NTEU IS HELPING FEDS CAUGHT UP IN HURRICANE HARVEY
NTEU is going into action, helping federal employees caught in the fury of Hurricane Harvey
In addition to pledging $30,000 for emergency assistance in a matching grant to the Federal Employees Education and Assistance Fund (FEEA) and soliciting FEEA donations, here are some of the key actions we are taking.
· Asking the heads of agencies where we represent employees whose offices/ports have been closed to place every employee assigned to the office on administrative leave, at least until the office reopens.
· Asking that once the office officially reopens, employee requests for time off and other accommodations to address issues concerning their families and homes be handled on a case-by-case basis, according to individual needs.
· I also expect that there will be employees who will need more paid time off to deal with the storm aftermath in the weeks and months ahead than they have accrued leave. The Office of Personnel Management (OPM) has the authority to establish an Emergency Leave Transfer Program (ELTP) at the request of employing agencies for employees needing paid leave to address storm damage. This authority may be delegated to agencies. I am asking agencies to immediately reach out to OPM and request the establishment of an ELPT for their employees or the delegation of authority to do so.
Where an ELPT is established, I intend to solicit donations to the program from NTEU-represented employees across the country.
CONGRESSIONAL VOTING RECORDS
NTEU has the best legislative department in the federal sector, perhaps any sector. That legislative staff has put together voting records for our election officials in Washington.
To learn how Indiana lawmakers in Washington have been voting on issues of importance to federal workers, Chapter 49 has listed their voting records. Access the records at this link.
CHAPTER 49 OFFICERS ARE SET FOR THE NEXT THREE YEARS
The officer slate for NTEU Chapter 49 has been set for the three-year period starting October 1, 2016. When the nomination process was complete, only one person per office accepted a nomination. Therefore, all those accepting nominations have been declared elected by election Chairperson Susan Wright. Here are the elected officers:
President - Duncan Giles
Vice President - Scott Carder
Treasurer - Rosemary Wooden
Secretary - Gail Groves
Susan Wright was elected Chapter 49 Vice President in the last election round, but was forced to relinquish that post after her election to a national NTEU Vice President position. National union bylaws do not permit anyone to hold both offices at the same time. The position of Chapter 49 Vice President has been vacant and will be assumed by Scott Carder October 1st.
ANOTHER ARBITRATION WIN
OVER UNACCEPTABLE PERFORMANCE
When your manager believes you are not performing up to an acceptable level, based on your critical job elements, that manager has a responsibility to help you improve. Our contract language, and the regulations governing the federal work force, provide the guidance on how that should be done.
NTEU has represented a number of employees in cases where the management proposed termination, but once we look at the documentation, we often find little or no coaching was provided to that employee.
Before a management decision to fire or downgrade an employee for poor performance can be sustained, the agency must establish that the employee was given a bona fide opportunity to improve their performance. NTEU has once again prevailed in an arbitration decision overturning the removal of an employee for unacceptable performance, because the IRS failed to provide him with a meaningful opportunity to improve.
The arbitrator's ruling says that although the IRS met the contractual requirements for the content of the opportunity letter, the employee’s manager failed to follow through on the promised assistance. The manager’s reviews of the employee’s performance were heavy on criticism and light on assistance and encouragement. More specifically, the arbitrator pointed out that the manager should have spent more time on showing the employee how to do his job better instead of simply repeating what he needed to do better.
As the most recent in a long line of NTEU victories in performance-based cases based on deficiencies in the opportunity period, the arbitrator’s decision contains an excellent summary of other arbitrators’ observations about the IRS’s obligations during this critical time.
If you would like to read the entire arbitration decision, use this link.
THE TRUMP 2019 BUDGET
You would think that after two mini-shutdowns, federal employees would have endured enough lately, but no, the administration budget proposal is now known, and it is once again bad news for the agency for which we work, the Internal Revenue Service.
President Trump is proposing a budget totaling $11.5 billion, an increase of $262 million over the current 2017 spending plan. That may sound like good news that there is any increase at all, but once you look at the details, the news is not so good.
This budget proposal reduces the level of funding for enforcement activities and anticipates a loss of almost 1,900 enforcement Full Time Equivalents (FTEs) which would severely undermine the IRS’s ability to maximize taxpayer compliance, prevent tax evasion and reduce the deficit.
This budget proposal also provides a total of $2.2 billion in base funding for taxpayer services which would fund roughly 24,600 FTEs. Unfortunately, the base request does not contain any additional funding that Congress provided in 2016 and 2017 to improve the phone level of service, so overall staffing for taxpayer services under this request would actually be reduced by over 4,000 FTEs. NTEU believes this inadequate level of funding and resulting loss of FTEs would not allow the IRS to provide the quality taxpayer service that is a critical component of the agency’s efforts to help the taxpaying public understand their tax obligations, while making it easier to participate in the tax system.
The operations support account, designed to assist overall planning, direction, and support for the IRS, would see an increase under the administration’s request. The proposal calls for a total of $4.1 billion in funding, an increase over the current level. And finally, the budget proposes reducing funding for Business Systems Modernization (BSM) by $180 million, hampering the IRS’s ability to continue efforts focused on building and deploying advanced information technology systems and improve efficiency and productivity for both employees and the public.
The President’s budget request also proposes reducing staffing by 2,307 FTEs as part of its Actions to Achieve Workforce Management. While touting the savings that this reduction in staffing would have, the administration acknowledges this workforce reduction would lower the phone level of service from 75% in FY’18 to 47% in FY’19; delay the sorting and shipping of incoming mail within normal mail; delay responses to transcript requests and other paper receipts from taxpayers; and result in seasonal employees being placed into non-work status.
NTEU strongly opposes the administration’s FY’19 request. In addition to loss of FTEs and resulting adverse impact to IRS operations under the Workforce Management proposal noted above, we are concerned that the request only contemplates providing the IRS with additional funding above the current level if Congress approves the $362 million in program integrity cap adjustment, something it has not done in a number of years. NTEU believes the administration should have requested additional funding within the base accounts, and not as a separate request. We will work with our supporters in Congress to increase base funding for the IRS’s core taxpayer service, enforcement and operations support accounts.
We are also disappointed that the request barely addresses the IRS’s role in implementing the new tax reform law. While the IRS has separately requested $397 million between FY’18 and FY’19 to implement the law, we are concerned other than mentioning the IRS would need additional resources to do so, the budget request does not make mention of the $397 million request or urge Congress to quickly approve it. As you know, as with all statutory mandates, the IRS will be forced to implement the new tax law regardless of whether or not Congress provides it with additional funding to do so. But should they not be provided with additional resources, they could be forced to divert resources from other critical enforcement and taxpayer service programs and defer investing in or upgrading its existing aged IT infrastructure.
This is just the beginning of the budget process, but our lawmakers on Capitol Hill have not been kind to IRS in budget matters for a number of years, and we have all seen the result of that. NTEU Chapter 49 will keep you posted on what is happening as the budget continues its path though the legislative process.
SENATORS HAVE QUESTIONS FOR PRIVATE TAX DEBT COLLECTORS
I think we have all heard the saying, "The definition of insanity is doing the same thing over and over again and expecting a different result." The United States Congress is now trying private debt collection of federal taxes after two failed attempts in previous years.
NTEU has warned our federal lawmakers time and time again that private debt collection will lead to abuses in a system where the private collectors are paid based on the amount collected. As we all know, IRS Revenue Officers are prohibited by law from being paid in that manner, as NTEU believes is a correct system that safeguards the rights of taxpayers.
Now, four U.S. Senators have written to the Federal Trade Commission (FTC) asking that agency to review call scripts used by these debt collectors.
Senators Elizabeth Warrent (D-MA), Sherrod Brown (D-OH), Ben Cardin (D-MD) and Corey Booker (D-NJ) argue these scripts may include implied threats to taxpayers and violate taxpayer privacy protections. The Senators request that given FTC’s jurisdiction over contractors and authorization to enforce compliance under the federal law, the FTC should immediately conduct a review of the call scripts used by the private collectors and provide a briefing on their findings.
The Senators’ letter highlights the danger to taxpayers contacted by the private debt collection companies and notes that low-income taxpayers, in particular, are susceptible to abuse as more than half of the cases turned over to the private collectors involve taxpayers with incomes below 250 percent of the federal poverty level. Previously, the National Taxpayer Advocate has reported that returns of those taxpayer cases to be assigned to the private collectors showed the median reported income was about $32,000 and more than one-third of the returns reported incomes of less than $20,000.
NTEU believes this letter serves as yet another reminder of the danger in turning over the collection of taxes to for-profit companies and the need to keep tax collection in the hands of trained and accountable IRS employees.
BIG WIN FOR NTEU IN CREDIT HOURS ARBITRATION
One of the important benefits NTEU has provided to employees through our contract negotiations over the years is the availability of credit hours, basically moving around the hours that you work. When you earn credit hours, you may take time off later based on the hours you have earned.
A revenue agent in Phoenix, Arizona was denied credit hours, the local chapter filed a grievance over it, and an neutral arbitrator ruled in favor of the union's position.
The agents requested 38 hours of annual leave during July. The employee's manager noted that the grievant would be short 13 hours. The agent agreed to shorten his vacation by a day, reducing his request by eight hours, but said he would make up the difference of five hours by earning credit hours in June. Later that week, the manager denied the worker's request to earn four credit hours that Saturday to complete mandatory ACA-related briefings assigned by management. His supervisor claimed that credit hours were only for work that was “assigned, necessary and available,” such as “urgent and statute issues.” The manager said the ACA briefings were not due until the end of September, so the grievant had plenty of time to work it into his regular work schedule. Later that same week, the manager denied the grievant’s request to work two credit hours on a case assigned to the grievant, again claiming the work was not urgent or on a short statute case, so the grievant could complete that work on another day.
After a hearing, the arbitrator found that the 2012 IRS/NTEU National Agreement “clarifies that an employee has a right to earn credit hours as part of the Agency’s agreement to allow flexible scheduling.” The arbitrator noted that this provision had been modified from the 2009 National Agreement II which “provided only that credit hours could be earned ‘with managerial approval.’”
Article 23, Section 4(A)(1) of the 2012 National Agreement II, states:
".....[a]n employee may, with prior approval by the Employer, work additional time to earn credit hours at a POD, a Telework site or any other location approved by the Employer. The employee’s request to work credit hours will be approved if management determines that appropriate work is assigned, necessary and available and if it determines that the performance of such work at the time requested is not rendered inappropriate based on logistical, safety and/or other factors such as availability of seating, security, utilities or supervision."
The arbitrator rejected the agency’s assertion that it had the discretion to determine that “necessary” meant “urgent,” such as a statute case. The arbitrator found the agency had not disputed that the ELMS training and case work was a necessary part of the grievant’s job duties once it had been assigned to the grievant.
Further, “there was no question that the work in question was available and could be done either during normal work hours or during other hours.” The arbitrator opined that although employees’ right to earn credit hours to work regularly assigned work “is not absolute, but it may be abridged only if management reasonably finds that performing the work outside normal work hours is ‘inappropriate’ because of existing logistical, security or other similar constraints.” The arbitrator sustained the grievance and ordered the agency give credit to the grievant for the six credit hours he requested.
If you feel you are being denied credit hours in viloation of the contract, contact a Chapter 49 officer or steward and we will discuss the situation with you.
A FEW WORDS ABOUT MIKE KEETHERS
When you volunteer to become a steward for the National Treasury Employees Union, you are making a commitment to help people working with you when they are in need of that help. One person that exemplified what it means to be a steward for NTEU was Mike Keethers.
Mike tragically is gone. He apparently experienced a medical emergency while hiking a trail in a remote area of Vermont. He was taken from us at the way-too-early age of 57.
When we both worked at the Accounts Management call center, Mike and I regularly talked about issues facing employees and how we could provide the assistance they needed. Mike was a caring, intelligent person. Beyond that, he was personable. I can't think of anyone who did not like Mike.
I recall a training session we both attended in Las Vegas. Mike loved the game of poker and played when he could. I tried to teach him craps (the dice game) but her didn't win on his first try. He blamed me, in a joking way, and that was OK. We had fun.
I have now been retired from IRS for 5 years, yet there is still a strong bond with the people I worked with during my 28 years at the agency. We have lost too many very good people recently. Mike is the latest. It hurts when something like this happens. But knowing Mike, he would tell us to smile, get over it, and move on.
Mike was a special person, solid IRS employee and a dedicated union steward during the years he performed that duty. I will miss him. A lot.
NTEU WINS IMPORTANT ARBITRATION DECISION OVER PRIORITY CONSIDERATION
When an IRS employee is awarded priority consideration as a result of a grievance procedure, it means just that - priority consideration. When management didn't live up to that contractual and legal requirement, an arbitrator agreed with NTEU that the employee should have received the promotion.
The grievance alleged IRS failed to give bona fide priority consideration to a Grade 9 Revenue Officer (RO) for a Grade 11 RO vacancy. The grievant was a 24-year employee who received priority consideration as a result of a settlement of a prior grievance. The grievant also competitively applied for the vacancy. The Selecting Official, who was the grievant’s second level manager, only considered the grievant’s most recent performance appraisal (which was Exceeds Fully Successful), the Step 2 grievance response that granted her the priority consideration, and the grievant’s résumé that the IRS had on file. The agency’s HR department did not provide a copy of the grievant’s application to the Selecting Official as required by the IRM. The grievant also previously had a 120-day detail to the Grade 11 RO position that the Selecting Official did not find significant. The Selecting Official conducted an abbreviated interview of the grievant that included asking her why she was the best candidate.
The arbitrator agreed with NTEU that asking the grievant to sell herself and compare herself to other unknown candidates was highly inappropriate for a priority consideration candidate. The arbitrator found that the IRS violated its own IRM when it failed to provide a copy of the grievant’s application to the Selecting Official. Following the plethora of prior arbitration decisions on priority consideration, he further found that the agency failed to prove that the employee had job-related inadequacies that justified non-selection. The arbitrator sustained the grievance, ordered the grievant be selected for the next Grade 11 RO position in the grievant’s commuting area, back pay from the time the other candidates entered the position until the grievant is placed in the position.
The bottom line is this - if you have priority consideration, the management must honor that.
EXAMPLES OF TELEWORK SITUATIONS
We at Chapter 49 have tried to keep you up to date
on the latest information about Telework and some of the confusion swirling around the interpretations of Article 50 in the National Agreement.
Here are examples of how the rule is applied to certain work situations:
• The employee is a frequent teleworker, and she works at her residence/telework site for the entire pay period, and never performs work at a taxpayer location or other work site. Here, the employee would have an obligation to report to the POD twice per pay period even where the location of the work performed is in the locality pay area of the official duty station.
• The employee is a frequent teleworker and holds a position that requires her to make field calls to taxpayers or otherwise conduct some business at multiple locations other than her telework site. So long as this work is regularly performed in the locality pay area of her official duty station (POD), the employee does not have an obligation to report to the POD.
• Similarly, if the employee is a frequent teleworker who splits time between two locations during the pay period e.g., home/frequent telework site and one taxpayer site, and that work is performed “within the locality pay area,” then the work locations are “varying on a recurring basis” and the employee has no obligation to report to the POD at all during that pay period.
• The employee is a frequent teleworker whose telework site is within RUS and so is their official duty station and the employee sits at one address (the residence/telework site) performing work for the entire pay period, and never performs work at a taxpayer location or other work site, the employee would have an obligation to report to the POD twice a pay period.
• The employee is a frequent teleworker within the RUS and the employee’s work location varies on a recurring basis, and that work is “regularly” performed within the employee’s RUS area, the employee has no obligation to report to the POD in that pay period.
It is important to note that if an employee fails to meet their obligations for telework, he or she can be removed from telework.
If you have any questions about any of this, contact a Chapter 49 officer or steward.
TELEWORK - HERE WE GO AGAIN!
It appears that, in some parts of the nation, IRS is demanding that employees approved for telework report to the office once a week or twice-a-pay-period or they may be removed from Frequent Telework. IRS is claiming that Article 50, Section 1, (A)(4) justifies this position. This is the second time in the past month that NTEU national officials have heard of this. This management interpretation of our contract is incorrect. Article 50 Section 1(A)(4) provides:
"The employee may be removed from Telework if he or she fails to report to his or her assigned POD within the locality pay area at least two (2) days each pay period; or if his or her work location varies on a recurring basis and he or she fails to regularly perform work within the locality pay area."
This provision must be read in conjunction with the rest of the Article 50, Section 1(A)(2) language that establishes that the telework location must be within a 150 mile radius of the employee’s assigned POD, the locality pay statute and OPM regulations found at 5 C.F.R. 531, Part F entitled Locality Based Comparability Payments.
Briefly, 5 U.S.C. Section 5304 establishes that locality pay shall be payable within each locality determined to have a pay disparity of greater than (5) five percent as determined by the Federal Salary Counsel or pay agent. OPM has then established over (30) thirty locality pay areas throughout the United States. Those areas not entitled to locality pay are called Rest of U.S. (RUS) 5 C.F.R. 531.603.
In order to ensure that employees receive the proper locality rate of pay, the OPM regulations establish the standards for determining where an employee’s official worksite is located. If your worksite is within the locality pay area you get the locality pay rate established for that area. 5 CFR 531.604. When determining the official worksite for locality pay purposes for an employee covered by a telework agreement, the regulations further provide that the employee’s official worksite is the regular worksite where the employee is scheduled to work at least twice each biweekly pay period on a regular and recurring basis, 5 C.F.R. 605(d)(1).
Significantly, the regulation also provides:
"However, in the case of such an employee whose work locations varies on a recurring basis, the employee need not work at least twice each biweekly pay period at the regular official worksite (where the employees work activities are based) as long as the employee is regularly performing work within the locality pay area for that worksite."
The OPM Fact Sheet “Official Worksite for Location-Based Pay Purposes”, which I have attached, states this Section 531.605(d)(1) regulatory requirement for locality pay entitlement as follows:
"In the case of a telework employee whose work location varies on a recurring basis, the employee need not report at least twice each biweekly pay period to the regular worksite established by the agency as long as the employee is performing work within the same geographic area (established for the purpose of a given pay entitlement) as the employee’s regular worksite. For example, if a telework employee with a varying work location works at least twice each biweekly pay period on a regular and recurring basis in the same locality pay area in which the established official worksite is located, the employee need not report at least twice each biweekly pay period to that official worksite to maintain entitlement to the locality payment for that area."
Indeed, IRM 6.800.2.8(2)(A) specifically acknowledges the following as an exception for the twice-a-pay-period reporting requirements:
"If an employee’s work location varies on a daily basis (e.g. a revenue agent working at a taxpayer site) then the employee need not report for the official IRS duty station twice-a-pay-period as long as the employee is performing work within the locality pay area of their official IRS workstation on a regular and recurring basis."
The IRM incorrectly states this is a “temporary exception”. The regulations at 5 C.F.R. 531.605(d)(1) establishing this exception have nothing to do with the temporary nature of the work. 5 C.F.R. 531.605(d)(2) identifies the temporary exceptions and this is not one of them. Naturally, per Article 2, Section 1, the regulations, not the IRM govern this situation.
Thus, if a Frequent Telework approved employee works from home and his/her residence in the locality pay area, there is no twice-a-pay-period requirement to report to the office. If a Frequent Telework approved Field employee works from his/her home and/or at a taxpayer’s location in the locality pay area on a regular and recurring basis, the same applies.
In addition, we addressed this issue of the twice-a-pay-period reporting requirement for telework employees whose work locations are not in a designated locality pay area, but in the “rest of the United States” (RUS). The National Parties Implementation Letter for the 2016 National Agreement States:
Article 50 – Telework, Section 1A4
"To meet the reporting requirement for employees whose locality pay area is in the “rest of the United States,” the employee must be regularly performing work within the commuting area of his or her assigned POD or in the geographic area where work has been assigned by his/her supervisor. This does not alter the reporting requirement contained in this subsection."
This makes clear that Frequent Telework approved employees located in the rest of the U.S. locality pay category satisfy the twice-a-pay-period reporting required by regularly performing work in the assigned POD’s commuting area or in the geographic area when the supervisor assigns the work.
The bottom line is that the language of Article 50, Section 1(A)(4) concerning an employee being removed from Telework if not reporting to the office twice-a-pay-period applies only in a situation where an employee fails to work in the locality pay area on a regular and recurring basis, thus making them ineligible for the locality pay rate designated for their official worksite. Removal from Frequent Telework was the solution that we negotiated with IRS to ensure compliance with the governing locality pay regulations.
Telework is one of the most significant benefits of our hard fought negotiations with IRS. In the past National NTEU officials have had to address misinformation put out by IRS concerning reporting to the office and the negotiated benefit of being able to work 150 miles from the POD. History may be repeating itself.
Bottom line, telework employees need to know this twice-a-pay-period reporting requirement only applies to Frequent Telework employees who do not perform work either at home or in the field on a regular and recurring basis within the locality pay area.
If you have any further questions, contact any Chapter 49 officer or steward.