Litigation Update
The following are highlights from some of our important (past) litigation
incidents.
14. NTEU and IRS NTEU File No. 5464
Forum: Grievance
Attorneys: O’Duden/Atkin/Bialczak
ISSUES: Whether IRS is violating the Fair Labor Standards Act by failing to compensate Revenue
Officers properly for all of the overtime hours they work.
STATUS: NTEU filed a national grievance and information request on April 7, 2011.
21. NTEU and IRS (Bothelo, Grievant) NTEU File No. 5457
Forum: Arbitration
Attorneys: O’Duden/Adkins/Bialczak
ISSUE: Whether an adverse action imposed by IRS upon a seasonal employee for call-back issues
and retention of non-employee benefits was justified.
STATUS: NTEU’s Office of General Counsel was asked to assist in this case. The parties held
grievance meetings, and the IRS denied the grievance at each step. NTEU has invoked
arbitration. A hearing has been scheduled for July 29, 2011.
22. NTEU and IRS NTEU File No. 5455
Forum: Grievance
Attorneys: O’Duden/Atkin/Lawrimore
ISSUE: Whether IRS violated applicable laws, regulations, and contractual provisions, under Art.
42, Sec. 4.A.2., of the National Agreement II, by failing to compensate properly Fuel
Compliance Officers and Fuel Compliance Agents for hours worked in excess of their
established tours of duty.
STATUS: National grievance filed on October 5, 2010. A grievance meeting was held on
December 13, 2010. IRS denied grievance and remedy on March 17, 2011. Arbitration was
invoked on March 24, 2011. A hearing has been scheduled for July 7 and 8, 2011.
NTEU L I T I G AT I O N UP DAT E APRI L 2 0 1 1
23. NTEU and IRS (Whitmer, Grievant) NTEU File No. 5453
Forum: Arbitration
Attorneys: O’Duden/Atkin/Bialczak
ISSUE: Whether IRS violated the National Agreement, the Veterans Employment Opportunities
Act and/or the Uniformed Services Employment and Reemployment Rights Act by filling certain
Revenue Agent vacancies in Bowling Green, Kentucky, exclusively through the FCIP.
STATUS: NTEU filed a grievance on behalf of an IRS employee, who is a veteran, over his non
selection for a Revenue Agent vacancy that the IRS filled through the FCIP. Consistent with
Article 41, the parties held grievance meetings, and the IRS denied the grievance at each step.
NTEU has invoked arbitration. A hearing has been scheduled for June 16, 2011.
24. IRS and NTEU NTEU File No. 5440
Forum: Grievance
Attorneys: O’Duden/Atkin/Lawrimore
ISSUE: Whether the IRS has acted contrary to law by denying current and former part-time
employees Sunday premium pay.
STATUS: NTEU filed a national grievance on March 2, 2010. A settlement agreement was signed
on March 18, 2011. Affected employees will receive a notice and a calculation of estimated back
pay by the end of June.
28. NTEU and IRS NTEU File No. 5437
Forum: Arbitration
Attorneys: O’Duden/Atkin/Bialczak
ISSUE: Whether IRS violated the federal labor statute and negotiated agreements by denying
official time to NTEU representatives attempting to represent bargaining unit employees in
background investigation interviews. Whether IRS acts unlawfully and contrary to negotiated
agreements in failing to take steps to assure that OPM investigators afford employees their right
to union representation, if requested, in such interviews.
STATUS: NTEU filed a national grievance on November 17, 2009. A grievance meeting was held
on December 17, 2009, followed by a conference call on January 26, 2010. IRS denied the
grievance on March 30, 2010, and NTEU invoked arbitration on April 26. An arbitration hearing
was held on November 30, 2010. Opening post-hearing briefs were filed on April 13, 2011, and
reply briefs will be filed on May 4, 2011. This case was consolidated with an earlier, similar
grievance. (See #33.)
29. NTEU and IRS NTEU File No. 5432
Forum: Arbitration
Attorneys: O’Duden/Atkin/Bialczak
ISSUE: Whether IRS violated the Fair Labor Standards Act by failing to compensate Case
Advocates in the Taxpayer Advocate Service (TAS) for overtime worked before and after their
shifts and on weekends, holidays, and days off, due to excessively high inventories and tight
deadlines.
STATUS: NTEU filed a national grievance and information request on April 17, 2009. IRS has
now produced information responsive to the request. A grievance meeting was held on October
22, and a conference call was held on December 9. We provided IRS further information on
February 4, 2010. Case advocates participated in an on-line survey to collect more evidence for
NTEU. NTEU invoked arbitration on October 27, 2010.
30. NTEU and IRS NTEU File No. 5425, 5425-2
Forum: Grievance
Attorneys: O’Duden/Atkin
ISSUE: Whether the IRS violated the Fair Labor Standards Act by improperly exempting Series
343 positions including program analyst, management analyst, management and program analyst
at grades 12 and below from coverage of the FLSA and by failing to properly compensate them
for hours worked under the Act. Whether IRS committed an unfair labor practice by repudiating
its 1999 settlement agreement with NTEU when it exempted those positions without notifying
NTEU of its intent to exempt the positions from coverage under the FLSA.
STATUS: NTEU filed a national grievance and information request on November 10, 2008. The
parties settled the grievance on June 3, 2010. Affected employees received a joint NTEU-IRS
notice; they should have received back pay by October 1, 2010. Employees had until October 31,
2010, to dispute any computations with IRS. NTEU successfully resolved the two disputes
submitted to it, but discovered other errors in IRS’ computations of back pay. On March 14,
2011, NTEU filed a new grievance alleging that IRS had breached the 2010 settlement
agreement. A grievance meeting was held on April 22, at which time IRS indicated an intent to
comply fully with the settlement.
31. NTEU and IRS NTEU File No. 5428
Forum: Arbitration
Attorneys: O’Duden/Adkins/Bialczak
ISSUE: Whether the IRS violated the law, the contract, and a prior settlement agreement between
the parties by not paying night differential to employees who are redeeming time off awards and
by counting time off awards and religious compensatory time off toward the 8-hour-per-pay
period limit on night differential pay for employees in leave status.
STATUS: NTEU filed a national grievance on January 30, 2009. IRS produced information
relevant to the grievance, and a grievance meeting was held on June 10, 2009. A meeting was
held on January 25, 2010, to discuss updated data. Arbitration was invoked on November 15,
2010.
33. NTEU and IRS NTEU File No. 5412
Forum: Arbitration
Attorneys: O’Duden/Atkin/Bialczak
ISSUE: Whether IRS committed unfair labor practices and breached its agreements with NTEU
by failing to ensure that OPM investigators conducting background investigations of IRS
employees honored employees’ statutory and contractual rights to union representation in
background investigation interviews.
STATUS: A national grievance was filed on January 23, 2008, and arbitration was simultaneously
invoked. NTEU filed an information request on January 30, 2008. Subsequent factual
developments, including the transfer of investigatory authority to OPM, delayed the processing
of this grievance. NTEU filed a second grievance, with additional allegations, on November 17,
2009. (See #28.) IRS denied that grievance and this one on March 30, 2010. The two matters
were consolidated and an arbitration hearing was held on November 30, 2010. Initial briefs were
filed on April 13, 2011, and reply briefs on May 4, 2011.