12:0445(87)CA - IRS and IRS Detroit District and NTEU and NTEU Chapter 24 -- 1983 FLRAdec CA



[ v12 p445 ]
12:0445(87)CA
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 Bra