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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 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 fail and refuse to negotiate in good faith with the National Treasury Employees Union in regard to the impact and implementation of the institution of the Taxpayer Compliance Measurement Program (TCMP) in the Employee Plans Division. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under the Federal Service Labor-Management Relations Statute. WE WILL, upon request, negotiate in good faith with the National Treasury Employees Union concerning the impact and implementation of the institution of the Taxpayer Compliance Measurement Program (TCMP) in the Employee Plans Division, and will give retroactive effect to any agreement reached. (Agency or Activity) Dated: By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority whose address is: 1133 15th Street, N.W., Suite 300, Washington, DC 20005. Telephone No.: (202) 653-8452. --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) makes it an unfair labor practice for an agency "to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter." One such "right," in Section 7102 of the Statute, is the right "(1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies" and "(2) to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter." Section 7116(a)(5) makes it an unfair labor practice "to refuse to consult or negotiate in good faith with a labor organization as required by this chapter." /2/ References to the record will be as follows. "TR" refers to the transcript. "Jt" refers to the exhibits offered by the General Counsel and identified as "Joint Exhibits" by the reporter, on the back of the first page of each exhibit. The Joint Exhibits also bear a designation of "General Counsel," on the first page of each exhibit, and were so referred to throughout the hearing. Jt 1 is the stipulation of the parties; and it has attachments which are identified as "Joint Exhibits" 1 through 7. "A" refers to IRS exhibits, which the reporter designated as "Agency" exhibits. "U" refers to the Union's exhibits. "GCBr" refers to the General Counsel's brief. "IRSBr" refers to the IRS brief. "UBr" refers to the Union's brief. Multi page exhibits will be referenced by the exhibit number followed by the page number. All dates refer to 1980, unless otherwise indicated. /3/ Form 6080 is not itself specifically mentioned in the Charge or the Complaint. Both the Charge and the Complaint refer to TCMP implementation, without notice or bargaining, as the gravamen of the action. IRS argues that the General Counsel and the Union are foreclosed from adducing evidence as to changes brought about by the use of Form 6080. The Charge, after naming TCMP as the basis of the Charge, then states: "By the admission of the agency representative in a discussion with Mr. Frank Ferris, NTEU Director of Training and Negotiations, the implementation of this program will result in the employees now spending 75% of their time traveling in the field. In the past travel was virtually non-existent." Joint Exhibit 1 to Jt 1. /4/ A5 is mistakenly marked as having been received in evidence at the hearing. It was not. See TR 181-185, 209-212, and 275. Its exclusion was based upon its untrustworthiness, having been a summary prepared specifically for the hearing and not being supported by production of the underlying documents. However, it appears that the document should have been received under 5 CFR 2423.17, the rules of evidence applicable to these proceedings. Rule 2423.17 seems to require even untrustworthy documents to be received in evidence, unless they are "immaterial, irrelevant, unduly repetitious or customarily privileged." A5 fits none of the stated criteria for exclusion. Accordingly, A5 is received into evidence. /5/ Three agents, who perform both TCMP and non-TCMP examinations, so testified. An IRS witness, who had prepared Form 6080, but had never done examinations in the EP Division, considered the TCMP examination to be little different from any other type. Another IRS witness confirmed that an TCMP examination took "just a little bit" more time. (TR 382). The testimony of the three agents with actual experience is more credible. /6/ Mr. Ferris testified to these 20 to 25 responses. He was a credible witness. It was his duty, as the Union's chief negotiator, to solicit and receive such comments, and to act upon them. Accordingly, the truth of what he was told is credited.