE UTILIZED IN IMPLEMENTING THE CHANGE IN
THE METHOD OF REPORTING ORAL REPLY OFFICER RECOMMENDATIONS IN THE
DETROIT DISTRICT OFFICE OF THE INTERNAL REVENUE SERVICE, AND CONCERNING
THE IMPACT OF SUCH CHANGE ON ADVERSELY AFFECTED EMPLOYEES. DATED: . .
. BY: COMMISSIONER, INTERNAL REVENUE SERVICE DATED: . . . BY:
DISTRICT DIRECTOR, DETROIT DISTRICT OFFICE 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 ANY OF ITS
PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR,
REGION V, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: SUITE
A-1359, 175 WEST JACKSON BLVD., CHICAGO, ILLINOIS 60604.
-------------------- ALJ$ DECISION FOLLOWS --------------------
SHEILA A. REILLY, ESQUIRE
FOR THE GENERAL COUNSEL
MICHAEL MAUER, ESQUIRE
FOR THE CHARGING PARTY
WILLIAM T. LYONS, ESQUIRE
FOR THE RESPONDENT
BEFORE: LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
CASE NOS. 5-CA-164
5-CA-192
DECISION
STATEMENT OF THE CASE
THIS PROCEEDING ARISES FROM AN ORDER CONSOLIDATING CASES, COMPLAINT
AND NOTICE OF HEARING, ISSUED ON DECEMBER 20, 1979, UNDER PROVISIONS OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5
U.S.C. 7101 ET SEQ., (HEREINAFTER CALLED "THE STATUTE") AND THE RULES
AND REGULATIONS ISSUED THEREUNDER.
THE CONSOLIDATED COMPLAINT ALLEGES VIOLATIONS OF SECTIONS 7116(A)(1)
AND (5) OF THE STATUTE. WITH RESPECT TO CASE NO. 5-CA-164, IT IS
ALLEGED THAT ON OR ABOUT APRIL 18, 1979, THE DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, DETROIT, MICHIGAN (HEREINAFTER REFERRED TO AS
THE "RESPONDENT" OR "DETROIT DISTRICT OFFICE"), UNILATERALLY CHANGED
EXISTING CONDITIONS OF EMPLOYMENT BY REQUIRING THAT ALL ORAL REPLY
OFFICER RECOMMENDATIONS BE MADE ORALLY INSTEAD OF IN WRITING /2/ WITHOUT
FURNISHING THE NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 24 (REFERRED TO HEREIN AS "THE UNION"), NOTICE
AND/OR AN OPPORTUNITY TO BARGAIN CONCERNING THE DECISION TO MAKE THE
CHANGE, AND CONCERNING THE IMPACT AND IMPLEMENTATION OF THE CHANGE. THE
COMPLAINT FURTHER ALLEGED THAT THE UNION REQUESTED THE RESPONDENT TO
BARGAIN CONCERNING THE CHANGE, BUT THAT THE RESPONDENT REFUSED TO DO SO.
WITH RESPECT TO CASE NO. 5-CA-192, THE COMPLAINT ALLEGED THAT IN
APRIL OF 1979, RESPONDENT UNILATERALLY CHANGED EXISTING CONDITIONS OF
EMPLOYMENT AT ITS DEARBORN AND FLINT, MICHIGAN OFFICES BY PROMULGATING A
SET OF RULES PROVIDING THAT EACH REVENUE OFFICER GROUP MAKE ONE SEIZURE
A MONTH; THAT EACH REVENUE OFFICER REDUCE HIS RESPECTIVE OVERAGE
INVENTORY /3/ BY 25 PERCENT; AND THAT ANY REVENUE OFFICER WHO ALLOWED A
COLLECTION OR ASSESSMENT STATUTE TO EXPIRE WOULD BE SUBJECT TO A
THREE-DAY SUSPENSION. COUNSEL FOR THE GENERAL COUNSEL ARGUES THAT THE
CHANGES WITH RESPECT TO SEIZURES AND REDUCING OVERAGE CASES WERE
IMPLEMENTED WITHOUT FURNISHING THE UNION NOTICE AND/OR AN OPPORTUNITY TO
BARGAIN CONCERNING THE IMPACT AND IMPLEMENTATION OF THE CHANGES. /4/
WITH RESPECT TO THE IMPOSITION OF A RULE WHICH WOULD SUBJECT REVENUE
OFFICERS TO A THREE-DAY PENALTY FOR ALLOWING A COLLECTION OR ASSESSMENT
STATUTE TO EXPIRE, IT WAS ALLEGED THAT THE RESPONDENT FAILED TO FURNISH
THE UNION NOTICE AND/OR AN OPPORTUNITY TO BARGAIN CONCERNING THE
DECISION TO MAKE THE CHANGE AND CONCERNING IMPACT AND IMPLEMENTATION.
COUNSEL REPRESENTING THE RESPONDENT TAKES THE POSITION THAT THE
CHANGE RELATING TO ORAL REPLY OFFICER RECOMMENDATIONS DOES NOT REPRESENT
A CHANGE IN EXISTING CONDITIONS OF EMPLOYMENT; THAT IT MERELY INVOLVES
A CHANGE WITH RESPECT TO INTRA-MANAGEMENT COMMUNICATIONS; THAT THE
CHANGE HAS HAD NO IMPACT ON BARGAINING UNIT EMPLOYEES; AND THAT THE
RESPONDENT HAS NO BARGAINING OBLIGATION WITH RESPECT THERETO.
CONCERNING ALLEGED CHANGES IN EXISTING CONDITIONS OF EMPLOYMENT BY THE
PROMULGATION OF RULES AT RESPONDENT'S DEARBORN AND FLINT, MICHIGAN
OFFICES, COUNSEL FOR THE RESPONDENT STATES THAT THE EVIDENCE IS
INADEQUATE TO ESTABLISH THAT THE RESPONDENT CHANGED WORKING CONDITIONS
AS ALLEGED.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
CASE NO. 5-CA-192
THE RECORD DISCLOSED THAT ON APRIL 16, 1979 RICHARD A. HICKSON, CHIEF
OF THE COLLECTION DIVISION IN THE DETROIT DISTRICT OFFICE, FORMULATED A
SERIES OF COLLECTION DIVISION OBJECTIVES FOR 1979. THESE OBJECTIVES,
INSOFAR AS THEY ARE PERTINENT HERE, INVOLVED THE FOLLOWING GOALS:
B. TO REVITALIZE THE ENFORCEMENT PROGRAM ESPECIALLY IN THE LEVY
(668B) /5/ AREA TO
INCLUDE PARTICIPATION BY EVERY GROUP EVERY MONTH. /6/
RESPONSIBILITY: ALL MANAGERS.
. . . .
D. TO REDUCE OUR ASSIGNED TO THE FIELD OVER 1 YEAR TDA'S /7/ BY 25%
OF THE NUMBER WE HAVE
ON HAND AS OF THE MARCH 1979 DAIP /8/ - TARGET DATE 9/30/79.
RESPONSIBILITY: ALL
MANAGERS. (JOINT EXHIBIT 8). /9/ THE ATTAINMENT OF THESE OBJECTIVES
WAS MADE THE RESPONSIBILITY OF MANAGEMENT OFFICIALS ONLY. THEY WERE
SUBSEQUENTLY INCORPORATED INTO DETROIT DISTRICT OFFICE DIRECTIVE 51-32
DATED MAY 15, 1979 (JOINT EXHIBIT 11).
EMPHASIS PLACED ON SEIZURE ENFORCEMENT ACTION WAS BASED UPON A
MANAGEMENT DECISION TO EFFECT REVERSAL OF A PRIOR SUBSTANTIAL DECREASE
IN THE USE OF SEIZURE AS AN ENFORCEMENT TOOL, AND UPON AN ATTEMPT BY
MANAGEMENT TO ALLAY CRITICISM OF MANAGEMENT BY REVENUE OFFICERS FOR
MANAGEMENT FAILURE TO SUPPORT REVENUE OFFICER SEIZURE DECISIONS (TR.
254-255). IT APPEARED THAT A TENDENCY TO DISCONTINUE SEIZURE ACTIVITY
HAD DEVELOPED AS AN AFTERMATH OF THE DECISION OF THE UNITED STATES
SUPREME COURT IN G.M. LEASING CORPORATION V. UNITED STATES, 429 U.S. 338
(1977). THE RESPONDENT ESTABLISHED THAT NEW PRE-SEIZURE PROCEDURES
INVOLVING THE NEED FOR WRITS OF ENTRY TO ENTER PRIVATE PREMISES,
MANDATED BY THE MENTIONED CASE, PRECIPITATED A SIGNIFICANT REDUCTION IN
THE USE OF SEIZURE BY REVENUE OFFICERS. DISCONTINUANCE OF THE USE OF
SEIZURE WAS NOT AUTHORIZED BY THE RESPONDENT (TR. 192), BUT WAS MERELY
THE RESULT OF THE TEMPORARY ABSENCE OF PROCEDURES DESIGNED TO EFFECT
SEIZURES IN ACCORDANCE WITH THE SUPREME COURT'S DECISION (TR. 112-113,
193). /10/
AS NOTED ACCOMPLISHMENT OF THIS OBJECTIVE IMPOSED NO REQUIREMENT ON
THE GROUP OR GROUP MEMBERS TO EFFECT A SEIZURE EACH MONTH. INSTEAD,
GROUP MANAGERS WERE MERELY REQUIRED TO FILE A REPORT OUTLINING EFFORTS
IN THE ENFORCEMENT AREA DURING MONTHS WHEN NO SEIZURES OCCURRED AS A
RESULT OF GROUP WORK ACTIVITY.
WITH RESPECT TO THE 25 PERCENT REDUCTION OF TAXPAYER DELINQUENCY
ACCOUNTS ASSIGNED TO THE FIELD FOR OVER ONE YEAR, THE RESPONDENT SOUGHT
TO REMOVE UNCERTAINTY CONCERNING THE MEANING OF THE TERM "OVERAGE" IN
THE FIELD BY DELIBERATELY OMITTING USE OF THE WORD "OVERAGE" IN THIS
COLLECTION DIVISION OBJECTIVE, AND BY PROVIDING A SPECIFIC DEFINITION OF
"OVERAGE" FOR OTHER PURPOSES ASSOCIATED WITH OBJECTIVES OTHER THAN THOSE
INVOLVED HEREIN (JOINT EXHIBIT 8). THESE ARE NOT RELEVANT HERE;
HOWEVER, IT IS NECESSARY TO NOTE THAT JOINT EXHIBIT 8, MAKES IT CLEAR
THAT THE TERM "OVERAGE" AS DEFINED IN JOINT EXHIBIT 8, HAD NO
APPLICABILITY TO RESPONDENT'S PLAN TO EFFECT A 25 PERCENT REDUCTION OF
TAXPAYER DELINQUENCY ACCOUNTS ASSIGNED TO THE FIELD FOR A PERIOD OF MORE
THAN ONE YEAR (TR. 256-257, 260-261). IN THIS REGARD IT WAS ESTABLISHED
THAT IT WAS A LONG-STANDING DETROIT DISTRICT OFFICE POLICY FOR ALL
COLLECTION DIVISION MANAGERS TO EMPHASIZE THE DISPOSAL OF OLDER CASES
(TR. 256), AND THAT THE INTERNAL REVENUE SERVICE HAS ALWAYS STRESSED THE
IMPORTANCE OF DISPOSING OF OLD ACCOUNTS (TR. 286, 328).
THE PROMULGATION OF COLLECTION DIVISION OBJECTIVES WAS NOT EFFECTED
WITH INTENT TO IMPOSE A QUOTA SYSTEM ON REVENUE OFFICERS WITH REGARD TO
SEIZURES OR THE REDUCTION OF CASE INVENTORIES (TR. 255, 257-258), QUOTAS
WERE NOT IMPOSED (TR. 266-267), AND REVENUE OFFICER EVALUATION
PROCEDURES WERE NOT CHANGED (TR. 266-267).
A SERIES OF BRANCH CHIEF MEETINGS FOR MANAGERS WAS HELD IN THE
DETROIT DISTRICT OFFICE TO EXPLAIN THE COLLECTION DIVISION OBJECTIVES.
BRANCH CHIEFS AND THEIR RESPECTIVE GROUP MANAGERS ATTENDED. THE CHIEF
HAVING JURISDICTION OVER THE FLINT AND DEARBORN POSTS OF DUTY (FIELD
BRANCH 2), TOGETHER WITH GROUP MANAGERS FROM THESE OFFICES ATTENDED SUCH
A MEETING ON APRIL 17, 1979 (TR. 258, 273, RESPONDENT EXHIBIT 10). AT
THIS MEETING BRANCH CHIEF WILLIAM MEEHAN ALSO REFERRED TO THE DUTY OF
MANAGERS TO PROTECT COLLECTION ACTIVITY BY INSURING THAT STATUTES OF
LIMITATION NOT BE ALLOWED TO EXPIRE PRIOR TO TAKING APPROPRIATE ACTION.
THE SUBJECT WAS RAISED IN BRIEF SUMMARY FORM BY ADVISING MANAGEMENT
OFFICIALS THAT THEY HAD THE RESPONSIBILITY TO PROTECT COLLECTION
STATUTES AND BY STATING, "IF YOU ALLOW A COLLECTION STATUTE TO EXPIRE
PLAN ON A THREE-DAY VACATION" (TR. 274-275). THE STATEMENT BY BRANCH
CHIEF MEEHAN WAS NOT MADE WITH THE INTENTION OF IMPOSING ANY BRANCHWIDE
RULE OR DETROIT DISTRICT POLICY WITH RESPECT TO THE IMPOSITION OF A
PENALTY FOR ALLOWING A STATUTE OF LIMITATION TO EXPIRE (TR. 275), BUT
RATHER WAS INTENDED AS A HUMOROUS REFERENCE TO THE NEED FOR MANAGERS
PRESENT TO RECOGNIZE THEIR RESPONSIBILITIES IN THIS IMPORTANT AREA (TR.
275).
FOLLOWING THE BRANCH CHIEF MEETINGS OUTLINED, H. KENNETH ISENOGLE,
GROUP MANAGER IN FLINT, MICHIGAN, CONVENED A MEETING IN FLINT FOR
REVENUE AGENTS UNDER HIS SUPERVISION TO EXPLAIN THE COLLECTION DIVISION
OBJECTIVES. THE FLINT MEETING OCCURRED DURING PORTIONS OF A THREE-DAY
PERIOD COMMENCING ON APRIL 23, 1979, AND ENDING ON APRIL 25, 1979 (TR.
304,337). THERE WAS CONSIDERABLE DISCUSSION OF THE G.M. LEASING
CORPORATION OPINION AND THE CHANGE IN CASE HANDLING PROCEDURES DEVELOPED
AS A RESULT OF CONSTRAINTS GENERATED BY THAT CASE (TR. 105). COLLECTION
DIVISION OBJECTIVES RELATING TO EMPHASIS ON SEIZURES AND THE REDUCTION
OF TAXPAYER DELINQUENCY ACCOUNTS ASSIGNED TO THE FILED FOR OVER ONE YEAR
WERE DISCUSSED BY MR. ISENOGLE. /11/ HE EXPRESSED THE VIEW THAT HE
WOULD NOT LIKE TO FILE A NARRATIVE REPORT IN LIEU OF EFFECTING A SEIZURE
DURING ANY MONTH, BUT IMPOSED NO DUTY UPON HIS REVENUE OFFICER TO EFFECT
SEIZURES (TR. 122). THE IMPOSITION OF QUOTAS ON THE GROUP WAS NOT
INTENDED WITH RESPECT TO EITHER OF THE TWO OBJECTIVES MENTIONED (TR.
282-283), AND QUOTAS WERE NOT IMPOSED (TR. 292).
DURING THE COURSE OF THE MEETING MR. ISENOGLE DISTRIBUTED TO REVENUE
OFFICERS ATTENDING A DOCUMENT ENTITLED "FACTORS FOR USE IN CONDUCTING
THE REVENUE OFFICER INVENTORY ANALYSIS" (GENERAL COUNSEL EXHIBIT 8);
COPIES OF A DOCUMENT ENTITLED "PROCESSING BMF DELINQUENCIES" (GENERAL
COUNSEL EXHIBIT 9); AND COPIES OF REVENUE OFFICER POSITION DESCRIPTIONS
(TR. 337-338). THESE HAD, FOR PURPOSES PRESENT IN THIS CASE, BEEN IN
EFFECT PRIOR TO THE PROMULGATION AND DISCUSSION OF COLLECTION DIVISION
OBJECTIVES IN ISSUE. IN FACT, THE FIRST TWO WERE TAKEN FROM THE
INTERNAL REVENUE SERVICE MANUAL. THE FIRST (GENERAL COUNSEL EXHIBIT 8),
DEALT WITH FACTORS UTILIZED TO EVALUATE REVENUE OFFICER PERFORMANCE. IT
WAS PASSED OUT WITH THE INSTRUCTION THAT IT DESCRIBED THE NATURE OF
REVENUE OFFICER PERFORMANCE (TR. 116). REVENUE OFFICERS PRESENT WERE
INFORMED AS TO THE NATURE OF THEIR DUTIES AND THE ELEMENTS (REFLECTED IN
THE DOCUMENTS DISTRIBUTED) WHICH WOULD ENTER INTO THEIR PERFORMANCE
EVALUATIONS (TR. 337-338). THE SECOND (GENERAL COUNSEL EXHIBIT 9), WAS
USED TO AID IN EXPLAINING PROCEDURE ALREADY ESTABLISHED TO COLLECT
DELINQUENT TAXES (TR. 94-95, 121-122).
DURING THE MEETING MR. ISENOGLE APPRISED THE REVENUE OFFICERS
ATTENDING THAT THEY WOULD RECEIVE AN AUTOMATIC THREE-DAY SUSPENSION
WITHOUT PAY IF THEY ALLOWED A COLLECTION STATUTE TO EXPIRE IN ANY
ASSIGNED CASE. THIS STATEMENT WAS ADMITTED BY THE RESPONDENT. HOWEVER,
STEPHEN D. DUNCAN, A REVENUE OFFICER WHO ATTENDED THE MEETING, AND WHO
APPEARED AS A WITNESS FOR THE GENERAL COUNSEL EXPLAINED THAT THE PROBLEM
OF EXPIRED STATUTES OF LIMITATION WAS A CONSTANT SOURCE OF CONCERN IN
COLLECTION WORK AND THAT THE COMMENT WAS MADE MERELY TO OBTAIN THE
"ATTENTION" OF THE GROUP (TR. 111). DUE TO MISUNDERSTANDING OF THE
REMARK MR. ISENOGLE DISCUSSED THE SUBJECT WITH BRANCH CHIEF MEEHAN, AND
RECEIVED INSTRUCTIONS TO CLARIFY THE STATEMENT (TR. 276-277, 288). HE
DID SO DURING THE SECOND AND THIRD SESSIONS OF THE MEETING BY EXPLAINING
THAT IN SUCH A CASE A FULL INVESTIGATION TO DETERMINE ALL THE FACTS AND
CIRCUMSTANCES SURROUNDING THE EXPIRATION OF THE STATUTE WOULD BE
CONDUCTED, AND THAT ANY DISCIPLINARY ACTION WOULD DEPEND UPON THE FACTS
DEVELOPED (TR. 288). /12/
IT WAS CLEAR FROM THE RECORD THAT MR. ISENOGLE ESTABLISHED NO NEW
RULE OF DISCIPLINE AT THE MEETING IN QUESTION (TR. 293). THE TESTIMONY
OF THE DETROIT DISTRICT OFFICE DIRECTOR ESTABLISHED THAT THERE WAS IN
FACT NO STANDARD PENALTY IN THE DETROIT DISTRICT OFFICE FOR ALLOWING A
STATUTE OF LIMITATION TO EXPIRE; THAT GROUP MANAGERS PLAYED NO ROLE
WITH RESPECT TO FIXING THE TYPE OF DISCIPLINARY ACTION TO BE PRESCRIBED
FOR ALLOWING A STATUTE OF LIMITATION TO EXPIRE; AND FURTHER THAT IN ALL
CASES DISCIPLINARY ACTION DEPENDED UPON THE FACTUAL SITUATION PRESENTED
(TR. 170-171).
REVENUE OFFICER REACTION IN FLINT LED TO SOME QUESTIONING AS TO
WHETHER QUOTAS WERE BEING PRESCRIBED WITH RESPECT TO SEIZURES AND THE
REDUCTION OF TAXPAYER DELINQUENCY ACCOUNTS, AND UNION STEWARD CHARLES E.
BURKE, AND OTHER FLINT, MICHIGAN REVENUE OFFICERS IN ATTENDANCE, BROUGHT
THE DETAILS OF MR. ISENOGLE'S COMMENTS TO THE ATTENTION OF THE PRESIDENT
OF CHAPTER 24 IN A LETTER DATED APRIL 25, 1979 (GENERAL COUNSEL EXHIBIT
4). /13/ HOWEVER, THE TESTIMONY OF MR. BURKE ESTABLISHED THAT AT THE
TIME HE PREPARED THE LETTER HE WAS UNCERTAIN THAT MR. ISENOGLE'S
COMMENTS REPRESENTED ACTUAL CHANGES IN WORKING CONDITIONS, AND THAT HE
ONLY FELT THE COMMENTS COULD HAVE BEEN INDICATIONS OF POSSIBLE CHANGE
(TR. 302-303).
IN THE RESPONDENT'S FLINT OFFICE, THE COLLECTION DIVISION OBJECTIVES
CREATED EMPHASIS ON SEIZURE ENFORCEMENT ACTION GENERALLY, AND RESOLUTION
OF TAXPAYER DELINQUENCY ACCOUNTS. IT DID NOT RESULT IN THE IMPOSITION
OF QUOTAS OR THE WITHDRAWAL OF REVENUE OFFICER AUTHORITY TO MAKE
DETERMINATIONS AS TO WHETHER SEIZURE ACTION SHOULD BE PURSUED.
COUNSEL FOR THE GENERAL COUNSEL ENDEAVORED TO PROVE THAT INDIVIDUAL
REVENUE OFFICERS IN FLINT AND DEARBORN WERE COMPELLED TO EFFECT SEIZURES
AFTER ANNOUNCEMENT OF THE OBJECTIVES, AND THAT PRIOR THERETO
DETERMINATIONS WERE MADE BY REVENUE OFFICERS. IT SHOULD BE NOTED THAT
THIS CLAIM WAS NOT ESTABLISHED; AND FURTHER THAT A CHANGE IN THIS
REGARD WAS NOT ALLEGED IN THE COMPLAINT. /14/
GROUP MANAGERS JOHN MASSON AND BYRON CROWE IN DEARBORN ALSO
CONDUCTED
MEETINGS WITH REVENUE AGENTS UNDER THEIR SUPERVISION TO PRESENT THE
COLLECTION DIVISION OBJECTIVES. SEPARATE GROUP MEETINGS OCCURRED IN THE
LATTER PART OF APRIL 1979, AND THE TWO GROUPS MET TOGETHER FOR THIS
PURPOSE ON MAY 1 AND 2, 1979 (GENERAL COUNSEL EXHIBIT 4, TR. 56, 58-59,
326). THESE MEETINGS DID NOT RESULT IN THE IMPOSITION OF QUOTAS WITH
RESPECT TO THE WORK PERFORMED BY THE REVENUE AGENTS. THE MEETINGS DID
RESULT IN EMPHASIS BEING PLACED UPON COLLECTION DIVISION OBJECTIVES.
REVENUE OFFICER DUTIES HAVE TRADITIONALLY INVOLVED THE PROMOTION OF
VOLUNTARY COMPLIANCE AND THE COLLECTION OF DELINQUENT TAXES AND RETURNS
(TR. 60). RESPONSIBILITY FOR SEIZURE ENFORCEMENT ACTIVITY IS AN
IMPORTANT ASPECT OF EVERY REVENUE OFFICER'S JOB (TR. 81, 224-245, 250).
THIS IS CLEARLY EVIDENCED IN POSITION DESCRIPTIONS INTRODUCED INTO THE
RECORD AS RESPONDENT EXHIBITS 4, 7, 8 AND 9. THESE DOCUMENTS INDICATE
THAT REVENUE OFFICERS HAVE HAD DURING ALL TIMES PERTINENT HEREIN, THE
DUTY AND THE AUTHORITY TO EFFECT SEIZURES. HOWEVER, THIS DUTY AND THIS
AUTHORITY IS, AND HAS BEEN, SUBJECT TO VARIOUS DEGREES OF SUPERVISORY
REVIEW DEPENDING ON THE REVENUE OFFICER GRADE LEVEL. /15/ A CAREFUL
REVIEW OF THE POSITION DESCRIPTIONS INDICATES A BASIS FOR SUPERVISORY
REVIEW OF REVENUE OFFICER ACTIONS. ALTHOUGH THERE IS A GREAT DEAL OF
DISCRETIONARY ACTION WHICH REVENUE OFFICERS ARE ALLOWED TO PURSUE IN THE
SEIZURE AREA, INTERNAL REVENUE MANUAL GUIDELINES PRESCRIBE PROCEDURES
WHICH MUST BE PURSUED, AND WHICH FORM THE BASIS FOR EVALUATION OF
REVENUE OFFICER PERFORMANCE (TR. 284-285).
CASE NO. 5-CA-164
PRIOR TO JULY 12, 1978, INTERNAL REVENUE SERVICE REGULATIONS PROVIDED
THAT PERSONS AGAINST WHOM CERTAIN ADVERSE ACTIONS WERE PROPOSED WERE
ENTITLED TO THE RIGHT TO REPLY ORALLY /16/ TO THE DISCIPLINARY OFFICIAL
OR HIS DESIGNEE (JOINT EXHIBITS 4-C AND 7), AND FURTHER THAT IN
SITUATIONS WHEREIN THE ORAL REPLY WAS SUBMITTED TO A REPRESENTATIVE
(ORAL REPLY OFFICER) OF THE DISCIPLINARY OFFICIAL, THAT THE ORAL REPLY
OFFICER THEN "SUBMIT A WRITTEN REPORT OF HIS CONCLUSIONS AND
RECOMMENDATIONS TO THE DISCIPLINARY OFFICIAL. THE FUNCTION OF AN ORAL
REPLY OFFICER IS TO LISTEN TO THE CHARGED EMPLOYEE'S VERBAL RESPONSE TO
THE CHARGES, WITNESS HIS DEMEANOR, ASSESS CREDIBILITY AND ATTITUDE, AND
THEN DECIDE WHAT ADVERSE ACTION, IF ANY, TO RECOMMEND (TR. 147).
ACCORDING TO INTERNAL REVENUE SERVICE MANUAL SECTION 1987.5(2) THE
WRITTEN REPORT WAS CONSIDERED CONFIDENTIAL AND WAS NOT AVAILABLE TO THE
EMPLOYEE OR HIS REPRESENTATIVE (JOINT EXHIBIT 7, TR. 168).
THE RECORD DISCLOSED THAT ON JULY 17, 1978, THE RESPONDENT RECEIVED A
JULY 12, 1978 TRANSMITTAL MEMORANDUM (JOINT EXHIBIT 4-B) FROM THE ACTING
REGIONAL PERSONNEL OFFICER, CENTRAL REGION, TRANSMITTING A JUNE 30, 1978
MEMORANDUM ISSUED BY THE DIRECTOR OF THE SERVICE'S PERSONNEL DIVISION,
TO ALL INTERNAL REVENUE SERVICE REGIONS (JOINT EXHIBIT 4-C). THE LATTER
MEMORANDUM INFORMED THAT ORAL REPLY OFFICER RECOMMENDATIONS NEED NO
LONGER BE SUBMITTED IN WRITING, BUT COULD INSTEAD BE MADE ORALLY OR IN
WRITING. THE JUNE 30, 1978 MEMORANDUM EXPLAINED THAT IF SUBMITTED IN
WRITING, THE RECOMMENDATION SHOULD BE EXPRESSED IN A SIMPLE STATEMENT
INDICATING WHETHER THE PROPOSED ADVERSE ACTION SHOULD BE SUSTAINED,
MODIFIED, OR WITHDRAWN, BUT THAT AN ANALYSIS OF THE FACTS AND RATIONALE
FOR THE RECOMMENDATION SHOULD NOT BE REDUCED TO WRITING. THE
MEMORANDUM
FROM THE DIRECTOR, PERSONNEL DIVISION, ALSO NOTED THAT ALTHOUGH THEN
CURRENT INTERNAL REVENUE MANUAL SECTION 1987.5(2) (JOINT EXHIBIT 7),
PROVIDED THAT THE ORAL REPLY OFFICER SUBMIT HIS RECOMMENDATION IN
WRITING TO THE DISCIPLINARY OFFICIAL, THIS SECTION OF THE MANUAL WOULD
BE REVISED IN THE FUTURE TO REFLECT THE CHANGE OUTLINED. /17/ UPON
RECEIPT OF THIS NOTIFICATION IN THE DETROIT DISTRICT, DISTRICT DIRECTOR
PLATE DECIDED THAT ALL ORAL REPLY OFFICER RECOMMENDATIONS WOULD BE MADE
TO HIM ORALLY RATHER THAN IN WRITING (JOINT EXHIBIT 4-A, TR. 148, 175,
207-208). THE NEW PROCEDURE WAS COMMUNICATED TO ALL ORAL REPLY OFFICERS
(TR. 207-208). THE UNION WAS NOT NOTIFIED OF THE CHANGE (TR. 42, 156).
SUBSEQUENTLY, A REQUEST FOR A WRITTEN ORAL REPLY OFFICER
RECOMMENDATION WAS FILED BY AN INDIVIDUAL INVOLVED IN AN ADVERSE ACTION
PROCEEDING. BY LETTER DATED FEBRUARY 12, 1979, DISTRICT DIRECTOR PLATE
ADVISED THAT NO SUCH RECORD EXISTED, AND THAT "DETROIT DISTRICT
PROCEDURES PROVIDE THAT THE ORAL REPLY OFFICER'S RECOMMENDATION SHALL BE
ORAL, AND NO WRITTEN DOCUMENT IS TO BE PREPARED" (JOINT EXHIBIT 2). BY
LETTER DATED APRIL 2, 1979, THE UNION MADE A FREEDOM OF INFORMATION ACT
REQUEST FOR A COPY OF THE PROCEDURES REFERRED TO IN THE DISTRICT
DIRECTOR'S FEBRUARY 12, 1979 LETTER. IN LETTER DATED APRIL 18, 1979
(JOINT EXHIBIT 4-A), THE DISTRICT DIRECTOR RESPONDED TO THE UNION AND
FURNISHED COPIES OF THE MEMORANDUMS WHICH HE HAD RECEIVED IN JULY 1978,
AND WHICH HE THEREAFTER USED AS A BASIS FOR EFFECTING THE CHANGE. /18/
BY LETTER DATED JUNE 1, 1979 (JOINT EXHIBIT 5), THE UNION ADVISED
DISTRICT DIRECTOR PLATE THAT SINCE HIS INSTRUCTIONS THAT ALL ORAL REPLY
OFFICER RECOMMENDATIONS BE MADE ORALLY REPRESENTED A CHANGE IN PAST
PRACTICE, THE UNION WAS REQUESTING NEGOTIATIONS CONCERNING "THE
SUBSTANCE, IMPACT AND IMPLEMENTATION OF THE . . . CHANGE IN PROCEDURES."
BY LETTER DATED JUNE 26, 1979 (JOINT EXHIBIT 6), DISTRICT DIRECTOR PLATE
REPLIED TO THE UNION BY ADVISING THAT THE RESPONDENT HAD NO OBLIGATION
TO NEGOTIATE THE CHANGE. HE STATED THAT HE WAS NOT "FAVORABLY DISPOSED
TO COMMENCE NEGOTIATING THIS TYPE OF ISSUE AT THIS TIME." IN CONCLUDING
HE STATED, "WHILE I FIND NO BASIS WHICH OBLIGATED MANAGEMENT TO
NEGOTIATE THIS MATTER, CONSIDERATION WILL BE GIVEN TO ANY SUBSTANTIVE
COMMENTS YOU MAY WISH TO MAKE ON THIS ISSUE." THE UNION RESPONDED BY
FILING AN UNFAIR LABOR PRACTICE CHARGE.
UNDER THE PRIOR PRACTICE THE DISTRICT DIRECTOR WOULD RECEIVE THE ORAL
REPLY OFFICER'S WRITTEN RECOMMENDATION TOGETHER WITH A TRANSCRIPT OF THE
ORAL REPLY AND OTHER RELEVANT DOCUMENTS SUBMITTED (TR. 143-144). THE
WRITTEN RECOMMENDATION RELATED TO THE TRANSCRIPT SUPPLIED, OR MERELY
REPEATED WHAT WAS SAID BY THE EMPLOYEE. (TR. 154). WRITTEN
RECOMMENDATIONS ALSO INDICATED WHETHER THE SPECIFICATIONS WERE
SUSTAINED, AND THE REASONS (TR. 155). A VERBAL EXCHANGE BETWEEN THE
ORAL REPLY OFFICER AND THE DISCIPLINARY OFFICIAL ACCOMPANIED THE
SUBMISSION OF THE WRITTEN RECOMMENDATION (TR. 165, 173, 219). SINCE IT
HAD BEEN THE PRACTICE FORMERLY FOR THE ORAL REPLY OFFICER AND THE
DISCIPLINARY OFFICIAL TO DISCUSS THE EMPLOYEE'S ORAL REPLY, THE NET
EFFECT OF THE CHANGE WAS TO ELIMINATE A WRITTEN DOCUMENT FROM THE
ADVERSE ACTION PROCEDURE.
IT ALSO APPEARED THAT THE CHANGE IN PROCEDURE HAD OTHER INDIRECT
EFFECTS REGARDING THE AVAILABILITY OF THE ORAL REPLY OFFICER'S WRITTEN
RECOMMENDATION. ALTHOUGH NOT PROPERLY A PART OF THE ADVERSE ACTION
APPEAL FILE, THE DOCUMENT COULD HAVE BEEN MADE AVAILABLE FOLLOWING AN
APPEAL FROM AN ADVERSE ACTION. THIS IS REFLECTED IN THE FOLLOWING
SEGMENT OF THE JUNE 30, 1978 MEMORANDUM ADDRESSED TO ALL INTERNAL
REVENUE SERVICE REGIONS BY THE DIRECTOR OF THE SERVICE'S PERSONNEL
DIVISION:
IN SUMMARY, IT IS OUR POSITION THAT THE ORAL REPLY OFFICER'S WRITTEN
RECOMMENDATION TO THE
DISCIPLINARY OFFICIAL IS NOT PROPERLY A PART OF THE ADVERSE ACTION
APPEAL FILE. AS SUCH, A
REQUEST FROM AN FEAA APPEALS OFFICER FOR THIS DOCUMENT SHOULD BE
HONORED, BUT ONLY UNDER
PROTEST, WITH A PROVISO TO THAT EFFECT . . . .
SIMILARLY, THE RESPONDENT COULD HAVE SUPPLIED COPIES OF AVAILABLE
WRITTEN ORAL REPLY OFFICER RECOMMENDATIONS IN RESPONSE TO REQUESTS FILED
UNDER THE FREEDOM OF INFORMATION ACT OR THE PRIVACY ACT (TR. 231).
THERE IS ALSO INDICATION IN THE RECORD THAT THE STRICT CONFIDENTIALITY
PROVISION IMPOSED BY INTERNAL REVENUE SERVICE MANUAL SECTION 1987.5(2)
(JOINT EXHIBIT 7), COULD HAVE BEEN RELAXED IN APPROPRIATE CASES (TR.
206-207).
DISCUSSION, CONCLUSIONS AND RECOMMENDATIONS
SECTION 7118(A)(7) OF THE STATUTE, AND SECTION 2423.18 OF THE
REGULATIONS, 5 C.F.R. 2423.18 PROVIDE THAT THE GENERAL COUNSEL HAS THE
BURDEN OF PROVING THE ALLEGATIONS OF THE COMPLAINT BY A PREPONDERANCE OF
THE EVIDENCE. A CAREFUL REVIEW OF THE EVIDENCE DISCLOSES THAT THIS
BURDEN HAS NOT BEEN MET IN CASE NO. 5-CA-192, AND THAT IT HAS BEEN MET
IN CASE NO. 5-CA-164.
5-CA-192
IN THIS CASE COUNSEL FOR THE GENERAL COUNSEL WAS OBLIGATED TO PROVE
THAT THE RESPONDENT UNILATERALLY CHANGED EXISTING CONDITIONS OF
EMPLOYMENT AT ITS DEARBORN AND FLINT, MICHIGAN POSTS OF DUTY BY
PROMULGATING RULES THAT EACH REVENUE OFFICER GROUP MAKE ONE SEIZURE A
MONTH; THAT EACH REVENUE OFFICER REDUCE HIS OVERAGE CASE INVENTORY BY
25 PERCENT; AND BY IMPOSING A RULE THAT REVENUE OFFICERS BE SUBJECTED
TO AN AUTOMATIC THREE-DAY SUSPENSION AS A PENALTY FOR ALLOWING A
COLLECTION OR ASSESSMENT STATUTE OF LIMITATIONS TO EXPIRE. THESE
ALLEGATIONS HAVE NOT BEEN ESTABLISHED BY A PREPONDERANCE OF THE
EVIDENCE. INSTEAD, THE RECORD INDICATES THAT THE RULES OUTLINED WERE
NOT IMPOSED ON REVENUE OFFICERS IN THE BARGAINING UNIT.
TURNING FIRST TO THE AUTOMATIC THREE-DAY SUSPENSION, IT APPEARED THAT
A STATEMENT RELATING TO THIS SUBJECT WAS FIRST VOICED IN THE DETROIT
DISTRICT OFFICE BY BRANCH CHIEF WILLIAM MEEHAN TO GROUP MANAGERS UNDER
HIS SUPERVISION. HIS STATEMENT WAS NOT DESIGNED TO EFFECTUATE A NEW
POLICY, BUT WAS MERELY A HUMOROUS REFERENCE TO THE NEED FOR MANAGERS TO
RECOGNIZE THEIR RESPONSIBILITY. DURING A LATER MEETING OF REVENUE
OFFICERS IN FLINT, MICHIGAN, MR. MEEHAN'S STATEMENTS WERE REPEATED IN
SUBSTANTIAL PART BY GROUP MANAGER ISENOGLE. THE EVIDENCE DISCLOSED THAT
MR. ISENOGLE'S COMMENTS ON THIS SUBJECT WERE PERCEIVED BY AT LEAST ONE
REVENUE AGENT ATTENDING AS MERELY A DEVICE TO OBTAIN THE ATTENTION OF
THE GROUP, AS THE PROBLEM OF THE EXPIRED STATUTE WAS A CONSTANT SOURCE
OF MANAGEMENT CONCERN. HOWEVER, MISUNDERSTANDING CONCERNING THE
MEANING
OF THE STATEMENT WAS CLARIFIED BY MR. ISENOGLE AT SUBSEQUENT SESSIONS OF
THE SAME STAFF MEETING, AND THOSE ATTENDING WERE APPRISED THAT MR.
ISENOGLE WAS NOT ESTABLISHING A NEW RULE OF DISCIPLINE. GROUP MANAGERS
PLAYED NO ROLE WITH RESPECT TO FIXING THE TYPE OF DISCIPLINARY ACTION
THAT WOULD BE METED OUT FOR A PARTICULAR INFRACTION. THERE WAS NO
STANDARD PENALTY IN THE DETROIT DISTRICT FOR ALLOWING A STATUTE OF
LIMITATION TO EXPIRE, AND IN ALL CASES DISCIPLINARY ACTION IN ANY CASE
DEPENDED UPON THE FACTUAL SITUATION PRESENTED.
WITH REGARD TO COLLECTION DIVISION OBJECTIVES, IT WAS ESTABLISHED
THAT REVENUE OFFICERS IN THE DETROIT DISTRICT WERE NOT IN FACT REQUIRED
TO REDUCE THEIR CASE LOAD BY ANY NUMBER, NOR WERE REVENUE OFFICER GROUPS
REQUIRED TO EFFECT ONE SEIZURE PER MONTH. RESPONSIBILITY FOR COLLECTION
DIVISION OBJECTIVES WAS PLACED UPON MANAGERS, AND NOT UPON INDIVIDUAL
REVENUE OFFICERS IN THE BARGAINING UNIT. MOREOVER, IT CLEARLY APPEARED
THAT THE RESPONDENT'S IMPLEMENTATION OF COLLECTION DIVISION OBJECTIVES
MERELY RESULTED IN A DEMAND THAT DETROIT DISTRICT OFFICE REVENUE
OFFICERS FULFILL LONG-ESTABLISHED REQUIREMENTS OF THEIR POSITIONS AS SET
FORTH IN REVENUE OFFICER POSITION DESCRIPTIONS, AND INTERNAL REVENUE
POLICIES ESTABLISHED PRIOR TO THE PROMULGATION OF THE COLLECTION
DIVISION OBJECTIVES IN QUESTION.
EMPHASIS PLACED UPON THE USE OF SEIZURES MERELY REITERATED THE BASIC
DUTY OF REVENUE OFFICERS TO UTILIZE THIS ENFORCEMENT TOOL. IT WAS
PRECIPITATED BY A PERIOD OF NON-USE OF THE PROCEDURE BROUGHT ABOUT BY A
JUDICIAL DECISION. NO SANCTIONS WERE IMPOSED FOR THE FAILURE OF A
REVENUE OFFICER GROUP TO EFFECT A SEIZURE DURING ANY MONTH. GROUP
MANAGERS WERE MERELY REQUIRED TO FILE REPORTS RELATING TO THEIR EFFORTS,
IN LIEU OF SEIZURES EFFECTED.
THE RECORD ESTABLISHED THAT "OVERAGE" CASES WERE NOT MADE THE SUBJECT
OF ANY COLLECTION DIVISION OBJECTIVE REFERRED TO IN THE COMPLAINT.
INSTEAD, REFERENCE WAS MADE TO A 25 PERCENT REDUCTION OF TAXPAYER
DELINQUENCY ACCOUNTS ASSIGNED TO THE FILED FOR OVER ONE YEAR. THE
LATTER CATEGORY OF CASES WAS SEPARATE AND DISTINCT FROM "OVERAGE" CASES
REFERRED TO BY COUNSEL FOR THE GENERAL COUNSEL DURING THE HEARING AND IN
HER POST-HEARING BRIEF. NEVERTHELESS, IT WAS A LONG-STANDING DETROIT
DISTRICT OFFICE POLICY FOR COLLECTION DIVISION MANAGERS TO EMPHASIZE THE
DISPOSAL OF OLDER CASES. THERE WAS NO REQUIREMENT THAT REVENUE OFFICERS
DISPOSE OF A CERTAIN NUMBER OF TAXPAYER DELINQUENCY ACCOUNTS ASSIGNED TO
THE FIELD OVER ONE YEAR, AND QUOTAS WERE NOT IMPOSED IN THIS REGARD.
COLLECTION DIVISION OBJECTIVES INVOLVED NO CHANGE IN REVENUE OFFICER
POSITION DESCRIPTIONS, NOR WAS THERE ANY CHANGE IN THE METHOD OF
EVALUATING REVENUE OFFICER PERFORMANCE. INSTEAD, IT APPEARED THAT THE
THRUST OF THE COLLECTION DIVISION OBJECTIVES WAS MERELY TO REVIVE
EMPHASIS UPON PREVIOUSLY ASSIGNED REVENUE OFFICER RESPONSIBILITIES.
THIS IS EVIDENCED BY THE DISTRIBUTION OF POSITION DESCRIPTIONS,
DOCUMENTS RELATING TO FACTORS UTILIZED BY GROUP MANAGERS TO REVIEW CASE
INVENTORIES, AND DOCUMENTS RELATING TO PROCEDURES PRESCRIBED FOR
HANDLING CERTAIN DELINQUENT ACCOUNTS. NONE OF THESE REFLECTED CHANGES
IN PROCEDURE OR POLICY. ALTHOUGH REVENUE OFFICER REACTION IN FLINT AND
DEARBORN INDICATES THAT CERTAIN REVENUE OFFICERS PERCEIVED THE
COLLECTION DIVISION OBJECTIVES AS INVOLVING CHANGES IN EXISTING
CONDITIONS OF EMPLOYMENT, PROOF ADDUCED DURING THE HEARING FAILED TO
ESTABLISH THAT CHANGES AFFECTING BARGAINING UNIT EMPLOYEES WERE IN FACT
INTENDED, ANNOUNCED OR IMPLEMENTED. UNLESS THERE IS A SHOWING OF A
CHANGE IN THE TERMS AND CONDITIONS OF EMPLOYMENT NO OBLIGATION TO
BARGAIN ARISES.
HAVING FOUND THAT COLLECTION DIVISION OBJECTIVES DID NOT CHANGE THE
TERMS AND CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT MEMBERS, AND
HAVING FOUND THAT NO NEW RULE OF DISCIPLINE WAS ESTABLISHED, IT IS
RECOMMENDED THAT PORTIONS OF THE CONSOLIDATED COMPLAINT DEALING WITH
CASE NO. 5-CA-192, BE DISMISSED.
5-CA-164
PROCEDURES UTILIZED WITH REGARD TO ORAL REPLY OFFICER RECOMMENDATIONS
CLEARLY ARE DIRECTLY RELATED TO RIGHTS RESERVED TO MANAGEMENT UNDER THE
PROVISIONS OF SECTION 7106(A)(2)(A) OF THE STATUTE SINCE THEY PERTAIN TO
THE RIGHT OF MANAGEMENT TO TAKE DISCIPLINARY ACTION. HOWEVER, UNDER THE
PROVISIONS OF SECTION 7106(B)(2) AND (3) OF THE STATUTE, BARGAINING IS
MANDATORY ON PROCEDURES DESIGNED FOR EXERCISING SUCH RIGHTS, AND ON
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED, THAT IS ON THE IMPACT AND
IMPLEMENTATION OF THE DECISION. IN THIS CASE THE RESPONDENT
ACKNOWLEDGES BARGAINING DID NOT OCCUR PRIOR TO EFFECTUATION OF THE
CHANGE.
THE CHANGE IN QUESTION CLEARLY FALLS WITHIN THE DEFINITION OF THE
TERM "CONDITIONS OF EMPLOYMENT" AS SET FORTH IN SECTION 7103(A)(14) OF
THE STATUTE, AND IS NOT A SUBJECT OF BARGAINING EXCLUDED BY THE STATUTE.
FURTHERMORE, THERE IS NO MERIT TO THE CONTENTION THAT THE CHANGE DID
NOT, AS A PRACTICAL MATTER, AFFECT THE TERMS AND CONDITIONS OF
EMPLOYMENT. THE CHANGE RESULTED IN THE DELETION OF A FULLY SUPPORTED
ORAL REPLY OFFICER RECOMMENDATION, AND BROUGHT ABOUT SUBSEQUENT
RELIANCE
UPON ORAL REPORTS FROM ORAL REPLY OFFICERS. THE DIFFERENCE REPRESENTED
A SUBSTANTIAL CHANGE IN PROCEDURE, ONE WHICH MAY BE MEASURED IN TERMS OF
DIMINUTION OF PROCEDURAL SAFEGUARDS. IT OPERATED TO DENY TO BARGAINING
UNIT MEMBERS THE BENEFITS OF A PRACTICE WHICH TENDED TO INSURE
THOUGHTFUL AND CAREFUL CONSIDERATION OF ELEMENTS ENTERING INTO THE ORAL
REPLY OFFICER RECOMMENDATION. IT MAY BE ASSUMED THAT THE REQUIREMENT
TENDED TO PRODUCE A CAREFUL DELIBERATIVE APPROACH. THIS PROCEDURAL
ADVANTAGE WAS WITHDRAWN.
EVEN IF THE MEMORANDUM WERE NOT AVAILABLE TO BARGAINING UNIT MEMBERS,
THEY WERE AVAILABLE TO MANAGEMENT, AND THUS COULD HAVE BEEN REFERRED TO
BY MANAGEMENT IN SITUATIONS WHERE AN ADVERSE ACTION CASE WAS BEING
RECONSIDERED. THE CONTENTS OF SUCH DOCUMENTS COULD HAVE INURED TO THE
BENEFIT OF BARGAINING UNIT EMPLOYEES INSOFAR AS THEY MIGHT HAVE
COMPRISED A BASIS FOR ACTION FAVORABLE TO BARGAINING UNIT MEMBERS.
EVEN ASSUMING THE CONFIDENTIALITY OF SUCH DOCUMENTS, AND THE
INAPPLICABILITY OF THE FREEDOM OF INFORMATION AND PRIVACY ACTS, THE
RECORD INDICATED THAT THE RESPONDENT WAS FREE TO MAKE THE ONCE REQUIRED
DOCUMENTS AVAILABLE TO BARGAINING UNIT EMPLOYEES IN APPROPRIATE CASES.
SUCH DOCUMENTS COULD HAVE BEEN MADE AVAILABLE DURING THE PROCESSING OF
AN ADVERSE ACTION APPEAL. IN FACT THE RECORD REFLECTS THAT THE NATIONAL
OFFICE OF THE RESPONDENT RELUCTANTLY CONTEMPLATED SUCH USE OF WRITTEN
ORAL REPLY OFFICER RECOMMENDATIONS. THUS, THE CHANGE IN PROCEDURE
IMPACTED DIRECTLY AND INDIRECTLY ON THE TERMS AND CONDITIONS OF
EMPLOYMENT. /19/ CASES CITED BY THE RESPONDENT AS AUTHORITY FOR THE
POSITION THAT MANAGEMENT HAS NO BARGAINING OBLIGATION IN SITUATIONS
INVOLVING DECISIONS WHICH HAVE NO IMPACT ON THE TERMS AND CONDITIONS OF
EMPLOYMENT ARE INAPPOSITE AND/OR FACTUALLY DISTINGUISHABLE.
THE RESPONDENT CONTENDS THAT THE UNION FAILED TO SUBMIT BARGAINING
PROPOSALS FOLLOWING THE DISTRICT DIRECTOR'S JUNE 26, 1979 LETTER
OFFERING TO CONSIDER THE UNION'S SUBSTANTIVE COMMENTS ON THIS ISSUE.
HOWEVER, THE RESPONDENT DID NOT OFFER TO NEGOTIATE IN GOOD FAITH
CONCERNING THE CHANGE. IN FACT THE DISTRICT DIRECTOR'S JUNE 26, 1979
LETTER STATED THAT THE RESPONDENT PERCEIVED NO BARGAINING OBLIGATION,
AND ALSO NOTED THAT THE RESPONDENT WAS NOT "FAVORABLY DISPOSED TO
COMMENCE NEGOTIATING THIS TYPE OF ISSUE AT THIS TIME." IN THE LIGHT OF
THIS FACTUAL PATTERN IT WOULD NOT BE POSSIBLE TO FIND THAT DISTRICT
DIRECTOR'S STATEMENT OFFERING TO CONSIDER SUBSTANTIVE COMMENTS
CONSTITUTED AN OFFER TO NEGOTIATE THE IMPACT AND IMPLEMENTATION OF THE
DECISION TO EFFECT THE CHANGE. /20/ MOREOVER, EVEN ASSUMING THAT THE
RESPONDENT DID MAKE A GOOD OFFER TO NEGOTIATE, SUCH AN OFFER, MADE
NEARLY A YEAR AFTER EFFECTUATION OF THE CHANGE WOULD NOT SERVE TO REMEDY
THE RESPONDENT'S INITIAL FAILURE TO NOTIFY THE UNION OF THE CHANGE IN
PROCEDURE. DEPARTMENT OF THE AIR FORCE, 47TH FLYING TRAINING WING,
LAUGHLIN AIR FORCE BASE, TEXAS, ASSISTANT SECRETARY CASE NO. 63-8164
(CA), 2 FLRA NO. 24 (DECEMBER 5, 1979).
SINCE THE RESPONDENT HAD NO OBLIGATION TO MEET AND CONFER WITH THE
UNION CONCERNING THE DECISION TO EFFECT THE CHANGE, A STATUS QUO ANTE
REMEDY BASED ON THE FAILURE OF THE RESPONDENT TO NEGOTIATE THE IMPACT
AND IMPLEMENTATION OF THE DECISION WOULD NOT BE WARRANTED; HOWEVER THE
RESPONDENT DOES HAVE AN OBLIGATION TO BARGAIN UPON REQUEST CONCERNING
IMPACT AND IMPLEMENTATION OF THE DECISION. DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT, CASE NO. 4-CA-50(1), 3
FLRA NO. 103 (JULY 17, 1980); THE ADJUTANT GENERAL'S OFFICE, PUERTO
RICO AIR NATIONAL GUARD, ASSISTANT SECRETARY CASE NO. 37-01985 (CA), 3
FLRA NO. 55 (JUNE 3, 1980); DEPARTMENT OF THE AIR FORCE, 47TH FLYING
TRAINING WING, LAUGHLIN AIR FORCE BASE, TEXAS, ASSISTANT SECRETARY CASE
NO. 63-8164 (CA), 2 FLRA NO. 24 (DECEMBER 5, 1979); NATIONAL SCIENCE
FOUNDATION, ASSISTANT SECRETARY CASE NO. 22-08764 (CA), 1 FLRA NO. 116
(SEPTEMBER 24, 1979); DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, SOUTHWEST REGION, ASSISTANT SECRETARY CASE NO. 64-3896 (CA), 1
FLRA NO. 70 (JUNE 15, 1979); SOCIAL SECURITY ADMINISTRATION, BUREAU OF
HEARINGS AND APPEALS, A/SLMR NO. 1134, FLRC NO. 78A-143, 1 FLRA NO. 30
(APRIL 27, 1979); DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
INDIANAPOLIS, INDIANA, A/SLMR NO. 909 (1977); DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, GREENSBORO DISTRICT OFFICE, A/SLMR
NO. 1007 (1978).
IN THIS CASE THE CHANGE EFFECTED BY THE DISTRICT DIRECTOR WAS IN
DIRECT RESPONSE TO THE JUNE 30, 1978 MEMORANDUM ISSUED AT THE NATIONAL
OFFICE LEVEL OF THE INTERNAL REVENUE SERVICE. THE MEMORANDUM OPERATED
TO PROVIDE A BASIS FOR THE DISTRICT DIRECTOR'S ACTION, BY PRECLUDING THE
DETAILED DOCUMENTATION OF ORAL REPLY OFFICER RECOMMENDATIONS IN ALL
INTERNAL REVENUE SERVICE REGIONS. SINCE THE CHANGE WAS INITIATED IN THE
FIRST INSTANCE AT THE NATIONAL OFFICE LEVEL, AND WAS IMPLEMENTED AT
LOWER LEVELS, INCLUDING THE DETROIT DISTRICT OFFICE LEVEL, A REMEDIAL
ORDER DIRECTED SOLELY TO THE DETROIT DISTRICT OFFICE LEVEL WOULD BE
INEFFECTIVE. THE REMEDIAL ORDER MUST BE DIRECTED TO THE NATIONAL OFFICE
OF THE INTERNAL REVENUE SERVICE AS WELL AS THE DETROIT DISTRICT OFFICE
IN ORDER TO PROVIDE A BASIS FOR NECESSARY CORRECTIVE ACTION. DEPARTMENT
OF THE TREASURY, INTERNAL REVENUE SERVICE, CINCINNATI DISTRICT OFFICE,
A/SLMR NO. 1107 (1978); VETERANS ADMINISTRATION, ASSISTANT SECRETARY
CASE NO. 22-09495 (CA), 1 FLRA NO. 101 (AUGUST 21, 1979).
HAVING FOUND THAT THE NATIONAL OFFICE OF THE INTERNAL REVENUE SERVICE
AND THE DETROIT DISTRICT OFFICE OF THE INTERNAL REVENUE SERVICE VIOLATED
SECTIONS 7116(A)(1) AND (5) OF THE STATUTE, I RECOMMEND THAT THE
AUTHORITY ISSUE THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7118(A)(7)(A), AND SECTION
2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. 2423.29(B)(1), THE
AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE TREASURY, INTERNAL
REVENUE SERVICE, AND ITS DETROIT DISTRICT OFFICE, DETROIT, MICHIGAN,
SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING ANY CHANGE IN THE METHOD OF REPORTING ORAL REPLY
OFFICER RECOMMENDATIONS WITH RESPECT TO EMPLOYEES REPRESENTED BY THE
NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 24, IN THE DETROIT DISTRICT OFFICE OF THE UNITED STATES INTERNAL
REVENUE SERVICE, WITHOUT FIRST NOTIFYING THE NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 24, AND AFFORDING
THEM THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, CONCERNING THE PROCEDURES TO BE OBSERVED IN
IMPLEMENTING SUCH CHANGE, AND CONCERNING THE IMPACT SUCH CHANGE WILL
HAVE ON ADVERSELY AFFECTED EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR 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 STATUTE:
(A) UPON REQUEST, BY THE NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 24, MEET AND CONFER TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE PROCEDURES TO
BE USED IN IMPLEMENTING THE CHANGE IN THE REQUIREMENT THAT ORAL REPLY
OFFICER RECOMMENDATIONS BE MADE ORALLY RATHER THAN IN WRITTEN FORM IN
THE DETROIT DISTRICT OFFICE OF THE UNITED STATES INTERNAL REVENUE
SERVICE, AND CONCERNING THE IMPACT OF SUCH CHANGE ON ADVERSELY AFFECTED
EMPLOYEES.
(B) POST AT THE DETROIT DISTRICT OFFICE OF THE UNITED STATES INTERNAL
REVENUE SERVICE, AND AT THE VARIOUS POSTS OF DUTY ASSOCIATED WITH THE
DETROIT DISTRICT OFFICE, 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 COMMISSIONER OF THE
UNITED STATES INTERNAL REVENUE SERVICE AND BY THE DISTRICT DIRECTOR,
DETROIT DISTRICT OFFICE, UNITED STATES INTERNAL REVENUE SERVICE, AND
SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE
NOTICES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO
INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
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.
IT IS HEREBY FURTHER ORDERED THAT THE COMPLAINT IN CASE NO.
5-CA-192, BE, AND HEREBY IS, DISMISSED.
LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DATED: AUGUST 15, 1980 WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF 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 ANY CHANGE IN THE METHOD OF REPORTING ORAL REPLY
OFFICER RECOMMENDATIONS WITH RESPECT TO EMPLOYEES REPRESENTED
EXCLUSIVELY BY THE NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL
TREASURY EMPLOYEES UNION, CHAPTER 24, IN THE DETROIT DISTRICT OFFICE OF
THE UNITED STATES INTERNAL REVENUE SERVICE, WITHOUT NOTIFYING THE
NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 24, AND WITHOUT AFFORDING THEM AN OPPORTUNITY TO MEET AND CONFER
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO
BE OBSERVED IN IMPLEMENTING SUCH CHANGE, AND ON THE IMPACT SUCH CHANGE
WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES. WE WILL NOT IN ANY LIKE OR
RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE. WE WILL UPON REQUEST MEET AND NEGOTIATE WITH THE
NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 24, CONCERNING THE PROCEDURES TO BE UTILIZED IN IMPLEMENTING THE
CHANGE IN THE METHOD OF REPORTING ORAL REPLY OFFICER RECOMMENDATIONS IN
THE DETROIT DISTRICT OFFICE OF THE UNITED STATES INTERNAL REVENUE
SERVICE, AND CONCERNING THE IMPACT OF SUCH CHANGE ON ADVERSELY AFFECTED
EMPLOYEES.
DATED: . . . BY: COMMISSIONER, INTERNAL REVENUE SERVICE
DATED: . . . BY: DISTRICT DIRECTOR, DETROIT DISTRICT OFFICE
--------------- FOOTNOTES$ ---------------
/1/ IN SO DOING THE AUTHORITY NOTES PARTICULARLY, WITH RESPECT TO THE
ALLEGATION IN CASE NO. 5-CA-164 THAT IRS FAILED TO BARGAIN REGARDING THE
CHANGED REQUIREMENT THAT ALL ORAL REPLY OFFICER RECOMMENDATIONS BE MADE
ORALLY INSTEAD OF IN WRITING, THAT THE EVIDENCE INDICATES THAT THE
FEDERAL EMPLOYEE APPEALS AUTHORITY (FEAA) HAD, IN SOME INSTANCES,
REQUESTED FROM IRS COPIES OF THE ORAL REPLY OFFICER'S RECOMMENDATION IN
CONJUNCTION WITH PROCESSING EMPLOYEE APPEALS OF ADVERSE ACTIONS. IRS
ADOPTED A POLICY OF PROVIDING THE RECOMMENDATION TO FEAA UNDER PROTEST.
HENCE THE RECORD SUPPORTS A CONCLUSION THAT THE WRITTEN RECOMMENDATIONS
WERE UTILIZED IN THE PROCESSING OF APPEALS TO FEAA OF ADVERSE ACTIONS
TAKEN AGAINST EMPLOYEES, AND MOREOVER, WERE AVAILABLE TO EMPLOYEES AND
THEIR REPRESENTATIVES.
FURTHERMORE, IN ADOPTING THE JUDGE'S DECISION AND ORDER, THE
AUTHORITY NOTES PARTICULARLY THAT NO PARTY EXCEPTED TO HIS CONCLUSION
THAT THE BARGAINING OBLIGATION INCURRED AS A CONSEQUENCE OF THE CHANGE
IN THE REQUIREMENT THAT THE ORAL REPLY OFFICER'S RECOMMENDATION BE IN
WRITING WAS LIMITED TO IMPACT AND IMPLEMENTATION AND DID NOT EXTEND TO
THE SUBSTANCE OF THE DECISION ITSELF. IN THIS REGARD, THE AUTHORITY
DOES NOT PASS UPON THE JUDGE'S STATEMENT THAT "(P)ROCEDURES UTILIZED
WITH REGARD TO ORAL REPLY OFFICER RECOMMENDATIONS CLEARLY ARE DIRECTLY
RELATED TO RIGHTS RESERVED TO MANAGEMENT UNDER THE PROVISIONS OF SECTION
7106(A)(2)(A) OF THE STATUTE SINCE THEY PERTAIN TO THE RIGHT OF
MANAGEMENT TO TAKE DISCIPLINARY ACTION."
/2/ PART 752, SUBPART B OF TITLE 5, CODE OF FEDERAL REGULATIONS (1978
EDITION), WHICH WAS IN EFFECT DURING THE PERIOD INVOLVED IN THIS CASE,
PROVIDED THE RIGHT TO REPLY ORALLY TO NOTICES OF PROPOSED ADVERSE ACTION
RELATING TO REMOVAL, SUSPENSION FOR MORE THAN 30 DAYS, FURLOUGH WITHOUT
PAY, AND REDUCTION IN RANK OR PAY. THE METHOD OF REPORTING ORAL REPLY
OFFICER RECOMMENDATIONS TO THE DISCIPLINARY OFFICIAL WAS NOT OTHERWISE
PRESCRIBED IN THE FEDERAL PERSONNEL MANUAL OR THE CODE OF FEDERAL
REGULATIONS. HOWEVER, INTERNAL REVENUE MANUAL PROVISIONS IN EFFECT
PROVIDED THAT IF SUCH ORAL REPLY WAS "SUBMITTED TO A REPRESENTATIVE
(ORAL REPLY OFFICER) OF THE DISCIPLINARY OFFICIAL, THE REPRESENTATIVE
WILL UPON CONCLUSION OF THE ORAL REPLY PROCEEDINGS, SUBMIT A WRITTEN
REPORT OF HIS CONCLUSIONS AND RECOMMENDATIONS TO THE DISCIPLINARY
OFFICIAL." (SEE SECTION 1987.5(2) OF INTERNAL REVENUE MANUAL (10-14-66),
JOINT EXHIBIT 7).
/3/ PARAGRAPHS V-C AND V-D OF THE COMPLAINT REFER TO "RESPECTIVE
AVERAGE INVENTORY"; HOWEVER, COUNSEL FOR THE GENERAL COUNSEL SOUGHT TO
PROVE FACTS RELATING TO AN ALLEGED 25 PERCENT REDUCTION OF "OVERAGE"
CASES IN REVENUE OFFICER CASE INVENTORIES (TR. 36, GENERAL COUNSEL'S
BRIEF AT 9-10, AND 19). THIS MISTAKE IN PLEADING WAS RECOGNIZED IN
RESPONDENT'S OPENING STATEMENT, AND THE WORD "AVERAGE" WAS TREATED AS
"OVERAGE" BY THE RESPONDENT (TR. 39, RESPONDENT'S BRIEF AT PAGES 2 AND
33). IN VIEW OF THESE FACTS THE COMPLAINT IS HEREBY DEEMED TO HAVE BEEN
AMENDED BY AGREEMENT OF THE PARTIES SO AS TO CHANGE THE WORD "AVERAGE"
TO "OVERAGE."
/4/ ALTHOUGH THE COMPLAINT ALLEGES A FAILURE TO PROVIDE AN
OPPORTUNITY TO BARGAIN CONCERNING THE DECISION TO IMPLEMENT THESE TWO
ALLEGED CHANGES, THE POST-HEARING BRIEF FILED BY COUNSEL FOR THE GENERAL
COUNSEL ACKNOWLEDGES THAT THEY WOULD, IF OTHERWISE ESTABLISHED, HAVE
GIVEN RISE ONLY TO AN OBLIGATION TO BARGAIN CONCERNING IMPACT AND
IMPLEMENTATION. IN ESSENCE, IT WAS CONTENDED THAT THE CHANGES RELATED
TO AN EXERCISE OF MANAGEMENT RIGHTS SET FORTH IN SECTION 7106(A) OF THE
STATUTE. (SEE PAGES 11-12 OF POST-HEARING BRIEF FILED ON BEHALF OF THE
GENERAL COUNSEL; TR. 199-202; AND NATIONAL TREASURY EMPLOYEES UNION,
CASE NO. O-NG-56, 3 FLRA NO. 119 (JULY 31, 1980)).
/5/ A FORM 668B IS USED BY REVENUE OFFICERS IN CONNECTION WITH
EFFORTS TO SEIZE REAL OR PERSONAL PROPERTY OWNED BY A DELINQUENT
TAXPAYER. SEIZURE IS UTILIZED AS A LAST RESORT TO COLLECT DELINQUENT
TAXES, AND IS A RELATIVELY COMPLEX LEGAL PROCEDURE WHICH REVENUE
OFFICERS ARE RESPONSIBLE FOR INITIATING.
/6/ THE WORD "PARTICIPATION" WAS DEFINED IN THE MEMORANDUM AS EITHER
EXECUTING A SEIZURE EACH MONTH IN EACH GROUP OR, IN LIEU THEREOF, FILING
A BRIEF NARRATIVE REPORT OUTLINING REVENUE OFFICER GROUP EFFORT IN THIS
AREA OF INTEREST. THE RESPONSIBILITY FOR FILING SUCH A REPORT WAS
PLACED ON REVENUE OFFICER GROUP MANAGERS IN THE FLINT AND DEARBORN
OFFICES AMONG OTHERS.
/7/ TAXPAYER DELINQUENCY ACCOUNTS.
/8/ DELINQUENCY ACCOUNT INVENTORY PROFILE.
/9/ THE TWO OBJECTIVES OUTLINED ARE HEREINAFTER REFERRED TO AS
"COLLECTION DIVISION OBJECTIVES."
/10/ PRIOR TO THE G.M. LEASING CORPORATION CASE, REVENUE OFFICER
DECISIONS TO SEIZE WERE MADE SUBJECT TO APPROVAL BY MANAGEMENT BECAUSE
OF CONGRESSIONAL INTEREST IN THE SUBJECT (TR. 245-247).
/11/ A REVENUE OFFICER ASSIGNED TO THE FLINT OFFICE, CALLED TO
TESTIFY BY COUNSEL FOR THE GENERAL COUNSEL, MISINTERPRETED THE
PRESENTATION OF THE LATTER OBJECTIVE, IN SIGNIFICANT PART, AND
INTRODUCED SOME CONFUSION AS A RESULT OF THE MISINTERPRETATION (TR.
98-101), GENERAL COUNSEL'S POST-HEARING BRIEF AT PAGES 2-3). HOWEVER,
IT IS CLEAR THAT THE OBJECTIVE RELATING TO INVENTORY REDUCTION WAS
PRESENTED AS SET OUT PREVIOUSLY HEREIN (TR. 286).
/12/ REVENUE OFFICERS CALLED TO TESTIFY BY COUNSEL FOR THE GENERAL
COUNSEL COULD NOT RECALL WHETHER MR. ISENOGLE OFFERED A FULL EXPLANATION
AT A SUBSEQUENT SESSION OF THE MEETING, ALTHOUGH IT WAS CLEAR THAT THE
SUBJECT WAS BROUGHT UP A SECOND TIME (TR. 135). IN LIGHT OF THE
UNCONTRADICTED TESTIMONY OF MR. ISENOGLE AND BRANCH CHIEF WILLIAM F.
MEEHAN, IT IS CONCLUDED THAT MR. ISENOGLE'S ACCOUNT MUST BE CREDITED.
/13/ THE LETTER WAS WRITTEN BY BURKE AND WAS SUBSEQUENTLY ENDORSED BY
A NUMBER OF OTHER REVENUE OFFICERS ATTENDING. ALTHOUGH BURKE SERVED AS
A REVENUE OFFICER IN THE FLINT OFFICE ON THE DATE OF THE MEETING, HE WAS
A GROUP MANAGER AS OF THE DATE OF HIS TESTIMONY.
/14/ GENERAL COUNSEL EXHIBITS 5 AND 6, STRONGLY WORDED GROUP MANAGER
EVALUATIONS OF A DEARBORN REVENUE OFFICER, MERELY SUGGEST THAT THE
REVENUE OFFICER PURSUE STEPS TO OBTAIN NEEDED INFORMATION UPON WHICH TO
BASE A DETERMINATION CONCERNING ENFORCEMENT ACTION. GENERAL COUNSEL
EXHIBIT 8, ENTITLED "FACTORS FOR USE IN CONDUCTING REVENUE OFFICER
INVENTORY ANALYSIS" MIGHT EASILY BE CONSTRUED AS AUTHORIZING THE
EVALUATIVE COMMENTS REFLECTED, BOTH BEFORE AND AFTER PROMULGATION OF
COLLECTION DIVISION OBJECTIVES. FURTHERMORE A PERUSAL OF GENERAL
COUNSEL EXHIBIT 8 DISCLOSES THAT A GROUP MANAGER COULD HAVE, IN AN
APPROPRIATE CASE, EXPRESSED VIEWS REGARDING CASE HANDLING, WHICH VIEWS
REVENUE OFFICERS MIGHT HAVE CONSTRUED AS BEING IN DEROGATION OF THEIR
AUTHORITY. IT WAS NOT UNUSUAL FOR A GROUP MANAGER TO INSIST THAT EACH
REVENUE OFFICER TAKE ALL LOGICAL STEPS IN THE PROCESSING OF CASES (TR.
328).
OF SPECIAL INTEREST WITH RESPECT TO GENERAL COUNSEL EXHIBITS 5 AND 6
IS THE FACT THAT THE REVENUE OFFICER INVOLVED TESTIFIED THAT HE HAD,
PRIOR TO THE EVALUATIONS IN QUESTION, REQUESTED AUTHORITY TO TAKE STEPS
TO EFFECT A SEIZURE IN THE CASE (TR. 78, 87-88).
/15/ SEE PORTIONS OF POSITION DESCRIPTIONS DEALING WITH SUPERVISION
AND GUIDANCE.
/16/ THE SPECIFIC INDIVIDUALS AFFORDED THIS RIGHT ARE IDENTIFIED IN
JOINT EXHIBIT 7. IT IS SUFFICIENT HERE TO NOTE THAT BARGAINING UNIT
MEMBERS WERE INCLUDED. SEE ALSO JOINT EXHIBIT 1, THE COLLECTIVE
BARGAINING AGREEMENT GOVERNING THE LABOR RELATIONS OF THE PARTIES, AT
PAGES 84-85.
/17/ JOINT EXHIBIT 4-B, THE MEMORANDUM DATED JULY 12, 1978 FROM THE
ACTING REGIONAL PERSONNEL OFFICER, CENTRAL REGION TO ALL PERSONNEL
OFFICERS IN THE CENTRAL REGION, ESTABLISHED THAT THE CHANGE REFERRED TO
IN THE JUNE 30, 1978 MEMORANDUM BECAME EFFECTIVE AS OF JULY 12, 1978.
(SEE ALSO TR. 168-169).
/18/ THE UNION DID NOT RECEIVE NOTICE OF THE CHANGE UNTIL AFTER THE
DISTRICT DIRECTOR'S FEBRUARY 12, 1979 LETTER.