U.S. Department of Treasury, Internal Revenue Service (Respondent) and National Treasury Employees Union and National Treasury Employees Union Chapter 10 (Charging Party)



[ v04 p666 ]
04:0666(87)CA
The decision of the Authority follows:


 4 FLRA No. 87
 
 U.S. DEPARTMENT OF TREASURY
 INTERNAL REVENUE SERVICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION AND NATIONAL TREASURY
 EMPLOYEES UNION CHAPTER 10
 Charging Party
 
                                            Case No. 5-CA-97
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
 ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES UNDER EXECUTIVE ORDER 11491,
 AS AMENDED, AND RECOMMENDING THAT CERTAIN OTHER ALLEGED UNFAIR LABOR
 PRACTICES BE DISMISSED.  THE RESPONDENT FILED EXCEPTIONS TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR 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 2423.2 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.1). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
 PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 STATUTE.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S 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 WERE
 HEREBY AFFIRMED.  THE AUTHORITY HAS CONSIDERED THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
 CASE, INCLUDING THE EXCEPTIONS FILED.  THE AUTHORITY ADOPTS THE
 ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS TO
 THE EXTENT CONSISTENT HEREWITH.  /1/
 
    THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT VIOLATED
 SECTION 19(A)(1) OF THE EXECUTIVE ORDER 11491, AS AMENDED, WHEN ITS
 AGENTS ON TWO SEPARATE OCCASIONS THREATENED OR INTERFERED WITH TWO
 UNION
 APPOINTED MEMBERS OF AN EEO ADVISORY COMMITTEE IN THE PERFORMANCE OF
 THEIR FUNCTIONS AS UNION APPOINTED MEMBERS OF THAT COMMITTEE.  HOWEVER,
 THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE ACTIONS OF THE RESPONDENT'S
 AGENTS ON A THIRD OCCASION DID NOT CONSTITUTE INTERFERENCE WITH,
 RESTRAINT OR COERCION OF AN EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED
 BY THE ORDER.  THE SPECIFIC INCIDENT INVOLVED OCCURRED ON JANUARY 3,
 1979.  THE DAY BEFORE MARJORIE GERDES, THE UNION APPOINTED CHAIRPERSON
 OF THE EEO ADVISORY COMMITTEE, HAD BEEN INFORMED BY AN AGENT OF THE
 RESPONDENT THAT SHE WAS TO ATTEND A MEETING IN THE OFFICE OF
 RESPONDENT'S DISTRICT DIRECTOR THE FOLLOWING MORNING.  SHE REQUESTED
 FELLOW COMMITTEE MEMBER (AND COINCIDENTALLY NTEU CHAPTER 10 PRESIDENT)
 EDWARD MCCARTHY TO ACCOMPANY HER TO THE MEETING.  UPON ARRIVAL AT THE
 MEETING, DISTRICT DIRECTOR MIRIANI REFUSED TO ALLOW MR. MCCARTHY TO
 ATTEND AND ORDERED MS. GERDES INTO HIS OFFICE.  PRESENT AT THE MEETING
 WERE MR. MIRIANI AND THREE OTHER REPRESENTATIVES OF THE RESPONDENT.  AT
 THE MEETING MS. GERDES WAS QUESTIONED ABOUT AND CRITICIZED REGARDING A
 LIST OF QUESTIONS WHICH THE COMMITTEE HAD PREPARED IN ANTICIPATION OF AN
 UPCOMING APPEARANCE BEFORE THE COMMITTEE BY ANOTHER AGENT OF THE
 RESPONDENT.
 
    THE ADMINISTRATIVE LAW JUDGE FOUND THAT RESPONDENT'S ACTIONS WITH
 RESPECT TO THE JANUARY 3 MEETING DID NOT VIOLATE SECTION 19(A)(1) OF THE
 ORDER.  IN SO FINDING HE NOTED THAT WHILE THE REMARKS MADE TO MS. GERDES
 WERE DIRECTED AT HER AS THE UNION APPOINTED EEO COMMITTEE CHAIRPERSON,
 THEY WERE DEVOID OF ANY THREATS, IMPLIED OR OTHERWISE, TO HER OF
 POSSIBLE RETALIATION FOR HER UNION ACTIVITIES.
 
    CONTRARY TO THE ADMINISTRATIVE LAW JUDGE THE AUTHORITY IS OF THE VIEW
 THAT THE RESPONDENT'S CONDUCT TOWARDS MS. GERDES IN CONJUNCTION WITH THE
 JANUARY 3 MEETING VIOLATED SECTION 19(A)(1) OF THE ORDER.  NOTING THAT
 MS. GERDES WAS ENGAGED IN PROTECTED ACTIVITY IN THE CONTEXT OF
 PERFORMING HER ROLE AS THE UNION APPOINTED CHAIRPERSON OF THE EEO
 ADVISORY COMMITTEE, THE AUTHORITY FINDS THAT THE TREATMENT ACCORDED MS.
 GERDES WOULD TEND TO INTERFERE WITH THE PERFORMANCE OF HER FUNCTIONS.
 IN THIS REGARD THE AUTHORITY FINDS THAT, WHILE THE REMARKS MADE TO MS.
 GERDES AT THE MEETING WERE DEVOID OF ANY EXPLICIT THREATS, THE CONDUCT
 OF THE RESPONDENT IN ORDERING MS. GERDES TO ATTEND SUCH A MEETING AND IN
 REFUSING TO ALLOW HER TO BE ACCOMPANIED BY A FELLOW COMMITTEE MEMBER WAS
 COERCIVE IN NATURE AND CONSTITUTED INTERFERENCE WITH MS. GERDES'
 PROTECTED UNION ACTIVITY IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE,
 THE AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE SHALL:
 
    1.  CEASE AND DESIST FROM
 
    (A) THREATENING OR OTHERWISE INTERFERING WITH THE REPRESENTATIONAL
 RESPONSIBILITIES OR ACTIVITIES OF AN NTEU APPOINTED MEMBER TO THE EEO
 ADVISORY COMMITTEE BY SUGGESTING THAT HE MAY JEOPARDIZE HIS CAREER BY
 PURSUING CERTAIN MATTERS IN CONJUNCTION WITH COMMITTEE ACTIVITY.
 
    (B) THREATENING OR INTERFERING WITH THE REPRESENTATIONAL
 RESPONSIBILITIES OF THE NTEU APPOINTED CHAIRPERSON OF THE COMMITTEE BY
 THREATENING TO CEASE FURTHER BRIEFING SESSIONS WITH THE OFFICE OF THE
 DISTRICT DIRECTOR IF SHE CONTINUES HER PRACTICE OF SUBMITTING WRITTEN
 REPORTS OF THE SESSIONS TO THE FULL EEO COMMITTEE OR BY ORDERING HER TO
 ATTEND MANAGEMENT CALLED MEETINGS AT WHICH COMMITTEE ACT'ONS ARE
 QUESTIONED AND CRITICIZED AND BY REFUSING ADMISSION TO A FELLOW
 COMMITTEE MEMBER WHOM SHE HAD SOUGHT TO HAVE ACCOMPANY HER.
 
    (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED, OR THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR RELATIONS STATUTE:
 
    (A) POST AT THE CHICAGO DISTRICT OFFICE, DEPARTMENT OF TREASURY,
 INTERNAL REVENUE SERVICE, CHICAGO, ILLINOIS, COPIES OF THE ATTACHED
 NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
 RELATIONS AUTHORITY.  (THE NOTICE RECOMMENDED BY THE ADMINISTRATIVE LAW
 JUDGE HAS BEEN MODIFIED TO REFLECT THE ADDITIONAL VIOLATION FOUND BY THE
 AUTHORITY.  ALSO IT HAS BEEN MODIFIED TO INDICATE MORE SPECIFICALLY THE
 VIOLATIVE CONDUCT INVOLVED.) UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
 SIGNED BY THE DISTRICT DIRECTOR, DEPARTMENT OF TREASURY, INTERNAL
 REVENUE SERVICE, CHICAGO, ILLINOIS, AND THEY SHALL BE POSTED BY HIM FOR
 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
 PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE DISTRICT
 DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
 ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (B) 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.
 
    IT IS FURTHER ORDERED THAT THE SECTION 19(A)(6) ALLEGATION OF THE
 COMPLAINT FOUND NOT TO BE VIOLATIVE OF THE EXECUTIVE ORDER BE, AND
 HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 12, 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 THREATEN OR OTHERWISE INTERFERE WITH THE REPRESENTATIONAL
 RESPONSIBILITIES OR ACTIVITIES OF AN NTEU APPOINTED MEMBER TO THE EEO
 ADVISORY COMMITTEE BY SUGGESTING THAT HE MAY JEOPARDIZE HIS CAREER BY
 PURSUING CERTAIN MATTERS IN CONJUNCTION WITH COMMITTEE ACTIVITY.
 
    WE WILL NOT THREATEN OR INTERFERE WITH THE REPRESENTATIONAL
 RESPONSIBILITIES OF THE NTEU APPOINTED CHAIRPERSON OF THE COMMITTEE BY
 THREATENING TO CEASE FURTHER BRIEFING SESSIONS WITH THE OFFICE OF THE
 DISTRICT DIRECTOR IF SHE CONTINUES HER PRACTICE OF SUBMITTING WRITTEN
 REPORTS OF THE SESSIONS TO THE FULL EEO COMMITTEE OR BY ORDERING HER TO
 ATTEND MANAGEMENT CALLED MEETINGS AT WHICH COMMITTEE ACTIONS ARE
 QUESTIONED AND CRITICIZED AND BY REFUSING ADMISSION TO A FELLOW
 COMMITTEE MEMBER WHOM SHE HAD SOUGHT TO HAVE ACCOMPANY HER.
 
    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, OR THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS 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:
 175 WEST JACKSON BLVD., SUITE 1359A, CHICAGO, ILLINOIS 60604 AND WHOSE
 TELEPHONE NUMBER IS:  (312) 353-6306.
 
 
 
 
 
 
 
 
 
 
 
 ---------------
 
 LOWS -----
    TOM C. BORDERS, ESQUIRE
    STAFF ATTORNEYS, REGIONAL COUNSEL
    INTERNAL REVENUE SERVICE
    22ND FLOOR SOUTH
    219 S. DEARBORN STREET
    CHICAGO, ILLINOIS 60604
                            FOR THE RESPONDENT
 
    MICHAEL MAUER, ESQUIRE
    ASSISTANT COUNSEL
    NATIONAL TREASURY EMPLOYEES UNION
    SUITE 1101, 1730 K STREET, N.W.
    WASHINGTON, D.C. 20006
                          FOR THE CHARGING PARTY
 
    GREGORY A. MIKSA, ESQUIRE
    COUNSEL FOR THE GENERAL COUNSEL
    FEDERAL LABOR RELATIONS AUTHORITY
    ROOM 1638, 219 SOUTH DEARBORN STREET
    CHICAGO, ILLINOIS 60604
                 FOR THE FEDERAL LABOR RELATIONS AUTHORITY
 
    BEFORE:  BURTON S. STERNBURG
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS MATTER COMES BEFORE THE UNDERSIGNED ADMINISTRATIVE LAW JUDGE
 PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON DECEMBER 20,
 1979, BY THE REGIONAL DIRECTOR FOR REGION V, FEDERAL LABOR RELATIONS
 AUTHORITY, CHICAGO, ILLINOIS.  SAID COMPLAINT IS BASED UPON AN AMENDED
 CHARGE FIRST FILED ON MAY 3, 1979, BY THE NATIONAL TREASURY EMPLOYEES
 UNION AND NTEU CHAPTER 10 (HEREINAFTER CALLED THE UNION OR COMPLAINANT),
 AGAINST THE U.S. INTERNAL REVENUE SERVICE AND ITS CHICAGO DISTRICT
 OFFICE, (HEREINAFTER CALLED THE RESPONDENT OR ACTIVITY).
 
    THE COMPLAINT ALLEGES IN SUBSTANCE THAT THE RESPONDENT VIOLATED
 SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, BY VIRTUE
 OF ITS ACTIONS IN "PATENTLY AND ARBITRARILY" BREACHING A COLLECTIVE
 BARGAINING AGREEMENT AND COERCING AND RESTRAINING EMPLOYEES IN THE
 EXERCISE OF THEIR RIGHTS ASSURED BY THE EXECUTIVE ORDER TO FREELY
 PARTICIPATE AS UNION APPOINTED REPRESENTATIVES ON A CONTRACTUALLY
 ESTABLISHED EQUAL OPPORTUNITY COMMITTEE.  /2/
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON JANUARY 22, 1980, IN
 CHICAGO, ILLINOIS.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, TO ADDUCE EVIDENCE AND EXAMINE AND CROSS-EXAMINE WITNESSES.  THE
 GENERAL COUNSEL AND RESPONDENT SUBMITTED BRIEFS WHICH HAVE BEEN DULY
 CONSIDERED.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDED ORDER.
 
                             FINDINGS OF FACT
 
    THE RESPONDENT AND THE UNION, WHICH IS THE EXCLUSIVE REPRESENTATIVE
 OF THE PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES IN RESPONDENT'S
 DISTRICT OFFICES, ARE PARTIES TO A MULTI-DISTRICT COLLECTIVE BARGAINING
 AGREEMENT COVERING, AMONG OTHER THINGS, RESPONDENT'S CHICAGO DISTRICT
 OFFICE WHEREIN THE ALLEGED UNFAIR LABOR PRACTICES OCCURRED.  CHAPTER 10,
 NTEU, IS THE LOCAL AGENT FOR THE NTEU IN THE CHICAGO DISTRICT AND IS A
 PARTY TO A LOCAL SUPPLEMENTAL COLLECTIVE BARGAINING AGREEMENT WITH THE
 RESPONDENT.  BOTH THE MULTI-DISTRICT AGREEMENT AND THE LOCAL
 SUPPLEMENTAL AGREEMENT PROVIDE FOR THE ESTABLISHMENT OF AN EQUAL
 OPPORTUNITY AFFIRMATIVE ACTION COMMITTEE, ONE HALF OF WHICH IS TO BE
 SELECTED BY THE UNION.  /3/ BOTH THE COLLECTIVE BARGAINING AGREEMENT AND
 THE SUPPLEMENTAL AGREEMENT PROVIDE THAT EACH YEAR THE UNION AND THE
 DISTRICT DIRECTOR WILL ROTATE THE SELECTION OF THE COMMITTEE CHAIRMAN
 AND VICE-CHAIRMAN.  IN A YEAR WHEN THE UNION APPOINTS THE CHAIRMAN, THE
 DISTRICT DIRECTOR WILL HAVE THE RIGHT TO APPOINT THE VICE-CHAIRMAN AND
 VICE VERSA.
 
    WITH RESPECT TO THE PURPOSE AND FUNCTION OF THE EEO COMMITTEE,
 ARTICLE 15, SECTION 1E PROVIDES AS FOLLOWS:  /4/
 
    IT WILL BE THE FUNCTION OF THE COMMITTEE TO ASSIST IN THE
 IDENTIFICATION AND DEVELOPMENT OF
 
    ITEMS FOR EEO AFFIRMATIVE ACTION AND UPWARD MOBILITY PLANS AND TO
 MAKE RECOMMENDATIONS TO THE
 
    EMPLOYER FOR POSSIBLE INCLUSION IN THE PLAN.  IT WILL ALSO ADVISE THE
 EMPLOYER ON THE
 
    IMPLEMENTATION OF THE PLAN.  THE ACTION PLAN WILL CONCERN ITSELF WITH
 MATTERS OF RACE, COLOR,
 
    RELIGION, SEX, NATIONAL ORIGIN, AND AGE.  THE COMMITTEE WILL ALSO BE
 RESPONSIBLE FOR REVIEWING
 
    THE PROGRESS UNDER THE ACTION PLAN AND REPORTING ITS FINDINGS TO THE
 EMPLOYER.
 
    THE BYLAWS OF THE EEO COMMITTEE PROVIDES UNDER THE "PURPOSE AND
 FUNCTION" AS FOLLOWS:
 
    TO ADVISE THE DISTRICT DIRECTOR AND RECOMMEND TO MANAGEMENT ANY
 REMEDIAL ACTIONS NECESSARY
 
    TO FURTHER ALL ASPECTS OF THE EEO PROGRAM IN THE DISTRICT OFFICE.
 FUNCTIONS AS A CONTINUING
 
    LINK OF COMMUNICATION BETWEEN MANAGEMENT AND THE TOTAL POPULATION OF
 THE DISTRICT OFFICE ON
 
    MATTERS OF AN EEO NATURE IN AN ADVISORY AND CONSULTATIVE CAPACITY.
 
    THE BYLAWS FURTHER PROVIDE, AMONG OTHER THINGS, THAT THE EEO MEETINGS
 SHALL BE HELD ON THE FIRST THURSDAY OF EACH MONTH THROUGHOUT THE YEAR.
 
    ON DECEMBER 7, 1978, A REGULARLY MONTHLY EEO COMMITTEE MEETING WAS
 HELD.  DURING THE COURSE OF THE MEETING A DISCUSSION ENSUED CONCERNING
 THE LACK OF STATISTICAL INFORMATION PERTAINING TO THE FAILURE RULE OF
 MINORITIES IN THE RESPONDENT'S TRAINING PROGRAM FOR NEW EMPLOYEES.  IN
 INASMUCH AS THE RESPONDENT HAD REFUSED PAST COMMITTEE REQUESTS FOR SUCH
 STATISTICAL INFORMATION, ROBERT JONES, A UNION APPOINTED MEMBER OF THE
 EEO COMMITTEE, VOLUNTEERED TO PERSONALLY CONTACT VARIOUS EMPLOYEES
 INVOLVED IN THE TRAINING PROGRAM AND ATTEMPT TO SECURE THE STATISTICS
 CONCERNING THE FAILURE RATES OF THE MINORITY EMPLOYEES IN THE TRAINING
 PROGRAMS.  ACCORDING TO MR.  JONES, WHOSE TESTIMONY IS CORROBORATED BY
 MR. MICHAEL PEACHER AND MS. MAJORIE GERDES, /5/ MR.  DON TURNER, CHIEF
 OF FIELD BRANCH AND COLLECTION DIVISION, /6/ INFORMED HIM THAT SUCH
 ACTION ON HIS PART COULD JEOPARDIZE HIS CAREER SINCE IT WOULD BE
 CONTRARY TO THE WISHES OF THE DIRECTOR WHO DID NOT WANT THE INFORMATION
 COLLECTED.  THEREAFTER, THE EEO COMMITTEE VOTED TO EXPUNGE MR. JONES'
 OFFER FROM THE COMMITTEE'S MINUTES.  /7/
 
    ON DECEMBER 14, 1978, MS. MARJORIE GERDES, CHAIRPERSON OF THE EEO
 COMMITTEE, IN ACCORDANCE WITH PRIOR PRACTICE, MET WITH ASSISTANT
 DISTRICT DIRECTOR JOHN EDWARDS FOR PURPOSES OF BRIEFING HIM WITH RESPECT
 TO WHAT HAD OCCURRED OR TRANSPIRED AT THE DECEMBER 7TH EEO COMMITTEE
 MEETING.  /8/ PRIOR TO THE START OF THE BRIEFING SESSION AND WHILE MR.
 EDWARDS AND MS. GERDES WERE ALONE, MR. EDWARDS TOOK EXCEPTION TO THE
 MINUTES MS. GERDES HAD TAKEN AT THEIR PREVIOUS MONTHLY MEETING.  MR.
 EDWARDS ATTACKED THE MINUTES ON THE GROUND THAT THEY WERE INACCURATE AND
 SLANTED.  AFTER DELINEATING WHAT HE THOUGHT WERE ERRORS IN MS. GERDES
 MINUTES, MR. EDWARDS CAUTIONED MS.  GERDES THAT HE WOULD NOT HOLD THE
 REGULAR MONTHLY BRIEFING SESSIONS WITH HER IF SHE DID NOT CEASE MAKING
 WRITTEN REPORTS TO THE EEO COMMITTEE OF THEIR BRIEFING SESSIONS.  MR.
 EDWARDS' REMARKS WERE MADE IN AN ANGRY MANNER AND ACCOMPANIED BY A
 POINTED FINGER FOR EMPHASIS.  THE PRIVATE CONVERSATION ENDED WHEN MS.
 GERDES AGREED NOT TO MAKE WRITTEN NOTES OF THE DECEMBER 14, 1978
 BRIEFING SESSION.  THEREAFTER NEXT MONTHLY BRIEFING SESSION HELD ON
 JANUARY 22, 1979, MS. GERDES WAS ALLOWED TO TAKE NOTES.  HOWEVER, MR.
 EDWARDS REMAINED SILENT AND MADE NO REMARKS OR STATEMENTS OF POSITION
 DURING THE ENTIRE MEETING.
 
    ON JANUARY 2, 1979, WHILE AT HOME ON ANNUAL LEAVE, MS. GERDES
 RECEIVED A TELEPHONE CALL FROM MR. DONALD TURNER WHO INFORMED HER THAT
 SHE WAS TO ATTEND A MEETING IN THE DISTRICT DIRECTOR'S OFFICE THE NEXT
 MORNING AT 8:30 A.M.  MR. TURNER FURTHER INFORMED HER THAT HE BELIEVED
 THAT THE MEETING CONCERNED THE OUTSTANDING INVITATION TO MR.
 KOPIDLANSKY, CHIEF OF THE EXAMINATION DIVISION, TO SPEAK AT A SCHEDULED
 MONTHLY MEETING OF THE EEO COMMITTEE.  BEING CONCERNED ABOUT HER PAST
 EXPERIENCE IN MR. EDWARDS' OFFICE A FEW WEEKS EARLIER, MS. GERDES
 CONTACTED MR. MICHAEL PEACHER, NTEU VICE-PRESIDENT, AND SOUGHT ADVICE.
 MR. PEACHER SUGGESTED THAT MS. GERDES HAVE EEO COMMITTEEMAN EDWARD
 MCCARTHY ACCOMPANY HER TO THE MEETING.
 
    THE NEXT MORNING, JANUARY 3, 1979, MS. GERDES MET MR. MCCARTHY IN
 DISTRICT DIRECTOR MIRIANI'S ANTE ROOM.  UPON BEING INVITED INTO MR.
 MIRIANI'S OFFICE, MS. GERDES INFORMED MR. MIRIANI THAT SHE WANTED MR.
 MCCARTHY TO ACCOMPANY HER.  MR. MIRIANI STATED THAT MR.  MCCARTHY WAS
 NOT WELCOME SINCE IT WAS NOT A UNION MATTER.  MR. MCCARTHY REPLIED THAT
 HE WAS NOT COMING IN HIS CAPACITY AS PRESIDENT OF CHAPTER 10, NTEU, BUT
 AS AN EEO COMMITTEEMAN, AND THAT IT HAD ALWAYS BEEN THE PRACTICE TO
 ALLOW EEO COMMITTEEMEN TO ATTEND EEO MEETINGS WITH MANAGEMENT.  MR.
 MIRIANI REPLIED THAT MR. MCCARTHY COULD NOT ATTEND AND ORDERED MS.
 GERDES INTO HIS OFFICE.  THE MEETING THEN PROCEEDED WITH MR. MIRIANI,
 MR. EDWARDS, ASSISTANT DIRECTOR, MR. TURNER, EEO VICE-CHAIRMAN, AND MR.
 THOMAS, AN EEO OFFICIAL, IN ATTENDANCE.
 
    THE MEETING, IN THE MAIN, WAS CONFINED TO A SET OF QUESTIONS TO MR.
 KOPIDLANSKY WHICH HAD BEEN DRAWN UP BY THE EEO COMMITTEE IN PREPARATION
 FOR HIS SCHEDULED APPEARANCE BEFORE THE EEO COMMITTEE.  DURING THE
 MEETING THE QUESTIONS PREPARED FOR MR.  KOPIDLANSKY WERE HIGHLY
 CRITICIZED AND MS. GERDES WAS ACCUSED OF TURNING THE EEO COMMITTEE INTO
 AN ADVERSARY RELATIONSHIP.  SHE WAS FURTHER ACCUSED OF NOT KNOWING HOW
 TO WRITE QUESTIONS AND TO DEAL WITH PEOPLE.  WHEN MS. GERDES POINTED OUT
 THAT SHE WAS NOT THE AUTHOR OF THE QUESTIONS, SHE WAS ASKED THE
 IDENTITIES OF THE INDIVIDUAL COMMITTEE MEMBERS WHO HAD SUBMITTED THE
 QUESTIONS.  MS. GERDES DECLINED TO IDENTIFY THE INDIVIDUALS.  THE
 MEETING ENDED WITH MR. MIRIANI STATING, IN RESPONSE TO A QUESTION FROM
 MS. GERDES, THAT MR. KOPIDLANSKY WOULD ATTEND THE NEXT MEETING OF THE
 EEO COMMITTEE AND ANSWER THEIR QUESTIONS.
 
                        DISCUSSION AND CONCLUSIONS
 
    SECTION 1(A) OF EXECUTIVE ORDER 11491, AS AMENDED, GIVES EMPLOYEES
 THE RIGHT TO "FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM,
 JOIN AND ASSIST A LABOR ORGANIZATION." 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
 ORGANIZATION REPRESENTATIVE . . . "
 
    IN THE INSTANT CASE, MR. JONES AND MS. GERDES WERE SERVING ON THE EEO
 COMMITTEE AS UNION SELECTED MEMBERS PURSUANT TO THE PARTIES NEGOTIATED
 COLLECTIVE BARGAINING AGREEMENT.  IN SUCH CAPACITY THEY WERE ENGAGED IN
 PROTECTED UNION ACTIVITY.  DEPARTMENT OF THE ARMY, HEADQUARTERS MILITARY
 TRAFFIC MANAGEMENT, 2 FLRA NO. 72.  ACCORDINGLY, THEY HAD THE RIGHT TO
 PURSUE THEIR EEO COMMITTEE RESPONSIBILITIES AND OBJECTIVES WITHOUT FEAR
 OF REPRISAL OR INTIMIDATION BY MANAGEMENT REPRESENTATIVES.
 
    IN VIEW OF THE FOREGOING, I FIND THAT THE RESPONDENT VIOLATED SECTION
 19(A)(1) OF THE EXECUTIVE ORDER WHEN DONALD TURNER, CHIEF OF FIELD
 BRANCH AND COLLECTION DIVISION, MADE IT CLEAR TO UNION APPOINTED
 COMMITTEEMAN ROBERT JONES THAT HIS CAREER WOULD BE IN JEOPARDY IF HE
 PURSUED HIS INDEPENDENT INVESTIGATION OF MINORITY DROPOUTS FROM
 RESPONDENT'S NEW EMPLOYEE TRAINING PROGRAM.
 
    SIMILARLY, I FIND THAT MR. EDWARDS' THREAT OF DECEMBER 14, 1978, TO
 STOP FURTHER BRIEFING SESSIONS SHOULD MS. GERDES CONTINUE HER PRACTICE
 OF SUBMITTING WRITTEN REPORTS OF THE BRIEFING SESSIONS TO THE FULL EEO
 COMMITTEE, TO CONSTITUTE INTERFERENCE, RESTRAINT AND COERCION WITHIN THE
 MEANING OF SECTION 19(A)(1) OF THE ORDER.  THE ORDER GIVES THE EMPLOYEES
 THE RIGHT TO ACT AS A UNION REPRESENTATIVE.  HAVING BEEN APPOINTED EEO
 COMMITTEE CHAIRPERSON BY THE UNION, PURSUANT TO THE COLLECTIVE
 BARGAINING AGREEMENT IN EFFECT, MS. GERDES, SUBJECT TO EXISTING RULES,
 REGULATIONS AND PRACTICES, WAS PRIVILEGED TO FREELY PURSUE THE DUTIES
 AND RESPONSIBILITIES IMPOSED UPON HER POSITION.  THE THREAT TO CEASE
 FURTHER BRIEFING SESSIONS UNLESS MS.  GERDES CONDUCTED HER DUTIES IN A
 MANAGEMENT SELECTED MANNER PLACED ON UNDUE RESTRICTION UPON HER
 PROTECTED ACTIVITIES AND DESTROYED THE INDEPENDENCE OF UNION
 REPRESENTATION ENVISIONED BY THE ORDER.
 
    CONTRARY TO THE CONTENTIONS OF THE GENERAL COUNSEL, I FIND THAT THE
 STATEMENTS, REMARKS AND/OR ACTIVITIES OF MR. MIRIANI ON JANUARY 3, 1979,
 FALL SHORT OF INTERFERENCE, RESTRAINT AND COERCION WITHIN THE MEANING OF
 SECTION 19(A)(1) OF THE EXECUTIVE ORDER.  WHILE IT IS TRUE THAT THE
 OBJECTIONABLE REMARKS WERE DIRECTED TO MS. GERDES WHO WAS A UNION
 APPOINTED EEO COMMITTEE CHAIRPERSON, SUCH REMARKS WERE DEVOID OF ANY
 THREATS, IMPLIED OR OTHERWISE TO HER OF POSSIBLE RETALIATION FOR HER
 UNION ACTIVITIES.  THE MANAGEMENT DISPLEASURE DIRECTED TOWARD HER BY MR.
 MIRIANI WAS CONCERNED SOLELY WITH THE ACTIVITIES OF THE BILATERALLY
 COMPOSED EEO COMMITTEE.  HAVING ELECTED TO ACCEPT THE CHAIRMANSHIP OF
 SUCH COMMITTEE, SHE LEFT HERSELF UPON FOR ANY CRITICISM THAT MIGHT ARISE
 WITH RESPECT TO THE GENERAL ADVISORY ACTIVITIES OF THE EEO COMMITTEE,
 SUCH AS THE QUESTIONNAIRE PREPARED FOR MR. KOPIDLANSKY.  INASMUCH AS THE
 CRITICISM OF MR. MIRIANI WAS DIRECTED TO THE BILATERALLY COMPOSED EEO
 COMMITTEE AND UNACCOMPANIED BY ANY THREATS I FIND INSUFFICIENT BASIS FOR
 A 19(A)(1) FINDING PREDICATED THEREON.
 
    I FURTHER FIND THAT RESPONDENT DID NOT VIOLATE THE EXECUTIVE ORDER
 WHEN IT REFUSED TO ALLOW MR. MCCARTHY TO ATTEND THE JANUARY 3, 1979
 MEETING CALLED FOR THE PURPOSE OF DISCUSSING THE QUESTIONAIRE PREPARED
 FOR MR. KOPIDLANSKY.  IN REACHING THIS CONCLUSION IT IS NOTED THAT MR.
 MCCARTHY WAS SEEKING ADMITTANCE SOLELY AS AN EEO COMMITTEEMAN AND THAT
 THE MEETING WAS NOT THE TYPICAL MONTHLY "BRIEFING SESSION" WHICH,
 ACCORDING TO PAST PRACTICE, ALL EEO COMMITTEEMEN WERE FREE TO ATTEND.
 ACCORDINGLY, THE REFUSAL TO ALLOW MR. MCCARTHY'S ATTENDANCE AT THE
 EXTRAORDINARY MEETING DID NOT AMOUNT TO A UNILATERAL CHANGE IN PAST
 PRACTICE.
 
    LASTLY, IN VIEW OF THE FACT THAT THE MONTHLY BRIEFING SESSIONS HAVE
 CONTINUED TO BE HELD WITH MR. EDWARDS IN ATTENDANCE AND MS. GERDES
 TAKING WRITTEN NOTES, I FIND THAT RESPONDENT'S SECTIONS, DESCRIBED
 ABOVE, DID NOT RISE TO SUCH A LEVEL AS TO CONSTITUTE AN ABROGATION OR
 NULLIFICATION OF ARTICLE 15 OF THE MULTI-DISTRICT AGREEMENT IN VIOLATION
 OF SECTION 19(A)(6) OF THE EXECUTIVE ORDER.
 
                              RECOMMENDATIONS
 
    HAVING FOUND THAT RESPONDENT DID NOT ENGAGE IN CONDUCT PROHIBITED BY
 SECTION 19(A)(6) OF THE EXECUTIVE ORDER, AS AMENDED, IT IS HEREBY
 RECOMMENDED THAT SUCH PORTIONS OF THE COMPLAINT BE DISMISSED IN THEIR
 ENTIRETY.  FURTHER, HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT
 PROHIBITED BY SECTION 19(A)(1) OF THE EXECUTIVE ORDER, AS AMENDED, THE
 FOLLOWING ORDER IS RECOMMENDED:
 
                             RECOMMENDED 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 STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
 UNITED STATES DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, CHICAGO
 DISTRICT OFFICE, CHICAGO, ILLINOIS SHALL:
 
    1.  CASE AND DESIST FROM
 
    (A) THREATENING OR OTHERWISE INTERFERING WITH THE UNION
 REPRESENTATIONAL RESPONSIBILITIES OR ACTIVITIES OF MAJORIE GERDES AND
 ROBERT JONES.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  POST AT THE CHICAGO DISTRICT OFFICE, DEPARTMENT OF TREASURY,
 INTERNAL REVENUE SERVICE, CHICAGO, ILLINOIS, 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 THE DISTRICT DIRECTOR, DEPARTMENT OF TREASURY, INTERNAL REVENUE
 SERVICE, CHICAGO, ILLINOIS, 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
 DISTRICT DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
 NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) 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.
 
    IT IS FURTHER ORDERED THAT THE 19(A)(6) ALLEGATION OF THE COMPLAINT
 FOUND NOT TO BE VIOLATIVE OF THE EXECUTIVE ORDER BE, AND HEREBY IS,
 DISMISSED.  /9/
 
                         BURTON S. STERNBURG
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  APRIL 3, 1980
    WASHINGTON, D.C.
 
 
 
 
 
                                APPENDIX
 
            PURSUANT TO DECISION AND ORDER OF THE FEDERAL LABOR
 
          RELATIONS AUTHORITY CHAPTER 71 OF TITLE 5 OF THE UNITED
 
          STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT THREATEN OR OTHERWISE INTERFERE WITH THE REPRESENTAIONAL
 RESPONSIBILITIES OR ACTIVITIES OF NTEU APPOINTED MEMBERS TO THE EEO
 ADVISORY COMMITTEE.
 
    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.
 
                           (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 NOTIC