Article 5 | Employee Rights
Section 1
A. 1. The initiation of grievances in good faith by
employees will not cause any reflection on their
standing with their managers or on their loyalty
or desirability to the organization. Employees and
Union stewards who have relevant information
concerning any matter for which remedial relief is
available under this Agreement will, in seeking
resolution of such matter, be assured freedom
from restraint, interference, coercion or
discrimination, intimidation or reprisal.
2. The Employer will not impose any restraint,
interference, coercion or discrimination against
any employees in the exercise of their right to
designate a Union steward for the purpose of
representing to the Employer any matter of
concern over the interpretation or application of
this Agreement or of representing the employees
to any Government agency or official other than
the Employer.
B. Grievances alleging violations of subsection 1A1 above
may be filed at the second step of the grievance
procedure.
C. Discussions between a Union representative and an
employee seeking counsel or advice regarding noncriminal
investigations are confidential, absent the
Employer’s overriding need for the information
determined on a case-by-case basis, consistent with
applicable case law. The Employer agrees not to solicit
information from any Union representative
concerning the nature of such confidential discussions
except as noted above.
Section 2
Nothing in this Agreement will require an employee to
become or remain a member of a labor organization or to
pay money to the organization except pursuant to a
voluntary written authorization by a member for payment
of dues through payroll deductions or by voluntary cash
dues payment by a member.
Section 3
Except as otherwise expressly provided in this Agreement
or Statute, the right to assist a labor organization extends
to participation in the management of the organization
and acting for the organization in the capacity of an
organizational representative, including presentation of
views to officials of the Executive Branch, the Congress, or
other appropriate authority.
Section 4
A. 1. Any employee who is the subject of a conduct
investigation, or is being interviewed as a third
party witness, and who reasonably believes that
an interview with the Treasury Inspector General
for Tax Administration (TIGTA) or any other
representative of the Employer may result in
disciplinary action has the right to representation,
if requested, by a person designated by the Union.
2. At the time the employee is contacted to schedule
such an interview, the employee will be provided
the following information:
(a) the subject matter of the interview in as much
specificity as possible, including whether the
interview involves criminal or non-criminal
matters, if known, except when doing so
would undermine the investigation;
(b) that he or she is the subject of the conduct
interview or whether the employee is being
interviewed as a third party witness;
(c) that if the employee reasonably believes that
the interview may result in disciplinary action,
the employee is entitled to representation
during the interview, if requested, by a person
designated by the Union;
(d) that the interview will be scheduled to allow
the employee an opportunity to seek the
counsel of a Union representative, such
counseling shall not unduly delay the
interview; and
(e) that if he or she is the subject of the conduct
interview, he or she will be given an IRS Form
8111 (Exhibit 5-1). The employee will execute
Form 8111. Employees shall be given a copy
of the executed Form 8111 for their own
records and will provide the original Form
8111 to the Special Agent prior to the
interview. Should the employee fail to bring
the Form 8111 to the interview, the employee
will either be instructed to retrieve the original
Form 8111 or to execute a new Form 8111.
3. Prior to beginning interviews with employees who
are being interviewed as third party witnesses, the
employees will be provided with IRS Form 9142
(Exhibit 5-4). When employees are provided Form
9142 they shall acknowledge receipt and be given
a copy of the executed form for their records.
4. If the interview is initiated by the employee, there
is no obligation to inform the employee of the
right to Union representation before beginning
the interview. However, at the time the Special
Agent or any other representative of the Employer
should reasonably believe that the information
offered by the employee indicates that the
conduct of the employee could reasonably result
in discipline to the employee, the employee must
then be advised of the right to Union
representation as provided in subsection 4A1
above.
5. If an employee appears for a scheduled
interview without representation and
reasonably believes, because the subject of the
interview has changed, that disciplinary action
may result, the employee may request a brief
delay to secure such representation.
6. If an employee is represented in an interview and
the subject of the interview changes to subjects
over which the employee and the representative
have not conferred, the employee or the
representative may request a brief recess to
confer on such issues.
B. When an employee is interviewed by the Employer or
an agent of the Employer (e.g., a representative of the
Treasury Inspector General for Tax Administration),
and the employee is the subject of an investigation,
the employee will be informed of the subject matter
of the interview in as much specificity as possible,
except when doing so would undermine the
investigation, and whether it concerns criminal or
administrative misconduct at the time the interview is
scheduled.
If in cases solely involving administrative misconduct
the employee refuses to respond to questions, the
employee shall be advised of the following:
“Pursuant to 31 CFR 0.207, when directed to do so by
a competent Treasury (e.g., the Treasury Inspector
General for Tax Administration) or Internal Revenue
Service authority, employees must testify or respond
to questions in matters of official interest. Employees
must give such testimony, or respond to questions,
under oath when required or requested to do so. Your
failure to respond as required may result in severe
discipline including removal.”
C. When the subject of an investigation is being
interviewed regarding possible criminal conduct and
prosecution, and the interview is custodial in nature,
at the beginning of the interview the employee shall
be given a statement of Miranda rights contained on
IRS Form 5228 (Exhibit 5-2). If the employee waives his
or her rights, the employee shall so indicate by signing
the above referenced form, and shall be given a copy
of said executed form.
D. When the subject of an investigation is being
interviewed regarding possible criminal conduct and
the interview is non-custodial, at the beginning of the
interview the employee shall be given a statement of
rights contained in Form 12036 (Exhibit 5-6). If the
employee waives his or her rights, the employee shall
sign the above referenced form and shall be given a
copy of said executed form.
E. In an interview involving possible criminal conduct
where prosecution has been declined by appropriate
authority, at the beginning of the interview the
employee shall be given a statement of the Kalkines
warning. The warning shall contain the following
language:
“You are here to be asked questions pertaining to your
employment with the Internal Revenue Service and the
duties that you perform for IRS. You have the option to
remain silent, although you may be subject to removal
from your employment by the Service if you fail to
answer material and relevant questions relating to the
performance of your duties as an employee. You are
further advised that the answers you may give to the
questions propounded to you at this interview, or any
information or evidence which is gained by reason of
your answers, may not be used against you in a criminal
proceeding except that you may be subject to a criminal
prosecution for any false answer that you may give.”
When employees are given the Kalkines warning, they
shall be given IRS Form 8112 (Exhibit 5-3). Employees
will acknowledge on IRS Form 8112 the receipt of the
above warning. Employees shall be given a copy of the
executed IRS Form 8112 for their own records.
F. When the person being interviewed is accompanied by
a representative furnished by the Union, in both
criminal and non-criminal cases, the role of the
representative includes, but is not limited to, the
following rights:
1. to clarify the questions;
2. to clarify the answers;
3. to assist the employee in providing favorable or
extenuating facts;
4. to suggest other employees who have knowledge
of relevant facts; and
5. to advise the employee.
However, a representative may not transform the
interview into an adversarial contest. Once it is
determined that an investigation is not criminal in
nature or once prosecution is declined, the Union and
the employee may request a reasonable delay of the
interview; such request shall not be unreasonably
denied.
G. In interviews regarding possible criminal conduct when
the employee interviewed is represented by counsel,
and when a representative of the Treasury Inspector
General for Tax Administration or any other
representative of the Employer is on reasonable notice
of such representation, the employee’s counsel shall
have authority to represent the employee during the
interview. Special Agents and other agents of the
Employer on reasonable notice of such representation
shall not initiate ex parte communication with the
employee. It will continue to be the practice of agents
of the Employer (e.g., the Treasury Inspector General
for Tax Administration) and the Employer to contact
the employee’s supervisor to arrange an interview or
other contact.
H. Interviews conducted by agents of the Employer (e.g.,
the Treasury Inspector General for Tax Administration)
may be manually and/or mechanically recorded by
either party. The role of any person other than
employees or their representatives in the recording of
the interview shall be subject to applicable disclosure
provisions. The recording may not unreasonably delay
the interview.
I. The Employer will issue a notice to all employees on a
semi-annual basis that states, in part, the following:
1. Employees have the right to be represented by the
Union in an examination conducted by the
Employer or a representative of the Employer in
connection with an investigation if:
(a) the employee reasonably believes that the
examination may result in disciplinary action
against the employee; and
(b) the employee requests such representation;
and
2. Employees may exercise this right if the above
conditions are met whether the employee is the
subject of the investigation (including a
background investigation) or is a third party
witness. The IRS fully supports the aforementioned
right.
J. When the Employer has determined to use a
Statement Analysis Questionnaire in an investigation,
employees are entitled to all the applicable rights of
this Agreement that apply to the subjects of
investigations, including Miranda and Kalkines, if
appropriate.
K. As prescribed by the Privacy Act (and only in noncriminal
matters), the Employer shall collect
information to the greatest extent practical directly
from the subject individual when the information may
result in adverse determinations about an individual’s
rights, benefits and privileges under federal programs.
L. The Employer recognizes the importance of
completing an investigation of an employee in as
timely a manner as practicable. When an employee has
been advised that he or she is/was the subject of an
investigation, and a determination is made not to
propose disciplinary action, the Employer will issue the
appropriate letter (i.e., clearance or closed without
action) to the employee within a timely fashion,
normally within thirty (30) days of when the case
involving the employee is closed.
M. On a quarterly basis (i.e., April 30, July 31, October 31,
and January 31), the IRS will issue a report to the Union
which, at a minimum, provides information on when
each investigation of a bargaining unit employee was
opened and closed during the preceding period, and
the date of issuance of the clearance letter or notice of
proposed disciplinary or adverse action.
Section 5
A. The questions whether, and on what date, to resign are
voluntary matters of free choice for each employee.
When an employee is faced with the prospect of
Employer-initiated action such as termination or
removal, the employee shall have the right not to
resign or, if the employee chooses, to make a
resignation effective at any time prior to the effective
date of the Employer’s action. When authorized by a
settlement agreement, the employee’s record shall
only state that he/she resigned; no reference shall be
made to such action occurring “for cause” when an
employee voluntarily resigns. The employee will be
advised that he or she may consult with a Union
representative and have a representative present prior
to making a decision. This advice will be
acknowledged in writing by the Employer and the
employee. A copy of this acknowledgment will be
provided to the employee. Resignations shall not be
secured by coercive or deceptive means.
B. An employee may request to withdraw a resignation
at any time prior to its effective date, provided the
withdrawal is communicated to the Employer in
writing. The Employer may deny the withdrawal
request before its effective date only for legitimate
reasons including, but not limited to, administrative
disruption or the hiring of a replacement or a valid
commitment to hire a replacement. Avoidance of an
adverse action proceeding is not a legitimate reason
to deny the withdrawal. The denial and the reasons for
the denial will be communicated to the employee.
C. If the Employer has committed to hire or has hired a
replacement, the Employer will consider granting the
withdrawal of the resignation application if a position
in the employee’s same grade and series, including any
special skills (if applicable), and commuting area
becomes vacant prior to the effective date.
D. The Employer recognizes that, pursuant to law and
regulation, certain resignations can be considered
involuntary. The Employer will attempt to avoid
causing such resignations.
Section 6
The Employer is entitled to require truthful answers from
employees in response to questions in matters of official
interest. An employee who fails to provide such answers is
subject to disciplinary action, including removal. An
employee may properly refuse to answer questions
regarding matters in which the Employer has no official
interest. The Employer has determined that no employee
shall be required to play the role of a corrupt employee, or
be required to operate undercover.
Section 7
Relationships between employees and their managers
should be mutually conducted in a businesslike, courteous
and tactful manner. Moreover, managers are expected to
respect the privacy of their employees, protect confidential
information regarding their employees and only share such
information with individuals with a “need to know.”
Section 8
The Employer is committed to providing a work
environment free of discrimination because of sexual
preference or orientation.
Section 9
A Statement of Basic Employee Rights appears in Exhibit 5-
5 of this Agreement. The Employer will post the Statement
on all official bulletin boards and the Union may post it on
all of its bulletin boards. Further, the Union may discuss
these rights in orientation sessions.
Section 10
The Employer has determined that employees shall not be required to disclose an arrest or conviction that a court has ordered purged from the employee’s record in any interview, on any official form or statement, or during any investigation with the Employer or an Employer
representative.
Section 11
Consistent with workload and staffing needs, the Employer
will make reasonable efforts to approve up to a maximum
of one (1) hour of administrative time annually to consult
with a national Union-sponsored Benefits Counselor in
accordance with Article 36.
Section 12
Nothing in this Agreement shall prohibit an employee from
being represented by a Union steward at any stage of the
EEO complaint process including the counseling stage.
Section 13
Employees recognize their responsibility to comply with all
lawful orders and instructions from management officials
in their chain of command. However, no employee will be
subject to disciplinary or adverse action for refusing to
comply with what is determined by an appropriate
authority to be unlawful.
Section 14
A. Should the Employer determine to use covert video
surveillance in conducting administrative
investigations and/or the monitoring of electronic mail,
the Employer will provide notice to the Union at the
national level and afford the Union the opportunity to
bargain to the fullest extent of the Statute.
B. Any evidence derived from phone monitoring, that is
used as support for a proposed disciplinary or adverse
action, shall be provided to the employee and/or the
employee’s designated representative, where not
prohibited by law, rule or regulation.
Section 15
The Employer recognizes the right of every bargaining unit
employee to be free from reprisal for providing information
in connection with a violation of any law, rule, regulation,
or provision of any collective bargaining agreement,
and/or evidence supporting mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety.
Section 16
The Employer has determined that any employee, who is the
subject of a Section 1203 complaint from a taxpayer or a
taxpayer’s representative, will not meet with the taxpayer or
the taxpayer’s representative, until the Employer has made
a determination regarding the reassignment of the case. If
the Employer determines to not reassign the case, the
employee has the right to seek and obtain an opinion from
the Deputy Agency Ethics Official, or designee, concerning
any conflict of interest situation and related matters. All
decisions in this respect are grievable under Article 41.
Section 17
Pseudonyms
An employee may request a pseudonym only if he/she
provides adequate justification, including protection of
personal safety. An employee’s request will not be
unreasonably denied by the Employer. If authorization is
withheld, the Employer will provide the reasons in writing
and the employee may challenge the decision pursuant to
the streamlined grievance process of Article 41 of this
Agreement.
Section 18
Last Chance Agreements
A. Consistent with Article 8, subsection 1A6, the Union will be entitled to attend “last chance” meetings and any settlement discussions regarding the “last chance” agreement. In addition, the terms of a “last chance” agreement will contain at a minimum:
1. the conditions that must be met by the employee;
2. the penalty for breach of the agreement; and
3. the duration of the agreement.