[ v15 p1014 ]
15:1014(187)CA
The decision of the Authority follows:
15 FLRA No. 187
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
JACKSONVILLE DISTRICT
JACKSONVILLE, FLORIDA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 4-CA-446
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
to the Judge's Decision, and the Charging Party filed a response
thereto.
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 recommendations, as modified herein.
The Judge found that the Internal Revenue Service, Jacksonville
District (the Respondent), by unilaterally establishing specialized work
groups in its West Palm Beach and Jacksonville offices without providing
the National Treasury Employees Union (NTEU), the employees' exclusive
representative, any prior notice of the changes or any opportunity to
negotiate concerning the impact and implementation of such changes,
violated section 7116(a)(1) and (5) of the Statute. The Authority
agrees.
Where an agency, in exercising a management right under section 7106
of the Statute, /1/ changes conditions of employment resulting in an
impact on unit employees, or such impact was reasonably foreseeable, the
agency is obligated under the Statute to provide adequate prior notice
to the exclusive representative and, upon request, bargain concerning
procedures to be utilized in implementing such changes and/or
appropriate arrangements for unit employees adversely affected by such
changes, pursuant to section 7106(b)(2) and (3). /2/ See U.S.
Government Printing Office, 13 FLRA No. 39 (1983). In agreement with
the Judge, the Authority concludes that, by establishing specialized
work groups in its West Palm Beach and Jacksonville offices, Respondent
changed the conditions of employment of its employees and there was a
reasonably foreseeable impact on the employees resulting from such
change. Accordingly, Respondent's failure to afford NTEU any prior
notice of such change and an opportunity to request negotiations
pursuant to section 7106(b)(2) and (3), constituted a violation of
section 7116(a)(1) and (5).
The Judge's recommended remedy provided, inter alia, for a return to
the status quo ante. The Respondent excepted to the imposition of such
remedy, arguing that the change had not resulted in any actual impact as
of the time of the trial herein, and the requirement to undo its
organizational structure would interfere with the efficient and
effective accomplishment of its mission. Contrary to the Judge, the
Authority concludes that a status quo ante remedy is not warranted.
Thus, balancing the nature and circumstances of the violation against
the degree of disruption in government operations that would be caused
by such a remedy, and taking into consideration the various factors set
forth in Federal Correctional Institution, 8 FLRA 604 (1982), the
Authority concludes that such remedy would not effectuate the purposes
and policies of the Statute.
In this regard, the Authority notes particularly that the
organizational change was instituted for the purpose of enhancing the
efficiency and effectiveness of the tax collecting procedures utilized
by the Respondent, and that a requirement to rescind the organizational
change and revert to the original procedures would result in substantial
disruption of the Respondent's operations and likely interference with
effective tax collection. Our colleague disputes this finding. He
comments that it is speculative that the new procedures would be more
effective than the old, and that the Judge found that the record does
not support a finding that disruption of Respondent's operations would
occur as a result of a status quo ante remedy. We disagree and
emphasize that the issue of appropriate remedy was raised and argued for
the first time in the exceptions to the Judge's Decision filed by the
Respondent. Prior to that time none of the parties had specifically
addressed the matter of appropriate remedy. In its brief to the
Authority, the Respondent argued persuasively that returning to the old
methods would cause substantial disruption, and that the whole purpose
of instituting the new methods was for more effective and efficient
collection of taxes. It is significant to us that in its reply brief,
the Charging Party expressed no contrary arguments, and that the General
Counsel did not file a brief. Contrary to our colleague, we conclude
that the record here clearly supports our finding that a status quo ante
remedy would result in substantial disruption to the operations of the
Respondent, and since the reorganization was effected to enhance the
efficiency and effectiveness of the Respondent's operations, it is clear
to us that requiring the Respondent to return to the old method would
constitute a likely interference with effective tax collection.
Moreover, although the Respondent improperly failed to give NTEU
prior notice of the organizational change, there is no evidence of a
request to bargain made by NTEU after it had gained knowledge of such
change. Thus, there is no evidence of a willful refusal by the
Respondent to consider matters of concern to NTEU. Finally, the Judge
found that the impact of the Respondent's action upon bargaining unit
employees was in terms of their future career development and
opportunities. The Authority notes in this regard that a status quo
ante remedy would not put employees in any better position vis-a-vis
such future career development and opportunities and concludes that an
order requiring the Respondent to bargain with NTEU upon request
concerning such impact will provide a meaningful remedy for the
violation found to have been committed and will fully effectuate the
purposes and policies of the Statute. Therefore, the Judge's
recommended Order shall be modified accordingly.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relation Authority's
Rules and Regulations and section 7118 of the Statute, the Authority
hereby orders that the Department of the Treasury, Internal Revenue
Service, Jacksonville District, Jacksonville, Florida, shall:
1. Cease and desist from:
(a) Establishing any specialized work groups of employees without
first notifying the National Treasury Employees Union, the employees'
exclusive representative, and affording it the opportunity to negotiate
concerning the procedures to be observed in establishing such groups and
appropriate arrangements for employees who have been or may be adversely
affected thereby.
(b) In any like or related manner interfering with, restraining or
coercing its 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 Federal Service Labor-Management Relations
Statute:
(a) Upon request of the National Treasury Employees Union, negotiate
concerning the procedures to be utilized in the establishment of Special
Work Group 1106 in West Palm Beach and Special Work Group 1504 in
Jacksonville, and appropriate arrangements for employees who have been
or may be adversely affected thereby.
(b) Post at its facilities in West Palm Beach and Jacksonville 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 an appropriate official and shall be posted 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 insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director of Region IV, 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., August 31, 1984
Barbara J. Mahone, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Opinion of Ronald W. Haughton, Member
I concur with my colleagues that the unilateral establishment of
specialized work groups by Respondent in its West Palm Beach and
Jacksonville offices without notice to the NTEU changed the conditions
of employment of its employees; that such change had a reasonably
foreseeable impact on the employees; and that Respondent's failure to
afford NTEU prior notice of such change and an opportunity to request
negotiations pursuant to section 7106(b)(2) and (3) constituted a
violation of section 7116(a)(1) and (5) of the Statute.
However, I disagree with my colleagues insofar as they fail to adopt
the Judge's recommendation and finding that a status quo ante remedy is
appropriate in this case. Rather, I conclude, in agreement with the
Judge, that a status quo ante remedy is warranted based upon careful
consideration and balancing of the specific factors enumerated by the
Authority in Federal Correctional Institution, 8 FLRA 604 (1982). Thus,
as noted by the Judge, Respondent did not give notice to NTEU concerning
the changes at either office and the changes had significant
consequences on the professional development and promotion potential of
all employees in both offices, whether or not selected for the special
work group. The Judge also found that the record fails to establish
that a status quo ante remedy would create a serious disruption of
Respondent's operations.
In this latter regard, my colleagues apparently rely heavily on their
finding that a status quo ante remedy would result in "substantial
disruption of the Respondent's operations and likely interference with
effective tax collection." This is speculative as there is nothing in
the record to show that the Respondent's previous operations were
ineffective, or less effective than the new procedures, or that a return
to the situation existing immediately prior to the time the violation
occurred would result in less effective tax collection. Further, the
record does not support a finding that a return to the status quo ante
would result in "substantial disruption" of Respondent's operations.
The Respondent simply has not established that a status quo ante remedy
would be disruptive. As noted above, the Judge found, and I see no
reason to reverse him on this point, that the record does not support
the contention that a restoration of conditions in effect prior to the
commission of the violation would result in a substantial disruption of
operations. More than mere inconvenience must be established to support
a finding of "substantial disruption." See, e.g., U.S. Government
Printing Office, supra, wherein the Authority refused to order a status
quo ante remedy for a similar violation where the Respondent had, inter
alia, made substantial changes in plant and equipment.
In the brief in support of its exceptions to the Judge's Decision,
Respondent argues, inter alia, that a status quo ante remedy is not
appropriate because it was not requested by either the General Counsel
or the NTEU at the hearing or in their post-hearing briefs to the Judge.
This argument is not relevant. Nothing in the Statute requires that
the General Counsel or a charging party either plead in a complaint, or
request by means of oral argument or in a brief, any specific remedy for
the violations of the Statute alleged to have been committed. Rather,
sections 7105(g)(3) and 7118(a)(7) grant to the Authority broad
discretion in fashioning appropriate remedies for violations of the
Statute, including unfair labor practices. In certain cases of refusal
to bargain under the Statute, status quo ante remedies have been ordered
unless circumstances existed rendering such a remedy inappropriate. It
is incumbent upon a Respondent in such cases to establish those
circumstances in the event a violation may be found by the Authority.
In balancing the impact of the Respondent's unilateral change of
working conditions, and the manner in which it was effectuated, against
a record which does not establish that a return to the status quo ante
would cause substantial disruption of the Respondent's operations
pending negotiations with NTEU, I agree with the decision of the Judge
that a return to the procedure in effect at the time the violation was
committed is the appropriate remedy in this case. Accordingly, I
respectfully dissent from the portion of the Decision by the majority
which reverses the Judge's recommended Order requiring a status quo ante
remedy.
Issued, Washington, D.C., August 31, 1984
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 establish any specialized work groups of employees
without first notifying the National Treasury Employees Union, our
employees' exclusive representative, and affording it the opportunity to
negotiate concerning the procedures to be observed in establishing such
groups and appropriate arrangements for employees who have been or may
be adversely affected thereby.
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 of the National Treasury Employees Union,
negotiate concerning the procedures to be utilized in the establishment
of Special Work Group 1106 in West Palm Beach and Special Work Group
1504 in Jacksonville, and appropriate arrangements for employees who
have been or may be adversely affected thereby.
(Agency or Activity)
By: (Signature)
Dated: . . .
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced or covered by any other
material.
If any employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate directly
with the Regional Director, Region IV, Federal Labor Relations
Authority, whose address is: 1776 Peachtree Street, N.W., Suite 501,
North Wing, Atlanta, GA 30309, and whose telephone number is: (404)
881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Forrest W. Hunter, Esq.
For the Respondent
Joyce F. Glucksman, Esq.
For the Charging Party
Mathilde L. Genovese, Esq.
For the General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
et seq (hereinafter referred to as the Statute) and the Rules and
Regulations of the Federal Labor Relations Authority 5 C.F.R.Chapter
XIV, Sec. 2410 et seq.
Pursuant to a charge filed on April 29, 1980, and amended on July 1,
1980, by the National Treasury Employees Union (hereinafter called the
Union and NTEU) against Department of the Treasury, Internal Revenue
Service, Jacksonville District, Jacksonville, Florida (hereinafter
called Respondent and IRS) the General Counsel of the Federal Labor
Relations Authority (hereinafter called FLRA) by the Regional Director
for Region 4 issued a Complaint and Notice of Hearing on July 11, 1980
alleging that Respondent violated Sections 7116(a)(1) and (5) of the
Statute by unilaterally establishing special work groups in its West
Palm Beach, Florida and Jacksonville, Florida locations.
A hearing in this matter was conducted before the undersigned in
Jacksonville, Florida at which time the General Counsel of the FLRA,
Respondent and Charging Party were represented and afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence, and to argue orally. Briefs were filed by all
parties on December 12, 1980 and have been fully considered.
Upon the entire record in this matter, /3/ my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
The IRS and NTEU are parties to a collective bargaining agreement
which has been in effect at all times material herein. This collective
bargaining agreement is a Multi-District Agreement which includes IRS'
Jacksonville, Florida District. /4/ The Revenue Agents that are the
subject of this case are in the collective bargaining unit covered by
the Multi-District Agreement.
The Examination Division of the IRS performs audit work and is one of
a number of Respondent's divisions. The Examination Division is divided
into several branches which are subdivided into groups. Such
examination groups may be either field or office audit groups. One of
the types of matters audited are tax shelters. A tax shelter case is an
abusive use of a tax shelter usually involving a sham transaction which
is used to improperly take advantage of a tax deduction. Such tax
shelters are found in regular partnership and individual tax returns and
have existed in some form for many years. Abusive tax shelters started
showing up in substantial numbers in 1976 and have continued to
increase. Cases involving tax shelters are specifically so designated.
The Jacksonville and West Palm Beach offices of the IRS employ
Revenue Agents in the Examination Division. The examination branches
are composed of groups and the subject case involves Group 1106 located
in West Palm Beach and Group 1504 located in Jacksonville.
West Palm Beach
In October 1979 tax shelter cases being examined by personnel in
Examination Groups 1106 and 1107 in West Palm Beach were consolidated in
Group 1106. All new tax shelter cases were to be assigned to Group
1106. Group 1106 Manager Nicolas Weidner informed several Revenue
Agents that Group 1106 would be a tax shelter group. Six Revenue Agency
/5/ were initially selected to process tax shelter cases; three were
already members of Group 1106. /4/ The other three selected Agents were
members of Group 1107 /7/ and were transferred in October 1979 to Group
1106. At the same time three Agents who were members of Group 1106, but
were not selected as tax shelter agents, were transferred to Group 1107.
/8/ Further regular audit cases, without shelter issues, were to be
transferred out of Group 1106 unless substantially completed. In late
November or early December 1979 another member of Group 1106 /9/ was
informed by Group Manager Weidner that he would become a tax shelter
specialist.
On March 26, 1980 Revenue Agent O'Bannon attended an NTEU meeting in
Fort Lauderdale, Florida. During a discussion of litigation involving
the establishment of two tax shelter groups, Revenue Agent O'Bannon
advised NTEU attorney Tim Welsh of the establishment of the Tax Shelter
Group in West Palm Beach.
IRS never gave NTEU any notice concerning the establishment of the
Tax Shelter Group in West Palm Beach.
Jacksonville
On January 22, 1980 Group Manager Frank Shreve telephonically advised
NTEU Steward Jack Knee /10/ that there was going to be a group meeting
to talk about the forming of a new tax shelter group effective February
1, 1980. Union Steward Knee was unable to attend the group meeting
because he was working on a case. Two group managers, Shreve and Joe
Hyatt, informed those Revenue Agents that were in the office that Group
1504 would specialize tax shelter and narcotics cases. It was decided
by IRS that all new tax shelter cases coming into the Jacksonville Post
of Duty would be assigned to Group 1504.
On February 7, 1980, Examination Division Chief William Jacobs issued
a memorandum which reorganized the groups in the Jacksonville Office.
Effective February 1, 1980 all tax shelter and narcotics work was to be
performed by Group 1504. Further all "must work" /11/ would be
performed by Groups 1502 and 1505 and Group 1504 would no longer perform
"must work".
On March 5 and 6, 1980 a meeting of Group 1504 was held wherein tax
shelter case handling procedures were discussed by Group 1504 manager
Shreve, Branch V Chief Ronald Pendleton and Tax Shelter coordinator Shep
Nazworth.
In both West Palm Beach and Jacksonville, prior to the above
described changes, tax shelter cases were assigned and distributed to
all of the groups, as were the full variety of "must work" and the other
forms of examination work. After the reorganization almost all existing
tax shelter cases and all new tax shelter cases were assigned to Group
1106 in West Palm Beach and Group 1504 in Jacksonville. Accordingly,
after the designation of the two groups as Tax Shelter Groups, although
they continued to handle all types of cases, the number and percentage
of tax shelter cases pending before each group increased substantially.
The Multi-District Collective Bargaining Agreement requires IRS to
notify the Chairman of the Joint Council, Henry Coleas, if changes in
personnel policies, practices and/or working conditions are proposed.
Chairman Coleas is the only NTEU representative authorized to receive
notice on behalf of NTEU. At no time did IRS notify Chairman Coleas or
any other NTEU representative regarding the changes with respect to the
establishment of tax shelter groups in West Palm Beach and Jacksonville.
Discussion and Conclusions
Section 7118(a)(4)(A) of the Statute provides:
" . . . no complaint shall be issued based on any alleged
unfair labor practice which occurred more than 6 months before the
filing of the charge . . . "
Section 7118(a)(4)(B) provides:
" . . . if the General Counsel determines that the person
filing any charge was prevented from filing the charge during the
six month period . . . by reason of-- (i) any failure of the
Agency or labor organization against which the charge is made to
perform a duty owed to the person, . . . the General Counsel may
issue a complaint based on the charge if the charge was filed
during the six month period beginning on the day of the discovery
. . . of the alleged unfair labor practice."
With respect to the West Palm Beach office, the action which is
alleged to constitute an unfair labor practice occurred during October
1979, apparently more than six months prior to the filing of the charge
in the subject case. However it is uncontroverted that IRS did not give
NTEU notice of the change and NTEU did not learn of the establishment of
the tax shelter group in West Palm Beach until March 26, 1980. The
establishment of the Tax Shelter Group in West Palm Beach, without
notice to the Union, is the gravaman of one of the allegations of unfair
labor practice. The failure of IRS to give this notice, if it
constitutes an unfair labor practice, would fall within the meaning of
Section 7118(a)(4)(B), NTEU having been "prevented from filing the
charge . . . by reason-- (i) any failure of the agency to perform a duty
owed . . . " In compliance with the further requirements of Section
7118(a)(4)(B) the charge was filed within six months of " . . . the
discovery . . . of the unfair labor practice . . . " Accordingly, it is
concluded that the charge in the subject case was timely filed.
Under the provisions of the Statute an employer may not change
personnel policies, practices or working conditions without providing
the collective bargaining representative with sufficient advance notice
of the proposed changes and allowing the collective bargaining
representative an opportunity to negotiate concerning the proposed
changes and/or the impact and manner of implementation of such changes.
Department of Treasury, Internal Revenue Service, Jacksonville District,
3 FLRA No. 103 (1980).
IRS urges that there was no change or, even if there was a change, it
was not a significant one because there was no material impact on
working conditions. IRS urges that there was no change because Revenue
Agents in the Tax Shelter Group handled a variety of types of returns
including tax shelter cases after the establishment of the specialized
groups; the same as they had handled before the change. Further IRS
argues that a tax return examination is a tax return examination,
regardless of the type of return. /12/ Since the number of tax shelter
cases has been on the increase and, because they are all being assigned
to the two specialized groups, the number of tax shelter cases handled
by each group will continue to increase. Accordingly, within the
specialized groups, the percentage of Revenue Agents' cases that are tax
shelter cases will increase as the number of tax shelter cases increase.
Thus within the specialized groups the Revenue Agents can reasonably
anticipate that an increasing percentage of their cases will be tax
shelter cases and they will be handling less and less of the other
varieties of cases. Similarly Revenue Agents not in the specialized tax
shelter groups would reasonably anticipate not having the opportunity to
handle many tax shelter cases.
Thus the IRS contentions that the establishment of the specialized
tax shelter groups in West Palm Beach and Jacksonville did not
constitute changes, or if they were changes they were not substantial or
significant, must be rejected.
NTEU could reasonably anticipate that, with the establishment of the
two specialized groups and the channelling of all tax shelter cases to
the specialized groups, Revenue Agents' professional experience,
training, and promotion potential would be substantially affected.
Further, this would be equally applicable both to Revenue Agents who are
and to those who are not members of the specialty groups. Such an
impact on employees is substantial. Accordingly, before the
establishment of such specialty groups NTEU should have had the
opportunity of negotiating concerning the manner of implementation and
impact of the decision to set up such groups. NTEU was entitled, under
the Statute, if collective bargaining is to have any real and
substantial meaning, to ascertain the extent the changes could
reasonably be anticipated to affect the professional and promotional
development of Revenue Agents and to bargain about such effects and how
Revenue Agents' opportunities for professional and promotional
development could be protected. The obligation to bargain in such
situations was recognized under the Executive Order 11491; cf
Department of Health, Education and Welfare, Social Security
Administration, BRSI, Northeastern Program Service Center, 9 A/SLMR 187,
9 A/SLMR 893 (1978); and Department of Treasury, Internal Revenue
Service, Manhattan District, 7 A/SLMR 418 (1977), ALJ Decision at page
7; and it was recognized by the FLRA, Department of Treasury, Internal
Revenue Service, Jacksonville District, 3 FLRA No. 103 (1980),
hereinafter called the IRS Case. In the IRS case the FLRA recognized
that when, at the time a change is made, there is a reasonable
likelihood of an impact that would result from such change, /13/ the
parties must negotiate and exchange information so the actual parameters
of such impact can be explored and so the parties can bargain about
possible ways to minimize such adverse impact. The FLRA recognized that
the purpose of the statute was to encourage this form of communication.
See Page 8 of the ALJ's Decision in the IRA Case, supra.
In the instant case IRS, by establishing the tax shelter groups, made
changes with respect to the West Palm Beach and Jacksonville Offices
which could be reasonably anticipated to have a not unsubstantial impact
/14/ on personnel policies, practices and working conditions. By making
such changes without giving NTEU prior notification thereof and an
opportunity to bargain with respect to impact and implementation I
conclude that IRS violated Sections 7116(a)(1) and (5) of the Statute.
Further, I find that a status quo ante remedy is the only meaningful and
effective way to remedy the violation found herein. In light of this
and because record fails to establish that a status quo ante remedy
would create a serious disruption of IRS' operation, I conclude that a
status quo ante remedy is appropriate, San Antonio Air Logistics Center
(AFLC), Kelly Air Force Base, Texas, 5 FLRA No. 22 (1981).
Having found and concluded that Respondent violated Sections
7116(a)(1) and (5) of the Statute, I recommend the Federal Labor
Relations Authority issue the following:
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 Department of Treasury, Internal
Revenue Service, Jacksonville District, Jacksonville, Fla., shall:
1. Cease and desist from:
(a) Establishing any specialized tax shelter groups without
first notifying National Treasury Employees Union and affording it
the opportunity to consult and negotiate, to the extent consonant
with law and regulations, concerning the impact and implementation
of such change.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the rights assured by
the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Disestablish Group 1106 in West Palm Beach and Group 1504
in Jacksonville as tax shelter specialty groups.
(b) Notify the National Treasury Employees Union of any
intention to establish tax specialty groups, and, upon request,
consult and negotiate with such representative, to the extent
consonant with law and regulations, concerning the impact and
implementation of such action.
(c) Post at its facilities 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 an appropriate official and they shall be posted for 60
consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. The
Agency shall take reasonable steps to insure that such notices are
not altered, defaced, or covered by any other material.
(d) Notify the Federal Labor Relations Authority in writing,
within 30 days from the date of this Order, what steps have been
taken to comply therewith.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: April 15, 1981
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT establish any specialized tax shelter groups without
first notifying National Treasury Employees Union and affording it the
opportunity to consult and negotiate, to the extent consonant with law
and regulations, concerning the impact and implementation of 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
Federal Service Labor-Management Reglations Statute.
WE WILL disestablish Group 1106 in West Palm Beach and Group 1504 in
Jacksonville as tax shelter specialty groups.
WE WILL notify National Treasury Employees Union of any intended
establishment of tax shelter groups, and, upon request, consult and
negotiate with such representative, to the extent consonant with law and
regulations, concerning the impact and implementation of such action.
(Agency or Activity)
By: (Signature)
Dated: . . .
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If any employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate directly
with the Regional Director of the Federal Labor Relations Authority,
whose address is: 1776 Peachtree Street, N.W., Suite 501, North Wing,
Atlanta, GA 30309.
--------------- FOOTNOTES$ ---------------
/1/ Section 7106(a) of the Statute provides in pertinent part:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(1) to determine the . . . organization . . . of the agency(.)
/2/ Section 7106(b) provides in pertinent part:
Sec. 7106. Management rights
. . . .
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
. . . .
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
/3/ Included in the record and made a part as Joint Exhibit No. 3 is
a Stipulation and attached Appendices A thru C submitted by all parties
after the close of the hearing.
/4/ The West Palm and Jacksonville, Florida offices of IRS fall
within the Jacksonville District Office of IRS.
/5/ Revenue Agents Conrad Burgess, Steve Massaro, Dale Weddle, Dan
Gerometta, John Woodcock, and Ray Ross.
/6/ Revenue Agents Burgess, Massaro, and Weddle.
/7/ Revenue Agents Gerometta, Woodcock and Ross.
/8/ Revenue Agents Richard Shackford, Marvin McCann and Leo Solar.
/9/ Revenue Agent Frank Briscoe.
/10/ Revenue Agent Knee was Union Steward for the Examination
Division and Employee Plans located in Jacksonville and Gainesville.
/11/ "Must work" consists of claims, net operating loss carryloads,
transfer in cases, referrals and other priority work.
/12/ I need not reach the question of whether, as the record
establishes, tax shelter cases are on the whole easier and more
routinized than the other types of cases.
/13/ In this regard see page 16 of Judge Dowd's Decision in U.S.
Government Printing Office, Case No. 3-CA-549, OALJ 81-083 (1981).
/14/ Cf. Office of Program Operations, Field Operations, Social
Security Administration, 5 FLRA No. 45 (1981).