Internal Revenue Service, Brooklyn District Office and National Treasury Employees Union, Chapter 53 (Authority decision, July 31, 1979)

Final FLRA decision under Executive Order 11491. The Authority adopted the judge's dismissal of the unfair labor practice complaint in this transferred case. The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

NTEU Chapter 53 requested sanitized work review reports for three IRS auditors to help challenge another auditor's transfer. The Brooklyn District refused the request without explaining that it had never prepared those reports. The administrative law judge found the requested information relevant to the grievance, but held that refusing to produce nonexistent records could not establish the specific unfair labor practice alleged. The Authority adopted the dismissal while expressing concern that the IRS's failure to disclose that the records did not exist may have caused unnecessary litigation.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Executive Order 11491, § 19(a)(1) and (6).
• Outcome: Judge's dismissal adopted; unfair labor practice complaint dismissed.
• Key point: The specific charge of withholding records failed because the requested records had never been created.

Full text (FLRA public release)

[ v01 p797 ]

01:0797(89)CA

The decision of the Authority follows:

1 FLRA No. 89

INTERNAL REVENUE SERVICE AND
BROOKLYN DISTRICT OFFICE, IRS
Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER NO. 53
Complainant

Assistant Secretary
Case No. 30-08474(CA)

DECISION AND ORDER

ON MARCH 26, 1979, ADMINISTRATIVE LAW JUDGE ROBERT J. FELDMAN ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.

THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).

THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /1/

ORDER /2/

IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 30-08474(CA) BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., JULY 31, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

KENNETH A. DAVIS, ESQUIRE

ASSISTANT COUNSEL

NATIONAL TREASURY EMPLOYEES

UNION

1730 K STREET, N.W., SUITE 1101

WASHINGTON, D.C. 20006

FOR THE COMPLAINANT

ROBERT F. HERMANN, ESQUIRE

ASSISTANT REGIONAL COUNSEL

INTERNAL REVENUE SERVICE

NORTH-ATLANTIC REGION

26 FEDERAL PLAZA

NEW YORK, NEW YORK 10007

FOR THE RESPONDENT

BEFORE: ROBERT J. FELDMAN

ADMINISTRATIVE LAW JUDGE

DECISION AND ORDER

THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING
OF RECORD WAS HELD PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED,
(HEREINAFTER REFERRED TO AS "THE ORDER") AND 29 C.F.R., PART 203. THE
DECISION AND ORDER BELOW ARE ISSUED FOR THE FEDERAL LABOR RELATIONS
AUTHORITY IN ACCORDANCE WITH THE TRANSITION RULES AND REGULATIONS
PUBLISHED IN THE FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979, PP.
5-8.

STATEMENT OF THE CASE

THE COMPLAINT ALLEGES THAT RESPONDENT VIOLATED SECTIONS 19(A)(1) AND
(6) OF THE ORDER BY REFUSING TO FURNISH CERTAIN INFORMATION REQUESTED OF
IT BY COMPLAINANT. THE VIOLATION IS ALLEGED TO HAVE OCCURRED ON
FEBRUARY 2, 1978, WHEN RESPONDENT'S DISTRICT DIRECTOR, IN DECIDING A
FOURTH LEVEL GRIEVANCE ADVERSELY TO THE GRIEVANT, MS. ROSE APPLEBAUM,
REJECTED COMPLAINANT'S REQUEST FOR SANITIZED VERSIONS OF THE WORK IN
PROCESS REVIEWS OF HER PEERS.

FINDINGS OF FACT

ON JULY 5, 1977, MS. APPLEBAUM, ONE OF FOUR TAX AUDITORS EMPLOYED IN
THE FLUSHING OFFICE OF RESPONDENT'S BROOKLYN DISTRICT, WAS TRANSFERRED
INVOLUNTARILY TO THE JACKSON HEIGHTS OFFICE. ON JULY 13, 1977, SHE
FILED A GRIEVANCE, ALLEGING SUCH TRANSFER TO BE IN VIOLATION OF THE
MULTI-DISTRICT AGREEMENT BETWEEN THE I.R.S. AND THE N.T.E.U., PURSUANT
TO WHICH COMPLAINANT HAD THE AUTHORITY AND THE DUTY TO PARTICIPATE IN
THE GRIEVANCE PROCEEDING AND TO REPRESENT HER INTERESTS. UNDER DATE OF
JULY 18, 1977, MS. APPLEBAUM'S IMMEDIATE SUPERVISOR PREPARED A WORK IN
PROGRESS REVIEW TO SUPPORT HIS CONTENTION THAT SHE HAD BEEN TRANSFERRED
IN ORDER TO PROVIDE CLOSER SUPERVISION OF HER WORK, SINCE IT WAS CLAIMED
THAT SOME AREAS OF HER CASE MANAGEMENT WERE DEFICIENT.

AT THE THIRD AND FOURTH LEVELS OF THE GRIEVANCE PROCEDURE,
COMPLAINANT CONTENDED THAT MS. APPLEBAUM, WHO HAD SOME THIRTY-ONE YEARS
OF FEDERAL SERVICE, INCLUDING MORE THAN TWENTY YEARS WITH I.R.S., HAD NO
GREATER NEED FOR CLOSE SUPERVISION THAN DID THE OTHER THREE AUDITORS IN
THE FLUSHING OFFICE, AND THAT SHE WAS TRANSFERRED TO JACKSON HEIGHTS FOR
DISCIPLINARY OR OTHER REASONS CONTRARY TO THE PROVISIONS OF THE
MULTI-DISTRICT AGREEMENT. IN AN EFFORT TO ASCERTAIN WHETHER THE
PURPORTED NEED FOR CLOSE SUPERVISION WAS THE REAL REASON FOR THE
TRANSFER, COMPLAINANT REQUESTED THAT IT BE SUPPLIED WITH SANITIZED
COPIES OF THE WORK IN PROGRESS REPORTS OF THE GRIEVANT'S PEERS, TO WIT,
THE THREE OTHER TAX AUDITORS IN THE FLUSHING OFFICE.

THE REQUEST WAS FLATLY REFUSED. THE DISTRICT DIRECTOR'S MEMORANDUM
OF FEBRUARY 2, 1977, STATED THAT HE DID NOT SEE THE RELEVANCE OF SUCH
INFORMATION TO THE GRIEVANCE, THAT PURE STATISTICS DID NOT PROVIDE ANY
MEANINGFUL WAY TO GAUGE WHAT IS OR IS NOT ACCEPTABLE, AND THAT HE SAW NO
NEED FOR SUCH INFORMATION AND NO OBLIGATION TO PROVIDE IT. RESPONDENT
REAFFIRMED ITS POSITION THEREAFTER UPON THE SAME GROUNDS, WITH
ADDITIONAL CONTENTIONS AS TO THE SUFFICIENCY OF THE COMPLAINT AND AS TO
INVASIONS OF PRIVACY. AT NO TIME DID ANY OF RESPONDENT'S
REPRESENTATIVES CLAIM, OR EVEN SUGGEST, THAT THE DATA REQUESTED DID NOT
EXIST.

SOMETIME PRIOR TO THE HEARING, MS. APPLEBAUM WAS TRANSFERRED BACK TO
THE FLUSHING OFFICE.

IN THE COURSE OF THE HEARING (AND ONLY AFTER COMPLAINANT HAD RESTED
ITS CASE), RESPONDENT FINALLY DISCLOSED THAT NO WORK IN PROGRESS REVIEWS
HAD BEEN PREPARED FOR ANY OF THE OTHER THREE TAX AUDITORS IN THE
FLUSHING OFFICE, THAT THE DOCUMENTS REQUESTED WERE THUS NOT IN
EXISTENCE, AND THAT COMPLIANCE WITH COMPLAINANT'S REQUEST WAS THEREFORE
IMPOSSIBLE.

CONCLUSIONS OF LAW

THERE CAN BE LITTLE DOUBT THAT HAD WORK IN PROGRESS REVIEWS BEEN
PREPARED FOR THE OTHER THREE TAX AUDITORS, AND HAD THEIR REVIEWS SHOWN
THAT THEIR PERFORMANCE WAS NO BETTER THAN THE GRIEVANT'S, IT WOULD HAVE
BEEN REASONABLE TO INFER THAT THE GRIEVANT DID NOT NEED ANY CLOSER
SUPERVISION THAN DID THE OTHER, AND THAT SHE WAS TRANSFERRED FOR SOME
UNSTATED REASONS WHICH MIGHT HAVE BEEN CONTRARY TO THE PROVISIONS OF THE
MULTI-DISTRICT AGREEMENT. CONSEQUENTLY, THE INFORMATION REQUESTED
CLEARLY APPEARED TO BE RELEVANT AND NECESSARY TO THE EFFECTIVE CONDUCT
OF THE GRIEVANCE. RESPONDENT'S ADAMANT REFUSAL TO COMPLY ON LEGAL
GROUNDS IS THUS OF DUBIOUS VALIDITY. SEE INTERNAL REVENUE SERVICE,
A/SLMR 1001(1978); INTERNAL REVENUE SERVICE, A/SLMR 975(1978).

NEVERTHELESS, AN UNFAIR LABOR PRACTICE CANNOT BE FOUNDED UPON DENIAL
OF ACCESS TO NON-EXISTENT RECORDS. BOTH THE CHARGE AND THE COMPLAINT
HEREIN ALLEGE REFUSAL TO PRODUCE SPECIFIC DOCUMENTS REQUESTED FOR USE IN
GRIEVANCE PROCEEDINGS IN VIOLATION OF SECTIONS 19(A)(1) AND (6). SINCE
COMPLAINANT HAS FAILED TO ESTABLISH THAT SUCH DOCUMENTS ARE, OR EVER
WERE, IN THE POSSESSION OR UNDER THE CONTROL OF RESPONDENT, IT HAS NOT
BEEN SHOWN THAT THEIR NON-PRODUCTION VIOLATED THE PROVISIONS OF THE
ORDER RELIED UPON. HENCE I AM CONSTRAINED TO DISMISS THE COMPLAINT.

THE TACTICS RESORTED TO BY RESPONDENT IN REJECTING COMPLAINANT'S
REQUEST OUT OF HAND AND FAILING TO REVEAL THE NON-EXISTENCE OF THE
DOCUMENTS IN QUESTION INDICATE A FUNDAMENTAL RIGIDITY OF APPROACH TO
LABOR-MANAGEMENT RELATIONS THAT RUNS CONTRARY TO THE SPIRIT, IF NOT THE
LETTER OF THE ORDER. WHETHER SUCH CONDUCT MAY BE DEEMED TO CONSTITUTE
AN ACTUAL VIOLATION IS NOT BEFORE US, SINCE THE COMPLAINT IS CONFINED TO
THE PARTICULARIZED REFUSAL TO SUPPLY CERTAIN RECORDS AND THE ALLEGATIONS
ARE INSUFFICIENT TO ENCOMPASS MORE GENERALIZED PRACTICES. IT IS NOT
INAPPROPRIATE, HOWEVER, TO POINT OUT THAT EFFORTS OUGHT TO BE DIRECTED
TO RESOLVING CONTROVERSIES, NOT TO EXACERBATING THEM. AS THE FEDERAL
LABOR RELATIONS COUNCIL HAS OBSERVED:

"COOPERATIVE LABOR RELATIONS ARE NOT ESTABLISHED OR MAINTAINED WHEN A
LABOR ORGANIZATION OR

THE MANAGEMENT OF AN AGENCY ESTABLISHES AS ITS FIRST PRIORITY . . .
THE VINDICATION OF ITS

POSITION IN AN UNFAIR LABOR PRACTICE PROCEEDING."

VANDENBERG AIR FORCE BASE, 4392D AEROSPACE SUPPORT GROUP, VANDENBERG
AIR FORCE BASE,

CALIFORNIA, FLRC 74A-77, REPORT NO. 79, AT P. 7.

THESE PROCEEDINGS SHOULD NOT BE CONVERTED INTO AN ACADEMIC EXERCISE
IN FUTILITY OR A DEMONSTRATION OF LEGALISTIC MUSCLE AT TAXPAYERS'
EXPENSE. I AM CONFIDENT THAT UNDER THE NEW FEDERAL LABOR RELATIONS
AUTHORITY, ADEQUATE INVESTIGATION AND THE EXERCISE OF SOUND JUDGMENT BY
ITS GENERAL COUNSEL WILL PREVENT SIMILAR OCCURRENCES.

ORDER

IN VIEW OF THE FOREGOING, IT IS ORDERED THAT THE COMPLAINT HEREIN BE,
AND THE SAME HEREBY IS, DISMISSED IN ITS ENTIRETY.

ROBERT J. FELDMAN

ADMINISTRATIVE LAW JUDGE

DATED: MARCH 26, 1979

WASHINGTON, D.C.

/1/ IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY IS
DEEPLY CONCERNED WITH THE RESPONDENT'S FAILURE TO INDICATE, EITHER AT
THE TIME OF THE REQUEST FOR INFORMATION BY THE COMPLAINANT OR DURING THE
INVESTIGATION OF THE UNFAIR LABOR PRACTICE CHARGE, THAT THE INFORMATION
SOUGHT DID NOT EXIST. THIS FAILURE MAY HAVE CAUSED UNNECESSARY
LITIGATION WHICH HINDERS THE EFFECTIVE ADMINISTRATION OF THE FEDERAL
LABOR-MANAGEMENT RELATIONS PROGRAM.

/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.