15:1014(187)CA - Treasury, IRS Jacksonville District, Jacksonville, FL and NTEU -- 1984 FLRAdec CA



[ v15 p1014 ]
15:1014(187)CA
The decision of the Authority follows:


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