Department of Treasury, Internal Revenue Service, Jacksonville District (Respondent) and National Treasury Employees Union (Charging Party) 



[ v03 p631 ]
03:0631(103)CA
The decision of the Authority follows:


 3 FLRA No. 103
 
 DEPARTMENT OF TREASURY,
 INTERNAL REVENUE SERVICE,
 JACKSONVILLE DISTRICT
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 4-CA-50(1)
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER FINDING THAT RESPONDENT HAD ENGAGED
 IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND RECOMMENDING
 THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS
 AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 DECISION AND ORDER. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    THEREFORE, PURSUANT TO SEC. 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (45 F.R. 3511, JANUARY 17, 1980) AND SEC. 7118 OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135),
 THE AUTHORITY HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE
 MADE AT THE HEARING AND FINDS THAT NO PREJUDICAL ERROR WAS COMMITTED.
 THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE
 ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE RESPONDENT'S
 EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
 FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
 
                                   ORDER
 
    PURSUANT TO SEC. 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY'S
 RULES AND REGULATIONS AND SEC. 7118 OF THE STATUTE, THE AUTHORITY HEREBY
 ORDERS THAT THE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
 JACKSONVILLE DISTRICT SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    INSTITUTING CHANGES IN THE TIME SCHEDULES FOR THE PROCESSING OF CASES
 BY UNIT EMPLOYEES WITHOUT NOTIFING THE NATIONAL TREASURY EMPLOYEES
 UNION, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, AND AFFORDING IT
 THE OPPORTUNITY TO BARGAIN CONCERNING THE IMPLEMENTATION OF SUCH CHANGES
 AND THEIR IMPACT ON ADVERSELY AFFECTED EMPLOYEES.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) UPON REQUEST, MEET AND NEGOTIATE WITH THE NATIONAL TREASURY
 EMPLOYEES UNION CONCERNING THE PROCEDURES TO BE UTILIZED IN IMPLEMENTING
 ANY CHANGES IN TIME SCHEDULES FOR THE PROCESSING OF CASES AND THEIR
 IMPACT ON ADVERSELY AFFECTED EMPLOYEES.
 
    (B) POST, AT ITS MIAMI, FLORIDA FACILITY, 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 DISTRICT DIRECTOR FOR THE JACKSONVILLE, FLORIDA DISTRICT, AND SHALL
 BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
 CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND OTHER PLACES WHERE
 NOTICES ARE CUSTOMARILY POSTED. THE DISTRICT DIRECTOR SHALL TAKE
 REASONABLE STEPS TO INSURE THAT SUCH 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.
 
    ISSUED, WASHINGTON, D.C., JULY 17, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES 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 CHANGES IN TIME SCHEDULES FOR THE PROCESSING OF
 CASES FOR UNIT EMPLOYEES WITHOUT FIRST NOTIFING THE NATIONAL TREASURY
 EMPLOYEES UNION, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF OUR
 EMPLOYEES, AND AFFORDING IT THE OPPORTUNITY TO BARGAIN CONCERNING THE
 IMPLEMENTATION OF SUCH CHANGES AND THEIR IMPACT ON ADVERSELY AFFECTED
 EMPLOYEES.
 
    WE WILL, UPON REQUEST, MEET AND NEGOTIATE WITH THE NATIONAL TREASURY
 EMPLOYEES UNION CONCERNING THE PROCEDURES TO BE UTILIZED IN IMPLEMENTING
 ANY CHANGES IN TIME SCHEDULES FOR THE PROCESSING OF CASES AND THEIR
 IMPACT ON ADVERSELY AFFECTED EMPLOYEES.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . . BY:  (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 4, WHOSE
 ADDRESS IS:  SUITE 501, NORTH WING, 1776 PEACHTREE STREET, NW., ATLANTA,
 GEORGIA 30309.
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES BELOW:
 
    MS. MATHILDE L. GENOVESE, ESQUIRE
 
    OFFICE OF THE GENERAL COUNSEL
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    REGION IV, SUITE 501, NORTH WING
 
    1776 PEACHTREE STREET, N.W.
 
    ATLANTA, GEORGIA 30309
 
    FORREST W. HUNTER, ESQUIRE
 
    OFFICE OF THE CHIEF COUNSEL
 
    INTERNAL REVENUE SERVICE
 
    POST OFFICE BOX 1070
 
    ROOM 824, 275 PEACHTREE STREET
 
    ATLANTA, GEORGIA 30301
 
    TIMOTHY C. WELSH, ESQUIRE
 
    ASSISTANT COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    SUITE 430, 2801 BUFORD HIGHWAY
 
    ATLANTA, GEORGIA 30329
 
    MR. ROBERT TOBIAS
 
    GENERAL COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, N.W.
 
    WASHINGTON, D.C. 20006
 
    MR. SEYMOUR X. ALSHER
 
    REGIONAL DIRECTOR
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    1776 PEACHTREE STREET, N.W.
 
    SUITE 501, NORTH WING
 
    ATLANTA, GEORGIA 30309
 
    MS. MATHILDE L. GENOVESE, ESQUIRE
 
    OFFICE OF THE GENERAL COUNSEL
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    REGION IV, SUITE 501, NORTH WING
 
    1776 PEACHTREE STREET, N.W.
 
    ATLANTA, GEORGIA 30309
 
                          FOR THE GENERAL COUNSEL
 
    FORREST W. HUNTER, ESQUIRE
 
    OFFICE OF CHIEF COUNSEL
 
    INTERNAL REVENUE SERVICE
 
    POST OFFICE BOX 1070
 
    ROOM 824, 275 PEACHTREE STREET
 
    ATLANTA, GEORGIA 30301
 
                            FOR THE RESPONDENT
 
    TIMOTHY C. WELSH, ESQUIRE
 
    ASSISTANT COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    SUITE 430, 2801 BUFORD HIGHWAY
 
    ATLANTA, GEORGIA 30329
 
                          FOR THE CHARGING PARTY
 
    BEFORE:  BURTON S. STERNBURG
 
                         ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           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.
 SECTION 7101, ET SEQ., AND THE INTERIM RULES AND REGULATIONS ISSUED
 THEREUNDER, FED. REG., VOL. 44, NO. 147, JULY 30, 1979, 5 C.F.R. CHAPTER
 XIV, PART 2411, ET SEQ.
 
    PURSUANT TO AN AMENDED CHARGE FIRST FILED ON APRIL 2, 1979, BY THE
 NATIONAL TREASURY EMPLOYEES UNION (HEREINAFTER CALLED THE UNION OR
 CHARGING PARTY), A COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON OCTOBER
 11, 1979.  THE COMPLAINT ALLEGES THAT THE DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT (HEREINAFTER CALLED THE
 RESPONDENT OR IRS) VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (HEREINAFTER CALLED THE
 STATUTE) BY VIRTUE OF ITS ACTIONS IN UNILATERALLY ADOPTING NEW TIME
 SCHEDULES FOR THE PROCESSING OF CASES WITHOUT GIVING PRIOR NOTICE TO THE
 UNION AND AFFORDING THE UNION AN OPPORTUNITY TO CONSULT OR NEGOTIATE
 CONCERNING THE IMPACT AND/OR IMPLEMENTATION OF THE CHANGE.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON JANUARY 7 AND 8, 1979,
 IN CORAL GABLES, FLORIDA. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO
 BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE
 EVIDENCE BEARING ON THE ISSUES HEREIN. ALL PARTIES SUBMITTED BRIEFS
 WHICH HAVE BEEN DULY CONSIDERED.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND
 CONCLUSIONS.
 
                             FINDINGS OF FACT
 
    IRS AND THE UNION, WHICH IS THE EXCLUSIVE BARGAINING REPRESENTATIVE
 OF THE EMPLOYEES INVOLVED HEREIN, ARE PARTIES TO A COLLECTIVE BARGAINING
 AGREEMENT COVERING THE PERIOD JANUARY 31, 1977 THROUGH JANUARY 31, 1981.
  THE CONTRACT IS A MULTI-DISTRICT AGREEMENT WHICH INCLUDES RESPONDENT'S
 JACKSONVILLE, FLORIDA DISTRICT.  THE MIAMI, FLORIDA OFFICE OF THE
 RESPONDENT FALLS WITHIN THE JACKSONVILLE DISTRICT.  THE UNION HAS FIVE
 SEPARATE CHAPTERS IN THE STATE OF FLORIDA WHICH COMPOSE THE "JOINT
 COUNCIL". HENRY COLEAS IS THE CHAIRMAN OF THE JOINT COUNCIL AND IN SUCH
 CAPACITY IS THE CHIEF SPOKESMAN FOR ALL THE EMPLOYEES REPRESENTED BY THE
 UNION IN IRS'S JACKSONVILLE DISTRICT.  ACCORDING TO THE UNCONTESTED
 TESTIMONY OF MR. COLEAS, HE, AS CHAIRMAN OF THE JOINT COUNCIL, IS THE
 ONLY UNION REPRESENTATIVE AUTHORIZED TO RECEIVE NOTICE OF ANY PROPOSED
 CHANGES IN WORKING CONDITIONS.  MR. COLEAS FURTHER TESTIFIED, WITHOUT
 CONTRADICTION, THAT HE DID NOT RECEIVE ANY NOTICE FROM THE RESPONDENT
 CONCERNING THE ALLEGED CHANGES IN WORKING CONDITIONS WHICH OCCURRED IN
 BRANCH VI OF RESPONDENT'S MIAMI DISTRICT OFFICE.
 
    THE MIAMI OFFICE OF THE IRS IS DIVIDED INTO A NUMBER OF BRANCHES,
 AMONG WHICH IS EXAMINATION BRANCH VI WHEREIN THE ALLEGED UNILATERAL
 CHANGES UNDERLYING THE INSTANT COMPLAINT OCCURRED.  EXAMINATION BRANCH
 VI IS FURTHER DIVIDED INTO EIGHT GROUPS, EACH OF WHICH IS UNDER THE
 SUPERVISION OF A GROUP MANAGER, WHO IN TURN IS ANSWERABLE TO THE CHIEF
 OF EXAMINATION BRANCH VI.  /1/ AT THE TIME OF THE EVENTS HEREIN, MR.
 WILLIAM ALLEN WAS THE CHIEF OF EXAMINATION BRANCH VI AND MR. ED KAHN AND
 MR. DAVID AT VARIOUS TIMES HELD THE POSITION OF GROUP MANAGER FOR THE
 ESTATE AND GIFT TAX GROUP.
 
    AS INDICATED BY THE RESPECTIVE NAMES OF THE GROUPS, EACH GROUP IS
 RESPONSIBLE FOR CHECKING THE DIFFERENT TYPES OF TAX RETURNS FILED WITH
 THE INTERNAL REVENUE SERVICE.  THUS, SOME GROUPS CHECKED INDIVIDUAL TAX
 RETURNS, WHILE OTHER GROUPS WERE RESPONSIBLE FOR CHECKING PARTNERSHIP,
 CORPORATION OR ESTATE AND GIFT TAX RETURNS.  ACCORDING TO THE RECORD,
 THE WORK OF THE ESTATE AND GIFT TAX GROUP IS OF A MORE TIME CONSUMING
 NATURE THAN THE WORK OF THE SEVEN OTHER GROUPS SINCE THE INFORMATION
 NECESSARY TO VERIFY OR CHECK THE ESTATE RETURNS WAS OFTEN NOT READILY OR
 IMMEDIATELY AVAILABLE BECAUSE THE DECEDENT INVOLVED WAS NOT A FLORIDA
 RESIDENT.  IN THESE CIRCUMSTANCES, THE ATTORNEYS IN THE ESTATE TAX GROUP
 WOULD HAVE TO SECURE THE DECEDENTS PAST TAX RECORDS FROM OTHER IRS
 DISTRICTS BEFORE THEY HAD SUFFICIENT INFORMATION TO PROCEED WITH THE
 ESTATE TAX AUDIT.  THE RECORD INDICATES THAT OBTAINING COPIES OF THE
 PAST RETURNS AND OTHER PERTINENT MATERIALS FROM OTHER IRS DISTRICTS WAS
 A FRUSTRATING AND TIME CONSUMING ACTIVITY. ACCORDINGLY, A FINAL AUDIT OF
 AN ESTATE TAX RETURN BY ESTATE AND GIFT TAX PERSONNEL, ASIDE FROM OTHER
 TECHNICAL PROBLEMS THAT MIGHT BE INVOLVED, GENERALLY TOOK MUCH LONGER
 THAN THE TAX AUDITS PERFORMED BY THE ATTORNEYS OR AUDITORS WORKING IN
 THE OTHER TAX GROUPS IN EXAMINATION BRANCH VI.
 
    IN PERFORMING THEIR DAY TO DAY WORK, THE ATTORNEYS WORKING IN THE
 ESTATE AND GIFT TAX GROUP OF EXAMINATION BRANCH VI WERE GOVERNED BY,
 AMONG OTHER THINGS, THE "AUDIT TECHNIQUE HANDBOOK FOR ESTATE TAX
 EXAMINERS" AND THE "INTERNAL REVENUE MANUAL FOR ESTATE AND GIFT TAX".
 EXCERPTS FROM BOTH DOCUMENTS WHICH APPEAR IN THE RECORD AS GENERAL
 COUNSEL'S EXHIBITS 3 & 4 SPEAK OF AN "18 MONTHS CYCLE" FOR THE
 COMPLETION OF AN ESTATE TAX AUDIT.
 
    THE GROUP MANAGERS OF EXAMINATION BRANCH VI IN PERFORMING THEIR DAY
 TO DAY SUPERVISORY DUTIES WERE GOVERNED BY THE "HANDBOOK FOR AUDIT GROUP
 MANAGERS", "HANDBOOK FOR EXAMINATION BRANCH MANAGERS" AND VARIOUS
 SUPPLEMENTAL MEMORANDA ISSUED BY THE IRS WHICH CLARIFIED, EXPANDED AND
 EMPHASIZED VARIOUS PROVISIONS, TECHNIQUES AND EVALUATION FORMS SET FORTH
 IN THE HANDBOOKS.  THE AFOREMENTIONED HANDBOOKS AND SUPPLEMENTAL
 MEMORANDA, APPEARING IN THE RECORD AS RESPONDENT'S EXHIBITS 1-8, IMPOSED
 UPON THE GROUP MANAGERS THE RESPONSIBILITY FOR CONDUCTING PERIODIC
 "ON-THE-JOB-VISITS", "WORKLOAD REVIEWS" AND "CASE REVIEWS", ALL OF WHICH
 WERE DESIGNED TO INSURE THAT THE VARIOUS CASES ASSIGNED TO THE EMPLOYEES
 WITHIN THE RESPECTIVE GROUPS WOULD BE TIMELY PROCESSED WITHOUT ANY UNDUE
 DELAYS.  THE GROUP MANAGERS WERE FURTHER CHARGED WITH THE RESPONSIBILITY
 OF RECORDING, ON VARIOUS FORMS SUPPLIED BY THE IRS, THE SUBSTANCE OF THE
 PERIODIC REVIEWS AS WELL AS THE CASE HANDLING AGREEMENTS OR
 UNDERSTANDINGS REACHED THEREIN.  ADDITIONALLY, THE GROUP MANAGERS WERE
 RESPONSIBLE FOR FILLING OUT VARIOUS FORMS WHICH EVALUATED THE
 PERFORMANCE OF THE INDIVIDUAL EMPLOYEES IN A NUMBER OF CATEGORIES.  /2/
 THE EVALUATIONS WENT FROM UNSATISFACTORY TO OUTSTANDING.  DUE TO THE
 DIFFERENT NATURE OF THE TAX RETURNS INVOLVED, I.E. INDIVIDUAL,
 CORPORATE, PARTNERSHIP, ESTATE AND GIFT TAX, ETC., THE RECORD INDICATES
 THAT THE CRITICAL TIME ELEMENTS FOR PROCESSING THE CASES DIFFERED
 SUBSTANTIALLY AMONG THE TAX GROUPS IN EXAMINATION BRANCH VI.  /3/
 ACCORDING TO THE PRINTED INSTRUCTIONS, THE GROUP MANAGERS WERE TO KEEP
 COPIES OF THE ABOVE DESCRIBED DOCUMENTATION AND HAVE THE AFFECTED
 EMPLOYEE INITIAL SAME.  WITH RESPECT TO THE REQUIRED DOCUMENTATION,
 RESPONDENT'S EXHIBIT 1 STATES, AMONG OTHER THINGS, THAT:
 
    5.  AN OUTSTANDING PERFORMANCE REFLECTED IN WRITING WOULD EXPRESS
 MANAGEMENT'S APPRECIATION
 
    FOR A JOB WELL DONE AND COULD BE USED TO SUPPORT AN EMPLOYEE
 PERFORMANCE EVALUATION.
 
    WITH RESPECT TO THE GROUP MANAGERS' COMPLIANCE WITH THE HANDBOOKS AN
 SUPPLEMENTAL MEMORANDA, THE RECORD INDICATES THAT WITH THE EXCEPTION OF
 THE ESTATE AND GIFT TAX GROUP MANAGER, THE GROUP MANAGERS OF THE OTHER
 GROUPS WITHIN EXAMINATION BRANCH VI RELIGIOUSLY FOLLOWED THE PROCEDURES
 AND ACCEPTED THE OBLIGATIONS AND/OR RESPONSIBILITIES SET FORTH THEREIN.
 CONTRARY TO THE PRACTICES FOLLOWED BY THE OTHER GROUP MANAGERS IN
 EXAMINATION BRANCH VI, MR. ED KAHN, WHO HAD BEEN GROUP MANAGER OF THE
 ESTATE AND GIFT TAX GROUP FOR MANY YEARS PRIOR MARCH 14, 1979, GENERALLY
 HONORED THE ESTABLISHED PROCEDURES MORE IN THE BREACH THAN OBSERVANCE.
 THUS, THE RECORD FURTHER INDICATES THAT MR. KAHN SELDOM, IF EVER,
 CONDUCTED ANY FORMAL WORKLOAD OR CASE REVIEWS OR FORMALLY FILLED OUT THE
 REQUIRED DOCUMENTARY REPORTS.  RATHER, MR. KAHN APPEARS TO HAVE ALLOWED
 THE VARIOUS EMPLOYEES WITHIN HIS GROUP AND UNDER HIS SUPERVISION TO
 HANDLE THEIR VARIOUS ASSIGNED CASES ON THEIR OWN AND ONLY INTERJECTED
 HIMSELF IN THEIR DAY TO DAY WORK WHEN FACED WITH AN INQUIRY ON A
 PARTICULAR CASE FROM AN OUTSIDE SOURCE OR WHEN AN INDIVIDUAL EMPLOYEE
 REQUESTED ASSISTANCE, DUE TO THE ADVANCED AGE OF A PARTICULAR CASE.  AS
 A GENERAL RULE, MR. KAHN DID NOT PERIODICALLY REVIEW HIS GROUP'S CASE
 LOAD AND ATTEMPT TO SET ANY TARGET DATES FOR THE COMPLETION OF THE CASES
 BEING HANDLED BY THE EMPLOYEES WITHIN THE ESTATE AND GIFT TAX GROUP.
 ALTHOUGH NOT REQUIRED BY MR.  KAHN, A NUMBER OF THE EMPLOYEES WITHIN THE
 ESTATE AND GIFT TAX GROUP, DID ON PERIODIC BASIS, VOLUNTARILY SUBMIT
 INFORMAL REPORTS OF THE STATUS OF THEIR RESPECTIVE CASE LOADS.
 
    MR. ALLEN, WHO WAS THE CHIEF OF EXAMINATION BRANCH VI DURING THE
 PERIOD JUNE 1977-AUGUST 1979, AND MR. KAHN'S SUPERVISOR, BECAUSE AWARE
 OF MR. KAHN'S LAX ADHERENCE TO THE IRD HANDBOOKS AND SUPPLEMENTAL
 MEMORANDA IN THE LATE SPRING OF 1978 AND THEREAFTER UNSUCCESSFULLY
 ATTEMPTED TO CORRECT MR. KAHN'S DEFICIENCIES IN THIS REGARD.
 
    MR. ALLEN DID NOT MAKE A PLANNED FURTHER OPERATIONAL REVIEW OF MR.
 KAHN'S ESTATE AND GIFT TAX GROUP DUE TO THE FACT THAT HE HAD BEEN
 NOTIFIED THAT AN ANALYST FROM THE JACKSONVILLE DISTRICT OFFICE HAD
 SCHEDULED A SIMILAR REVIEW OF THE ESTATE AND GIFT TAX GROUP FOR THE FALL
 OF 1978.  SUCH REVIEW OCCURRED IN NOVEMBER OF 1978.  THE WRITTEN REPORT
 OF THE REVIEW, DATED JANUARY 3, 1979, NOTED RM. KAHN'S DEFICIENCIES AS
 SET FORTH IN DETAIL ABOVE.
 
    ON MARCH 14, 1979, MR. ALLEN, CHIEF OF EXAMINATION BRANCH VI, BEING
 CONCERNED WITH THE NUMBER OF OVERAGE CASES IN BRANCH VI AND IN ORDER TO
 INSURE THAT HIS NEW GROUP MANAGERS WERE MONITORING THE CASE LOADS IN
 THEIR RESPECTIVE GROUPS, WITHOUT ANY PRIOR NOTICE OR CONSULTATION WITH
 THE UNION, ISSUED A MEMORANDUM ENTITLED "TIME SPAN OF EXAMINATION -
 OVERAGE CASES".  THE MEMORANDUM WHICH WAS DIRECTED TO "ALL BRANCH VI
 GROUP MANAGERS" WITH COPIES TO "ALL BRANCH VI EMPLOYEES", PROVIDED THAT
 DURING WORKLOAD REVIEWS EXAMINERS ESTABLISH ESTIMATED COMPLETION DATES
 FOR ALL CASES LESS THAN SIX MONTHS OLD AND THAT GROUP MANAGERS ESTABLISH
 COMPLETION DATES FOR ALL CASES WHICH HAD BEEN IN PROCESS FOR OVER SIX
 MONTHS.  ADDITIONALLY, WITH RESPECT TO THE CASES OVER SIX MONTHS OLD,
 THE GROUP MANAGERS WAS INSTRUCTED TO GIVE "SPECIFIC DIRECTIONS TO
 FACILITATE APPROPRIATE CLOSINGS OF THESE EXAMINATIONS AND YOUR DIRECTION
 SHOULD BE RECORDED BY THE EXAMINER AND MAINTAINED IN THE CASE FILE".
 LASTLY, THE MARCH 14TH MEMORANDUM WENT ON TO STATE AS FOLLOWS:
 
    3.  WHEN A REGULAR PROGRAM CASE HAS BEEN IN PROCESS FOR TWELVE MONTHS
 . . . THE CASE WILL
 
    BE DISCUSSED WITH THE BRANCH CHIEF.  EACH GROUP MANAGER SHOULD
 PROVIDE ME WITH A LIST, AT THE
 
    BEGINNING OF EACH MONTH, REFLECTING THE CASES WHICH NEED TO BE
 DISCUSSED TO FACILITATE
 
    SCHEDULING THIS DISCUSSION.  THE EXAMINER AND THE GROUP MANAGER
 SHOULD BRING THE FOLLOWING
 
    INFORMATION TO FACILITATE OUR DISCUSSION . . .  /4/
 
    SUBSEQUENT TO MARCH 14, THE ATTORNEYS IN THE ESTATE AND GIFT TAX
 GROUP WERE SUBJECTED TO PERIODIC WORKLOAD REVIEWS DURING WHICH
 COMPLETION DATES WERE SET FOR THEIR RESPECTIVE CASES.  THE RECORD
 REVEALS, HOWEVER, THAT AS A GENERAL RULE THE COMPLETION DATES WERE NOT
 HARD AND FAST AND THAT THE ATTORNEYS HAD NO PROBLEM EXTENDING THE
 COMPLETION DATES AS THE CIRCUMSTANCES SURROUNDING OR UNDERLYING ANY
 PARTICULAR CASE CHANGED.  THE RECORD FURTHER REVEALS THAT EVEN THOUGH A
 NUMBER OF THE ATTORNEYS IN THE ESTATE AND GIFT TAX GROUP HAD CASES IN
 PROCESS FOR OVER 12 MONTHS, NONE OF THEM WERE EVER SCHEDULED FOR A
 DISCUSSION WITH THE BRANCH CHIEF CONCERNING SUCH CASES.
 
    ACCORDING TO MR. ALLEN, THE MARCH 14, 1979, MEMORANDUM WAS DESIGNED
 TO ALLEVIATE THE EXISTING CASE BACK LOG BY MAKING HIM AWARE OF THE
 PROBLEMS HOLDING UP THE OVERAGE CASES AND ALLOWING HIM TO UTILIZE HIS
 POWER AS CHIEF OF THE BRANCH TO CUT ANY RED TAPE THAT MIGHT BE INVOLVED.
  ADDITIONALLY, MR. ALLEN WANTED TO EMPHASIZE TO SEVERAL NEW GROUP
 MANAGERS THE OBLIGATIONS IMPOSED UPON THEM BY THE VARIOUS IRS GROUP
 MANAGER HANDBOOKS.  MR. ALLEN FURTHER TESTIFIED THAT HE HAD NO INTENTION
 OF HAVING ALL CASES OVER TWELVE MONTHS OLD DISCUSSED WITH HIM, JUST
 THOSE THAT WERE BEING HELD UP BY SOME OTHER REGION, ETC.  MR. ALLEN'S
 INTENTIONS IN THE ABOVE RESPECT WERE NEVER CONVEYED TO THE EMPLOYEES.
 
    AS NOTED SUPRA, MR. ALLEN NEVER GAVE ANY NOTICE TO THE UNION PRIOR TO
 THE ISSUANCE OF THE MARCH 14TH MEMORANDUM.  IN FACT THE UNION ONLY
 LEARNED OF THE MARCH 14TH MEMORANDUM WHEN NTEU CHAPTER 77 PRESIDENT PAUL
 TANNENBAUM RECEIVED A COPY IN HIS CAPACITY AS AN ATTORNEY IN THE ESTATE
 AND GIFT TAX GROUP. HE THEREAFTER INFORMED MR. HENRY COLEAS, THE CHIEF
 SPOKESMAN AND CHAIRMAN OF THE JOINT COUNCIL, WHO IN TURN APPROACHED
 MR.ALLEN.  MR. ALLEN TOOK THE POSITION THAT THERE HAD BEEN NO CHANGE IN
 CONDITIONS OF EMPLOYMENT AND THAT NEGOTIATIONS WERE NOT IN ORDER.  MR.
 COLEAS THEN CONCLUDED THAT SINCE MR. ALLEN WAS THE DISTRICT DIRECTOR'S
 REPRESENTATIVE, FURTHER ATTEMPTS TO BARGAIN OVER THE MATTER WOULD BE
 FUTILE.
 
    IN THE NORMAL COURSE OF EVENTS, FOLLOWING THE COMPLETION OF AN AUDIT
 IN THE ESTATE TAX GROUP BY AN ATTORNEY, THE COMPLETED AUDIT IS THEN
 FORWARDED BY THE GROUP MANAGER TO THE REVIEW COMMITTEE IN JACKSONVILLE,
 FLORIDA.  SHOULD THE COMMITTEE DISAGREE WITH THE MANNER AND METHODS
 UTILIZED BY THE AUDIT ATTORNEY, IT WOULD THEN RETURN THE AUDIT THROUGH
 THE GROUP MANAGER FOR CORRECTION PER THEIR INSTRUCTIONS.  ACCORDING TO A
 NUMBER OF ESTATE AND GIFT TAX ATTORNEYS, /5/ THE ADDED PRESSURE OF A
 DECREASE IN THE TIME ALLOWED FOR THE PROCESSING OF THEIR CASES COULD
 LEAD TO ERRORS AND OMISSIONS WHICH IN TURN WOULD INCREASE THE
 PROBABILITIES OF HAVING THEIR AUDITS RETURNED BY THE REVIEW COMMITTEE.
 IF SUCH A RESULT OCCURRED, THEY WERE CONCERNED THAT IT MIGHT WELL IMPACT
 ON THEIR PROMOTIONAL POSSIBILITIES.
 
                        DISCUSSION AND CONCLUSIONS
 
    IT IS WELL SETTLED THAT AN EMPLOYER MAY NOT CHANGE PERSONNEL
 POLICIES, PRACTICES, OR WORKING CONDITIONS WITHOUT FIRST PROVIDING THE
 COLLECTIVE BARGAINING REPRESENTATIVE WITH ADVANCE NOTICE OF THE PROPOSED
 CHANGES AND ALLOWING THE COLLECTIVE BARGAINING REPRESENTATIVE AN
 OPPORTUNITY TO NEGOTIATE CONCERNING THE PROPOSED AND/OR THE IMPACT AND
 MANNER OF IMPLEMENTATIONS OF SUCH CHANGES. VETERANS ADMINISTRATION
 HOSPITAL, CHARLESTON, SOUTH CAROLINA, A/SLMR NO. 87;  NATIONAL LABOR
 RELATIONS BOARD, A/SLMR NO. 246;  78TH DIVISION (TRAINING), KILMAR USAR
 CENTER, EDISON, NEW JERSEY, 1 FLRA 97. IN NATIONAL LABOR RELATIONS
 BOARD, SUPRA, A CHANGE IN TIME SCHEDULES FOR THE PROCESSING OF CASES
 WITHOUT GIVING THE UNION THERE INVOLVED AN OPPORTUNITY TO BARGAIN
 THEREON WAS HELD TO BE VIOLATIVE OF SECTIONS 19(A)(6) AND (1) OF
 EXECUTIVE ORDER 11491, AS AMENDED.  ACCORDINGLY, THE SOLE ISSUE TO BE
 DECIDED IS WHETHER OR NOT THERE WAS IN FACT A CHANGE IN THE TIME
 ALLOTTED FOR THE PROCESSING OF CASES IN THE ESTATE AND GIFT TAX GROUP.
 /6/
 
    THE RECORD IS CLEAR THAT PRIOR TO MARCH 4, 1979, THE ATTORNEYS IN THE
 ESTATE AND GIFT TAX GROUP WORKED INDEPENDENTLY WITHOUT ANY MEANINGFUL
 SUPERVISION IN THE AREA OF TIMETABLES FOR THE COMPLETION OF CASES.
 THEIR ONLY DEADLINES FOR THE PROCESSING OF CASES APPEARED IN THE
 HANDBOOK FOR ESTATE EXAMINERS AND THE IRS MANUAL FOR ESTATE AND GIFT
 TAX.  BOTH THE AFOREMENTIONED DOCUMENTS SPEAK OF AN 18 MONTHS CYCLE FOR
 THE COMPLETION OF CASES.  ACCORDINGLY, IT APPEARS THAT A CASE WAS NOT
 CONSIDERED OVERAGE IN THE ESTATE AND GIFT TAX GROUP UNTIL IT EXCEEDED 18
 MONTHS.  THIS REMAINED THE PRACTICE UNTIL MARCH 14, 1979, WHEN EACH
 ATTORNEY RECEIVED A COPY OF MR.  ALLEN'S MEMORANDUM. THEREAFTER, THE
 GROUP MANAGER, WHO WAS THEN MR. DAVID, ESTABLISHED COMPLETION DATES FOR
 ALL CASES IN PROCESS OVER SIX MONTHS. ADDITIONALLY, ALL CASES IN PROCESS
 OVER 12 MONTHS WERE TO BE DISCUSSED WITH THE BRANCH CHIEF.
 
    ALTHOUGH THE MEMORANDUM DID NOT EXPRESSLY STATE THAT THE EXISTING "18
 MONTHS CYCLE" WAS BEING ABANDONED, IT DOES IMPLICITLY INDICATE SUCH A
 CONCLUSION.  THUS, IT IS NOTED THAT THE OPTIMUM TIME FOR PROCESSING A
 CASE APPEARS TO BE 12 MONTHS SINCE AN ESTATE AND GIFT TAX ATTORNEY WAS
 NOW FACED WITH THE OPTION OF COMPLETING A CASE WITHIN SUCH TIME FRAME OR
 APPEARING BEFORE THE BRANCH CHIEF AND JUSTIFYING THE REASONS FOR DELAY.
 FURTHER SUPPORT FOR THIS CONCLUSION IS FOUND IN THE TITLE OF THE
 MEMORANDUM, I.E. "TIME SPAN OF EXAMINATIONS - OVERAGE CASES" AND THE
 FACT THAT THE GROUP MANAGER DID IN FACT SET COMPLETION DATES FOR ALL
 CASES 6 MONTHS OLD.
 
    BASED UPON THE FOREGOING CONSIDERATIONS, I FIND THAT THE MARCH 14,
 1979, MEMORANDUM AND SUBSEQUENT ACTIONS OF THE GROUP MANAGER CONSISTENT
 THEREWITH CONSTITUTED A CHANGE IN THE EXISTING TIME FRAME FOR THE
 PROCESSING OF CASES IN THE ESTATE AND GIFT TAX GROUP.  THE FACT THAT
 THIS MIGHT NOT HAVE BEEN THE INTENT OF MR. ALLEN DOES NOT ALTER SUCH
 CONCLUSION, PARTICULARLY IN VIEW OF THE FACT THAT HE DID NOT SEE FIT TO
 CONVEY TO EITHER THE ATTORNEYS IN THE GROUP OR THE GROUP MANAGER HIS
 MOTIVES FOR THE MARCH 14TH MEMORANDUM.
 
    SIMILARLY, I FIND THAT THE FACT THAT THE COMPLETION DATES WERE EASILY
 CHANGED AND THAT NONE OF THE ATTORNEYS WERE SUBJECTED TO MEETINGS WITH
 THE CHIEF OF THE BRANCH TO BE OF NO IMPORT.  THE ABSENCE OF ENFORCEMENT
 BEARS SOLELY ON REMEDY AND NOT THE CHANGE.  IT IS THE CHANGE WITHOUT
 NOTICE TO THE UNION AND AN OPPORTUNITY TO BARGAIN OVER IMPACT AND
 IMPLEMENTATION WHICH IS IN DEROGATION OF THE UNION'S REPRESENTATIONAL
 STATUS.
 
    LASTLY, CONTRARY TO THE CONTENTION OF THE RESPONDENT, I FIND THAT A
 CHANGE IN THE TIME FRAME FOR THE PROCESSING OF CASES DOES HAVE A
 SUBSTANTIAL IMPACT ON THE EMPLOYEES WORKING CONDITIONS.  THE ABSENCE OF
 ENFORCEMENT OF SAME CARRIES LITTLE WEIGHT IN THE ABSENCE OF ANY
 STATEMENT FROM THE SUPERVISORY HIERARCHY ASSURING CONTINUANCE OF SUCH
 PRACTICE.  IN THE ABSENCE OF SUCH A STATEMENT THE AFFECTED EMPLOYEES
 HAVE NO WAY OF KNOWING WHAT THE FUTURE HOLDS WITH RESPECT TO ADHERENCE
 TO THE MARCH 14TH MEMORANDUM.
 
    UNDER ALL THE CIRCUMSTANCES AND FOR THE REASONS STATED ABOVE, I FIND
 THAT RESPONDENT'S ACTIONS IN CHANGING THE TIME FRAME FOR THE PROCESSING
 OF CASES WITHOUT GIVING THE UNION PRIOR NOTIFICATION THEREOF AND THE
 OPPORTUNITY TO REQUEST BARGAINING WITH RESPECT TO IMPACT AND
 IMPLEMENTATION CONSTITUTED A VIOLATION OF SECTIONS 7116(A)(1) AND (5) OF
 THE STATUTE.
 
                                   ORDER
 
    PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
 RULES AND REGULATIONS, 45 FED. REG. 3482, 3510(1980), IT IS HEREBY
 ORDERED THAT THE DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE,
 JACKSONVILLE DISTRICT SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    INSTITUTING CHANGES