Internal Revenue Service, Washington, DC and Internal Revenue Service, Hartford District Office (Respondents) and National Treasury Employees Union (Labor Organization)

 



[ v04 p237 ]
04:0237(37)CA
The decision of the Authority follows:


 4 FLRA No. 37
 
 INTERNAL REVENUE SERVICE,
 WASHINGTON, D.C., AND
 INTERNAL REVENUE SERVICE,
 HARTFORD DISTRICT OFFICE
 Respondents
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Labor Organization
 
                                            Case No. 1-CA-77
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
 ENGAGED IN THE UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINT, 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.  THE RESPONDENT FILED EXCEPTIONS
 TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29), AND SECTION 7118 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), 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 THE
 SUBJECT CASE INCLUDING THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS, WITHOUT FINDING IT NECESSARY TO PASS UPON HIS DICTA
 REGARDING WHAT HE TERMED "THE PROBLEM OF IDENTIFYING THE PROPER
 RESPONDENT."
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE, WASHINGTON,
 D.C., AND THE INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REQUIRING ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION,
 INTERVIEW OR MEETING IN CONNECTION WITH AN INVESTIGATION WITHOUT UNION
 REPRESENTATION BY THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES'
 EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION
 HAS BEEN REQUESTED BY THE EMPLOYEE AND IF THE EMPLOYEE REASONABLY
 BELIEVES THAT THE EXAMINATION, INTERVIEW OR MEETING MAY RESULT IN
 DISCIPLINARY ACTION AGAINST THE EMPLOYEE.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 POLICIES OF THE STATUTE:
 
    (A) POST AT ITS HARTFORD DISTRICT OFFICE, HARTFORD, CONNECTICUT,
 COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
 BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS
 THEY SHALL BE SIGNED BY AN AUTHORIZED REPRESENTATIVE, AND THEY SHALL BE
 POSTED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES,
 INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
 REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT
 ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR FOR REGION 1, 441 STUART
 STREET, 8TH FLOOR, BOSTON, MA 02116, IN WRITING, WITHIN 30 DAYS FROM THE
 DATE OF THIS ORDER, AS TO WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 26, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, 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 REQUIRE ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION,
 INTERVIEW OR MEETING IN CONNECTION WITH AN INVESTIGATION WITHOUT
 REPRESENTATION BY THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES'
 EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION
 HAS BEEN REQUESTED BY THE EMPLOYEE AND IF THE EMPLOYEE REASONABLY
 BELIEVES THAT THE EXAMINATION, INTERVIEW OR MEETING MAY RESULT IN
 DISCIPLINARY ACTION AGAINST THE EMPLOYEE.
 
    WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY:
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 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:
 441 STUART STREET, 8TH FLOOR, BOSTON, MA 02116, AND WHOSE TELEPHONE
 NUMBER IS:  (617) 223-0920.
 
 
 
 
 
 
 
 
 
 
 ---------------
 
 LOWS -----
    OFFICE OF THE REGIONAL COUNSEL, IRS
    26 FEDERAL PLAZA, ROOM 1214
    NEW YORK, NY 10007
              AND
    ROGER KAPLAN, ESQ.
    OFFICE OF THE CHIEF COUNSEL, IRS
    1111 CONSTITUTION AVENUE
    WASHINGTON, D.C.
                            FOR THE RESPONDENTS
 
    PAUL E. STANZLER, ESQ. AND
    RICHARD D. ZAIGER, ESQ.
    FEDERAL LABOR RELATIONS AUTHORITY, REGION 1
    441 STUART STREET
    BOSTON, MASSACHUSETTS 02116
                          FOR THE GENERAL COUNSEL
 
    AUDREY BROWNE
    NATIONAL TREASURY EMPLOYEES UNION
    1730 K STREET, N.W.
    WASHINGTON, D.C. 20006
                          FOR THE CHARGING PARTY
 
    BEFORE:  SALVATORE J. ARRIGO
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           PRELIMINARY STATEMENT
 
    THIS CASE AROSE UNDER THE PROVISIONS OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ.
 (HEREIN REFERRED TO AS THE STATUTE) AND THE INTERIM RULES AND
 REGULATIONS ISSUED THEREUNDER, FED. REG. VOL. 44, NO. 147, 5
 C.F.R.CHAPTER XIV, PART 2411, ET SEQ. (HEREIN REFERRED TO AS THE
 REGULATIONS). ESSENTIALLY, THE COMPLAINT ALLEGES THAT THE STATUTE WAS
 VIOLATED WHEN THE RESPONDENTS /1/ REFUSED TO GRANT AN INTERNAL REVENUE
 SERVICE (IRS) EMPLOYEE'S REQUEST FOR UNION REPRESENTATION DURING AN
 INVESTIGATIVE INTERVIEW.
 
    ON JUNE 15, 1979, THE NATIONAL TREASURY EMPLOYEES UNION FILED THE
 ORIGINAL UNFAIR LABOR PRACTICE CHARGE IN THIS MATTER NAMING "U.S.
 INTERNAL REVENUE SERVICE, AND IRS HARTFORD DISTRICT OFFICE" AS THE
 RESPONDENT ACTIVITY AND/OR AGENCY AND ALLEGING VIOLATIONS OF SECTIONS
 7116(A)(1)(5) AND (8) OF THE STATUTE.  THE CHARGE WAS AMENDED ON
 NOVEMBER 5, 1979, AT WHICH TIME THE NAME OF THE RESPONDENT REMAINED THE
 SAME BUT THE SECTION 7116(A)(5) ALLEGATION WAS DELETED.  THE COMPLAINT,
 WHICH ISSUED ON NOVEMBER 8, 1979, SET OUT AS THE RESPONDENT, "INTERNAL
 REVENUE SERVICE HARTFORD DISTRICT OFFICE" AND NAMED INSPECTORS CHARLES
 NAGY AND ROGER ROOK AND (GROUP MANAGER) CHARLES MCQUEENEY AS
 SUPERVISORS
 OR AGENTS OF RESPONDENT.
 
    RESPONDENT'S ANSWER TO THE COMPLAINT, DATED NOVEMBER 20, 1979, INTER
 ALIA, DENIED THAT INSPECTORS NAGY AND ROOK WERE OR ARE ". . . AGENTS OR
 SUPERVISORS OF RESPONDENT AS NAMED IN SAID COMPLAINT." THE ANSWER
 FURTHER ASSERTED THAT NAGY AND ROOK WERE ". .  . ASSOCIATED WITH THE
 OFFICE OF REGIONAL INSPECTOR, MID-ATLANTIC REGION, INTERNAL REVENUE
 SERVICE, AND THAT, ACCORDINGLY, THE ABOVE-NAMED RESPONDENT IS NOT A
 PROPER PARTY TO THESE PROCEEDINGS."
 
    ON DECEMBER 10, 1979, COUNSEL FOR THE GENERAL COUNSEL NOTIFIED
 RESPONDENT THAT IT INTENDED TO AMEND THE COMPLAINT AT THE HEARING, AS
 FOLLOWS:
 
    INTERNAL REVENUE SERVICE, WASHINGTON, D.C. IS A CO-RESPONDENT ALONG
 WITH INTERNAL REVENUE
 
    SERVICE, HARTFORD DISTRICT OFFICE IN THE ABOVE-CAPTIONED CASE.
 
    ROGER ROOK AND CHARLES NAGY ARE AGENTS OF INTERNAL REVENUE SERVICE,
 WASHINGTON, D.C., AS
 
    WELL AS BEING AGENTS OF THE HARTFORD DISTRICT OFFICE.
 
    BY MOTION DATED DECEMBER 11, 1979, COUNSEL FOR RESPONDENT OPPOSED AS
 UNTIMELY ANY AMENDMENT TO THE COMPLAINT AT THE HEARING AND
 ALTERNATIVELY, MOVED THAT THE SCHEDULED HEARING BE POSTPONED UNTIL AFTER
 RESPONDENT HAD BEEN SERVED WITH AN AMENDED COMPLAINT AND AFFORDED THE
 ANSWER TIME PROVIDED BY SECTION 2423.12 OF THE REGULATIONS.  /2/
 RESPONDENT FURTHER RELIED ON SECTION 7118(A)(6) OF THE STATUTE AND
 SECTION 2423.11(A)(3) OF THE REGULATIONS IN SUPPORT OF ITS MOTION. /3/
 
    AT THE DECEMBER 18, 1979, HEARING, COUNSEL FOR THE GENERAL COUNSEL
 MOVED TO AMEND THE COMPLAINT CONSISTENT WITH ITS PRIOR NOTICE OF
 INTENTION TO AMEND.  RESPONDENT OPPOSED AND BOTH PARTIES GAVE ARGUMENT
 ON THE MATTER.  THEREAFTER, I PERMITTED THE AMENDMENT TO THE COMPLAINT
 AND DENIED RESPONDENT'S MOTION TO POSTPONE.
 
    THROUGHOUT THE HEARING ALL PARTIES WERE REPRESENTED AND AFFORDED FULL
 OPPORTUNITY TO ADDUCE EVIDENCE AND CALL, EXAMINE AND CROSS-EXAMINE
 WITNESSES AND ARGUE ORALLY.  BRIEFS WERE FILED BY THE GENERAL COUNSEL,
 RESPONDENT /4/ AND THE CHARGING PARTY.
 
    UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
 MAKE THE FOLLOWING:
 
                             FINDINGS OF FACT
 
    SOMETIME DURING FEBRUARY 1979, ROBERT DALEY, AN IRS REVENUE OFFICER
 EMPLOYED AT THE HARTFORD, CONNECTICUT DISTRICT OFFICE, WHILE ENGAGED IN
 A TELEPHONE CONVERSATION WITH A TAXPAYER ABOUT HIS TAX ACCOUNT, RECEIVED
 A COMPLAINT AGAINST THE IRS.  THE TAXPAYER ALLEGED THAT AN IRS REGIONAL
 INTERNAL AUDITOR MADE CERTAIN PUBLIC DISCLOSURES RELATIVE TO THE
 TAXPAYER'S TAX LIABILITIES AND ACTIONS WHICH THE IRS PROPOSED TO TAKE
 AGAINST HIM.  DALEY THEREUPON RELAYED THIS INFORMATION TO HIS
 SUPERVISOR, CHARLES MCQUEENEY, GROUP MANAGER OF THE COLLECTION DIVISION,
 IRS HARTFORD DISTRICT.
 
    ON MARCH 15, 1979, MCQUEENEY NOTIFIED DALEY THAT DALEY WAS TO BE
 INTERVIEWED ON THE FOLLOWING DAY BY IRS INSPECTION PERSONNEL FROM NEW
 JERSEY.  DALEY WAS NOT TOLD THE PURPOSE OF THE MEETING BUT ASSUMED IT
 HAD TO DO WITH THE DISCLOSURE COMPLAINT HE PREVIOUSLY FORWARDED TO
 MCQUEENEY.  THEREUPON, DALEY, A MEMBER OF THE COLLECTIVE BARGAINING UNIT
 OF IRS EMPLOYEES FOR WHICH THE UNION HOLDS EXCLUSIVE RECOGNITION, AND AN
 EX-UNION OFFICER, CONTACTED THE UNION'S ATTORNEY, PETER CONROY, AND
 ASKED HIM TO BE PRESENT DURING THE INTERVIEW.  DALEY INFORMED MCQUEENEY
 THAT HE HAD ASKED CONROY TO ACCOMPANY HIM TO THE INTERVIEW AND LATER
 THAT DAY MCQUEENEY TOLD DALEY THAT THE UNION ATTORNEY WOULD NOT BE
 PERMITTED TO ACCOMPANY HIM SINCE THIS WOULD BE A "THIRD PARTY" INTERVIEW
 WHEREIN DALEY WAS NOT THE SUBJECT OF THE INVESTIGATION.
 
    ON MARCH 16, 1979, DALEY, ACCOMPANIED BY CONROY, ARRIVED AT THE
 APPOINTED TIME IN THE OFFICE OF THE REGIONAL INSPECTOR, IRS, HARTFORD.
 THERE, DALEY AND CONROY MET WITH A LOCAL INSPECTOR AND TWO INSPECTORS
 FROM THE NEW JERSEY OFFICE OF THE IRS INSPECTION SERVICE, INTERNAL
 SECURITY DIVISION.  /5/ DALEY EXPLAINED THAT CONROY WAS THE UNION
 ATTORNEY AND WAS INFORMED BY THE INTERNAL SECURITY INSPECTORS THAT SINCE
 IT WAS A "THIRD-PARTY" INTERVIEW AND DALEY WAS NOT THE SUBJECT OF THE
 INVESTIGATION, HE WOULD NOT BE ALLOWED TO HAVE A REPRESENTATIVE WITH
 HIM.  CONROY OBJECTED BUT NEVERTHELESS TOLD DALEY TO PROCEED TO THE
 INTERVIEW ROOM AND HE WOULD REMAIN OUTSIDE.
 
    AFTER DALEY ENTERED THE INTERVIEW ROOM WITH THE TWO INSPECTORS FROM
 INTERNAL SECURITY HE WAS AGAIN ADVISED THAT HE WAS NOT ALLOWED TO HAVE
 AN ATTORNEY WITH HIM BECAUSE DALEY WAS NOT THE SUBJECT OF THE
 INVESTIGATION.  DALEY WAS PLACED UNDER OATH AND ONE INSPECTOR ASKED
 QUESTIONS WHILE THE OTHER TOOK NOTES.  AS DALEY ASSUMED, THE SUBJECT
 MATTER OF THE INVESTIGATION WAS THE COMPLAINT HE RECEIVED REGARDING THE
 PURPORTED DISCLOSURE BY THE INTERNAL AUDITOR.  /6/ DALEY WAS ASKED TO
 REPEAT THE TELEPHONE CONVERSATION HE HAD WITH THE COMPLAINING TAXPAYER
 AND THE DETAILS OF HIS TRANSMITTING THE INFORMATION TO MCQUEENEY.
 
    DALEY WAS ALSO QUESTIONED ON WHETHER HE SAW THE INTERNAL AUDITOR IN
 HIS (DALEY'S) WORK AREA AND IF IT WAS POSSIBLE THAT DALEY HAD THE
 TAXPAYER'S RECORDS ON HIS DESK AND SOMEONE IN THE AREA, OR WALKING BY,
 COULD HAVE OBSERVED OR OBTAINED INFORMATION RELATIVE TO THE TAXPAYER.
 DALEY'S RESPONSES WERE ALL IN THE NEGATIVE.
 
    INSPECTOR NAGY'S REPORT OF HIS INTERVIEW WITH DALEY STATES, INTER
 ALIA:
 
    "HE HAS HAD NO CONTACT WITH (THE INTERNAL AUDITOR) ON OR OFF DUTY
 EXCEPT POSSIBLY FOR AN
 
    INTRODUCTION DURING A COFFEE BREAK.  (THE INTERNAL AUDITOR) NEVER
 EXPRESSED AN INTEREST IN
 
    (THE TAXPAYER) OR (HIS) BUSINESS, AND HE HAS NEVER MENTIONED (THE
 TAXPAYER'S) TAX PROBLEMS TO
 
    (THE INTERNAL AUDITOR).
 
    "THE TAXES OWED BY (THE TAXPAYER'S) BUSINESS IS ASSIGNED TO REVENUE
 OFFICER JACOB SCHULTZ
 
    AND HIS DALEY'S) ONLY CONCERN WITH (THE TAXPAYER) IS SOLELY IN
 CONNECTION WITH HIS
 
    . . . PERSONAL TAXES THAT ARE DUE.
 
    "THAT ALTHOUGH HE HAD CONTEMPLATED SEIZURE ACTION AGAINST (THE
 TAXPAYER) HE HAD NEVER
 
    DISCUSSED THAT POSSIBILITY WITH SCHULTZ NOR HAD EVER MADE ANY
 NOTATIONS IN THE CASE FILE
 
    RELATIVE TO POSSIBLE SEIZURE ACTION. HE DOES NOT KNOW ANYTHING ABOUT
 SCHULTZ'S COLLECTION
 
    ACTIVITY INVOLVING (THE TAXPAYER'S) BUSINESS.
 
    "HE DID NOT KNOW HOW (THE INTERNAL AUDITOR) WOULD HAVE BEEN AWARE OF
 (THE TAXPAYER'S) TAX
 
    PROBLEMS OR OF ANY CONTEMPLATED SEIZURE ACTION BECAUSE THE CASE FILE
 DOES NOT CONTAIN ANY
 
    REFERENCE TO SEIZURE ACTION AND HE NEVER DISCUSSED THE MATTER WITH
 (THE INTERNAL AUDITOR)."
 
    AT THE CONCLUSION OF THE INTERVIEW THE INSPECTORS THANKED DALEY AND
 INSTRUCTED HIM NOT TO DISCLOSE TO ANYONE THE IDENTITY OF THE TAXPAYER OR
 THE IRS INTERNAL AUDITOR UNDER INVESTIGATION.  THE MEETING LASTED LESS
 THAN A HALF AN HOUR AND WAS DESCRIBED BY DALEY AS "CORDIAL." DALEY HAD
 NO FURTHER INVOLVEMENT WITH THIS MATTER.
 
    AT THE HEARING DALEY TESTIFIED THAT HE WAS AWARE THAT THE RULES OF
 CONDUCT FOR IRS EMPLOYEES REFER TO DISCLOSURE OF TAXPAYER OR
 CONFIDENTIAL INFORMATION AND SUCH UNNECESSARY DISCLOSURE, EVEN TO
 ANOTHER EMPLOYEE, IS AN OFFENSE SUBJECT TO DISCIPLINE.  ACCORDINGLY,
 WHILE AT WORK BUT AWAY FROM HIS DESK DALEY FOLLOWED THE PRACTICE OF
 COVERING OR PUTTING AWAY TAX INFORMATION OF A PROPRIETARY NATURE.  DALEY
 ALSO TESTIFIED THAT HE KNEW THAT THE IRS OFFICE OF REGIONAL INSPECTION
 INVESTIGATED ALL VIOLATIONS OF THE RULES OF CONDUCT " . . . AND THAT
 WHEN THEY GET INVOLVED, IT WAS A VERY SERIOUS MATTER AND COULD LEAD TO
 DISCIPLINARY ACTION." HOWEVER, DALEY ALSO TESTIFIED THAT HE HAD NO
 REASON TO BELIEVE, DURING OR AFTER THE INTERVIEW, THAT HE WAS THE
 SUBJECT OF THE INVESTIGATION.
 
    TESTIMONY REVEALS THAT NORMALLY AN INVESTIGATION INVOLVING A HARTFORD
 DISTRICT OFFICE EMPLOYEE WOULD BE PERFORMED BY INVESTIGATORS FROM THE
 IRS OFFICE OF REGIONAL INSPECTOR, NORTH-ATLANTIC REGIONAL OFFICE, OF
 WHICH THE HARTFORD DISTRICT OFFICE IS ORGANIZATIONALLY A PART.  HOWEVER,
 INVESTIGATIONS OF AN INSPECTION EMPLOYEE, SUCH AS THE NORTH-ATLANTIC
 REGIONAL INTERNAL AUDITOR WHOSE CONDUCT WAS BEING INVESTIGATED, WOULD
 USUALLY BE CONDUCTED BY THE IRS INVESTIGATION BRANCH IN WASHINGTON, D.C.
  ACCORDINGLY, SINCE THE PRIMARY PARTY UNDER INVESTIGATION WAS AN
 INSPECTION EMPLOYEE FROM THE NORTH-ATLANTIC REGION, IT WAS DEEMED
 INAPPROPRIATE TO HAVE HIM INVESTIGATED BY PERSONNEL FROM THE SAME REGION
 AND INVESTIGATORS FROM A SEPARATE AND INDEPENDENT REGION, THE
 MID-ATLANTIC REGION, WERE SELECTED.
 
    THE PRIMARY FUNCTION OF A REGIONAL INSPECTOR CONDUCTING AN
 INVESTIGATION IS TO OBTAIN THE FACTS RELEVANT TO A PARTICULAR SITUATION.
  INSPECTORS HAVE NO AUTHORITY TO DISCIPLINE OR RECOMMEND DISCIPLINE WITH
 REGARD TO THE MATTER UNDER INVESTIGATION.  IN THE CASE HEREIN, THE
 REPORT OF INVESTIGATION WAS FORWARDED WITHOUT RECOMMENDATION TO THE
 INSPECTORS' BRANCH CHIEF IN THE MID-ATLANTIC REGION WHO FORWARDED THE
 ORIGINAL REPORT TO THE REGIONAL INSPECTOR, NORTH-ATLANTIC REGION AND A
 COPY TO THE OFFICE OF THE ASSISTANT COMMISSIONER FOR INSPECTION IN
 WASHINGTON, D.C.  THE NORTH-ATLANTIC REGIONAL INSPECTOR WAS THE
 ADJUDICATORY OFFICIAL WITH AUTHORITY TO MAKE A DETERMINATION AS TO WHAT
 ACTION, IF ANY, SHOULD BE TAKEN RELATIVE TO THE AUDITOR UNDER
 INVESTIGATION.  THE INTERNAL AUDITOR WAS ULTIMATELY FOUND TO BE INNOCENT
 OF ANY WRONGDOING.
 
    IT DOES NOT APPEAR THAT THE REPORT WAS EVER FORWARDED TO ANY
 OFFICIALS IN THE HARTFORD DISTRICT OFFICE.  HOWEVER, IF A HARTFORD
 DISTRICT OFFICE EMPLOYEE WAS FOUND TO BE INVOLVED IN THE SITUATION IT
 WOULD BE THE DISTRICT DIRECTOR OF THE HARTFORD DISTRICT WHO WOULD HAVE
 AUTHORITY TO DECIDE ON WHETHER TO ISSUE ANY DISCIPLINARY OR ADVERSE
 ACTION AGAINST THAT EMPLOYEE.
 
    THE STANDARD PROCEDURE FOR IRS INSPECTORS WHILE INTERVIEWING
 WITNESSES IS TO NOTIFY THE INDIVIDUAL OF THE RIGHT TO COUNSEL, TO REMAIN
 SILENT, ETC.  /7/ IF THAT PERSON APPEARS TO BE INVOLVED IN MATTERS OF A
 CRIMINAL NATURE.  IF THE PARTY REQUESTED COUNSEL, THE INTERVIEW WOULD
 NOT BE CONTINUED UNTIL SUCH TIME AS COUNSEL WAS PRESENT.  THIS RIGHT
 WOULD ALSO EXTEND TO MATTERS OF IMPROPER DISCLOSURE OF INFORMATION IF
 SUCH BECAME APPARENT DURING AN INQUIRY INTO ANOTHER MATTER, WHETHER THE
 WITNESS WAS THE PRIMARY SUBJECT OF THE INVESTIGATION OR MERELY A PARTY
 WHO WAS BEING QUESTIONED TO ASCERTAIN WHETHER HE HAD RELEVANT
 INFORMATION.  HOWEVER, EVEN IF THE INTERVIEW WAS SUSPENDED AT THAT
 POINT, THE INVESTIGATOR WOULD REPORT TO SUPERIORS THE INFORMATION THUS
 FAR OBTAINED.  IF A WITNESS, NOT UNDER INVESTIGATION, WAS BEING
 INTERVIEWED AND DISCLOSED HAVING ENGAGED IN A NON-CRIMINAL VIOLATION OF
 THE IRS RULES OF CONDUCT, THE INSPECTOR WOULD CONTINUE THE INTERVIEW AND
 ATTEMPT TO AVOID THAT PARTICULAR AREA.  IF THE WITNESS AT THIS POINT
 ASKED FOR COUNSEL OR A REPRESENTATIVE, FURTHER QUESTIONING WOULD NOT
 CONTINUE OUTSIDE THE PRESENCE OF COUNSEL.  IN ANY EVENT, AT THE CLOSE OF
 THE INTERVIEW, ALL INFORMATION OBTAINED WOULD BE FORWARDED TO THE
 APPROPRIATE OFFICIAL TO DETERMINE WHAT, IF ANY, ACTION WAS WARRANTED.
 
                        DISCUSSION AND CONCLUSIONS
 
    PROCEDURAL MATTERS
 
    RESPONDENT CONTENDS IN ITS BRIEF THAT THE GENERAL COUNSEL SHOULD NOT
 HAVE BEEN PERMITTED TO AMEND THE COMPLAINT AT THE HEARING TO INCLUDE IRS
 WASHINGTON, D.C. AS A RESPONDENT AND INSPECTORS NAGY AND ROOK AS AGENTS
 OF IRS WASHINGTON. REASONING THEREFROM, RESPONDENT ARGUES THAT HARTFORD
 DISTRICT OFFICE IS THE ONLY RESPONDENT IN THIS CASE;  NAGY AND ROOK ARE
 NOT AGENTS OF THE HARTFORD DISTRICT OFFICE;  AND THEREFORE, EVEN IF THE
 DALEY INTERVIEW WAS IN VIOLATION OF THE STATUTE, NO UNFAIR LABOR
 PRACTICE CAN BE ESTABLISHED AGAINST THE RESPONDENT OF RECORD.
 
    I REJECT RESPONDENT'S CONTENTIONS.  SECTION 2423.11(D) OF THE
 APPLICABLE REGULATIONS PROVIDES INTER ALIA, THAT "(A) COMPLAINT MAY BE
 AMENDED, UPON SUCH TERMS AS MAY BE DEEMED JUST, . . . AT THE HEARING . .
 . UPON MOTION BY THE ADMINISTRATIVE LAW JUDGE DESIGNATED TO CONDUCT THE
 HEARING . . . " RESPONDENT RECEIVED NOTIFICATION OF COUNSEL FOR THE
 GENERAL COUNSEL'S INTENTION TO AMEND EIGHT DAYS BEFORE THE HEARING,
 WHICH I FIND ADEQUATE NOTICE IN THESE CIRCUMSTANCES.  THE SUBSTANTIVE
 NATURE OF THE ALLEGATIONS WAS LEFT UNCHANGED AND THE AMENDMENT
 ESSENTIALLY REFLECTED MERELY THAT TWO EMPLOYEES ACCUSED OF PARTAKING IN
 THE ALLEGED VIOLATION WERE NOT ONLY AGENTS OF THE HARTFORD DISTRICT
 OFFICE BUT ALSO AGENTS OF THE AGENCY-INTERNAL REVENUE SERVICE,
 WASHINGTON, D.C.  FURTHER, RESPONDENT MADE NO PERSUASIVE SHOWING THAT IT
 WAS IMPAIRED OR PREJUDICED IN PRESENTING A DEFENSE IN THIS CASE OR THAT
 DUE PROCESS OF LAW WAS SOMEHOW VIOLATED BY PERMITTING THE AMENDMENT.
 ACCORDINGLY, I REAFFIRM MY RULINGS RELATIVE TO PERMITTING THE AMENDMENTS
 TO THE COMPLAINT.
 
    I FURTHER CONCLUDE THAT BOTH THE IRS HARTFORD DISTRICT OFFICE AND THE
 IRS AS AN AGENCY ARE PROPER RESPONDENTS IN THIS MATTER AND NAGY AND ROOK
 ARE AGENTS OF BOTH RESPONDENTS.  INDEED, IN MY VIEW THE HARTFORD
 DISTRICT OFFICE AND THE IRS, WASHINGTON, D.C., THE NATIONAL OFFICE, ARE
 AGENTS FOR ONE ANOTHER IN CARRYING OUT AGENCY POLICY AS A JOINT
 ENTERPRISE IN DEALING WITH HARTFORD DISTRICT OFFICE EMPLOYEES.  THE
 REALITY HEREIN IS THAT THE IRS AS AN AGENCY IS THE EMPLOYING ENTITY.
 ORGANIZATIONALLY, THE AGENCY CONDUCTS ITS BUSINESS THROUGH VARIOUS
 LEVELS OF ADMINISTRATIVE BODIES, INCLUDING THE HARTFORD DISTRICT OFFICE.
  THE HARTFORD OFFICE IS MERELY AN OPERATIONAL ADDRESS OF THIS AGENCY AND
 AN INTERDEPENDENCE EXISTS BETWEEN THE DISTRICT OFFICE AND THE NATIONAL
 OFFICE IN DEALING WITH EMPLOYEE-MANAGEMENT MATTERS.  /8/ STAFF
 ASSISTANCE IS PROVIDED TO THE DISTRICT OFFICE BY THE NATIONAL OFFICE AND
 DIRECTION IS GIVEN BY WAY OF ENACTING AND ENFORCING REGULATIONS
 CONCERNING EMPLOYEE CONDUCT AND ACTIVITIES.  THE COLLECTIVE BARGAINING
 AGREEMENT WAS NEGOTIATED FOR THE DISTRICT OFFICES BY, INTER ALIA, IRS
 LABOR RELATIONS BRANCH EMPLOYEES, AND AN INDIVIDUAL FOR THE OFFICE OF
 THE CHIEF COUNSEL.  THE AGREEMENT WAS APPROVED BY THE PERSONNEL DIVISION
 DIRECTOR FOR THE AGENCY.
 
    WHEN THE SITUATION INVOLVING THE ALLEGED IMPROPER CONDUCT OF THE
 INTERNAL AUDITOR AROSE IN THIS CASE, A DECISION WAS MADE SOMEWHERE IN
 THE RECESSES OF THE AGENCY, THAT INSPECTORS FROM A PARTICULAR REGIONAL
 OFFICE WOULD PERFORM THE INVESTIGATION.  THE INVESTIGATION HAPPENED TO
 INVOLVE A HARTFORD DISTRICT OFFICE EMPLOYEE AND ACCORDINGLY, THE
 COMPLAINT NAMED THE INSPECTORS AS AGENTS OF THE IMMEDIATE EMPLOYER OF
 THAT EMPLOYEE.  AFTER RESPONDENT (THE HARTFORD DISTRICT OFFICE) DENIED
 AN AGENCY RELATIONSHIP WITH THE INSPECTORS THE AUTHORITY'S COUNSEL FOR
 THE GENERAL COUNSEL SOUGHT TO AMEND THE COMPLAINT.
 
    IN THE CASE HEREIN, I DO NOT FIND THE GEOGRAPHIC AND ORGANIZATIONAL
 LOCATION OF THE AGENTS IN QUESTION TO BE PARTICULARLY SIGNIFICANT.  /9/
 WHAT IS SIGNIFICANT, HOWEVER, IS THAT NAGY AND ROOK ARE ACKNOWLEDGED
 AGENTS OF AGENCY MANAGEMENT WITH REGARD TO THEIR CONDUCT HEREIN AND THAT
 THE AGENCY IS RESPONSIBLE FOR THEIR ACTIONS.  BOTH AGENTS, AND MCQUEENEY
 AS WELL, ACTED UNDER MANAGEMENT INSTRUCTION AND/OR IN FURTHERANCE OF
 AGENCY POLICY.  FURTHER, THERE IS AN IDENTITY OF PURPOSE BETWEEN THE
 HARTFORD DISTRICT OFFICE AND THE NATIONAL OFFICE IN CARRYING OUT
 LABOR-MANAGEMENT RELATIONS AND DEALING WITH AGENCY EMPLOYEES, AND
 SPECIFICALLY, THE NATIONAL OFFICE AND DISTRICT OFFICE WERE JOINTLY
 ENGAGED IN FULFILLING THE AGENCY'S INVESTIGATION OF THE ALLEGED
 MISCONDUCT.  ACCORDINGLY, IN THESE CIRCUMSTANCES I CONCLUDE THAT IRS,
 WASHINGTON, D.C. IS A PROPER RESPONDENT AND NAGY AND ROOK ARE AGENTS FOR
 BOTH RESPONDENTS HEREIN.
 
    THE PROBLEM OF IDENTIFYING THE PROPER RESPONDENT HAS, IN THE PAST,
 NEEDLESSLY LED TO SUBSTANTIAL APPREHENSION AND CONFUSION IN THE FEDERAL
 SECTOR.  THUS, FOR EXAMPLE UNDER EXECUTIVE ORDER 11491, THE ASSISTANT
 SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS HELD, INTER ALIA, IN
 NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA AND SECRETARY OF THE NAVY,
 DEPARTMENT OF THE NAVY, WASHINGTON, D.C., 6 A/SLMR 68, A/SLMR NO. 608,
 THAT THE DEPARTMENT OF THE NAVY VIOLATED SECTION 19(A)(1) OF THE ORDER
 /10/ BY DIRECTING ITS SUBORDINATE ACTIVITY TO TAKE AN IMPROPER ACTION
 AND THAT THE ACTIVITY THEREIN VIOLATED SECTIONS 19(A)(1) AND (6) OF THE
 ORDER /11/ BY CARRYING OUT THE ACTION.  THE FEDERAL LABOR RELATIONS
 COUNCIL SUBSEQUENTLY REVERSED THE ASSISTANT SECRETARY AND HELD THAT WHEN
 AN ACT CONSTITUTES AN UNFAIR LABOR PRACTICE AND THE INDIVIDUAL WHO
 COMMITTED THE ACT IS AGENCY MANAGEMENT, THERE IS NO BASIS IN THE ORDER
 TO DRAW "ARTIFICIAL DISTINCTIONS" BETWEEN ORGANIZATIONAL LEVELS OF SUCH
 MANAGEMENT SO AS TO RELIEVE THEM OF THE RESPONSIBILITY FOR THEIR ACTS
 WHICH WOULD OTHERWISE BE VIOLATIVE OF THE ORDER.  /12/ THE COUNCIL
 CONCLUDED THAT WHERE AGENCY MANAGEMENT ABOVE THE LEVEL OF EXCLUSIVE
 RECOGNITION INITIATES A BREACH OF THE OBLIGATION TO NEGOTIATE, A
 19(A)(6) VIOLATION OCCURS BY THAT AGENCY MANAGEMENT REGARDLESS OF WHERE
 IT IS LOCATED IN THE AGENCY'S CHAIN OF COMMAND.  HOWEVER, THE COUNCIL
 ALSO CONCLUDED THAT SINCE MANAGEMENT AT THE LOWER ACTIVITY LEVEL HAD NO
 CHOICE BUT TO COMPLY WITH THE DIRECTION OF HIGHER AGENCY MANAGEMENT, A
 SEPARATE VIOLATION WOULD NOT LIE " . . . SOLELY ON THE BASIS OF ITS
 MINISTERIAL ACTIONS IN IMPLEMENTING THE DIRECTION FROM HIGHER AGENCY
 AUTHORITY." THUS, THE COUNCIL MADE ITS OWN DISTINCTION BETWEEN OPERATING
 LEVELS OF THE SAME ORGANIZATION THEREBY CONTINUING THE RISK A
 COMPLAINANT TOOK IN MAKING UNFAIR LABOR PRACTICE ALLEGATIONS AGAINST AN
 ORGANIZATION WHICH IS COMPOSED OF VARIOUS LEVELS OF AUTHORITY.
 ESSENTIALLY, IN THAT CASE THE END RESULT DID NOT CHANGE THE ACT WAS
 FOUND TO HAVE BEEN A VIOLATION OF THE ORDER AND THE ORGANIZATION WAS
 ORDERED TO REMEDY THE VIOLATION.
 
    IT WOULD APPEAR THAT IF THE UNION IN NAVAL AIR REWORK FACILITY, OR A
 SIMILAR CASE, FILED ITS COMPLAINT AGAINST THE ACTIVITY AND NOT AGAINST
 THE AGENCY BECAUSE THE ACTIVITY WAS THE PARTY WITH WHOM IT WAS REGULARLY
 DEALING, UNDER THE TEACHING OF THE COUNCIL'S DECISION NO REFUSAL TO
 BARGAIN WOULD LIE AGAINST THE ACTIVITY AND THE COMPLAINT WOULD HAVE TO
 BE DISMISSED IN THIS REGARD.  IN MY VIEW THE FICTIONAL DISTINCTION
 BETWEEN OPERATING LEVELS OF A GOVERNMENTAL AGENCY SHOULD NOT GIVE RISE
 TO THE POSSIBILITY OF SUCH AN UNDESIRABLE RESULT AND SHOULD NOT BE
 EXTENDED UNDER THE STATUTE.  THE PARENT ORGANIZATION IS, IN REALITY, THE
 REPOSITORY OF ULTIMATE AUTHORITY AND CONTROL OVER ITS SUBORDINATES AND
 THEREFORE, WHETHER OR NOT SPECIFICALLY NAMED AS A RESPONDENT, SHOULD BE
 HELD LIABLE FOR THE UNFAIR LABOR PRACTICE CONDUCT OF ITS SUBORDINATES.
 CONVERSELY, THE SUBORDINATE BODY, CHARGED WITH DAY TO DAY DEALINGS WITH
 THE EXCLUSIVE REPRESENTATIVE AND UNIT EMPLOYEES, MUST BE ASSUMED TO BE
 FULLY AUTHORIZED AND RESPONSIBLE FOR ITS ACTIONS IN ORDER TO EFFECTUATE
 THE ORDERLY CONDUCT OF LABOR-MANAGEMENT RELATIONS.  ONE ORGANIZATIONAL
 LEVEL CONTINUALLY ACTS AS THE AGENT FOR THE OTHER.  THUS, I WOULD FIND
 BOTH PARENT AND SUBORDINATE VIABLE RESPONDENTS, IN EQUAL MEASURE, FOR AN
 UNFAIR LABOR PRACTICE ALLEGATION AS HEREIN.  ACCORDINGLY, EITHER PARTY
 WOULD BE A RESPONSIBLE RESPONDENT OBLIGATED TO REMEDY WHATEVER UNFAIR
 LABOR PRACTICE WAS FOUND TO HAVE OCCURRED AND THE UNNECESSARY RISK OF
 CHOOSING WHICH LEVEL OF AN ORGANIZATION TO FILE A COMPLAINT AGAINST
 WOULD BE ELIMINATED.
 
    THE INVESTIGATIVE INTERVIEW
 
    THE SUBSTANTIVE ISSUE HEREIN IS WHETHER RESPONDENT VIOLATED CHAPTER
 71, SECTIONS 7116(A)(1) AND (8) OF THE STATUTE WHEN IT REFUSED TO PERMIT
 DALEY TO BE ACCOMPANIED BY CONROY, HIS DESIGNATED UNION REPRESENTATIVE,
 DURING THE INTERVIEW.  /13/
 
    SECTION 7114(A)(2)(B) OF THE STATUTE PROVIDES:
 
    "AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT SHALL BE GIVEN
 THE OPPORTUNITY TO BE
 
    REPRESENTED AT . . . ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A
 REPRESENTATIVE OF THE
 
    AGENCY IN CONNECTION WITH AN INVESTIGATION IF (I) THE EMPLOYEE
 REASONABLY BELIEVES THE
 
    EXAMINATION MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE,
 AND (II) THE EMPLOYEE
 
    REQUESTS REPRESENTATION."
 
    CONTRARY TO THE CONTENTION OF THE CHARGING PARTY AND THE GENERAL
 COUNSEL, THE RESPONDENT CONTENDS THAT UNDER THE CIRCUMSTANCES HEREIN
 DALEY COULD HAVE HAD NO REASONABLE BELIEF THAT HIS INTERVIEW MIGHT
 RESULT IN DISCIPLINARY ACTION AGAINST HIM.
 
    PRIOR TO THE ENACTMENT OF THE STATUTE THERE EXISTED NO COMPARABLE
 RIGHT UNDER THE PREDECESSOR EXECUTIVE ORDER 11491, TO REPRESENTATION
 DURING AN INVESTIGATIVE INTERVIEW.  INDEED, AFTER THE SUPREME COURT
 ADDRESSED THE QUESTION OF EMPLOYEES' RIGHTS DURING INVESTIGATIVE
 INTERVIEWS UNDER THE NATIONAL LABOR RELATIONS ACT IN THE WEINGARTEN
 CASE, /14/ THE FEDERAL LABOR RELATIONS COUNCIL SPECIFICALLY NOTED THAT,
 WEINGARTEN NOTWITHSTANDING, UNDER THE EXECUTIVE ORDER AN EMPLOYEE DID
 NOT HAVE THE RIGHT TO UNION REPRESENTATION AT A NONFORMAL INVESTIGATIVE
 MEETING WITH MANAGEMENT.  /15/
 
    WEINGARTEN HELD, INTER ALIA, THAT UNDER THE NLRA AN EMPLOYEE HAD THE
 RIGHT TO THE PRESENCE OF A UNION REPRESENTATIVE AT " . . . AN
 INVESTIGATIVE INTERVIEW WHICH HE REASONABLY BELIEVES MAY RESULT IN THE
 IMPOSITION OF DISCIPLINE . . .  /16/ THE LEGISLATIVE HISTORY OF THE
 STATUTE CLEARLY REVEALS THAT ALTHOUGH VARIOUS APPROACHES WERE
 CONSIDERED
 BY THE CONGRESS DURING THE DELIBERATIVE PROCESS ON THIS MATTER, THE
 LEGISLATORS ENVISIONED EXTENDING WEINGARTEN TYPE PROTECTION TO EMPLOYEES
 IN THE FEDERAL SECTOR.  /17/ INDEED, THE LANGUAGE ULTIMATELY SELECTED
 (SECTION 7114(A)(2)(B)) CLOSELY TRACKS WEINGARTEN.  HOWEVER, IT WAS
 RECOGNIZED " . . . THAT THE RIGHT TO REPRESENTATION IN EXAMINATIONS MAY
 EVOLVE DIFFERENTLY IN THE PRIVATE AND FEDERAL SECTORS, AND (THE
 CONFERENCE COMMITTEE) SPECIFICALLY INTEND THAT FUTURE COURT DECISIONS
 INTERPRETING THE RIGHT IN THE PRIVATE SECTOR WILL NOT NECESSARILY BE
 DETERMINATIVE FOR THE FEDERAL SECTOR." /18/
 
    IN WEINGARTEN THE COURT CONSIDERED THE QUESTION OF DEFINING THE TERM
 "REASONABLE BELIEVES" AS APPLIED BY THE NLRB.  THE COURT EXPRESSED ITS
 VIEW AS FOLLOWS:
 
    "THE BOARD STATED IN QUALITY:  "'REASONABLE GROUND' WILL OF COURSE BE
 MEASURED, AS HERE, BY
 
    OBJECTIVE STANDARDS UNDER ALL THE CIRCUMSTANCES OF THE CASE." 195
 N.L.R.B. 197, 198 N. 3.  IN
 
    NLRB V. GISSEL PACKING CO., 395 U.S. 575, 608, 89 S.CT. 1918, 1937,
 23 L.ED.2D 517(1969), THE
 
    COURT ANNOUNCED THAT IT WOULD "REJECT ANY RULE THAT REQUIRES A PROBE
 OF AN EMPLOYEE'S
 
    SUBJECTIVE MOTIVATIONS AS INVOLVING AN ENDLESS AND UNRELIABLE
 INQUIRE," AND WE REAFFIRM THAT
 
    VIEW TODAY AS APPLICABLE ALSO IN THE CONTEXT OF THIS CASE.
 REASONABLENESS, AS A STANDARD, IS
 
    PRESCRIBED IN SEVERAL PLACES IN THE ACT ITSELF. FOR EXAMPLE, AN
 EMPLOYER IS NOT RELIEVED OF
 
    RESPONSIBILITY FOR DISCRIMINATION AGAINST AN EMPLOYEE "IF HE HAS
 REASONABLE GROUNDS FOR
 
    BELIEVING" THAT CERTAIN FACTS EXIST, SECS. 8(A)(3)(A), (B), 29 U.S.C.
 158(A)(3)(A), (B):  ALSO,
 
    PRELIMINARY INJUNCTIVE RELIEF AGAINST CERTAIN CONDUCT MUST BE SOUGHT
 IF "THE OFFICER OR
 
    REGIONAL ATTORNEY TO WHOM THE MATTER MAY BE REFERRED HAS REASONABLE
 CAUSE TO BELIEVE" SUCH
 
    CHARGE IS TRUE, SEC. 10(1), 29 U.S.C. 160(1).  SEE ALSO CONGOLEUM
 INDUSTRIES, INC., 197
 
    N.L.R.B. 534(1972);  CUMBERLAND SHOE CORP., 144 N.L.R.B.  1268(1963),
 ENFORCED, 351 F.2D 917
 
    (CA6 1965)." /19/
 
    MOREOVER, THE COURT, AFTER EXAMINING WHAT IT PERCEIVED TO BE THE "KEY
 OBJECTIVE FACT" RELATIVE TO THIS INTERVIEW OF THE EMPLOYEE INVOLVED,
 CONCLUDED " . . . (T)HAT SHE MIGHT REASONABLY BELIEVE THAT THE INTERVIEW
 MIGHT RESULT IN DISCIPLINARY ACTION IS THUS CLEAR." /20/
 
    THUS, THE COURT IN WEINGARTEN REJECTED CONSIDERING AN EMPLOYEE'S
 SUBJECTIVE FEELINGS AND OPTED INSTEAD FOR AN APPROACH WHEREBY OBJECTIVE
 STANDARDS, UNDER ALL THE CIRCUMSTANCES OF THE CASE, ARE CONSIDERED IN
 ASSESSING WHETHER AN EMPLOYEE REASONABLY BELIEVED THAT DISCIPLINE MIGHT
 RESULT FROM AN INTERVIEW.
 
    IN THE CASE HEREIN, DALEY WAS TOLD REPEATEDLY THAT HE WAS NOT UNDER
 INVESTIGATION BUT BEING INTERVIEWED ONLY AS A "THIRD PARTY." HOWEVER,
 THE SUBJECT MATTER OF THE INTERVIEW WAS A SERIOUS AFFAIR AS DALEY WAS
 WELL AWARE.  DALEY, WHILE HAVING ENGAGED IN NO IMPROPER CONDUCT, /21/
 WAS THE CUSTODIAN OF THE TAXPAYER'S FILES CHARGED WITH THEIR SAFEKEEPING
 AND CONFIDENTIALITY AND HIS STEWARDSHIP OF THE TAX FILES AND INFORMATION
 WITHIN THEM WERE MATTERS COVERED BY THE INTERVIEW.  DALEY RECEIVED NO
 PRIOR ASSURANCE THAT NOTHING HE SAID IN THE INTERVIEW COULD POSSIBLY
 LEAD TO DISCIPLINE AGAINST HIM.
 
    WHILE DALEY MIGHT NOT HAVE BEEN THE PERSON THE INSPECTORS CONSIDERED
 AS THE SUBJECT OF THE INVESTIGATION AT THE TIME OF HIS INTERVIEW, HIS
 CONTROL OF THE TAXPAYER'S FILES PLACED HIM IN A CRITICAL POSITION
 WHEREBY HIS CONDUCT, IF IMPROPER, COULD HAVE RENDERED HIM LIABLE TO
 DISCIPLINARY ACTION.  TRUE, IF DALEY'S IMPROPER CONDUCT WAS FOUND TO
 HAVE BEEN THE SOURCE OF DISCLOSURE TO THE PRIMARY PERSON UNDER
 INVESTIGATION, FURTHER INTERROGATION OF DALEY WOULD NOT HAVE PROCEEDED
 WITHOUT GIVING HIM AN OPPORTUNITY TO BE REPRESENTED.  BUT, AT THAT
 POINT, DALEY'S ACTIONS WOULD HAVE ALREADY BEEN PART OF THE INSPECTORS'
 STORE OF INFORMATION WHICH WOULD HAVE BEEN USED IN FURTHERANCE OF ANY
 INVESTIGATION SPECIFICALLY INVOLVING DALEY.  INDEED, IF ANY INFORMATION
 ADVERSE TO DALEY WAS SOMEHOW UNCOVERED DURING THE INTERVIEW, IT WOULD BE
 FORWARDED TO AGENCY AUTHORITIES EVEN IF THE MATTER WAS NOT PURSUED
 FURTHER OR DIRECTLY INVOLVED IN THE INVESTIGATION.
 
    THIS WAS NO "RUN-OF-THE-MILL SHOP FLOOR CONVERSATION." /22/ RATHER,
 THE INTERVIEW WAS CONDUCTED AWAY FROM DALEY'S WORK PLACE.  DALEY WAS
 UNDER OATH AT THE TIME.  THE INTERVIEWERS WERE TRAINED AND PRESUMABLY
 SKILLED CRIMINAL INVESTIGATORS.  DALEY WAS AWARE IT WAS SERIOUS BUSINESS
 WHEN PERSONNEL FROM REGIONAL INSPECTION WERE INVOLVED IN A SITUATION.
 
    ACCORDINGLY, HAVING CONSIDERED THE VARIOUS FACTS AND CIRCUMSTANCES
 RELATIVE TO THE INTERVIEW AND EMPLOYEE DALEY'S REQUEST THAT UNION
 ATTORNEY CONROY ACCOMPANY HIM TO THE INTERVIEW, I FIND AND CONCLUDE THAT
 RESPONDENT, WHEN GROUP MANAGER MCQUEENEY AND INSPECTORS NAGY AND ROOK
 REFUSED DALEY'S REQUEST FOR REPRESENTATION, FAILED TO COMPLY WITH THE
 PROVISIONS OF SECTION 7114(A)(2)(B) OF THE STATUTE AND THEREBY VIOLATED
 SECTIONS 7116(A)(1) AND (8) OF THE STATUTE.
 
    AT THE HEARING RESPONDENT ATTEMPTED TO CROSS-EXAMINE DALEY FROM AN
 AFFIDAVIT TAKEN FROM DALEY BY AN AGENT OF THE AUTHORITY DURING THE
 COURSE OF THE REGIONAL DIRECTOR'S INVESTIGATION OF THE CHARGE.
 RESPONDENT SOUGHT TO HAVE THE TESTIMONY AND AFFIDAVIT RECEIVED TO SHOW
 THAT DALEY DID NOT BELIEVE, IN HIS OWN MIND, THAT HE COULD BE SUBJECT TO
 DISCIPLINE AT THE TIME HE WAS INTERVIEWED BY THE INSPECTORS.  I REFUSED
 TO PERMIT CROSS-EXAMINATION OF DALEY ON HIS STATE OF MIND AND REJECTED
 THE PROFFER OF THE AFFIDAVIT FOR THIS PURPOSE.  /23/
 
    RESPONDENT STRONGLY URGES THAT, IN EFFECT, SECTION 7114(A)(2)(B) MUST
 BE APPLIED LITERALLY.  THUS, RESPONDENT ARGUES, IN INTERPRETING THIS
 SECTION A THRESHOLD QUESTION TO THAT OF "REASONABLE BELIEF" OF
 DISCIPLINARY ACTION IS WHETHER ANY "BELIEF" OF DISCIPLINARY ACTION
 EXISTED.  RESPONDENT MAINTAINS THEREFORE, THAT IT WAS PROPER TO EXPLORE
 AND PRESENT EVIDENCE ON WHETHER DALEY PERSONALLY BELIEVED, REASONABLY OR
 OTHERWISE, THAT HE COULD HAVE BEEN SUBJECT TO DISCIPLINE AS A RESULT OF
 HIS EXAMINATION.
 
    I HEREBY REAFFIRM MY RULINGS MADE AT THE HEARING TO EXCLUDE THE
 AFFIDAVIT AND NOT PERMIT CROSS-EXAMINATION IN THIS AREA OF INQUIRY.
 RESPONDENT'S ARGUMENTS, IF FOLLOWED, WOULD LEAD PRECISELY INTO THE
 "ENDLESS AND UNRELIABLE" INQUIRY WHICH THE NLRB AND THE SUPREME COURT
 HAVE WISELY REJECTED. /24/ IF SUBJECTIVE STATE OF MIND WAS OPEN TO
 INQUIRY, A HEARING MAY WELL BECOME INTERMINABLE WITH EXAMINATION AND
 CROSS-EXAMINATION OF THE INTERVIEWED INDIVIDUAL, AND PERHAPS OTHER
 WITNESSES, AS TO THE INDIVIDUAL'S INTELLIGENCE, CONVICTIONS, THOUGHTS,
 FEARS, CHARACTER STRENGTH'S AND WEAKNESSES AND PERHAPS PSYCHIATRIC
 MAKE-UP AS WELL.  FAR MORE EXPEDITIOUS AND RELIABLE IS AN ASSESSMENT OF
 EXTERNAL EVIDENCE, INCLUDING CONDUCT WHICH FLOWS FROM "STATE OF MIND,"
 IN ORDER TO ASCERTAIN WHETHER THE INDIVIDUAL, AS A REASONABLE PERSON,
 COULD CONCLUDE THAT DISCIPLINARY ACTION MIGHT RESULT FROM THE INTERVIEW.
  IT IS ALSO NOTED THAT IN SIMILAR SITUATIONS OTHER FORUMS HAVE REJECTED,
 AS IRRELEVANT OR UNPROFITABLE, EVIDENCE BEARING ON STATE OF MIND AND
 COMPARABLE SUBJECTIVE CONSIDERATIONS. /25/
 
    MOREOVER, THE COURT IN WEINGARTEN ACKNOWLEDGED THAT THE REASONABLE
 BELIEF CRITERION UNDER DISCUSSION IN THAT CASE WAS NOT TO BE APPLIED
 LITERALLY.  THUS, THE COURT, AT 966, STATED:
 
    "REQUIRING A LONE EMPLOYEE TO ATTEND AN INVESTIGATORY INTERVIEW WHICH
 HE REASONABLY
 
    BELIEVES MAY RESULT IN THE IMPOSITION OF DISCIPLINE PERPETUATES THE
 INEQUALITY THE ACT WAS
 
    DESIGNED TO ELIMINATE, AND BARS RECOURSE TO THE SAFEGUARDS THE ACT
 PROVIDED "TO REDRESS THE
 
    PERCEIVED IMBALANCE OF ECONOMIC POWER BETWEEN LABOR AND MANAGEMENT."
 (CITED CASES
 
    OMITTED).  VIEWED IN THIS LIGHT, THE BOARD'S RECOGNITION THAT SEC. 7
 GUARANTEES AN EMPLOYEE'S
 
    RIGHT TO THE PRESENCE OF A UNION REPRESENTATIVE AT AN INVESTIGATORY
 INTERVIEW IN WHICH THE
 
    RISK OF DISCIPLINE REASONABLY INHERES IS WITHIN THE PROTECTIVE AMBIT
 OF THE SECTION . . . "
 
    IT THEREFORE APPEARS THAT IN THE VIEW OF THE SUPREME COURT,
 "REASONABLY BELIEVES," IN THE CONTEXT OF THAT CASE, WAS INTERCHANGEABLE
 WITH, AND TO BE VIEWED FROM THE PERSPECTIVE OF, "AN INVESTIGATORY
 INTERVIEW IN WHICH THE RISK OF DISCIPLINE REASONABLY INHERES." THIS
 APPROACH, WHICH FOCUSES ON THE INTERVIEW AND ITS SURROUNDING
 CIRCUMSTANCES, CLEARLY REMOVES FROM INQUIRY THE INDIVIDUAL'S SUBJECTIVE
 BELIEF AND PLACES IT ON RELIABLE, OBJECTIVE CONSIDERATIONS.
 
                                   ORDER
 
    PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
 RULES AND REGULATIONS, 45 FED.REG. 3482, 3510(1980), IT IS HEREBY
 ORDERED THAT INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND INTERNAL
 REVENUE SERVICE, HARTFORD DISTRICT OFFICE SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REQUIRING ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION,
 INTERVIEW OR MEETING WITHOUT UNION REPRESENTATION BY THE NATIONAL
 TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING
 REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE
 EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION,
 INTERVIEW OR MEETING MAY RESULT IN DISCIPLINARY ACTION AGAINST THE
 EMPLOYEE.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED AND FOUND
 NECESSARY TO EFFECTUATE THE POLICIES OF THE STATUTE:
 
    (A) POST AT ITS HARTFORD DISTRICT OFFICE, HARTFORD, CONNECTICUT,
 COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX." COPIES OF SAID NOTICE,
 TO BE FURNISHED BY THE REGIONAL DIRECTOR FOR REGION 1, AFTER BEING
 SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL BE POSTED BY IT
 IMMEDIATELY UPON RECEIPT THEREOF, AND BE MAINTAINED BY IT FOR 60
 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
 WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  REASONABLE STEPS
 SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR
 COVERED BY ANY OTHER MATERIAL.
 
    (B) NOTIFY THE REGIONAL DIRECTOR FOR REGION 1, IN WRITING, WITHIN 30
 DAYS FROM THE DATE OF THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY
 HEREWITH.
 
                         SALVATORE J. ARRIGO
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 13, 1980
    WASHINGTON, D.C.
 
 
 
 
 
                                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 REQUIRE ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION,
 INTERVIEW OR MEETING WITHOUT REPRESENTATION BY NATIONAL TREASURY
 EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING
 REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE
 EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION,
 INTERVIEW OR MEETING MAY RESULT IN DISCIPLINARY ACTION AGAINST THE
 EMPLOYEE.
 
    WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY:
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 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:
 441 STUART STREET, 8TH FLOOR, BOSTON, MA 02116, AND WHOSE TELEPHONE
 NUMBER IS:  (617) 223-0920.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND INTERNAL REVENUE
 SERVICE, HARTFORD DISTRICT OFFICE ARE JOINTLY REFERRED TO HEREIN AS
 RESPONDENT.  SEE DISCUSSION, INFRA.
 
    /2/ SECTION 2423.12 OF THE REGULATIONS PROVIDES, IN RELEVANT PART,
 THAT "(E)XCEPT IN EXTRAORDINARY CIRCUMSTANCES AS DETERMINED BY THE
 REGIONAL DIRECTOR, WITHIN TEN (10) DAYS AFTER THE COMPLAINT IS SERVED
 UPON THE RESPONDENT, THE RESPONDENT SHALL FILE THE . . . ANSWER THERETO
 . . . "
 
    /3/ THE CITED SECTIONS OF THE STATUTE AND REGULATIONS PROVIDE THAT A
 HEARING SHALL NOT BE CONDUCTED EARLIER THAN FIVE DAYS FROM THE SERVICE
 OF THE COMPLAINT.
 
    /4/ RESPONDENT'S UNOPPOSED MOTION TO CORRECT THE TRANSCRIPT IS HEREBY
 GRANTED.
 
    /5/ THE CLASSIFICATION TITLE FOR THIS POSITION CONTAINED IN THE
 APPROPRIATE IRS STANDARD POSITION DESCRIPTION IS "CRIMINAL
 INVESTIGATOR."
 
    /6/ AT THIS TIME THE INSPECTORS HAD NOT DETERMINED WHETHER OR NOT THE
 INTERNAL AUDITOR HAD ACQUIRED THE TAXPAYER INFORMATION FROM ANYONE IN
 IRS.  THEY WERE SEEKING TO ASCERTAIN "(I)F HE GOT THE INFORMATION, HOW
 DID HE GET IT."
 
    /7/ COMMONLY REFERRED TO AS THE "MIRANDA WARNING."
 
    /8/ SEE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE AND IRS
 MILWAUKEE DISTRICT, 8 A/SLMR 1125, (A/SLMR NO. 1133) AND JOINT EXHIBIT
 NO. 2, HANDBOOK OF EMPLOYEE RESPONSIBILITIES AND CONDUCT ISSUED BY THE
 NATIONAL OFFICE FOR EXAMPLES OF RELATIONSHIPS BETWEEN THE NATIONAL
 OFFICE AND A SUBORDINATE OFFICE.
 
    /9/ CURIOUSLY, RESPONDENT DOES NOT DENY THAT NAGY AND ROOK ARE AGENTS
 OF IRS, WASHINGTON, EVEN THOUGH THEY ARE NOT EMPLOYED IN WASHINGTON
 D.C., BUT EMPLOYED BY THE IRS MID-ATLANTIC REGION, NEWARK, NEW JERSEY.
 
    /10/ SECTION 19(A)(1) PROVIDED:  "AGENCY MANAGEMENT SHALL NOT . . .
 INTERFERE, RESTRAIN OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS
 ASSURED BY THIS ORDER."
 
    /11/ SECTION 19(A)(6) PROVIDED:  "AGENCY MANAGEMENT SHALL NOT . .  .
 REFUSE TO CONSULT, CONFER OR NEGOTIATE WITH A LABOR ORGANIZATION AS
 REQUIRED BY THIS ORDER."
 
    /12/ 5 FLRC 305 (FLRC NO. 76A-37 (MAY 4, 1977) REPORT NO. 125).
 
    /13/ SECTION 7116(A)(1) OF THE STATUTE STATES " . . . IT SHALL BE AN
 UNFAIR LABOR PRACTICE FOR AN AGENCY . . . TO INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
 UNDER THIS CHAPTER." UNDER SECTION 7116(A)(8) IT IS AN UNFAIR LABOR
 PRACTICE " . . . FOR AN AGENCY TO OTHERWISE FAIL OR REFUSE TO COMPLY
 WITH ANY PROVISION OF THIS CHAPTER."
 
    /14/ N.L.R.B. V. J. WEINGARTEN, INC., 95 S.CT. 959(1975).
 
    /15/ STATEMENT ON MAJOR POLICY ISSUE, 4 FLRC 710 (FLRC NO. 75P-2
 (DEC. 2, 1976) REPORT NO. 116).
 
    /16/ WEINGARTEN, AT 966.
 
    /17/ LEGISLATIVE HISTORY OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, TITLE VII OF THE CIVIL SERVICE REFORM ACT OF 1978,
 96TH CONGRESS, 1ST SESSION, COMMITTEE PRINT NO. 96-7, (NOVEMBER 19,
 1979) PP. 644, 651, 652, 824 AND 926.
 
    /18/ ID., AT 824.
 
    /19/ WEINGARTEN, FN. 5, AT 964.
 
    /20/ ID.
 
    /21/ OBVIOUSLY, ONE IS NOT REQUIRED TO CONFESS GUILT IN ORDER TO
 PROVE THAT REASONABLE BELIEF OF DISCIPLINE IS PRESENT.
 
    /22/ SEE WEINGARTEN, AT 964.
 
    /23/ DALEY DID NOT TESTIFY ON DIRECT EXAMINATION WITH REGARD TO HIS
 STATE OF MIND AT THE TIME OF HIS INTERVIEW BY THE INSPECTORS.
 
    /24/ WEINGARTEN, FN. 5, AT 964.
 
    /25/ SEE N.L.R.B. V. LINK-BELT CO., 61 S.CT. 358, 361 (1941);
 ENVIRONMENTAL PROTECTION AGENCY, PERRINE PRIMATE LABORATORY, 2 A/SLMR 88
 (A/SLMR NO. 136);  BON-R REPRODUCTIONS, INC., ENF'D AS MODIFIED, 309
 F.2D 898 (2D CIR. 1962);  THE REIN COMPANY, 114 NLRB 694;  N.L.R.B. V.
 HUNTVILLE MANUFACTURING COMPANY, 514 F.2D 723 (5TH CIR. 1975).