12:0445(87)CA - IRS and IRS Detroit District and NTEU and NTEU Chapter 24 -- 1983 FLRAdec CA
[ v12 p445 ]
The decision of the Authority follows:
12 FLRA No. 87 INTERNAL REVENUE SERVICE AND INTERNAL REVENUE SERVICE, DETROIT DISTRICT Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 24 Charging Party Case Nos. 5-CA-719 5-CA-729 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in one of the unfair labor practices alleged in the consolidated complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge further found that the Respondent had not engaged in the other alleged unfair labor practices and recommended dismissal of the complaint with respect to them. The General Counsel filed exceptions to the Judge's Decision, and the Respondent filed an opposition thereto, as well as exceptions to portions of the Judge's Decision. 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 recommended Order, as modified below. The Judge found, inter alia, that the Respondent violated section 7116(a)(1) and (5) of the Statute /1/ by failing to provide a unit employee with 80 days' notice of its intent to withhold his within-grade increase as provided for in the parties' negotiated agreement. /2/ In this regard, he found that the Respondent had "breached the (parties') collective bargaining agreement" and, "in the absence of any reasonable justification," that such action "was tantamount to a unilateral change in established conditions of employment and hence a violation of (s)ections 7116(a)(1) and (5) of the Statute." The Authority disagrees. Subsequent to the issuance of the Judge's Decision herein, the Authority held that a single instance of failure or refusal by a party to comply with a contractual provision does not under the Statute "constitute a rejection of the collective bargaining agreement in violation of section 7116(a)(5) and (1)." /3/ Similarly, it is concluded that the failure herein to comply with a contractual provision requiring specific advance notice of the Respondent's intent to withhold a within-grade increase is not a rejection of the agreement which would constitute a violation of section 7116(a)(1) and (5). Thus, the ; Authority concludes that the remaining portion of the complaint in Case No. 5-CA-729, alleging a breach of the parties' negotiated agreement, must be dismissed. ORDER IT IS ORDERED that the consolidated complaint in Case Nos. 5-CA-719 and 5-CA-729 be, and it hereby is, dismissed in its entirety. Issued,Washington, D.C., July 29, 1983. Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case Nos.: 5-CA-719, 5-CA-729 James E. Rogers, Jr., Esquire For the Respondent Sandra J. Lebold, Esquire For the General Counsel Lynn Sylvester, Esquire For the Charging Party Before: BURTON S. STERNBURG 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, Sec. 7101 et seq., and the Rules and Regulations issued thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980, 5 C.F.R.Chapter XIV, Part 2411 et seq. Pursuant to charges filed on September 25, 1980, in Case No. 5-CA-719 and October 2, 1980, in Case No. 5-CA-729, by Chapter 24, National Treasury Employees Union, (hereinafter called the Union or NTEU), a Consolidated Complaint and Notice of Hearing was issued on January 9, 1981, by the Regional Director for Region V, Federal Labor Relations Authority, Chicago, Illinois. The Consolidated Complaint, which was amended on January 28, 1981, alleges that the Internal Revenue Service and Internal Revenue Service, Detroit District, (hereinafter called the Respondent or IRS), violated Sections 7116(a)(1), (2), (5) and (8) of the Federal Service Labor-Management Relations Statute, (hereinafter called the Statute), by virtue of its actions in (1) issuing an unfavorable performance appraisal to Mr. John Geukes because of his union activities, (2) issuing an unfavorable performance appraisal and denying a within grade step increase to Mr. Robert Braun because of his union activities, (3) denying Mr. Braun's request for Union representation at an interview which Mr. Braun believed could result in the imposition of discipline, and (4) patently violating a provision of the collective bargaining contract in effect between the Union and the Respondent. A hearing was held in the captioned matter on March 12, 1981, in Detroit, Michigan. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel and the Respondent submitted post-hearing briefs on May 22, 1981, 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, conclusions and recommendations. Findings of Fact Allegation of Complaint with Respect to Mr. Braun: The Union is the exclusive collective bargaining representative of Respondent's non-managerial employees working in the Detroit District Office which includes a satellite facility in Pontiac, Michigan. The Union and the Respondent are parties to a Multi-District Collective Bargaining Agreement which was executed on January 31, 1977. The Multi-District Agreement which was applicable to the Detroit District Office provides in Article 10 as follows: Annual Performance Ratings and Acceptable Level of Competence Determinations Section 1 Acceptable level of competence determinations and annual performance ratings will be made in a fair and objective manner . . . and will be made only on the basis of the work requirements of the particular position of specific work standards as may have been established by the Employer for the position; provided, however, that a determination that an employee is not performing at an acceptable level of competence will not be used to dispose of questions of misconduct. Section 2 At least ninety days prior to the date an employee is eligible for a within grade increase the Employer will review the work of the employee. When a supervisor's review leads to the conclusion that the employee's work is not at an acceptable level of competence, the supervisor will provide to the employee, in writing, at least eighty (80) days before the employee is eligible for the within grade increase, the following: a. An explanation of those aspects of performance in which the employee's services fall below an acceptable level; b. Advise as to what the employee must do to bring his/her performance up to the acceptable level; c. A statement that his/her performance may be determined as being at an unacceptable level unless improvement to an acceptable level is shown; d. A statement that he/she has a period of not more than eighty (80) days in which to bring his/her performance up to an acceptable level. Mr. Robert Braun, one of the alleged discriminatees herein, began working for the Respondent in 1973 as a temporary GS-5 employee. During the ensuing years he was consistently promoted until he reached a GS-11 in 1978. During the period 1973-1978 Mr. Braun received a number of letters of commendation from various management officials. In 1978 and 1979, he was designated Acting Group Manager on several occasions by his then supervisor, Group Manager Louis Deamer. On May 4, 1979, Mr. Deamer issued Mr. Braun a "Revenue Officer Promotion Appraisal" covering the period of April 27, 1978 to April 27, 1979. In the ten categories appearing on the appraisal form, Mr. Braun was awarded three "5"'s and seven "4"'s. According to the record, "5" is the highest mark or rating an employee may receive. On May 22, 1979, Mr. Braun filed a grievance wherein he alleged that higher level management had violated IRS regulations by giving special or preferential treatment to a delinquent taxpayer whose legal representative was a former IRS official. Concurrently with the filing of the grievance, Mr. Braun personally referred the matter to the IRS Inspection Division citing Mr. Roger Laws, Chief of the Collection Division as the responsible party. On May 25, 1979, Mr. Braun filed a second grievance wherein he protested the insertion of a negative recordation in his personnel file by Group Manager Deamer. The negative recordation accused Mr. Braun of failing to follow instructions. The grievance further alleged that the negative recordation was in reprisal for his action in filing the prior grievance on May 22, 1979. On June 15, 1979, Mr. Braun filed a third grievance which was predicated on the manner in which management, i.e. Mr. Deamer and Mr. Laws, were conducting discussions of his prior grievance which had been filed on May 25, 1979. In August 1979, Mr. Deamer, Mr. Braun's immediate supervisor, began preparing a form which requested an incentive award for Mr. Braun. However, the form was never completed due to the fact that Mr. Deamer transferred to another office prior to completing and submitting the recommendation. According to the record, Mr. Laws made it clear to both employees and their respective supervisors that he deemed the appraisals accorded to the employees to be too high and that he wanted the future appraisals done in a manner different from that utilized in the past. Mr. Deamer differed with Mr. Laws on the matter of appraisals and requested a transfer to a non-supervisory position in another office. On or about September 21, 1979, Mr. Braun received a Promotion Appraisal for the period August 10, 1978 through August 10, 1979. The appraisal form contained three "4's" and seven "3's". The narrative portion of the appraisal was for the most part complimentary. The evaluation, however, had the effect of downgrading Mr. Braun from the "Best Qualified List" to the "Highly Qualified List" for promotion. Also, in September of 1979, Mr. Braun complained to the General Accounting Office about the manner in which the IRS was conducting seizures of delinquent tax payers' property. The General Accounting Office assigned Mr. Braun a specific file number. Mr. Braun later gave the file number to the Union's Local President who in turn published the number in the Union's newsletter called the Wolverine. The Union newsletter invited all interested union members to utilize the number when submitting information bearing on the matter to the GAO and their respective congressmen and senators. On October 18, 1979, Mr. Braun filed a grievance over his September 1979, Promotion Appraisal contending that it removed him from the "Best Qualified list". At the instant hearing herein, Mr. Braun acknowledged that the September appraisal was in line with the new policy announced by Mr. Laws respecting lower and more realistic appraisals. On December 20, 1979, Mr. Braun personally wrote a note directly to the Regional Commissioner wherein he claimed that there was an inconsistency between his job description and a memorandum issued by the Chief of the Field Branch, Roger Laws. Thereafter, following the exchange of a number of written communications between Mr. Braun and Respondent concerning the December 20, 1979, note, Mr. Braun was given a written recordation on February 14, 1980, for bypassing the chain of command and going directly to the Regional Commissioner with his problems. On April 4, 1980, Mr. Braun received a Performance Appraisal which contained one "4", eight "3's" and one "2". The appraisal removed Mr. Braun from the "Highly Qualified" list for promotion. The appraisal was given to him by his new supervisor, Kenneth Isenogle. /4/ On May 2, 1980, Mr. Braun filed a grievance wherein he alleged that the appraisal was not prepared in a fair and objective manner. The grievance requested as a remedy that "quality of work" be raised from a "3" to a "4" and that "job attitude" be raised from a "2" to a "3". The grievance was subsequently processed through the fourth step of the grievance procedure and on September 11, 1980, the "2" in "job attitude" was raised to a "3", thereby restoring him to the "highly qualified" list. On June 26, 1980, and August 7, 1980, Mr. Isenogle issued "Individual Performance Folder Records" to Mr. Braun. The "Individual Performance Folder Records" involve a review of an individual employee's case inventory and criticism and comments on the way the employee handled his respective cases and case inventory. Although not entirely clear from the record, it appears that "Performance Appraisals" are only issued when there is a higher level vacancy available and that "Individual Performance Folder Records" are issued periodically, irrespective of whether or not there is a higher level vacancy. /5/ The June 26, 1980, Performance Folder Record contained five "1's" and the August 7, 1980, Performance Folder Record contained four "1's". The August 7, 1980, Performance Folder Record, which is included in the record in its entirety, contains a four page narrative of Mr. Braun's alleged deficiencies in handling some twelve specific cases. On August 21, 1980, Mr. Isenogle issued a memorandum to Mr. Braun which informed him that he would not be given his within grade increase which was due on August 23, 1980. The memorandum went on to cite twelve cases as examples of Mr. Braun's failure to demonstrate job knowledge, utilization of time, job attitude and dependability. Mr. Braun's alleged deficiencies in the above regard were set forth in detail in each of the twelve cases cited. The letter went on to inform Mr. Braun that since he was not given a 60 day notice due to administrative delays, his performance would be closely observed during the next sixty day period. Mr. Braun was further informed that at the end of the sixty day period, if a new evaluation indicated that his work deficiencies had been corrected he would be granted his within grade promotion retroactive to August 24, 1980. The record discloses that subsequently, in November of 1980, Mr. Braun was denied his within grade increase. /6/ On September 3, 1980, Mr. Braun received a Performance Appraisal which contained nine "3's", two "2's" and one "1". The "2's" were in the utilization of time and dependability and the "1" was in job attitude. His overall job performance on a scale of 1 to 5 was rated as being a "2". The narrative portion of the appraisal indicates that Mr. Braun was considered a "marginal" employee. Additionally, the narrative portion of the appraisal set forth specific examples of Mr. Braun's alleged deficiencies which were the basis of the low marks on the appraisal. On September 13, 1980, Mr. Isenogle prepared a Performance Folder Record for Mr. Braun which contained six "1's". The eight page narrative attached to the performance folder set forth in detail Mr. Braun's alleged shortcomings with regard to the performance aspects of his work in connection with a number of cited cases and past ; instructions given concerning the proper method of disposing of cases. On September 22, 1980, Mr. Isenogle summoned Mr. Braun into his office for purposes of discussing the September 13, 1980, Performance Folder Record. According to the uncontradicted testimony of Mr. Isenogle, he informed Mr. Braun at the time that he wanted to go over a follow-up review of Mr. Braun's cases. Mr. Braun then orally requested Union representation at the meeting. Upon receiving a denial from Mr. Isenogle, Mr. Braun put his request in writing. This request was also denied. Thereafter the meeting was held and Mr. Braun remained silent for most of the meeting. According to Mr. Braun, he remained silent and did not make any comments because he felt that anything he said would be turned around and used against him. Aside from eliciting a general denial from Mr. Braun that his work had not deteriorated since April of 1979 when he had received outstanding appraisals and presenting a personal tabulation made by Mr. Braun which indicated that his case production, case load and collections had not changed since April of 1979, the General Counsel presented no probative evidence to rebut the specific deficiencies of Mr. Braun which were relied upon by Respondent's manager, Mr. Isenogle, in the narrative portions of the various negative Performance Folder Records and/or Performance Appraisals awarded to Mr. Braun since April of 1979. With respect to Respondent's action in admittedly failing to adhere to Article 10 of the collective bargaining agreement which calls for 80 days advance notice of intention to withhold a within-grade increase in salary, the record discloses that the validity of Article 10 had been successfully challenged by Respondent in a prior proceeding before the Assistant Secretary of Labor under Executive Order 11491. Thus the decision of the Assistant Secretary in Internal Revenue Service, Detroit District, Detroit, Michigan and National Treasury Employees Union, Case No. 52-06923, makes it clear that disputes with regard to the merits of a denial of a within grade wage increase are not subject to contract grievance procedures since there exists a statutory appeals procedure for such disputes. Although the record indicates that the grievant had not received the 80 day notice called for in the collective bargaining contract, no finding was made that the notice requirements of Article 10, Section 2, were null and void. In this latter connection, it is noted that the Decision of the Civil Service Commission dated September 28, 1975 included in the record as an attachment to Respondent's motion to dismiss, indicates that the Federal Personnel Manual, Chapter 501, Subchapter 4-9.b. instructs Agencies to establish procedures which will ensure that affected employees have at least a 60 day notice of intent to withhold within-grade wage increase. Allegations of the Complaint with Respect to Mr. John Geukes: Mr. John Geukes has been employed as a Revenue Officer at Respondent's Pontiac, Michigan, office for some twenty-five years. For the last ten years Mr. Geukes has served as a union steward and has been involved in the filing of many grievances in such capacity. Prior to 1980, Mr. Geukes' work performance was considered adequate. Thus, according to Mr. Geukes' uncontested testimony and the record evidence, Mr. Geukes during his career with Respondent t received three superior performance awards, three adopted suggestion awards, a high quality step increase and an annual outstanding rating letter from the District Director. In this latter connection, Mr. LeRoy Willis, Mr. Geukes' supervisor from March 1979 through December 1979, testified that Mr. Geukes' work was very good and very professional despite his heavy caseload. With regard to his union activity, Mr. Geukes testified, without contradiction, that during the past few years his grievance activity in connection with his union steward post increased significantly. Thus, according to Mr. Geukes, where he normally processed some ten grievances a year, the number during the past two years increased three-fold. Mr. Geukes pointed out that he was the union steward in charge of Mr. Braun's grievances and frequently participated in the heated discussions thereon through the four steps of the grievance procedure. Additionally, Mr. Geukes testified that he was an active participant in the Union's efforts to protest the seizure quota policy of the Respondent, a matter first raised individually by Mr. Braun. He was also one of ten signatories to a letter to a congressional oversight committee which protested Respondent's policy with regard to seizures of delinquent tax payers' assets. In addition to the foregoing, Mr. Geukes in December 1979, signed a protest letter directed to the Regional Director of the IRS wherein a number of employees protested the removal of his immediate supervisor, Group Manager LeRoy Willis. /7/ At an earlier date, Mr. Geukes spoke out at a labor-management meeting and complained about the removal of Group Manager Deamer, who had been Mr. Braun's supervisor. In January of 1980, Mr. Roger Ryskamp became a Group Manager in Pontiac, Michigan. According to the record, he was first selected to be a supervisor in September 1979, and the Pontiac, Michigan, assignment was his first permanent managerial assignment. He replaced Group Manager LeRoy Willis and, accordingly, became Mr. Geukes' immediate supervisor. On March 20, 1980, Mr. Ryskamp issued an Individual Performance Record to Mr. Geukes which consisted of an "annual review" of his cases. Mr. Ryskamp gave Mr. Geukes "3's" in the three categories that he chose to check off on the form, i.e. utilization of time, quality of work, and job attitude. In the narrative attached to the report, Mr. Ryskamp noted, among other things, that Mr. Geukes was carrying a heavy load of cases and that he appreciated the fact that Mr. Geukes' position as union steward took up a great deal of his time. Accordingly, in order to allow time for both work and Mr. Geukes' union duties, Mr. Ryskamp further noted that he intended to reduce Mr. Geukes' case load. /8/ Accompanying the narrative was an 18 page "Revenue Officer Inventory Analysis" which set forth Mr. Ryskamp's comments and suggestions with respect to the status of Mr. Geukes' cases and the manner in which Mr. Geukes was, or should be, handling the various collection activities involved. On July 17, 1980, Mr. Ryskamp issued a new "Individual Performance Folder Record" to Mr. Geukes which was a "100% Follow-Up Review" of Mr. Geukes' case inventory from March through the middle of June 1980. Mr. Geukes' received an evaluation containing one "3", one "2" and four "1's". The attached narrative to the evaluation set forth twenty-one cases which were still in Mr. Geukes' case inventory since the last evaluation on March 20, 1980. In each of the twenty-one cases listed, Mr. Ryskamp set forth chapter and verse with respect to what collection activities or procedures should have been taken in each and every case. Mr. Ryskamp further noted that in many of the cases there had been no change since his prior analysis in March of 1980 or that Mr. Geukes had failed to follow the instructions given in the March 1980 analysis. Subsequently, Mr. Geukes submitted a rebuttal to the twenty-one case analysis of Mr. Ryskamp. Admittedly, Mr. Ryskamp did not pay much attention to the rebuttal since he was not obligated to and because many of the actions taken by Mr. Geukes on the particular cases and cited as support for the rebuttal had occurred after he had finished his analysis of the Mr. Geukes' case inventory. Mr. Geukes rebuttal, which is included in the record as an exhibit, indicates that many of his actions in the particular cases relied upon by Mr. Ryskamp in his July evaluation did in fact occur after Mr. Ryskamp had completed his analysis. Mr. Ryskamp acknowledged that prior to presenting the low evaluation to Mr. Geukes he first read the evaluation over the telephone to Mr. Laws, the Branch Chief, who approved of his action. Mr. Ryskamp denies that Mr. Geukes' union activity played any part in his decision to give him the July 17, 1980, low evaluation. According to Mr. Geukes, early in July, during an informal early morning discussion prior to starting work, Mr. Ryskamp informed him that he wished he, Mr. Geukes, would put as much enthusiasm into his IRS work as he did in his Union work. Mr. Ryskamp does not recall making the aforementioned comment to Mr. Geukes. Discussion and Conclusions Section 2423.18 of the Authority's Rules and Regulations imposes upon the General Counsel the burden of proving the allegations of the Complaint by a preponderance of the evidence. On the basis of the record as a whole, I find that the General Counsel has failed to carry this burden with respect to the allegations of the Complaint dealing with the issuance of an unfavorable appraisal and subsequent denial of a within grade promotion to Mr. Braun, and the issuance of an unfavorable appraisal to Mr. Geukes. The General Counsel has established that both Mr. Geukes and Mr. Braun participated in Union activities prior to receiving poor appraisals and/or a denial of a within grade promotion from Mr. Ryskamp and Mr. Isenogle who were their respective supervisors and that both employees had always been rated as either outstanding or at least satisfactory employees. Pointing to their past ratings and the timing of their union activities, the General Counsel urges a finding that the recent poor appraisals or evaluations were in retaliation for such union activities. While, admittedly, the timing as well as their past high ratings make the case suspicious, I can not, without more, find that the recent poor appraisals were based in part on their union activities and hence violative of the Statute. Thus, the record indicates that the poor appraisals occurred after Mr. Laws had complained about the manner in which his Group Managers were evaluating or appraising the employees under their respective supervision and after the Group Managers had been through a training program or meeting concerning employee evaluations. In fact, Mr. Deamer, who had been responsible for Mr. Braun's earlier highly complimentary appraisals, saw fit to take a non-supervisory position rather than to adhere to Mr. Laws' standards concerning employee appraisals. Additionally, it is noted that the poor appraisals were not made by Mr. Deamer and Mr. Willis who had made the past satisfactory appraisals, but by two new group managers who might have, and apparently did have, different criterion for evaluating revenue officers. In view of the foregoing considerations, the absence of any evidence of union animus, and particularly the absence of any probative evidence to rebut the detailed critical comments of Mr. Ryskamp and Mr. Isenogle with respect to the manner, methods and means Mr. Braun and Mr. Geukes handled or should have handled the respective cases included in their case inventories, I can not find, as urged by the General Counsel that the poor appraisals given Mr. Braun and Mr. Geukes, and the denial of a within grade increase to Mr. Braun were based in part upon their participation in union activities. /9/ Accordingly, I shall recommend that the 7116(a)(1) and (2) allegations of the complaint predicated on the awarding of unsatisfactory appraisals to Mr. Geukes and Mr. Braun, and the denial of a within grade wage increase to Mr. Braun, be dismissed. Turning now to the alleged violation of Sections 7116(a)(1) and (8) predicated on Mr. Isenogle's refusal to accede to Mr. Braun's request for union representation at the follow up review of Mr. Braun's case inventory analysis held on September 22, 1980, I find that Mr. Isenogle's action in the aforementioned respect was not violative of the Statute. In Internal Revenue Service, Detroit, Michigan, 5 FLRA No. 53, coincidently a case involving the same parties herein, the Federal Labor Relations Authority held that case reviews, such as the one involved herein, were not examinations in connection with an investigation within the meaning of Section 7116(a)(2)(B) of the Statute. Although the General Counsel contends that the instant case is distinguishable since the work review involved herein was of a follow up nature and not the regular periodic scheduled work evaluation considered by the Authority in the aforecited decision. The General Counsel would further distinguish the instant case on the ground that during the preceding six month period Mr. Braun had been receiving consistently lower appraisals or evaluations than he had ever received in the past and had also been denied a within grade promotion. In view of the foregoing, it appears to be the General Counsel's position that Mr. Braun had more to fear in the way of discipline than an employee faced with his usual periodic scheduled case review or analysis. Be it a periodic scheduled case review or a follow up case review, an employee always runs the risk of receiving some type of disciplinary action for the manner in which he handled his case inventory during the preceding months or days. However, it is not the threat or risk of discipline which is the controlling element under Section 7114(a)(2)(B) of the Statute, but rather the type of meeting, interview, etc. The meeting, conference, or interview must rise to an "examination . . . in connection with an investigation", before the threat of discipline or risk even comes into consideration. In the absence of a finding that the meeting, etc., is an examination in connection with an investigation, the fact that the employee might fear discipline is of no import. Cf. AAA Equipment Service Co. v. NLRB, 598 F2d 1142, where a similar conclusion was reached in the private sector. Accordingly, in view of the above considerations and since the Authority has determined that case reviews are not examinations in connection with an investigation, I find that the Respondent was not under any obligation to accede to Mr. Braun's request for union representation at the September 22, 1980, meeting and I shall therefore recommend that the Section 7116(a)(1) and (8), allegations of the complaint, which are predicated upon Respondent's refusal to accord Mr. Braun union representation, be dismissed. With respect to the Section 7116(a)(1) and (5) allegation of the complaint, Respondent stipulated that Mr. Braun did not receive the 80 day notice of intent to withhold his within grade wage increase as provided for in Article 10, Section 2 of the collective bargaining agreement. Respondent, however, takes the position that in view of the earlier decision of the Assistant Secretary in Case No. 52-06923, wherein it was determined that the denial of a within grade wage increase was not subject to the grievance procedure since there existed a statutory appeals procedure, Article 10 was null and void and it, the Respondent, was therefore not obligated to follow the procedures set forth therein. Apart from the fact that the earlier decision of the Assistant Secretary was made under Executive Order 11491, as amended, I find no basis in the Assistant Secretary's decision for concluding, as urged by Respondent, that the 80 day notice requirement of Article 10, Section 2, was declared, implicitly or otherwise, null and void. In fact the Assistant Secretary's decision only addressed the arbitrability of the denial of a within grade wage increase. Accordingly, and since the notice requirement is unrelated to the merits of the denial of a within grade increase, I find that the 80 day notice requirement set forth in Article 10, Section 2, of the collective bargaining agreement was not declared null and void. I further find that having failed to give the required 80 day notice, Respondent breached the collective bargaining agreement. Having concluded that a contract breach occurred, and in the absence of any reasonable justification for Respondent's action in this regard, /10/ I find that Respondent's action was tantamount to a unilateral change in established conditions of employment and hence a violation of Sections 7116(a)(1) and (5) of the Statute. /11/ In view of the above findings and conclusions, it is hereby recommended that the Authority issue the following order which is designed to remedy the Section 7116(a)(1) and (5) violation of the Statute found herein. 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.Section 2423.29(b)(1), the Authority hereby orders that the Internal Revenue Service and Internal Revenue Service, Detroit District, Detroit, Michigan shall: 1. Cease and desist from: (a) Unilaterally changing the provision of the collective bargaining agreement with the National Treasury Employees Union by failing to give 80 days notice of intent to withhold a within grade wage increase to Robert Braun or any other employee. (b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute: (a) Post at its various offices in the Detroit Michigan District wherein unit employees are located, copies of the attached notice marked "Appendix". Copies of said notice, to be furnished by the Regional Director for Region 5, after being signed by the District Director, shall be posted by representatives of the Detroit, Michigan, District immediately upon the receipt thereof and be maintained by such representatives for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) 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 FURTHER ORDERED that the remaining allegations of the complaint be, and they hereby are, dismissed. BURTON S. STERNBURG Administrative Law Judge Dated: July 21, 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 unilaterally change the provisions of the collective bargaining agreement with the National Treasury Employees Union by failing to give 80 days notice of intent to withhold a within grade wage increase to Robert Braun or any other employee. WE WILL NOT in any like or related manner, interfere with, restrain or coerce unit employees represented by Chapter 24, National Treasury Employees Union, in the exercise of their rights assured by the Statute. (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 any employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region 5, whose address is: 175 W. Jackson Blvd., Suite A-1359, Chicago, Illinois 60604, and whose telephone number is: (312) 886-3468. --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) and (5) provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.) /2/ As found by the Judge, the employee was given a 60-day period in which to correct his work deficiencies and was advised that he would receive a within-grade increase retroactive to the date of his eligibility if the deficiencies were corrected. The increase was denied approximately three months thereafter. /3/ Federal Aviation Administration, Alaskan Regional Office, 7 FLRA No. 23 (1981). See also U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA No. 47 (1982); Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 11 FLRA No. 90 (1983). /4/ The record reveals that Mr. Isenogle, although a supervisor, was a dues paying member of the Union. /5/ According to Mr. Isenogle the Individual Performance Folder Record is a work review which is generally conducted about twice a year. Further, according to Mr. Isenogle, if he is concerned about an employee's performance, he would conduct work reviews more often. Upon the completion of a work review, the supervisor would present same to the employee involved for comment and discussion. /6/ Mr. Braun filed a complaint with the Merit System Protection Board wherein he contended that he was denied the within grade increase because of his "whistle blower" activities, i.e. contacting the GAO about the IRS's collection policies. Based on Mr. Braun's action in this respect, Respondent contends that Section 7116(d) bars any further action before the Authority with respect to his within-grade wage increase. Inasmuch as the basis of the instant complaint is the denial of a within grade wage increase because of union activities, as opposed to "whistle blower" activities, the identical issues will not be litigated in both forums. Accordingly, I find Respondent's position to be without merit and deny the motion for dismissal predicated thereon. /7/ The letter accused Branch Chief Roger Laws of "scalp hunting" to impress his superiors. The letter was not written on the Union's letterhead and Mr. Geukes acknowledges that he wrote the letter as an employee. /8/ The record reveals that Mr. Ryskamp subsequently reduced Mr. Geukes' case load by transferring seventeen cases from his case inventory. /9/ In order to make such a finding, it is incumbent on the General Counsel to prove that the reasons set forth for the poor appraisals or the denial of the within grade wage increase were either a sham or amounted to disparate treatment of union activists. The mere denial from the alleged discriminatees, falls short of disproving the specifics relied upon by Respondent's Group Managers for the poor appraisals and/or the denial of Mr. Braun's within grade wage increase. In the case of Mr. Geukes, who has been a union steward for over ten years, I find that his written rebuttal to Mr. Ryskamp's criticism to be an insufficient basis for discrediting the validity of his appraisal since many of the actions set forth in his rebuttal occurred subsequent to the date that the analysis of cases was made by Mr. Ryskamp.