Internal Revenue Service, Jacksonville District, Jacksonville, Florida (Respondent) and National Treasury Employees Union (Complainant) 




[ v01 p266 ]
01:0266(35)CA
The decision of the Authority follows:


 1 FLRA No. 35
 
 INTERNAL REVENUE SERVICE,
 JACKSONVILLE DISTRICT,
 JACKSONVILLE, FLORIDA
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION
 Complainant
 
                                            Assistant Secretary
                                            Case No. 42-4117(CA)
 
                            DECISION AND ORDER
 
    ON DECEMBER 20, 1978, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING
 FINDING THAT THE RESPONDENT HAD VIOLATED SECTION 19(A)(1) AND (6) OF
 EXECUTIVE ORDER 11491, AS AMENDED, AND RECOMMENDING THAT IT CEASE AND
 DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
 ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 THEREAFTER, THE RESPONDENT AND THE COMPLAINANT FILED EXCEPTIONS AND
 SUPPORTING BRIEFS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LA0OR 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, INCLUDING THE PARTIES' EXCEPTIONS AND SUPPORTING BRIEFS, WE HEREBY
 ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.  /1/
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
 THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT, JACKSONVILLE,
 FLORIDA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) WITHHOLDING OR FAILING TO PROVIDE, UPON REQUEST BY THE NATIONAL
 TREASURY EMPLOYEES
 
    UNION, ANY INFORMATION BEARING UPON THE WORK PERFORMANCE OF ANY OR
 ALL OF ITS PROBATIONARY
 
    EMPLOYEES, IN CONNECTION WITH REPRESENTING A PROBATIONARY EMPLOYEE AT
 ANY MEETING CALLED TO
 
    CONSIDER THE LATTER'S PROPOSED TERMINATION, WHICH IS RELEVANT AND
 NECESSARY TO ENABLE THE
 
    NATIONAL TREASURY EMPLOYEES UNION TO DISCHARGE ITS OBLIGATION AS THE
 EXCLUSIVE REPRESENTATIVE
 
    TO REPRESENT EFFECTIVELY ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED
 UNIT.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
 AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
 
    (A) UPON REQUEST, MAKE AVAILABLE TO THE NATIONAL TREASURY EMPLOYEES
 UNION ALL INFORMATION
 
    BEARING UPON THE WORK PERFORMANCE OF ANY OR ALL OF ITS PROBATIONARY
 EMPLOYEES, IN CONNECTION
 
    WITH THE SEPARATION OF PHYLLIS D. GRUBBS, A PROBATIONARY EMPLOYEE,
 WHICH IS RELEVANT AND
 
    NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES UNION TO
 DISCHARGE ITS OBLIGATION TO
 
    REPRESENT EFFECTIVELY ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED
 UNIT.
 
    (B) AFTER RECEIPT BY THE NATIONAL TREASURY EMPLOYEES UNION OF THE
 RELEVANT AND NECESSARY
 
    INFORMATION REFERRED TO IN SECTION 2(A) ABOVE, UPON REQUEST, MEET
 WITH THE NATIONAL TREASURY
 
    EMPLOYEES UNION PURSUANT TO ARTICLE 32 OF THE PARTIES' NEGOTIATED
 AGREEMENT CONCERNING THE
 
    DECISION TO SEPARATE PHYLLIS D. GRUBBS.
 
    (C) POST AT ITS JACKSONVILLE, FLORIDA, DISTRICT OFFICE, COPIES OF THE
 ATTACHED NOTICE
 
    MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
 RELATION" AUTHORITY.  UPON
 
    RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR OF THE
 JACKSONVILLE, FLORIDA,
 
    DISTRICT, AND THEY SHALL BE POSTED AND MAINTAINED Y HIM FOR 60
 CONSECUTIVE DAYS THEREAFTER, IN
 
    CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES
 ARE CUSTOMARILY
 
    POSTED.  THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
 NOTICES ARE NOT ALTERED,
 
    DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (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.
 
    ISSUED, WASHINGTON, D.C., MAY 9, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 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 WITHHOLD OR FAIL TO PROVIDE, UPON REQUEST BY THE NATIONAL
 TREASURY EMPLOYEES UNION, ANY INFORMATION BEARING UPON THE WORK
 PERFORMANCE OF ANY OR ALL OF OUR PROBATIONARY EMPLOYEES, IN CONNECTION
 WITH REPRESENTING A PROBATIONARY EMPLOYEE AT ANY MEETING CALLED TO
 CONSIDER THE LATTER'S PROPOSED TERMINATION, WHICH IS RELEVANT AND
 NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES UNION TO DISCHARGE
 ITS OBLIGATION AS THE EXCLUSIVE REPRESENTATIVE TO REPRESENT EFFECTIVELY
 ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL, UPON REQUEST, MAKE AVAILABLE TO THE NATIONAL TREASURY
 EMPLOYEES UNION ALL INFORMATION BEARING UPON THE WORK PERFORMANCE OF ANY
 OR ALL OF ITS PROBATIONARY EMPLOYEES, IN CONNECTION WITH THE SEPARATION
 OF PHYLLIS D. GRUBBS, A PROBATIONARY EMPLOYEE, WHICH IS RELEVANT AND
 NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES UNION TO DISCHARGE
 ITS OBLIGATION TO REPRESENT EFFECTIVELY ALL EMPLOYEES IN THE EXCLUSIVELY
 RECOGNIZED UNIT.
 
    WE WILL, UPON REQUEST, AND AFTER THE RECEIPT OF THE RELEVANT AND
 NECESSARY INFORMATION BY THE NATIONAL TREASURY EMPLOYEES UNION, MEET
 WITH THE NATIONAL TREASURY EMPLOYEES UNION, PURSUANT TO ARTICLE 32 OF
 OUR NEGOTIATED AGREEMENT, CONCERNING THE DECISION TO SEPARATE PHYLLIS D.
 GRUBBS.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:  (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR SIXTY (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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
 1365 PEACHTREE STREET, N.E., SUITE 540, ATLANTA, GEORGIA 30309.
 
    HARRY G. MASON, ESQ.
 
    INTERNAL REVENUE SERVICE
 
    SOUTHEAST REGION
 
    P.O. BOX 1074
 
    ATLANTA, GEORGIA 30301
 
                            FOR THE RESPONDENT
 
    WILLIAM HARNESS, ESQ.
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    SUITE 930, 3445 PEACHTREE ROAD, N.E.
 
    ATLANTA, GEORGIA 30326
 
                            FOR THE COMPLAINANT
 
    BEFORE:  WILLIAM NAIMARK
 
                         ADMINISTRATIVE LAW JUDGE
 
                           CASE NO. 42-4117(CA)
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON AUGUST 8, 1978
 BY THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICE OF THE U.S.
 DEPARTMENT OF LABOR, ATLANTA REGION, A HEARING WAS HELD BEFORE THE
 UNDERSIGNED IN THIS CASE ON SEPTEMBER 26, 1978 AT JACKSONVILLE, FLORIDA.
 
    THIS PROCEEDING ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREIN CALLED THE ORDER).  A COMPLAINT WAS FILED ON DECEMBER 27, 1977
 BY NATIONAL TREASURY EMPLOYEES UNION (HEREIN CALLED THE COMPLAINANT)
 AGAINST JACKSONVILLE DISTRICT, INTERNAL REVENUE SERVICE, JACKSONVILLE,
 FLORIDA (HEREIN CALLED THE RESPONDENT).  THE COMPLAINT ALLEGED THAT
 RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER BY REFUSING,
 UPON A REQUEST MADE ON AUGUST 24, 1977 BY COMPLAINANT, TO FURNISH
 SANITIZED INFORMATION REGARDING OTHER EMPLOYEES WHICH WAS NECESSARY AND
 RELEVANT TO DEFEND A PROBATIONARY EMPLOYEE WHOM RESPONDENT PROPOSED TO
 TERMINATE.  RESPONDENT FILED AN ANSWER ON JANUARY 16, 1978 DENYING THE
 COMMISSION OF ANY UNFAIR LABOR PRACTICES.  IT ALSO RAISED SEVERAL
 DEFENSES WHICH WILL BE ADVERTED TO HEREIN BELOW.  /2/
 
    BOTH PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE
 EVIDENCE, AND TO EXAMINE AS WELL AS CROSS-EXAMINE WITNESSES.
 THEREAFTER, BRIEFS WERE FILED BY BOTH PARTIES WHICH HAVE BEEN DULY
 CONSIDERED.
 
    UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
 AND THEIR DEMEANOR, AND BASED ON ALL THE TESTIMONY AND EVIDENCE ADDUCED
 AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS AND
 RECOMMENDATIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN THE COMPLAINT HAS BEEN THE EXCLUSIVE
 BARGAINING REPRESENTATIVE OF ALL PROFESSIONAL AND NON-PROFESSIONAL
 EMPLOYEES OF RESPONDENT.
 
    2. SINCE 1972 COMPLAINANT AND RESPONDENT HAVE BEEN PARTIES TO SEVERAL
 MULTI-DISTRICT AGREEMENTS COVERING THE AFORESAID UNIT.  /3/
 
    3.  MULTI-DISTRICT AGREEMENT (MDA) NO. 1, EFFECTIVE ON JULY 1, 1972
 FOR A TWO YEAR PERIOD, CONTAINED PROVISIONS DEALING WITH DISCIPLINARY
 AND ADVERSE ACTIONS UNDER ARTICLE 31 OF SAID AGREEMENT.  IT WAS MADE
 APPLICABLE TO UNIT EMPLOYEES WHO COMPLETED THEIR PROBATIONARY PERIOD,
 AND PROVIDED FOR INTER ALIA, (A) NOTIFICATION TO AN EMPLOYEE OF ANY SUCH
 PROPOSED ACTION;  (B) A MEETING BETWEEN THE EMPLOYEE AFFECTED AND
 MANAGEMENT DURING WHICH THE EMPLOYEE WAS ENTITLED TO BE ACCOMPANIED BY
 HIS UNION REPRESENTATIVE, (C) THE FURNISHING TO THE EMPLOYEE OF ALL
 WRITTEN DOCUMENTS RELIED UPON BY THE EMPLOYER IN TAKING PROPOSED ACTION
 AGAINST HIM.
 
    4.  MDA NO. 2, EFFECTIVE ON AUGUST 3, 1974 FOR A TWO YEAR PERIOD,
 CONTAINED THE SAME BASIC PROVISIONS WITH RESPECT TO DISCIPLINARY AND
 ADVERSE ACTIONS TAKEN BY MANAGEMENT AGAINST CAREER EMPLOYEES AS WERE
 PROVIDED IN ARTICLE 31 OF MDA NO. 1.  HOWEVER, IT SEPARATED THE
 PROVISIONS AND SET FORTH A SEPARATE ARTICLE (NO. 32) FOR DISCIPLINARY
 ACTIONS AND ANOTHER ARTICLE (NO. 33) FOR ADVERSE ACTION.  BOTH OF THOSE
 ARTICLES WERE STILL APPLICABLE TO UNIT EMPLOYEES WHO COMPLETED THEIR
 PROBATIONARY PERIOD OF EMPLOYMENT.
 
    THE SAID AGREEMENT, MDA NO. 2, ALSO INCLUDED A PROVISION DEALING WITH
 PROBATIONARY EMPLOYEES DESIGNATED AS ARTICLE 31.  THE LATTER ARTICLE
 PROVIDED, IN SUBSTANCE, THAT IF THE EMPLOYER PROPOSES TO TERMINATE A
 PROBATIONER, THE SAID EMPLOYEE WILL BE GIVEN DUE NOTICE THAT THE
 EMPLOYER WILL, UPON REQUEST, MEET WITH SUCH EMPLOYEE WHO MAY BE
 ACCOMPANIED BY HIS UNION REPRESENTATIVE;  THAT THE EMPLOYER'S DECISION
 RE TERMINATION WILL BE FINAL AND NON-APPLICABLE TO A HIGHER LEVEL
 AUTHORITY.
 
    5.  MDA NO. 3 WAS EFFECTIVE ON JANUARY 31, 1977 FOR A FOUR YEAR
 PERIOD.  /4/ IT CONTINUED TO PROVIDE FOR SEPARATE COVERAGE FOR
 PROBATIONARY EMPLOYEES AS WELL AS OTHER EMPLOYEES AFFECTED BY
 DISCIPLINARY OR ADVERSE ACTIONS.  ARTICLE 32 DEALS WITH PROBATIONERS
 WHEREAS ARTICLES 33 AND 34 COVER DISCIPLINARY AND ADVERSE ACTIONS
 RESPECTIVELY TOWARD OTHER EMPLOYEES.  AS WAS TRUE IN THE MDA NO. 2, THE
 EMPLOYER IS NOT REQUIRED THEREUNDER TO FURNISH INFORMATION TO A
 PROBATIONARY EMPLOYEE UPON WHICH A DECISION TO TERMINATE HIM IS BASED.
 UNDER ARTICLE 32, SECTION 1(C) IT IS PROVIDED AS FOLLOWS:
 
    THE EMPLOYER AGREES TO MEET WITH AN AFFECTED PROBATIONARY EMPLOYEE
 UPON REQUEST AND/OR
 
    ACCEPT A WRITTEN STATEMENT FROM HIM/HER RELATING TO HIS/HER
 TERMINATION, WHETHER OR NOT THE
 
    EMPLOYEE IS ON THE ROLLS.  IF THE EMPLOYEE ELECTS BOTH, THE WRITTEN
 STATEMENT MUST BE
 
    DELIVERED TO THE EMPLOYER ON OR BEFORE THE DATE OF THE MEETING.  IF
 THE AFFECTED EMPLOYEE
 
    ELECTS TO REQUEST A MEETING TO SUBMIT A WRITTEN STATEMENT, THE
 REQUEST FOR MEETING OR RECEIPT
 
    OF WRITTEN STATEMENT MUST BE WITHIN FIFTEEN (15) DAYS OF RECEIPT OF
 NOTICE.  IF A MEETING IS
 
    HELD, THE EMPLOYEE MAY BE ACCOMPANIED BY TWO REPRESENTATIVES OF THE
 UNION.
 
    6.  RECORD FACTS REFLECT, AND I FIND, THAT DURING THE NEGOTIATION OF
 MDA NO. 2 THE UNION PROPOSED TO MANAGEMENT THAT ARTICLE 31 WHICH WAS
 CONTAINED IN MDA NO. 1 BE BROADENED TO INCLUDE PROBATIONARY EMPLOYEES.
 THE BARGAINING REPRESENTATIVE SOUGHT TO PROTECT PROBATIONERS SINCE THEY
 WERE NOT COVERED UNDER THE SAID ARTICLE, AND WERE NOT ENTITLED TO
 INFORMATION AND DATA AS WERE THE OTHER CAREER UNIT EMPLOYEES.  THE
 EMPLOYER REFUSED TO EQUATE THE RIGHTS OF PROBATIONARY EMPLOYEES WITH
 CAREER EMPLOYEES AND WOULD NOT AGREE TO THE UNION'S REQUEST.  HOWEVER,
 IT SUGGESTED THE PROBATIONARY EMPLOYEES BE GIVEN A STEP IN THE GRIEVANCE
 PROCEDURE BUT THIS WAS NOT AGREED TO BY THE UNION.  THE PARTIES FINALLY
 AGREED UPON A SEPARATE ARTICLE FOR PROBATIONARY EMPLOYEES WHICH WAS
 INCLUDED AS ARTICLE 31 IN MDA NO. 2 AND AS ARTICLE 32 IN MDA NO. 3.  AS
 A RESULT OF THIS AGREEMENT TO SO COVER THE PROBATIONERS, THE UNION DID
 NOT PURSUE ITS DEMAND THAT THEY BE GIVEN THE SAME RIGHTS OR COVERAGE AS
 WAS EXTENDED TO OTHER UNIT EMPLOYEES.
 
    7.  ON AUGUST 23, 1977 /5/ RESPONDENT HAND DELIVERED A LETTER TO
 PROBATIONARY EMPLOYEE, PHYLLIS D. GRUBBS, NOTIFYING THE LATTER OF AN
 INTENTION TO TERMINATE HER FOR FAILING TO PERFORM SATISFACTORILY.  AS
 EXPRESSED IN THE LETTER THE TERMINATION WOULD TAKE EFFECT /6/ AT THE
 CLOSE OF BUSINESS SEPTEMBER 9, 1977 IN ACCORDANCE WITH PART 315 OF THE
 CIVIL SERVICE COMMISSION REGULATIONS.
 
    8.  A JOINT LETTER SIGNED BY GRUBBS AND DUNCAN A. MCDONNELL, UNION
 STEWARD, DATED AUGUST 24 WAS ADDRESSED TO DISTRICT DIRECTOR CHARLES O.
 DEWITT WHEREIN THE PROBATIONER AND HER REPRESENTATIVE REQUESTED A
 MEETING BE HELD PRIOR TO SEPTEMBER 9, 1977 IN ACCORDANCE WITH ARTICLE
 32, SECTION 1(C) OF MDA NO. 3.
 
    9.  BY LETTER DATED AUGUST 24 BOTH GRUBBS AND MCDONNELL WROTE TERRY
 H. DELANEY, CHIEF OF LABOR-RELATION FOR RESPONDENT REQUESTING CERTAIN
 INFORMATION IN ACCORDANCE WITH THE PROVISION OF MDA NO. 3 AND THE
 FREEDOM OF INFORMATION ACT.  THE UNION SOUGHT THEREIN CERTAIN DATA
 CONCERNING GRUBBS AND SIX OTHER NAMED PROBATIONERS IN ORDER TO PREPARE A
 RESPONSE TO THE NOTICE OF TERMINATION GIVEN TO GRUBBS.  RECORD FACTS
 REVEAL THE UNION ISSUED THE INFORMATION IN ORDER TO SHOW MANAGEMENT THAT
 GRUBBS' WORK WAS NOT SO POOR, COMPARED WITH THAT OF OTHER PROBATIONARY
 EMPLOYEES, AS TO WARRANT HER TERMINATION.  FURTHER, IT REQUESTED THE
 INFORMATION NOT LATER THAN AUGUST 29.
 
    THE DATA SOUGHT BY COMPLAINANT, WHICH WAS ACCEPTABLE IN SANITIZED
 FORM, INCLUDED:
 
    A) TRAVEL VOUCHERS
 
    B) SIGN OUT SHEETS
 
    C) CASE EVALUATIONS
 
    D) WORKLOAD REVIEWS
 
    E) REVIEWER'S MEMOS
 
    F) ANNUAL AND SICK LEAVES-- AMOUNT TAKEN AND REMAINING.
 
    G) INSTRUCTOR AND CLASSROOM EVALUATIONS
 
    H) VARIOUS FORMS INVOLVING ON-THE-JOB TRAINING, CASE REVIEW, ET. AL.
 
    10.  ON THE AFTERNOON OF AUGUST 25 DELANEY TELEPHONED MCDONNELL RE
 THE REQUEST FOR INFORMATION RECEIVED BY RESPONDENT.  DELANEY STATED THAT
 THE UNION WAS ASKING FOR A LOT OF INFORMATION, AND HE QUESTIONED ITS
 RELEVANCY SINCE MANAGEMENT ONLY RELIED UPON INFORMATION CONCERNING
 GRUBBS.  MCDONNELL REPLIED HE HAD TO LOOK AT THE DATA TO DETERMINE HOW
 RELEVANT IT WOULD BE;  THAT IF THE EMPLOYER DEFER TERMINATING GRUBBS
 TILL THE END OF HER PROBATIONARY PERIOD, THE UNION WOULD NOT PURSUE ITS
 DEMAND.  DELANEY AGREED TO CHECK ON WHETHER THE TERMINATION COULD BE
 DEFERRED.
 
    11.  ON THE SAME DAY OF HIS CONVERSATION WITH THE UNION OFFICIAL,
 DELANEY CONFERRED WITH JERRY DETERS, PERSONNEL OFFICER, AND RELATED THE
 CONVERSATION RE THE INFORMATION REQUESTED.  BOTH DELANEY AND DETERS
 AGREED THAT THE UNION MUST SHOW THAT THE DATA WAS RELEVANT AND
 NECESSARY;  THAT THEY NEEDED AN EXTENSION OF TIME TO PROVIDE THE
 INFORMATION;  AND THAT PERHAPS IT WOULD BE FURNISHED IN ANOTHER FORM OR
 BY SUMMARY.
 
    12.  ON THE FOLLOWING DAY, AUGUST 26, DELANEY AGAIN TELEPHONED
 MCDONNELL TO DISCUSS THE REQUEST.  HE MENTIONED THE SHORT PERIOD OF TIME
 ALLOWED TO PROVIDE THE DATA.  FURTHER, HE SUGGESTED THAT THE UNION
 SELECT TWO OR THREE OTHERS SO THAT MANAGEMENT WOULD SUPPLY THE FACTS
 FOR
 JUST THREE EMPLOYEES INSTEAD OF ALL SIX INDIVIDUALS.  DELANEY ALSO
 MENTIONED THAT IF MCDONNELL COULD TELL HIM EXACTLY WHAT HE WAS LOOKING
 FOR, HE MIGHT PROVIDE THE INFORMATION IN THE TIME PERIOD.  MCDONNELL
 INSISTED HE NEEDED THE INFORMATION PRIOR TO MEETING WITH THE RESPONDENT.
 
    13.  LATER IN THE DAY OF AUGUST 26 BOTH MCDONNELL AND BILL MOLINEAUX,
 CHIEF STEWARD, CAME TO SEE DELANEY RE THE INFORMATION REQUESTED.
 MANAGEMENT AGAIN RAISED THE QUESTION OF RELEVANCY.  DELANEY POINTED OUT
 THE UNION WAS ASKING FOR A LOT OF DATA, ALTHOUGH THE EMPLOYER COULD
 PROVIDE SUMMARIES AND THE INFORMATION WITHIN THE TIME PERIOD.  /7/
 MCDONNELL AGAIN REPEATED ITS REQUEST THAT THE TERMINATION, DATE BE
 EXTENDED.
 
    14.  ON AUGUST 29 MCDONNELL TELEPHONED DELANEY AND ASKED WHETHER THE
 DATE WOULD BE FURNISHED THAT DAY.  UPON BEING TOLD THAT IT WOULD NOT BE
 SUPPLIED, MCDONNELL REMARKED "DO YOUR BEST."
 
    15.  BY LETTER DATED AUGUST 31 ADDRESSED TO GRUBBS, MANAGEMENT
 ADVISED THAT IN RESPONSE TO HER REQUEST A MEETING WAS BEING SCHEDULED
 FOR SEPTEMBER 7.
 
    16. ON SEPTEMBER 1 RESPONDENT DELIVERED TO GRUBBS ALL OF THE
 INFORMATION SHE REQUESTED WHICH PERTAINED TO HER EXCEPT FOR CERTAIN TAX
 RETURN INFORMATION.  THE EMPLOYER ALSO STATED, IN AN ACCOMPANYING MEMO,
 THAT IT WAS WITHHOLDING DOCUMENTS RE OTHER PROBATIONARY EMPLOYEES SINCE
 IT WOULD CONSTITUTE AN INVASION OF PRIVACY TO RELEASE THEM.  MCDONNELL
 SPOKE TO DELANEY THAT SAME DAY, AFTER THE DATA HAD BEEN SENT TO GRUBBS,
 AND HE PROTESTED THAT THE INFORMATION WITH RESPECT TO THE OTHER SIX
 PROBATIONARY EMPLOYEES HAD NOT BEEN SENT BY MANAGEMENT.
 
    17.  THE RECORD REFLECTS THAT RESPONDENT MAINTAINED A "BLACKBOOK" FOR
 EACH EMPLOYEES WHICH CONSISTED OF A LARGE BINDER CONTAINING DETAILS RE
 HIS TIME SHEET, TRAVEL VOUCHERS, CASE ANALYSIS, ON-THE-JOB TRAINING,
 WORKLOAD REVIEWS, MEMO, AWARDS, CITATION AND LETTERS.  MOST OF THE
 INFORMATION SOUGHT BY COMPLAINANT REGARDING THE NAMED EMPLOYEES WAS
 INCLUDED IN THIS "BLACKBOOK", ALTHOUGH SOME OF THE DATA REQUESTED BY THE
 UNION WAS RECORDED ELSEWHERE.
 
    18.  BY LETTER DATED SEPTEMBER 1 ADDRESSED TO DIRECTOR DEWITT, THE
 COMPLAINANT ADVISED THE LATTER THAT GOOD FAITH HAD NOT BEEN SHOWN BY
 MANAGEMENT IN REFUSING TO FURNISH THE INFORMATION RE OTHER PROBATIONERS;
  THAT IT NEEDED THE DATA TO PUT FORTH FACTS POSSIBLY NOT CONSIDERED BY
 THE SUPERVISORS OF GRUBBS;  AND IT SPECIFICALLY REQUESTED THAT SANITIZED
 LISTS OF THE MATERIAL DESIRED BE SUPPLIED PRIOR TO THE MEETING SCHEDULED
 FOR SEPTEMBER 9.
 
    19.  A MEETING WAS HELD WITH MANAGEMENT ON SEPTEMBER 7 AT WHICH UNION
 AGENTS MCDONNELL AND MOLINEAUX ATTENDED AS WELL AS EMPLOYEE GRUBBS.
 COMPLAINANT REITERATED ITS NEED FOR THE DATA REQUESTED AS TO THE OTHER
 PROBATIONERS AND RENEWED ITS DEMAND THEREFOR.  NO OFFER WAS MADE BY
 RESPONDENT TO SUPPLY IT OR ANY POSITION THEREOF.
 
    20.  IN OCTOBER, AND SUBSEQUENT TO HER TERMINATION, GRUBBS FILED AN
 EEO COMPLAINT ALLEGING DISCRIMINATION BASED ON SEX.
 
    21.  APPROXIMATELY SIX MONTHS AFTER SEPTEMBER 1, AND DURING THE
 INVESTIGATION OF THIS CASE, RESPONDENT FURNISHED TO THE DEPARTMENT OF
 LABOR THE SANITIZED MATERIAL CONCERNING THE OTHER SIX PROBATIONARY
 EMPLOYEES.  DELANEY TESTIFIED THAT IN ORDER TO GATHER THE DATA IT WAS
 NECESSARY TO UTILIZE TWO CLERICALS FOR A WEEK WORKING FREE TIME;  THAT
 HIS SECRETARY WORKED 80 HOURS ON THE MATTER;  SEVERAL OTHER INDIVIDUALS
 SPENT A FEW DAYS GATHERING THE INFORMATION;  AND THAT DELANEY DEVOTED
 TWO WEEKS IN ACCUMULATING AND SUPPLYING THE DATA.  RESPONDENTS ALSO
 ESTABLISH THAT MUCH OF THE INFORMATION SOUGHT HAD BEEN REMOVED FROM THE
 BOOKS AT THE TIME IT WAS COMPILED FOR THE DEPARTMENT OF LABOR SINCE IT
 WAS NOT CURRENT.  THIS FACTOR CONTRIBUTED TO THE AMOUNT OF TIME REQUIRED
 TO ACCUMULATE THE MATERIALS.  FURTHER, IF RESPONDENT HAD GATHERED THE
 INFORMATION WHEN COMPLAINANT REQUESTED SAME, IT WOULD HAVE TAKEN LESS
 TIME TO PROVIDE IT.
 
                                CONCLUSIONS
 
    THE PRINCIPAL CONTENTIONS OF THE RESPONDENT ARE:  (A) THE INFORMATION
 SOUGHT BY COMPLAINANT IS NEITHER RELEVANT NOR NECESSARY SO AS TO OBLIGE
 THE EMPLOYER TO FURNISH SAME;  (B) THE DEMAND WAS MADE UNDER THE
 CONTRACT, RATHER THAN THE ORDER, AND NO RIGHT EXISTED UNDER THE
 AGREEMENT TO SEEK INFORMATION;  (C) RESPONDENT DID NOT RELY UPON THE
 PERFORMANCE OR SUITABILITY OF THE OTHER PROBATIONARY EMPLOYEES IN
 SEPARATING GRUBBS;  (D) COMPLAINANT WAVED ITS RIGHT TO OBTAIN THE
 INFORMATION REQUESTED BY VIRTUE OF THE BARGAINING HISTORY AND THE
 AGREEMENTS NEGOTIATED WITH RESPONDENT;  (E) UNDER 19(D) OF THE ORDER,
 THIS PROCEEDING IS BARRED SINCE THE ISSUE COULD HAVE BEEN RAISED THROUGH
 STATUTORY AND REGULATORY DISCRIMINATION COMPLAINT PROCESS.
 
    THE RECENT DECISION IN INTERNAL REVENUE SERVICE, FRESNO SERVICE
 CENTER, A/SLMR NO. 1119 IS DISPOSITIVE OF SEVERAL ISSUES RAISED IN THE
 INSTANT MATTER.  THE CITED CASE INVOLVED A REFUSAL BY THAT EMPLOYER TO
 FURNISH THE NTEU, AND ITS CHAPTER 97, AN INVESTIGATORY FILE WHICH FORMED
 THE BASIS OF A DECISION TO TERMINATE AN EMPLOYEE WHOM THE UNION
 REPRESENTED.  RESPONDENT THEREIN CONTENDED, AS HERE, THAT THE RIGHTS OF
 A PROBATIONARY EMPLOYEE ARE LIMITED;  THAT THE ORDER DOES NOT GRANT THE
 UNION ACCESS TO THE FILE;  THAT SECTION 10(E) OF THE ORDER DOES NOT
 OBLIGE THE EMPLOYER TO FURNISH IT TO THE UNION;  THAT ACCESS TO THE
 FILES IS NOT RELEVANT NOR NECESSARY SINCE THE UNION'S ONLY RIGHT IS TO
 BE PRESENT AT A MEETING, WHICH WAS GRANTED;  THAT ANY RIGHT TO THE FILES
 WAS WAIVED BY THE UNION;  AND THE COMPLAINT WAS BARRED BY SECTION 19(D)
 OF THE ORDER.
 
    IN FINDING A VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE ORDER, THE
 ASSISTANT SECRETARY CONCLUDED THAT THE EXCLUSIVE REPRESENTATIVE'S RIGHT
 OF ACCESS TO INFORMATION STEMMED FROM ITS OBLIGATION, UNDER SECTION
 10(E), TO REPRESENT THE INTERESTS OF ALL UNIT EMPLOYEES.  THIS
 RESPONSIBILITY IS NOT FULFILLED IF THE REPRESENTATIVE IS PREVENTED FROM
 OBTAINING RELEVANT AND NECESSARY DATA RELATING TO IT DUTY TO ADMINISTER
 THE NEGOTIATED AGREEMENT AND TO REPRESENT EMPLOYEES RE THE EXERCISE OF
 THEIR RIGHTS UNDER THE ORDER.  THUS, THE UNION IN INTERNAL REVENUE
 SERVICE, FRESNO SERVICE CENTER, SUPRA, WAS ENTITLED, ACCORDING TO THE
 ASSISTANT SECRETARY, TO FILE TO FULFILL ITS FUNCTION ON BEHALF OF THE
 PROBATIONARY EMPLOYEES, AS WELL AS THE ADMINISTRATION OF THE NEGOTIATED
 AGREEMENT.  MOREOVER, THE SAID FILE WAS PRESUMPTIVELY RELEVANT AND
 NECESSARY IN ORDER FOR THE UNION TO PERFORM SAID FUNCTIONS.
 
    WHILE CONCEDING THAT THE INFORMATION WITH RESPECT TO GRUBBS WAS
 RELEVANT AND NECESSARY TO A PROPER REPRESENTATION OF THAT EMPLOYEE,
 RESPONDENT DISPUTES THE RELEVANCY AND NECESSITY OF THE DATA AS TO THE
 SIX OTHER PROBATIONERS.  IT THUS WOULD DISTINGUISH THE INSTANT CASE FROM
 IRS, FRESNO SERVICE CENTER SINCE THAT MATTER ONLY INVOLVED THE FILE OF
 THE PARTICULAR PROBATIONARY EMPLOYEE TO BE TERMINATED.  I REJECT THIS
 ARGUMENT.  THE DATA SOUGHT BY COMPLAINANT HEREIN RESPECTING THE OTHER
 PROBATIONERS MIGHT WELL BE VITAL IN ENABLING THE UNION TO PROPERLY
 REPRESENT GRUBBS. A COMPARISON AMONG THE PERFORMANCES OF THOSE IN THE
 SAME JOB CLASSIFICATION COULD RESULT IN PERSUADING THE EMPLOYER THAT
 GRUBBS' PERFORMANCE DIFFERED LITTLE FROM THE COLLEAGUES.  DISPARATE
 TREATMENT BETWEEN EMPLOYEES IS LONG RECOGNIZED AS A FACTOR IN
 DETERMINING WHETHER DISCRIMINATORY MOTIVATION BY AN EMPLOYER EXISTS.
 LIKEWISE, DISPARITY OF TREATMENT ACCORDED EMPLOYEES BY AN EMPLOYER COULD
 BE A SIGNIFICANT CONSIDERATION IN THE PROPER REPRESENTATION OF SUCH
 EMPLOYEE BY HER REPRESENTATIVE.  THE EVALUATIONS, REVIEWS, PERFORMANCE
 RATINGS AND SIMILAR DATA CONCERNING THE CAPABILITIES OF OTHER
 PROBATIONERS WOULD BE RELEVANT IN DETERMINING WHETHER SUCH TREATMENT BY
 RESPONDENT WAS JUSTIFIED.  TO ENABLE COMPLAINANT TO MAKE THIS
 DETERMINATION, AND THUS EFFECTIVELY REPRESENT GRUBBS, ACCESS TO SUCH
 INFORMATION WOULD BE NECESSARY.  THE UNION WOULD BE ABLE, UNDER SUCH
 CIRCUMSTANCES, TO FULFILL ITS OBLIGATION IN REPRESENTING GRUBBS AND
 ADMINISTERING THE CONTRACT.
 
    THE EMPLOYER HEREIN ASSERTS, HOWEVER, THAT IT DID NOT RELY UPON THE
 PERFORMANCES OR SUITABILITY OF OTHER PROBATIONARY EMPLOYEES IN TAKING
 ADVERSE ACTION AGAINST GRUBBS.  THEREFORE, IT ARGUES, THE MATERIAL WITH
 RESPECT TO THE OTHER INDIVIDUALS CAN HAVE NO RELEVANCY.  I DISAGREE.
 THE FACT THAT NO RELIANCE WAS PLACED BY THE EMPLOYER ON THE PERFORMANCES
 OF GRUBBS' COLLEAGUES DOES NOT RENDER SUCH DATA IRRELEVANT OR
 UNNECESSARY.  CF. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION
 SERVICE, A/SLMR NO. 902.  TO ENABLE A UNION TO CONDUCT ITS
 REPRESENTATIONAL DUTIES INTELLIGENTLY, IT IS NOT REQUIRED THAT THE
 INFORMATION SOUGHT BY IT BE THE BASIS FOR THE ACTION TAKEN BY THE
 EMPLOYEES.  SUCH MATERIAL MAY, IN ITSELF, BE RELEVANT TO A CONSIDERATION
 OF THE REASONABLENESS OF ACTION TAKEN AGAINST THIS EMPLOYEE VIS A VIS
 OTHERS SIMILARLY SITUATED.  ACCESS TO SUCH DATA IS OBVIOUSLY NECESSARY
 FOR THE UNION TO REPRESENT GRUBBS AT THE MEETING WHEREIN HER PROPOSED
 TERMINATION WILL BE DISCUSSED, AND I SO FIND.
 
    THE ASSISTANT SECRETARY ALSO CONCLUDED IN THE IRS, FRESNO CASE,
 SUPRA, THAT THE WITHDRAWAL BY THE UNION THEREIN DURING CONTRACT
 NEGOTIATION, OF ITS DEMAND THAT AN INVESTIGATORY FILE BE FURNISHED WITH
 RESPECT TO PROBATIONARY EMPLOYEES WAS NOT A WAIVER OF ITS RIGHT TO SUCH
 FILE UNDER THE ORDER.  SUCH A WITHDRAWAL, AND FAILURE TO PURSUE ITS
 DEMAND IN THAT RESPECT, WAS HELD NOT TO BE A CLEAR AND UNMISTAKABLE
 WAIVER IN ACCORDANCE WITH THE RULE LAID DOWN IN NASA KENNEDY SPACE
 CENTER, KENNEDY SPACE CENTER, FLORIDA, A/SLMR NO. 223.  THE SAME
 CONTRACTS AND BARGAINING HISTORY PREVAIL IN BOTH THE INSTANT MATTER AND
 THE FRESNO CASE.  I FIND NO REASON TO DEPART FROM THE RULING OF THE
 ASSISTANT SECRETARY, AND HENCE IT IS CONCLUDED THERE WAS NO WAIVER BY
 COMPLAINANT OF ITS RIGHT TO OBTAIN THE INFORMATION UNDER THE ORDER.
 
    THE INTERNAL REVENUE SERVICE IN THE FRESNO CASE, SUPRA, LIKEWISE
 CONTENDED THAT THE PROCEEDINGS WERE BARRED UNDER SECTION 19(D) OF THE
 ORDER.  SUCH DEFENSE WAS NOT UPHELD.  IN THE CASE AT BAR, MOREOVER, I DO
 NOT CONCLUDE THAT THE UNION'S RIGHT TO THE DATA REQUESTED WAS AN ISSUE
 WHICH COULD, IN ANY EVENT, BE RAISED DURING THE EEO PROCEEDING BY
 GRUBBS.  APART FROM THE FACT THAT THERE WAS NO APPEALS PROCEDURE UNDER
 WHICH THIS ISSUE WOULD BE PROPERLY RAISED, I CONCLUDE THIS DEFENSE HAS
 BEEN LAID TO REST BY THE ASSISTANT SECRETARY IN THE CITED CASE.
 
    RESPONDENT HEREIN LAYS STRESS ON THE CONTENTION THAT, IN VIEW OF THE
 TIME LIMIT SET BY COMPLAINANT FOR THE PRODUCTION OF THE DATA AS WELL AS
 THE VOLUME OF MATERIAL REQUESTED, THE DEMAND BY THE UNION WAS
 UNREASONABLE AND IMPOSED AN UNDUE BURDEN UPON THE EMPLOYER.  WHILE
 COMPLAINANT INITIALLY DEMANDED THAT THE INFORMATION BE SUPPLIED BY
 AUGUST 29-- FIVE DAYS AFTER THE DEMAND DATE, IT CONTINUED TO SEEK THE
 MATERIAL EVEN AT THE MEETING ON SEPTEMBER 7.  I AM NOT PERSUADED THAT
 THE UNION HEREIN WAS SO ARBITRARY IN FIXING A TIME FOR THE PRODUCTION OF
 THE INFORMATION AS NOT TO ACCEPT IT AFTER THE 29TH OF AUGUST.  THE DATE
 SELECTED FOR THE FURNISHING OF THE MATERIAL WAS REASONABLY CLOSE TO THE
 DATE SET FOR THE MEETING, AND ONE CAN SCARCELY FAULT COMPLAINANT FOR
 SEEKING THE INFORMATION IN ADVANCE OF THE MEETING IN ORDER TO ANALYZE IT
 INTELLIGENTLY.  NOTIFICATION BY THE EMPLOYER OF ITS INTENT TO TERMINATE
 GRUBBS WAS ONLY ABOUT TWO WEEKS PRIOR TO THE TERMINATION DATE.
 ACCORDINGLY, THE NARROW TIME FRAME WITHIN WHICH THE UNION WOULD SEEK AND
 EXAMINE THE RELEVANT DATA EXISTS BY VIRTUE OF THE INITIAL ACTION TAKEN
 BY RESPONDENT ITSELF.
 
    MOREOVER, I AM CONSTRAINED TO CONCLUDE, UPON THE RECORD FACTS HEREIN,
 THAT THE COMPILATION OF THE INFORMATION BY THE EMPLOYER DID NOT PLACE AN
 UNDUE BURDEN UPON IT.  RESPONDENT FINALLY UNDERTOOK TO SUPPLY THE
 REQUESTED DATA RE GRUBBS-- ALL OF WHICH IT FURNISHED IN SEVEN DAYS.
 SINCE MOST OF THE MATERIAL WAS INCLUDED IN THE "BLACKBOOK" PERTAINING TO
 THE EMPLOYEES, ONE COULD EXPECT THAT THE DATA CONCERNING THE OTHER SIX
 PROBATIONERS BE GATHERED IN MUCH THE SAME MANNER AND WITHIN THE SAME
 TIME PERIOD.  RESPONDENT ACKNOWLEDGES THAT MUCH OF THE INFORMATION RE
 THE OTHER EMPLOYEES HAD BEEN REMOVED FROM THE FILES AFTER SEPTEMBER.
 THUS, THE FACT THAT IT TOOK SEVERAL WEEKS FOR VARIOUS STAFF MEMBERS TO
 COLLECT THE DATA, WHICH RESPONDENT SENT TO DOL, LESSENS ITS
 SIGNIFICANCE.  MOREOVER, THE RECORD IS BARREN OF ANY ATTEMPT OR CHANCE.
 MOREOVER, THE RECORD IS BARREN OF ANY ATTEMPT OR OFFER BY THE EMPLOYER
 TO SUBMIT THE INFORMATION AS GATHERED, SO THAT THE UNION COULD EXAMINE
 THE POSITIONS DELIVERED TO IT.  IT IS ALSO NOTED THAT RESPONDENT MIGHT
 HAVE MADE THE MATERIAL AVAILABLE FOR INSPECTION TO THE COMPLAINANT AT
 ITS PREMISES, THUS ELIMINATING CONSIDERABLE TIME OTHERWISE SPENT IN ITS
 ORGANIZATION AND COMPILATION.  HAD THE EMPLOYER HEREIN TAKEN STEPS TO
 SUBMIT SOME INFORMATION TO THE UNION-- WHETHER IT ABBREVIATED OR
 SHORTENED FORM-- ITS DEFENSE OF UNDUE BURDEN MIGHT HAVE SOME VALIDITY.
 IN FACE OF ITS INSISTENCE, HOWEVER, THAT THE DATA WOULD NOT BE GIVEN TO
 COMPLAINANT UNDER ANY CIRCUMSTANCES, I FIND IT DIFFICULT TO CONCLUDE
 THAT THE CLAIM OF UNDUE BURDEN WAS RAISED IN GOOD FAITH.  IN ANY EVENT,
 I AM CONVINCED THAT THE INFORMATION RE THE SIX PROBATIONERS COULD HAVE
 BEEN FURNISHED PRIOR TO THE MEETING ON SEPTEMBER 7;  THAT THE REQUEST
 FOR SAME WAS NOT UNREASONABLE;  AND THAT, WHILE IT MAY HAVE IMPOSED A
 BURDEN UPON RESPONDENT, THE ONUS WAS NOT SO DIFFICULT AS TO EXCULPATE
 THE LATTER FROM ITS OBLIGATION TO SUPPLY THE INFORMATION PRIOR TO HER
 TERMINATION.
 
    UNDER THE CIRCUMSTANCES PRESENT HEREIN, I CONCLUDE THAT RESPONDENT
 WAS OBLIGED, UNDER THE ORDER, TO FURNISH THE INFORMATION REQUESTED
 CONCERNING THE SIX OTHER PROBATIONARY EMPLOYEES;  THAT THIS INFORMATION
 WAS RELEVANT AND NECESSARY IN ORDER FOR COMPLAINANT TO FULFILL ITS DUTY
 TO REPRESENT EMPLOYEES IN THE BARGAINING UNIT;  AND THAT THE FAILURE TO
 FURNISH SAME WAS A REFUSAL TO NEGOTIATE AND VIOLATIVE OF SECTIONS
 19(A)(1) AND (6) OF THE ORDER.
 
                                  REMEDY
 
    COMPLAINANT SEEKS A REMEDY PROVIDING, INTER ALIA, FOR REINSTATEMENT
 OF GRUBBS TO HER FORMER POSITION.  IT INSISTS THAT REQUIRING RESPONDENT
 TO MEET WITH THE UNION WOULD BE MEANINGLESS SINCE THE EMPLOYEE HAS
 ADVERSELY BEEN DISCHARGED.  NO INCENTIVE IS PROVIDED, ARGUES
 COMPLAINANT, FOR THE EMPLOYER TO REVERSE ITS DECISION, AND THUS ANY
 FUTURE DISCUSSION BETWEEN THE PARTIES HEREIN CONCERNING GRUBBS WOULD BE
 USELESS.
 
    THIS SAME CONTENTION WAS RAISED BY THE UNION IN THE FRESNO CASE.  THE
 ASSISTANT SECRETARY DECLINED TO ORDER REINSTATEMENT OF THE PROBATIONARY
 EMPLOYEE, STATING THERE WAS NO SUFFICIENT EVIDENCE TO SHOW THAT BUT FOR
 THE REFUSAL TO FURNISH THE REQUESTED INFORMATION THE EMPLOYEE WOULD NOT
 HAVE BEEN DISCHARGED.  WHILE I RECOGNIZE THE LOGIC BEHIND COMPLAINANT'S
 ARGUMENT IN SEEKING GRUBBS' REINSTATEMENT, I AM BOUND BY CITED CASE IN
 THIS RESPECT.  IN THE INSTANT CASE THE FACTS DO NOT DEMONSTRATE THAT BUT
 THE REFUSAL TO SUPPLY THE DATA REQUESTED, GRUBBS WOULD NOT HAVE BEEN
 TERMINATED.  IN LIGHT OF THE REFUSAL BY THE ASSISTANT SECRETARY TO ORDER
 REINSTATEMENT UNDER THESE CIRCUMSTANCES, I SHALL NOT RECOMMEND SUCH A
 REMEDY HEREIN.
 
                              RECOMMENDATIONS
 
    HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT WHICH IS
 VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS
 AMENDED, I RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT THE FOLLOWING
 ORDER DESIGNED TO EFFECTUATE THE POLICIES AND PURPOSES OF THE ORDER.
 
                             RECOMMENDED ORDER
 
    PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
 SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
 FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE INTERNAL REVENUE
 SERVICE, JACKSONVILLE DISTRICT, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) WITHHOLDING OR FAILING TO PROVIDE, UPON REQUEST BY NATIONAL
 TREASURY EMPLOYEES UNION,
 
    ANY INFORMATION BEARING UPON THE WORK PERFORMANCE OF ANY OR ALL ITS
 PROBATIONARY EMPLOYEES, IN
 
    CONNECTION WITH REPRESENTING A PROBATIONARY EMPLOYEE AT ANY MEETING
 CALLED TO CONSIDER THE
 
    LATTER'S PROPOSED TERMINATION, WHICH IS RELEVANT AND NECESSARY TO
 ENABLE THE NATIONAL TREASURY
 
    EMPLOYEES UNION TO DISCHARGE ITS OBLIGATION AS THE EXCLUSIVE
 REPRESENTATIVE TO REPRESENT
 
    EFFECTIVELY ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
 AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
 
    (A) UPON REQUEST, MAKE AVAILABLE TO NATIONAL TREASURY EMPLOYEES UNION
 ALL INFORMATION
 
    BEARING UPON THE WORK PERFORMANCE OF ANY OR ALL ITS PROBATIONARY
 EMPLOYEES, IN CONNECTION WITH
 
    THE SEPARATION OF PHYLLIS D. GRUBBS, A PROBATIONARY EMPLOYEE, WHICH
 IS RELEVANT AND NECESSARY
 
    TO ENABLE THE NATIONAL TREASURY EMPLOYEES UNION TO DISCHARGE ITS
 OBLIGATION TO REPRESENT
 
    EFFECTIVELY ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
 
    (B) AFTER RECEIPT BY THE NATIONAL TREASURY EMPLOYEES UNION OF THE
 RELEVANT AND NECESSARY
 
    INFORMATION REFERRED TO IN SECTION 2(A) ABOVE, UPON REQUEST, MEET
 WITH THE NATIONAL TREASURY
 
    EMPLOYEES UNION PURSUANT TO ARTICLE 32 OF THE PARTIES' NEGOTIATED
 AGREEMENT CONCERNING THE
 
    DECISION TO SEPARATE PHYLLIS D. GRUBBS.
 
    (C) POST AT ITS JACKSONVILLE, FLORIDA DISTRICT COPIES OF THE ATTACHED
 NOTICE MARKED
 
    "APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF
 LABOR FOR LABOR-MANAGEMENT
 
    RELATIONS.  UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
 DIRECTOR OF THE
 
    JACKSONVILLE, FLORIDA DISTRICT AND THEY SHALL BE POSTED AND
 MAINTAINED BY HIM FOR 60
 
    CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
 PLACES WHERE NOTICES TO
 
    EMPLOYEES ARE CUSTOMARILY POSTED.  THE DIRECTOR SHALL TAKE REASONABLE
 STEPS TO INSURE THAT
 
    SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    (D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
 ASSISTANT SECRETARY, IN
 
    WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS
 HAVE BEEN TAKEN TO COMPLY
 
    THEREWITH.
 
                              WILLIAM NAIMARK
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  20 DEC 1978
 
    WASHINGTON, D.C.
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
        PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
 
          OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
 
           EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
 
             AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
 
               SERVICE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT WITHHOLD OR FAIL TO PROVIDE, UPON REQUEST BY NATIONAL
 TREASURY EMPLOYEES UNION, AND INFORMATION BEARING UPON THE WORK
 PERFORMANCE OF ANY OR ALL ITS PROBATIONARY EMPLOYEES, IN CONNECTION WITH
 EMPLOYEE AT ANY MEETING CALLED TO CONSIDER THE LATTER'S PROPOSED
 TERMINATION, WHICH IS RELEVANT AND NECESSARY TO ENABLE THE NATIONAL
 TREASURY EMPLOYEES UNION TO DISCHARGE ITS OBLIGATION AS THE EXCLUSIVE
 REPRESENTATIVE TO REPRESENT EFFECTIVELY ALL EMPLOYEES IN THE EXCLUSIVELY
 RECOGNIZED UNIT.
 
    WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL, UPON REQUEST, MAKE AVAILABLE TO THE NATIONAL TREASURY
 EMPLOYEES UNION ALL INFORMATION BEARING UPON THE WORK PERFORMANCE OF ANY
 OR ALL ITS PROBATIONARY EMPLOYEES, IN CONNECTION WITH THE SEPARATION OF
 PHYLLIS D. GRUBBS, A PROBATIONARY EMPLOYEE, WHICH IS RELEVANT AND
 NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES UNION TO DISCHARGE
 ITS OBLIGATION TO REPRESENT EFFECTIVELY ALL EMPLOYEES IN THE EXCLUSIVELY
 RECOGNIZED UNIT.
 
    WE WILL, UPON REQUEST, AND AFTER THE RECEIPT OF THE RELEVANT AND
 NECESSARY INFORMATION BY THE NATIONAL TREASURY EMPLOYEES UNION, MEET
 WITH THE NATIONAL TREASURY EMPLOYEES UNION, PURSUANT TO ARTICLE 32 OF
 OUR NEGOTIATED AGREEMENT, CONCERNING THE DECISION TO SEPARATE PHYLLIS D.
 GRUBBS.
 
                            AGENCY OR ACTIVITY
 
    DATED BY (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR SIXTY (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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR MANAGEMENT
 SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
 ADDRESS IS:  ROOM 300-- 1371 PEACHTREE STREET, N.E., ATLANTA, GEORGIA
 30309.
 
    /1/ 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.
 
    /2/ THE REGIONAL OFFICE DISMISSED THE COMPLAINT ON MAY 16, 1978 ON
 THE GROUNDS THAT (A) THE REQUEST FOR INFORMATION PLACED AN EXCESSIVE
 BURDEN UPON RESPONDENT IN LIGHT OF THE TIME FRAME GIVEN IT;  (B)
 COMPLAINANT FAILED TO ESTABLISH THAT THE REQUESTED INFORMATION WAS
 RELEVANT AND NECESSARY.  THE ASSISTANT SECRETARY GRANTED COMPLAINANT'S
 REQUEST FOR REVIEW ON JULY 31, 1978, CONCLUDING THERE WAS A REASONABLE
 BASIS FOR THE ALLEGATION THAT THE INFORMATION WAS NECESSARY AND RELEVANT
 FOR THE UNION TO FULFILL ITS DUTIES HEREIN.
 
    /3/ THESE AGREEMENTS WERE EXECUTED WITH COMPLAINANT BY INTERNAL
 REVENUE SERVICE ON BEHALF OF NUMEROUS DISTRICTS OF SAID SERVICE LOCATED
 THROUGHOUT THE UNITED STATES.
 
    /4/ WHILE THIS