16:0845(119)CA - IRS and NTEU -- 1984 FLRAdec CA



[ v16 p845 ]
16:0845(119)CA
The decision of the Authority follows:


 16 FLRA No. 119
 
 INTERNAL REVENUE SERVICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 3-CA-952
 
                            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, the Charging Party filed exceptions and an opposition to the
 Respondent's exceptions, and the General Counsel filed a motion to
 strike portions of the Respondent's brief in support of exceptions.  /1/
 
    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 herein.
 
    In agreement with the Judge's conclusion, the Authority finds that
 the Respondent violated section 7116(a)(1) and (5) of the Statute by its
 failure to give the Union adequate prior notice of the implementation of
 its Taxpayer Compliance Measurement Program (TCMP), and by its refusal
 to bargain at the Union's request concerning procedures to be utilized
 in implementing such change and concerning appropriate arrangements for
 employees affected thereby.  In so finding, the Authority notes that
 where an agency in exercising a management right under section 7106 of
 the Statute decides to change a condition of employment of unit
 employees, there exists a statutory duty to negotiate if such change
 results in more than a de minimis impact upon unit employees or such
 impact is reasonably foreseeable.  U.S. Government Printing Office, 13
 FLRA No. 39 (1983) and Department of Health and Human Services, Social
 Security Administration, Chicago Region, 15 FLRA No. 174 (1984).  The
 Authority finds that the implementation of the TCMP had an impact on
 unit employees that was more than de minimis.  /2/
 
    The Judge's recommended Order would require the Respondent to cease
 and desist from instituting a TCMP in the future involving employees
 represented by the Union without first notifying the Union and, upon
 request, bargaining with the Union regarding the impact and
 implementation of TCMP in question in its EP Division and giving
 retroactive effect to any agreement reached with the Union.  The Union
 has requested that the Authority issue a status quo ante remedy, while
 the Respondent opposes such request.
 
    While, contrary to the Respondent's position, use of a status quo
 ante remedy is not precluded where bargaining is limited to impact and
 implementation, /3/ the Authority concludes that a status quo ante
 remedy is not warranted in the circumstances of this case.  In this
 regard, the Authority concludes that an order requiring the Respondent
 to bargain upon request concerning appropriate arrangements to be made
 for employees who have been affected by the implementation of the
 expired Taxpayer Compliance Measurement Program in the EP Division will
 best effectuate the purpose and policies of the Statute, noting that
 TCMP was designed as a temporary program, and that the expiration of
 TCMP has obviated the necessity of ordering the Respondent to
 reinstitute the program or to bargain concerning the procedures used to
 implement the program.  The following order is based solely on the facts
 in this case.  The Authority has not relied, as the Judge appears to do,
 on prior cases where the Respondent has been found to have violated the
 Statute.
 
                                   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 Internal Revenue Service shall:
 
    1.  Cease and desist from:
 
    (a) Instituting a Taxpayer Compliance Measurement Program, or any
 like or related program involving employees in its Employee Plans
 Division, /4/ without first notifying the National Treasury Employees
 Union, the employees' exclusive representative, and affording it the
 opportunity to bargain concerning the procedures which management will
 observe in effecting such change and concerning appropriate arrangements
 for employees affected by such change.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of 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, negotiate with the National Treasury Employees
 Union, the employees' exclusive representative, concerning the
 procedures which management will observe in any future implementation of
 a Taxpayer Compliance Measurement Program, or any like or related
 program, in the Employee Plans Division, and concerning appropriate
 arrangements for employees affected by such change.
 
    (b) Upon request, negotiate with the National Treasury Employees
 Union, the employees' exclusive representative, concerning appropriate
 arrangements to be made for employees who have been affected by the
 implementation in the Employee Plans Division of the Taxpayer Compliance
 Measurement Program which expired on or about November 15, 1981.
 
    (c) Post at all 19 Internal Revenue Service Districts which have an
 Employee Plans Division 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 the appropriate Regional
 Commissioners, or their designees, and shall be posted and maintained
 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 ensure that said
 Notices are not altered, defaced, or covered by any other material.
 
    (d) Pursuant to section 2423.30 of the Federal Labor Relations
 Authority's Rules and Regulations, notify the Regional Director, Region
 III, 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., December 18, 1984
 
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       /s/ Ronald W. Haughton
                                       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 institute a Taxpayer Compliance Measurement Program, or
 any like or related program involving employees in the Employee Plans
 Division, without first notifying the National Treasury Employees Union,
 the employees' exclusive representative, and affording it the
 opportunity to bargain concerning the procedures which management will
 observe in effecting such change and concerning appropriate arrangements
 for employees affected by 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
 Statute.
 
    WE WILL, upon request, negotiate with the National Treasury Employees
 Union, the employees' exclusive representative, concerning the
 procedures which management will observe in any future implementation of
 a Taxpayer Compliance Measurement Program, or any like or related
 program, in the employee Plans Division, and concerning appropriate
 arrangements for employees affected by such change.
 
    WE WILL, upon request, negotiate with the National Treasury Employees
 Union, the employees' exclusive representative, concerning appropriate
 arrangements to be made for employees who have been affected by the
 implementation in the Employee Plans Divisions of the Taxpayer
 Compliance Measurement Program which expired on or about November 15,
 1981.
                                       (Agency or Activity)
 
    Dated:  By:
                                       (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Federal Labor Relations Authority, Region III, whose address
 is:  P.O. Box 33758, Washington, D.C., 20033-0758, and whose telephone
 number is:  (202) 653-8456.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    INTERNAL REVENUE SERVICE
                                Respondent
 
    and
 
    NATIONAL TREASURY EMPLOYEES UNION
                              Charging Party
 
                                       Case No. 3-CA-952
 
    Michael S. Sussman
    Attorney for Respondent
 
    Peter Sutton
    Clara A. Williamson
    Attorneys for the General Counsel,
    Federal Labor Relations Authority
 
    Frank D. Ferris
    For the Charging Party
 
    Before:  ISABELLE R. CAPPELLO
    Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, Chapter 71 of Title 5 of the U.S. Code
 (hereinafter referred to as the Statute), and the rules and regulations
 issued thereunder and published in 45 Fed.Reg. 3482-3524
 
 
 (1/17/80), 5 CFR 2421 et seq.
 
    Pursuant to a charge filed on March 10, 1980, by the National
 Treasury Employees Union (hereinafter, NTEU or the Union), a Complaint
 and Notice of Hearing was issued on October 30, 1980, by the Regional
 Director, Region III, of the Federal Labor Relations Authority
 (hereinafter, the Authority).
 
    The Complaint alleges that on or about September 19, 1979, the
 Internal Revenue Service (hereinafter, IRS or the Respondent), issued a
 Manual Transmittal which established the Taxpayer Compliance Measurement
 Program (hereinafter, TCMP) in the Employee Plans Division (hereinafter,
 EP Division) of IRS, and subsequently implemented the program without
 negotiation with the Union, in violation of Sections 7116(a)(1) and (5)
 of the Statute.  /1/
 
    Respondent claims that it had no obligation to bargain over the
 matter and, therefore, has not violated the Statute.
 
    A hearing was held on January 8 and 9, 1981, in Washington, D.C.  All
 parties were afforded a full opportunity to be heard and introduce
 evidence.  IRS, the Union, and the General Counsel submitted briefs, on
 March 6.  The General Counsel's Motion to Correct the Transcript is
 unopposed, and is granted.
 
    Upon the basis of the entire record, my observation of the witnesses
 and their demeanor, and the briefs, the following findings of fact,
 conclusions, and recommendations are made.
 
                           FINDINGS OF FACT /2/
 
                                Background
 
    1.  NTEU is the collective bargaining agent for all professional
 employees of IRS, with some exceptions, in its District, Regional, and
 National Offices.  Included are professionals in the EP Division.  At
 all times material herein, IRS and the NTEU have been parties to a
 collective bargaining agreement.  Frank Ferris is the Union's chief
 negotiator.
 
    2.  On or about September 19, 1979 IRS issued Manual Transmittal
 7(10)00-50 transmitting new Manual Sections 7(10)90 et seq., which
 established TCMP, in the EP Division of IRS.
 
    3.  On January 2, TCMP was implemented in the EP Division on a
 nationwide basis, except in the Atlanta District where it was
 implemented on July 1.  TCMP is scheduled to expire, in the EP Division,
 on November 15, 1981.
 
    4.  IRS has some 19 Districts, each of which has an EP Division.
 District Offices specifically mentioned at the hearing were Atlanta,
 Jacksonville (now merged with Atlanta), Baltimore, Los Angeles, and San
 Francisco.  Pittsburgh (apparently a sub-office) was also mentioned.
 
    5.  The EP Division was set up in 1975.  It was formerly known as the
 Pension Trust Division.  It has two functions-- determination of whether
 employee benefit plans are qualified under the law;  and examination of
 the plans to insure that they are operating properly.  Determination
 work is performed at the IRS office.  Examination work is performed at
 the premises of the taxpayer, or his representative, and requires travel
 from the office for 75 to 100 percent of the workday.
 
    6.  TCMP is a type of examination described by IRS as an "enforcement
 and long-range research program designed to provide measurements and to
 determine the major characteristics of (its) workload for use by the
 Service in evaluating alternative applications of its limited
 resources." See page 7 of Joint Exhibit 5 to Jt 1.  TCMP, for the EP
 Division, is set forth in a 33 page document and utilizes a new Form
 6080, /3/ containing 313 questions to be answered.
 
    7.  Since approximately 1975, and up until the January 2
 implementation of TCMP, the primary duty of EP Division personnel had
 been determination work.  This was the direct result of the passage of
 the Employment Retirement Income Security Act of 1974 (ERISA), which
 mandated the submission of employee benefit plans to IRS for review in
 the light of ERISA's requirements.  Passage of ERISA created a logjam in
 EP Divisions referred to as the "ERISA crunch" (TR 81).  For
 approximately two years, the work of some EP personnel was "basically
 100 percent determination." (TR 104).
 
    8.  Nationwide figures show the following percents of direct work
 time (excluding such non-work time as leave and training) were spent on
 determination and examination work, in the EP Division, out of direct
 operational time:  (TABLE OMITTED) The high percent of determination
 work during FY 1978 was caused by the ERISA crunch.
 
    9.  In the Atlanta District, the following breakdown in time spent on
 examination and determination work was shown by IRS records:  (TABLE
 OMITTED)
 
    10.  The personnel doing the determination and examination work in
 the EP Division are in several classifications.  Their position
 descriptions all state that both type of duties are to be performed and
 that "some travel" is required.  See e.g. Jt 3.4, to which a "Note" is
 affixed to the effect that:  "As part of the special review program
 concerning EP determinations, for the temporary period through
 approximately 12-31-77, the duties of this position may consist of
 substantially all determination work." (Jt 3.5).
 
    11.  Recruiting material for persons interested in becoming IRS
 agents contain statements that agents "are required, by the nature of
 their work, to spend a considerable portion of their time away from the
 office," the extent depending upon the duty station.  (A 10).  A vacancy
 announcement, dated August 22, 1979, announced approximately 75 percent
 travel at Nashville, TN.  One dated May 14, 1979 announced approximately
 50 percent travel at Greensboro, NC.
 
    12.  Some EP personnel were hired off-the-street.  Others transferred
 from the Examination Division (formerly Audit), which examines
 taxpayer's returns on the taxpayer's premises.  TCMP was first
 implemented in the Examination Division, so some personnel transferring
 to the EP Division had had experience with TCMP.
 
    13.  The Union did not request bargaining over TCMP implementation in
 the Examinations Division.
 
    14.  In the EP Division, the normal progression is schooling in
 determination work;  determination work for six months to two years;
 schooling for three weeks in examinations work;  and then travel to
 perform examination work.  TCMP is another type of examination and
 requires, basically, the examination of the same type of records.
 
    15.  Personnel selected for TCMP were sent to a three or four day
 schooling session on the procedures to be used in filling out Form 6080.
  This form is designed to be read by a computer.  TCMP personnel were
 schooled in such matters as the necessity of keeping the answers within
 the margins on the form, so that the computer can read them.  Only TCMP
 trained personnel are allowed to do TCMP examinations.
 
                     Implementation and impact of TCMP
 
    16.  About the time TCMP was implemented in the EP Divisions, several
 Districts (Atlanta and Los Angeles were specifically mentioned at the
 hearing) divided bargaining unit employees into two groups, one to
 perform only determination work, and the other to perform only
 examination work.  In smaller offices (Baltimore and Pittsburgh were
 specifically mentioned) only some agents were selected for TCMP work,
 while others did only determination work, during the ERISA crunch.  In
 Baltimore, the ERISA crunch lasted from 1975 to June 1978.  Between June
 1978 and June 1979, Baltimore agents performed a combination of
 examination and determination work-- 75 or 85 percent being
 examinations.  In July 1979, and for a couple of months thereafter,
 Baltimore agents performed almost all determination work because the
 employee plans had to be amended to comply with final ERISA regulations.
 
    17.  The choice of employees for TCMP work varied.  Some were asked
 their preference;  others were not.  Some were "chomping at the bit" to
 get into TCMP work;  but nothing was done for them (TR 374, 390).
 Experience was supposed to be a basis for the selection;  but this was
 not always so, in practice.  Some selected were very experienced, for
 example George Nixon, in the Atlanta District, who had performed TCMP in
 the Examinations Division.  In contrast, Larry Green, in the Atlanta
 District, had primarily done determination work up until being assigned
 to TCMP.
 
    18.  Mr. Nixon performed virtually nothing but determination work,
 from 1976 to June 1980.  He performed examination work during this
 period, only on "a very limited basis." (TR 36-37).
 
    19.  Mr. Green started work for IRS in 1975, in the EP Division.
 Prior to TCMP implementation in the Atlanta District, he spent about 95
 percent of his time on determination work.  Since TCMP implementation in
 July 1980, in the Atlanta District, he has performed virtually all
 examination work.
 
    20.  Hal Dubin, also in the Atlanta District, went from 100 percent
 determination work to 100 percent examination work, in July 1980.  His
 travel went from none, prior to TCMP, to an average of 70 percent, for a
 period of time.
 
    21.  It was stipulated that, if called to testify, John Baker would
 have given similar testimony to that of Mr. Green, Mr. Nixon, and Mr.
 Dubin, and that after the July 1980 TCMP implementation in Atlanta, he
 spent 75 to 80 percent of his time in a travel status.
 
    22.  IRS adduced a summary of technical time reports on Mr. Nixon,
 Mr. Dubin, and Mr. Green that indicated they spent 26.9 to 53.7 percent
 of their time on "Examination Time," in FY 1979 (10/78 to 9/79) and 31.6
 to 76 percent of their time on "Examination Time" in FY 1980 (10/79 to
 9/80).  See A5 /4/ and TR 179.  The summary was prepared for the purpose
 of the hearing.  The technical time reports were not themselves adduced,
 so that the accuracy of the summary could be properly tested on cross
 examination of the IRS witness who prepared the summary.  To the extent
 that the summary conflicts with the sworn testimony of Mr. Green, Mr.
 Dubin, and Mr. Nixon, the sworn testimony is credited as being more
 reliable.  These three witnesses testified to far lower percentages of
 time spent on examination work, up to July 1980.  See findings 18, 19,
 and 20, supra.
 
    23.  Implementation of TCMP, in EP Divisions, created the following
 changes:
 
          a.  For some employees, travel went from virtually none to
       substantial.
 
          b.  TCMP examinations are more rigid and in-depth ones;  and 10
       to 15 percent of the information needed to complete the TCMP Form
       6080 is information which the employees did not previously have to
       discover.
 
          c.  TCMP examinations allow the exercise of less judgment on
       the part of the examining agent, as to the scope, structure and
       intensity of the examination.  On non-TCMP examinations, an agent
       may decide what areas to probe and even "survey" some returns,
       that is, not audit them at all.  (TR 130).  All aspects of a TCMP
       examination must be followed.  Appraisals of employees for
       promotions is based, on part, on the employees ability to
       "recognize examination issues of consequence." (Jt. 4, 140).
 
          d.  All TCMP examinations are reviewed for error, whereas
       non-TCMP examinations are mostly subjected to random review.
 
          e.  TCMP examinations require more time to complete.  /5/
       Initially, unfamiliarity with the Form 6080 was a part of the
       problem.  But they also take longer because of the number of
       questions, the complexity of closing and reporting procedures, and
       the fact that even questions of de minimis effect must be answered
       which previously could be overlooked.  A TCMP examination runs
       about three days.  A non-TCMP one, more often than not, takes one
       day.  "Utilization of time" is another factor used to appraise
       agents for promotion.  (Jt 4, 140).
 
            Notice to the Union of TCMP and refusal to bargain
 
    24.  Employees had heard rumors as early as 1976, that TCMP would be
 established.
 
    25.  These rumors reached Mr. Ferris, around late November 1979, from
 local chapters inquiring about increased travel that would result from
 TCMP implementation.
 
    26.  In early December 1979, Mr. Ferris contacted IRS for
 information.  IRS and Union representatives met on December 31, 1979.
 IRS confirmed that TCMP was being implemented in the EP Division.  IRS
 acknowledged that TCMP would require employees to be in the field and
 away from their offices 75 percent of the time, and that this was more
 travel than had been required in the past, in the EP Division.  (TR 17).
  Mr. Ferris requested a copy of the IRS regulations on TCMP and stated
 that impact and implementation proposals would be submitted by January
 10.
 
    27.  After the December 1979 meeting, Mr. Ferris mailed out copies of
 the September 19, 1979 Manual Transmittal to the local chapters of the
 Union.  He received back 20 to 25 responses, an unusually large
 response.  All but one indicated a concern about significantly more
 travel.  Many expressed concern that there were employees who had never
 done examinations before, whereas others were very familiar with the
 work, and what was going to be done about this disparity in backgrounds.
  A couple addressed the issue of what sort of refresher training would
 be given.  A few addressed the issue of how they could get out of
 traveling at all.  Some no longer had second cars and asked whether GSA
 vehicles would be available.  One chapter addressed the issue that some
 employees had child care responsibilities, and had been assured that
 they would not have to travel when they switched from another IRS
 Division.  /6/
 
    28.  On January 16, the Union forwarded its "initial" bargaining
 proposals to IRS and requested a delay in implementation of TCMP in the
 EP Division.  (Joint Exhibit No. 6 to Jt 1).
 
    29.  By letter dated February 11, IRS replied that it had no
 obligation to bargain, over TCMP impact and implementation, that
 examinations have always been considered a part of the Employee Plans
 agents' work, and that an overwhelming majority of the agents have been
 doing examinations and traveling as required.  (Jt 1.7)
 
                                  ISSUES
 
    1.  Whether the introduction of TCMP in the EP Divisions constituted
 a unilateral change in the condition of employment of IRS agents;  and,
 if so, was it de minimis.
 
    2.  Whether NTEU was given adequate notice of TCMP implementation in
 the EP Divisions.
 
    3.  Whether, as part of any remedy, retroactive effect should be
 ordered for any agreement reached by the parties.
 
    4.  Whether new issues were raised at the hearing.
 
                        DISCUSSION AND CONCLUSIONS
 
    A preponderance of the evidence establishes that the TCMP
 implementation at issue created substantial changes in conditions of
 employment;  that the implementation took place without adequate notice
 being given to the Union to negotiate over its impact and
 implementation;  that an appropriate remedy includes retroactive effect;
  and that no new issues were raised at the hearing.
 
    No new issues were raised at the hearing.
 
    Respondent argues that the General Counsel raised issues at the
 hearing which were not contained in the Charge and Complaint.  See IRS
 Br. 15-19.  The alleged new issue is the changes resulting from the use
 of Form 6080.  See Finding 6, supra, and footnote 3 thereto.  From 6080
 is the new form devised for use in the TCMP in EP Divisions.  Since both
 the Charge and the Complaint refer to TCMP implementation as the
 gravamen of the violation, testimony as to the changes brought about by
 the use of the new form is well within the issue presented.  The fact
 that the Charge refers to an admission, by an agency representative,
 that increased travel would result from TCMP implementation, should not
 have misled Respondent into believing that increased travel would be the
 only change asserted.  It just happened to be the only change that was
 listed as admitted by the agency representative.
 
    TCMP implementation did constitute a substantial change in conditions
 of employment for some employees in EP Divisions of IRS. delete
 
    As implemented, TCMP impacted substantially upon conditions of
 employment of some employees.  Increased travel was one such impact--
 for some employees travel increased from virtually none, to virtually
 all of their workday.  While all the agents knew that travel to perform
 examination work was a part of their position description, some had not,
 in fact, been assigned to perform such travel over a significant period
 of time.  Some were anxious to have these travel opportunities.  Others,
 had commitments which made such travel requirements burdensome.  This
 varying reaction was a reasonable foreseeable situation resulting from
 TCMP implementation.
 
    TCMP created other changes as well.  For example, agents' work was
 subjected to increased review;  less judgment and more time were
 required for TCMP examinations;  agents with little examination
 experience were called upon to compete with others of considerable
 experience;  and an opportunity for schooling was offered to some and
 foreclosed to others.
 
    Respondent's attempt to minimize these changes does not succeed.
 While overall nationwide averages may show minimal change after TCMP
 implementation, in some offices the changes were substantial.  While all
 the agents knew, or should have known, that their position descriptions
 called upon them to perform examination-travel work, some apparently
 switched to a particular EP Division upon assurances that they would not
 have to travel.  See Finding 27, supra.  While Form 6080 may be
 characterized as just another type of examination form, it required a
 three or four day training course to fill out properly, use of more
 documentation, less judgment and more time to complete, and a 100
 percent review rather than a random one.  While only three agents, all
 from Atlanta, testified about the effect of TCMP upon employment
 conditions, some 20 or 25 agents expressed concerns about various
 aspects of TCMP implementation to the Union's chief negotiator.
 
    The Union was not given adequate notice of the TCMP implementation at
 issue.
 
    IRS does not dispute that an agency must give adequate notice to the
 bargaining agent for its employees, before implementing changes it has a
 right to make, so that bargaining may ensue as to the impact and
 implementation of the change.  Instead, it argues, that the Union had
 adequate notice, and cites vacancy announcements indicating substantial
 travel was expected of applicants at Nashville, TN, and Greensboro, NC;
 notices during employee interviews that travel was normal;  and
 recruiting materials which stated that considerable travel was expected.
  See IRSBr 12-14.  While this might be notice of new travel requirements
 to new employees, it is no notice at all to the Union or to employees
 already on the payroll.  And no notice to anyone of the other changes
 brought about by TCMP implementation.  See Finding 23b-e, supra.
 
    The Authority has recently held that "chance knowledge of (a Union's)
 agent" is not considered "appropriate advance notice to that agent or
 other union official as a union representation." USAF, Air Force
 Logistics Command and Local 2221, AFGE, 4 FLRA 70 (1980).  The first
 notice received by the Union's agent, here, came through rumors reported
 from employees.  Implementation of TCMP was begun on January 2-- two
 days after Respondent confirmed that TCMP was to be implemented and gave
 the Union's chief negotiator a copy of the program.  Implementation
 began, on January 2, even through the Union informed Respondent, on
 December 31, 1979, that impact and implementation proposals would be
 submitted by January 18.  No reason was shown why a delay in
 implementation could not have been effected while bargaining ensued over
 impact and implementation of TCMP in EP Divisions.  A delay was effected
 in the Atlanta District, but for reasons unrelated to bargaining.  In
 any event, on February 11, IRS refused to bargain over the issue at all.
  Under these circumstances, no adequate notice can be found.
 
    The remedy should include retroactive relief.
 
    The General Counsel and the Union both urge a cease and desist order,
 an order to bargain, and a posting thereof.  In addition, the Union
 urges that retroactive effect be given to any agreement it is able to
 reach over the impact and implementation of the changes resulting from
 the implementation of TCMP in EP Divisions.  The Union urges, as one
 ground for giving retroactive effect, the fact that this is the fifth
 time since 1977 that Respondent has been found "guilty" of an unfair
 labor practice in unilaterally implementing a change in the method used
 to select work for evaluative review.  (UBr 17).  Another ground urged
 is the "virtually irreparable harm that has been done to some employees"
 (Br 17), including any possible changes made, or to be made on employee
 evaluations;  reassignments so that employees have been denied the
 opportunity to practice each of their two major functions (examination
 and determination work);  and denial of training opportunities that are
 now over.  The Union refers to 5 U.S.C. 7116(a)(7)(B) as authority for
 giving retroactive effect to any agreement it can negotiate on impact
 and implementation of TCMP, EP Divisions.  Since the TCMP in EP
 Divisions is due to expire in September 1981, the Union argues that
 prospective effect only, to any relief ordered, would "make a folly of
 the entire proceedings." (UBr 18).
 
    The Union's arguments are persuasive.  At the time TCMP was
 implemented in EP Divisions (January 1980), Respondent was well aware
 that a change in work review procedures is subject to
 impact-and-implementation negotiations.  See, e.g., Dept. of Treasury,
 IRS, Southwest Region and NTEU and NTEU Chapter 91, 1 FLRA 70 (1970) and
 Dept. of Treasury, IRS, Fresno Service Center, A/SLMR No. 983 (1978).
 The change here, from random to complete review of all examinations was
 a change of some substance.  Ordering only prospective relief for a
 change that is due to expire on September 1981 would be a
 slap-on-the-wrist remedy of little import to Respondent, at this stage.
 
    Also, the agents selected for TCMP work have, since implementation,
 had their work subjected to more review and have been required to
 increase their travel.  Those not selected have lost a training
 opportunity.  Those in offices where they have been assigned to all
 examination, or all determination work may have lost skill in types of
 work described in their position descriptions as part of their job.
 
    Under these circumstances, the request by the Union for an order
 giving retroactive effect to any agreement negotiated, should be
 granted.  Such an order will carry out the purpose of the Statute, to
 promote collective bargaining, and is well within the broad power of the
 Authority to impose.  See 5 U.S.C. 7118(a)(7)(C).
 
    Since the unilateral implementation of TCMP took place nationwide, in
 the EP Divisions, the relief ordered shall be nationwide as well.
 
    On the basis of the above, I find and conclude that Respondent has
 violated Sections 7116(a)(1) and (5) of the Statute;  and I recommend
 the entry of the following:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority, the Internal Revenue Service is
 ordered to:
 
       1.  Cease and desist from:
 
          (a) Instituting a Taxpayer Compliance Measurement Program
       involving employees represented exclusively by the National
       Treasury Employees Union, without first notifying the exclusive
       representative and affording it the opportunity to meet and
       confer, to the extent consonant with law and regulations,
       concerning the implementation of such Program and its impact on
       affected employees;  and
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights guaranteed by the Federal Service Labor-Management
       Relations Statute. 2.  Take the following affirmative action:
 
          (a) Upon request by the National Treasury Employees Union, meet
       and confer to the extent consonant with law and regulations, on
       the impact and implementation of the Taxpayer Compliance
       Measurement Program, Employees Plans Division;
 
          (b) Give retroactive effect to any agreement reached with the
       National Treasury Employees Union on the impact and implementation
       of the Taxpayer Compliance Measurement Program, Employee Plans
       Division.
 
          (c) Post at all Internal Revenue Service facilities and
       installations, nationwide, copies of the "Notice to All
       Employees," marked "Appendix," on forms to be furnished by the
       Federal Labor Relations Authority.  Upon receipt of such forms,
       they shall be signed by the appropriate Regional Commissioner and
       shall be posted and maintained for a period of 60 consecutive days
       thereafter, in conspicuous places, including all bulletin boards
       and other places where notices to employees are customarily
       posted.  The Regional Commissioner shall take reasonable steps to
       insure that such notices are not altered, defaced, or covered by
       any other materials;  and
 
          (d) 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.
 
                                       /s/ Isabelle R. Cappello
                                       ISABELLE R. CAPPELLO
                                       Administrative Law Judge
 
    Dated:  April 24, 1981
            Washington, DC
 
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
                                  PURSUANT TO
 
                A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 
                AUTHORITY AND IN ORDER TO EFFECTUA