Internal Revenue Service and Brooklyn District Office, IRS (Respondent) and National Treasury Employees Union and NTEU Chapter No. 53 (Complainant) 

 



[ v01 p797 ]
01:0797(89)CA
The decision of the Authority follows:


 1 FLRA No. 89
 
 INTERNAL REVENUE SERVICE AND
 BROOKLYN DISTRICT OFFICE, IRS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER NO. 53
 Complainant
 
                                            Assistant Secretary
                                            Case No. 30-08474(CA)
 
                            DECISION AND ORDER
 
    ON MARCH 26, 1979, ADMINISTRATIVE LAW JUDGE ROBERT J. FELDMAN ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
 PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
 BE DISMISSED IN ITS ENTIRETY.  NO EXCEPTIONS WERE FILED 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 RELATIONS 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 THIS
 CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.  /1/
 
                                 ORDER /2/
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 30-08474(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JULY 31, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    KENNETH A. DAVIS, ESQUIRE
 
    ASSISTANT COUNSEL
 
    NATIONAL TREASURY EMPLOYEES
 
    UNION
 
    1730 K STREET, N.W., SUITE 1101
 
    WASHINGTON, D.C.  20006
 
                            FOR THE COMPLAINANT
 
    ROBERT F. HERMANN, ESQUIRE
 
    ASSISTANT REGIONAL COUNSEL
 
    INTERNAL REVENUE SERVICE
 
    NORTH-ATLANTIC REGION
 
    26 FEDERAL PLAZA
 
    NEW YORK, NEW YORK 10007
 
                            FOR THE RESPONDENT
 
    BEFORE:  ROBERT J. FELDMAN
 
                         ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
    THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING
 OF RECORD WAS HELD PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED,
 (HEREINAFTER REFERRED TO AS "THE ORDER") AND 29 C.F.R., PART 203.  THE
 DECISION AND ORDER BELOW ARE ISSUED FOR THE FEDERAL LABOR RELATIONS
 AUTHORITY IN ACCORDANCE WITH THE TRANSITION RULES AND REGULATIONS
 PUBLISHED IN THE FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979, PP.
 5-8.
 
                           STATEMENT OF THE CASE
 
    THE COMPLAINT ALLEGES THAT RESPONDENT VIOLATED SECTIONS 19(A)(1) AND
 (6) OF THE ORDER BY REFUSING TO FURNISH CERTAIN INFORMATION REQUESTED OF
 IT BY COMPLAINANT.  THE VIOLATION IS ALLEGED TO HAVE OCCURRED ON
 FEBRUARY 2, 1978, WHEN RESPONDENT'S DISTRICT DIRECTOR, IN DECIDING A
 FOURTH LEVEL GRIEVANCE ADVERSELY TO THE GRIEVANT, MS. ROSE APPLEBAUM,
 REJECTED COMPLAINANT'S REQUEST FOR SANITIZED VERSIONS OF THE WORK IN
 PROCESS REVIEWS OF HER PEERS.
 
                             FINDINGS OF FACT
 
    ON JULY 5, 1977, MS. APPLEBAUM, ONE OF FOUR TAX AUDITORS EMPLOYED IN
 THE FLUSHING OFFICE OF RESPONDENT'S BROOKLYN DISTRICT, WAS TRANSFERRED
 INVOLUNTARILY TO THE JACKSON HEIGHTS OFFICE.  ON JULY 13, 1977, SHE
 FILED A GRIEVANCE, ALLEGING SUCH TRANSFER TO BE IN VIOLATION OF THE
 MULTI-DISTRICT AGREEMENT BETWEEN THE I.R.S. AND THE N.T.E.U., PURSUANT
 TO WHICH COMPLAINANT HAD THE AUTHORITY AND THE DUTY TO PARTICIPATE IN
 THE GRIEVANCE PROCEEDING AND TO REPRESENT HER INTERESTS.  UNDER DATE OF
 JULY 18, 1977, MS. APPLEBAUM'S IMMEDIATE SUPERVISOR PREPARED A WORK IN
 PROGRESS REVIEW TO SUPPORT HIS CONTENTION THAT SHE HAD BEEN TRANSFERRED
 IN ORDER TO PROVIDE CLOSER SUPERVISION OF HER WORK, SINCE IT WAS CLAIMED
 THAT SOME AREAS OF HER CASE MANAGEMENT WERE DEFICIENT.
 
    AT THE THIRD AND FOURTH LEVELS OF THE GRIEVANCE PROCEDURE,
 COMPLAINANT CONTENDED THAT MS. APPLEBAUM, WHO HAD SOME THIRTY-ONE YEARS
 OF FEDERAL SERVICE, INCLUDING MORE THAN TWENTY YEARS WITH I.R.S., HAD NO
 GREATER NEED FOR CLOSE SUPERVISION THAN DID THE OTHER THREE AUDITORS IN
 THE FLUSHING OFFICE, AND THAT SHE WAS TRANSFERRED TO JACKSON HEIGHTS FOR
 DISCIPLINARY OR OTHER REASONS CONTRARY TO THE PROVISIONS OF THE
 MULTI-DISTRICT AGREEMENT.  IN AN EFFORT TO ASCERTAIN WHETHER THE
 PURPORTED NEED FOR CLOSE SUPERVISION WAS THE REAL REASON FOR THE
 TRANSFER, COMPLAINANT REQUESTED THAT IT BE SUPPLIED WITH SANITIZED
 COPIES OF THE WORK IN PROGRESS REPORTS OF THE GRIEVANT'S PEERS, TO WIT,
 THE THREE OTHER TAX AUDITORS IN THE FLUSHING OFFICE.
 
    THE REQUEST WAS FLATLY REFUSED.  THE DISTRICT DIRECTOR'S MEMORANDUM
 OF FEBRUARY 2, 1977, STATED THAT HE DID NOT SEE THE RELEVANCE OF SUCH
 INFORMATION TO THE GRIEVANCE, THAT PURE STATISTICS DID NOT PROVIDE ANY
 MEANINGFUL WAY TO GAUGE WHAT IS OR IS NOT ACCEPTABLE, AND THAT HE SAW NO
 NEED FOR SUCH INFORMATION AND NO OBLIGATION TO PROVIDE IT.  RESPONDENT
 REAFFIRMED ITS POSITION THEREAFTER UPON THE SAME GROUNDS, WITH
 ADDITIONAL CONTENTIONS AS TO THE SUFFICIENCY OF THE COMPLAINT AND AS TO
 INVASIONS OF PRIVACY.  AT NO TIME DID ANY OF RESPONDENT'S
 REPRESENTATIVES CLAIM, OR EVEN SUGGEST, THAT THE DATA REQUESTED DID NOT
 EXIST.
 
    SOMETIME PRIOR TO THE HEARING, MS. APPLEBAUM WAS TRANSFERRED BACK TO
 THE FLUSHING OFFICE.
 
    IN THE COURSE OF THE HEARING (AND ONLY AFTER COMPLAINANT HAD RESTED
 ITS CASE), RESPONDENT FINALLY DISCLOSED THAT NO WORK IN PROGRESS REVIEWS
 HAD BEEN PREPARED FOR ANY OF THE OTHER THREE TAX AUDITORS IN THE
 FLUSHING OFFICE, THAT THE DOCUMENTS REQUESTED WERE THUS NOT IN
 EXISTENCE, AND THAT COMPLIANCE WITH COMPLAINANT'S REQUEST WAS THEREFORE
 IMPOSSIBLE.
 
                            CONCLUSIONS OF LAW
 
    THERE CAN BE LITTLE DOUBT THAT HAD WORK IN PROGRESS REVIEWS BEEN
 PREPARED FOR THE OTHER THREE TAX AUDITORS, AND HAD THEIR REVIEWS SHOWN
 THAT THEIR PERFORMANCE WAS NO BETTER THAN THE GRIEVANT'S, IT WOULD HAVE
 BEEN REASONABLE TO INFER THAT THE GRIEVANT DID NOT NEED ANY CLOSER
 SUPERVISION THAN DID THE OTHER, AND THAT SHE WAS TRANSFERRED FOR SOME
 UNSTATED REASONS WHICH MIGHT HAVE BEEN CONTRARY TO THE PROVISIONS OF THE
 MULTI-DISTRICT AGREEMENT.  CONSEQUENTLY, THE INFORMATION REQUESTED
 CLEARLY APPEARED TO BE RELEVANT AND NECESSARY TO THE EFFECTIVE CONDUCT
 OF THE GRIEVANCE.  RESPONDENT'S ADAMANT REFUSAL TO COMPLY ON LEGAL
 GROUNDS IS THUS OF DUBIOUS VALIDITY.  SEE INTERNAL REVENUE SERVICE,
 A/SLMR 1001(1978);  INTERNAL REVENUE SERVICE, A/SLMR 975(1978).
 
    NEVERTHELESS, AN UNFAIR LABOR PRACTICE CANNOT BE FOUNDED UPON DENIAL
 OF ACCESS TO NON-EXISTENT RECORDS.  BOTH THE CHARGE AND THE COMPLAINT
 HEREIN ALLEGE REFUSAL TO PRODUCE SPECIFIC DOCUMENTS REQUESTED FOR USE IN
 GRIEVANCE PROCEEDINGS IN VIOLATION OF SECTIONS 19(A)(1) AND (6).  SINCE
 COMPLAINANT HAS FAILED TO ESTABLISH THAT SUCH DOCUMENTS ARE, OR EVER
 WERE, IN THE POSSESSION OR UNDER THE CONTROL OF RESPONDENT, IT HAS NOT
 BEEN SHOWN THAT THEIR NON-PRODUCTION VIOLATED THE PROVISIONS OF THE
 ORDER RELIED UPON.  HENCE I AM CONSTRAINED TO DISMISS THE COMPLAINT.
 
    THE TACTICS RESORTED TO BY RESPONDENT IN REJECTING COMPLAINANT'S
 REQUEST OUT OF HAND AND FAILING TO REVEAL THE NON-EXISTENCE OF THE
 DOCUMENTS IN QUESTION INDICATE A FUNDAMENTAL RIGIDITY OF APPROACH TO
 LABOR-MANAGEMENT RELATIONS THAT RUNS CONTRARY TO THE SPIRIT, IF NOT THE
 LETTER OF THE ORDER.  WHETHER SUCH CONDUCT MAY BE DEEMED TO CONSTITUTE
 AN ACTUAL VIOLATION IS NOT BEFORE US, SINCE THE COMPLAINT IS CONFINED TO
 THE PARTICULARIZED REFUSAL TO SUPPLY CERTAIN RECORDS AND THE ALLEGATIONS
 ARE INSUFFICIENT TO ENCOMPASS MORE GENERALIZED PRACTICES.  IT IS NOT
 INAPPROPRIATE, HOWEVER, TO POINT OUT THAT EFFORTS OUGHT TO BE DIRECTED
 TO RESOLVING CONTROVERSIES, NOT TO EXACERBATING THEM.  AS THE FEDERAL
 LABOR RELATIONS COUNCIL HAS OBSERVED:
 
    "COOPERATIVE LABOR RELATIONS ARE NOT ESTABLISHED OR MAINTAINED WHEN A
 LABOR ORGANIZATION OR
 
    THE MANAGEMENT OF AN AGENCY ESTABLISHES AS ITS FIRST PRIORITY .  . .
 THE VINDICATION OF ITS
 
    POSITION IN AN UNFAIR LABOR PRACTICE PROCEEDING."
 
    VANDENBERG AIR FORCE BASE, 4392D AEROSPACE SUPPORT GROUP, VANDENBERG
 AIR FORCE BASE,
 
    CALIFORNIA, FLRC 74A-77, REPORT NO. 79, AT P. 7.
 
    THESE PROCEEDINGS SHOULD NOT BE CONVERTED INTO AN ACADEMIC EXERCISE
 IN FUTILITY OR A DEMONSTRATION OF LEGALISTIC MUSCLE AT TAXPAYERS'
 EXPENSE.  I AM CONFIDENT THAT UNDER THE NEW FEDERAL LABOR RELATIONS
 AUTHORITY, ADEQUATE INVESTIGATION AND THE EXERCISE OF SOUND JUDGMENT BY
 ITS GENERAL COUNSEL WILL PREVENT SIMILAR OCCURRENCES.
 
                                   ORDER
 
    IN VIEW OF THE FOREGOING, IT IS ORDERED THAT THE COMPLAINT HEREIN BE,
 AND THE SAME HEREBY IS, DISMISSED I