Internal Revenue Service, Detroit, Michigan (Respondent) and National Treasury Employees Union and National Treasury Employees Union, Chapter 24 (Charging Party)

 



[ v05 p421 ]
05:0421(53)CA
The decision of the Authority follows:


 5 FLRA No. 53
 
 INTERNAL REVENUE SERVICE
 DETROIT, MICHIGAN
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NATIONAL TREASURY EMPLOYEES
 UNION CHAPTER 24
 Charging Party
 
                                            Case No. 5-CA-332
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING RECOMMENDING THAT THE UNFAIR
 LABOR PRACTICE COMPLAINT BE DISMISSED IN ITS ENTIRETY.  THE GENERAL
 COUNSEL AND THE CHARGING PARTY FILED EXCEPTIONS TO THE ADMINISTRATIVE
 LAW JUDGE'S RECOMMENDED DECISION AND ORDER ACCOMPANIED BY BRIEFS, AND
 THE RESPONDENT RESPONDED TO THE EXCEPTIONS FILED BY THE GENERAL COUNSEL
 AND THE CHARGING PARTY ACCOMPANIED BY BRIEFS.
 
    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
 CASE, INCLUDING THE GENERAL COUNSEL'S AND CHARGING PARTY'S EXCEPTIONS
 AND BRIEFS, AND THE RESPONDENT'S RESPONSES AND BRIEFS, THE AUTHORITY
 HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-332 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MARCH 30, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 --
 
 ION FOLLOWS ------------------
    ON BRIEF:  VERNON J. OWENS, ESQUIRE
    WILLIAM T. LYONS, ESQUIRE
                    FOR THE RESPONDENT
 
    AUDREY BROWNE, ESQUIRE
                    FOR THE CHARGING PARTY
 
    SHEILA REILLY, ESQUIRE
                   FOR THE GENERAL COUNSEL
 
    BEFORE:  WILLIAM B. DEVANEY
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE, 5
 U.S.C. 7101, ET SEQ.  /1/ AND THE FINAL RULES AND REGULATIONS ISSUED
 THEREUNDER, 5 C.F.R. CHAPTER XIV, FED. REG., VOL. 45, NO. 12, JANUARY
 17, 1980, EFFECTIVE JANUARY 28, 1980 (INTERIM RULES AND REGULATIONS WERE
 ISSUED ON JULY 30, 1979, EFFECTIVE JULY 30, 1979, FED. REG., VOL. 44.
 NO. 147, JULY 30, 1979;  HOWEVER, THE FINAL RULES AND REGULATIONS GOVERN
 ALL MATTERS AFTER JANUARY 28, 1980).
 
    THE ISSUE IN THIS CASE IS WHETHER AN EMPLOYEE MUST BE ALLOWED UNION
 REPRESENTATION AT AN ANNUAL PERFORMANCE EVALUATION PURSUANT TO SEC.
 14(A) (2)(B) OF THE STATUTE WHICH PROVIDES:
 
    "(2) AN EXCLUSIVE REPRESENTATIVE...SHALL BE GIVEN THE OPPORTUNITY TO
 BE REPRESENTED AT--
 
    "(B) 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 THAT THE EXAMINATION MAY RESULT
 IN DISCIPLINARY
 
    ACTION AGAINST THE EMPLOYEE;  AND
 
    "(II) THE EMPLOYEE REQUESTS REPRESENTATION." (5 U.S.C.
 7114(A)(2)(B)).
 
    A CHARGE WAS FILED HEREIN ON DECEMBER 27, 1979, ALLEGING VIOLATIONS
 OF SECS. 16(A)(1) AND (8) OF THE STATUTE BY VIRTUE OF THE DENIAL OF AN
 EMPLOYEE'S REQUEST FOR UNION REPRESENTATION AT A MEETING WITH HIS GROUP
 MANAGER (G.C. EXH. 1A);  THE COMPLAINT AND NOTICE OF HEARING ISSUED ON
 FEBRUARY 26, 1980 (G.C. EXH. 1C);  THE COMPLAINT ALLEGED A VIOLATION OF
 SECS.  16(A)(1) AND (8) OF THE STATUTE AND THE NOTICE SET THE HEARING
 FOR APRIL 2, 1980, AND PURSUANT THERETO, A HEARING WAS DULY HELD BEFORE
 THE UNDERSIGNED ON APRIL 2, 1980, IN DETROIT, MICHIGAN.
 
    ALL PARTIES WERE REPRESENTED BY COUNSEL, WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
 INTRODUCE EVIDENCE BEARING ON THE ISSUE INVOLVED HEREIN.  AT THE CLOSE
 OF THE HEARING, MAY 2, 1980, WAS FIXED AS THE DATE FOR MAILING
 POST-HEARING BRIEFS;  HOWEVER, ON APRIL 29, 1980, AT THE REQUEST OF
 COUNSEL FOR RESPONDENT, WITH AGREEMENT OF ALL PARTIES, AND FOR GOOD
 CAUSE SHOWN, THE TIME FOR MAILING POST-HEARING BRIEFS WAS EXTENDED TO
 JUNE 2, 1980.  ON MAY 29, 1980, COUNSEL FOR THE GENERAL COUNSEL ORALLY
 REQUESTED A FURTHER EXTENSION OF TIME TO JUNE 16, 1980, AND THE WRITTEN
 REQUEST WAS RECEIVED ON JUNE 2, 1980, AND WAS DENIED ON JUNE 2, 1980.
 /2/ COUNSEL FOR RESPONDENT AND FOR THE GENERAL COUNSEL TIMELY MAILED, ON
 OR BEFORE JUNE 2, 1980, VERY HELPFUL BRIEFS WHICH HAVE BEEN CAREFULLY
 CONSIDERED.  UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
 FINDINGS AND CONCLUSIONS:
 
                         FINDINGS AND CONCLUSIONS
 
    1.  INTRODUCTION.  THIS CASE CONCERNS THE PERFORMANCE EVALUATION OF
 MR. MYRON V. GOFF, AN INTERNAL REVENUE OFFICER.  MR. GOFF IS A GS-11
 REVENUE OFFICER AND IN JULY, 1980, WILL HAVE COMPLETED 22 YEARS OF
 SERVICE WITH THE INTERNAL REVENUE SERVICE.  THE PARTICULAR PERFORMANCE
 EVALUATION INVOLVED WAS CONDUCTED IN AUGUST, 1979.  RESPONDENT'S
 REGULATIONS REQUIRE, AT LEAST ANNUALLY, A 100 PERCENT CASE REVIEW OF
 EACH REVENUE OFFICER (AIR MANUAL 5184.3(2), RES. EXH. 1) AND THERE IS NO
 DISPUTE THAT THE 100 PERCENT REVIEW AND EVALUATION OF MR.  GOFF OF
 AUGUST, 1979, WAS A NORMAL REVIEW, PURSUANT TO THE REGULATIONS.  INDEED,
 MR. GOFF TESTIFIED THAT HE HAD HAD SUCH A REVIEW EACH YEAR.  NOR IS
 THERE ANY DISPUTE THAT THE PROCEDURE FOR EACH 100 PERCENT REVIEW IS FOR
 THE GROUP MANAGER TO CALL FOR ALL THE REVENUE OFFICER'S CASE FILES;  THE
 GROUP MANAGER THEN REVIEWS EACH CASE FILE AND PREPARES A FORM 5188 A,
 REVENUE OFFICER INVENTORY ANALYSIS, AND A FORM 5188, ANALYSIS OF REVENUE
 OFFICER CASE ASSIGNMENTS;  A COPY OF FORMS 5188 AND 5188 A IS GIVEN TO
 THE REVENUE OFFICER AT THE TIME THE GROUP MANAGER REVIEWS THE REVENUE
 OFFICER'S PERFORMANCE WITH THE REVENUE OFFICER.  MR. GOFF FURTHER
 TESTIFIED THAT THE REVIEW CONDUCTED BY THE GROUP MANAGER CONSISTS OF A
 DISCUSSION OF THE GROUP MANAGER'S COMMENTS AND THAT, ON ABOUT HALF OF
 HIS 100 PERCENT REVIEWS, CHANGES HAD BEEN MADE FOLLOWING THE DISCUSSION
 (TR. 232-233).
 
    PRIOR TO THE COMMENCEMENT OF THE AUGUST 14, 1979 REVIEW BY MR.
 LAWRENCE EDWIN ZIELINSKI, GROUP MANAGER, ANN ARBOR, MICHIGAN, MR. GOFF
 ORALLY REQUESTED UNION REPRESENTATION WHICH WAS DENIED BY MR. ZIELINSKI;
  MR. GOFF THEN MADE THE SAME REQUEST IN WRITING (G.C.  EXH. 7) WHICH WAS
 DENIED BY MR. ZIELINSKI, IN WRITING, FOR THE STATED REASON THAT:
 
    "...THE PURPOSE OF MY PROPOSED MEETING WITH YOU IS TO COUNSEL YOU
 REGARDING YOUR WORK
 
    PRODUCTS AND DELIVER TO YOU THE RESULTS OF MY 100% REVIEW OF YOUR
 WORK.  THIS MEETING IS NOT
 
    AN EXAMINATION WITH REGARDS TO AN INVESTIGATION AND IS THEREFORE NOT
 COVERED BY THE ABOVE
 
    STATUTE (5 U.S.C. 7114(A)(2)(B) /3/) ("G.C. EXH. 8).
 
    THUS, THE ISSUE, AS STATED ABOVE, IS, NARROWLY, WHETHER AN EMPLOYEE,
 HERE AN INTERNAL REVENUE OFFICER, MUST BE ALLOWED UNION REPRESENTATION
 AT AN ANNUAL PERFORMANCE EVALUATION.  THE RECORD SHOWS, AS MORE FULLY
 SET FORTH HEREINAFTER, THAT MR. GOFF REASONABLY, AND CORRECTLY,
 ANTICIPATED THAT HIS PERFORMANCE WOULD BE CRITICIZED.  RESPONDENT HAS
 SHOWN THAT, ALTHOUGH A "CRITICAL ELEMENTS LETTER" WAS ISSUED TO MR. GOFF
 ON AUGUST 27, 1979 (G.C. EXH. 9), NEITHER THE 100 PERCENT REVIEW NOR THE
 ENSUING "CRITICAL ELEMENTS LETTER" CONSTITUTED DISCIPLINE, ALTHOUGH IT
 IS OBVIOUS, AND READILY CONCEDED BY RESPONDENT, THAT DISCIPLINE MAY
 FOLLOW FROM UNSATISFACTORY EVALUATIONS JUST AS REWARDS MAY FOLLOW FROM
 EVALUATIONS WHICH ARE SATISFACTORY TO OUTSTANDING.
 
    2.  FINDINGS OF FACT
 
    A.  MR. ZIELINSKI BECAME GROUP MANAGER AT THE ANN ARBOR POST OF DUTY,
 DETROIT DISTRICT OFFICE, ON APRIL 4, 1979, AND ONE OF HIS FIRST DUTIES
 WAS TO PREPARE AN ANNUAL RATING FOR MR. GOFF.  IN ORDER TO DO SO, MR.
 ZIELINSKI REVIEWED ELEVEN OF MR. GOFF'S CASES.  ALTHOUGH MR. ZIELINSKI
 NOTED NUMEROUS DEFICIENCIES, HE RATED MR. GOFF SATISFACTORY (RES. EXH.
 7-A);  DISCUSSED THE RESULTS OF HIS REVIEW OF MR. GOFF'S CASES WITH MR.
 GOFF ON MAY 7, 1979, WHICH HE CONFIRMED BY LETTER TO MR. GOFF, DATED MAY
 7, 1979, IN WHICH HE STATED, IN PART, AS FOLLOWS:
 
    ...MY REVIEW OF YOUR WORK ON THESE (ELEVEN) CASES INDICATED SERVICE
 PERFORMANCE
 
    PROBLEMS.  SPECIFICALLY, I FOUND THAT PROCEDURES INVOLVING TAX LIEU,
 HISTORY DOCUMENTATIONS,
 
    TIMELY AND EFFECTIVE TAXPAYER CONTACT AND COMPLIANCE ARE NOT BEING
 FOLLOWED...
 
    "SINCE I HAVE BEEN YOUR MANAGER FOR ONLY ONE MONTH AND SINCE
 RECORDATION ITEMS FROM YOUR
 
    PRIOR MANAGERS INDICATED, FOR THE MOST PART, GOOD PERFORMANCE, I AM
 CHOOSING TO CONCLUDE THAT
 
    THIS LAST REVIEW WAS NOT INDICATIVE OF YOUR PRIOR YEAR'S
 PERFORMANCE...
 
    "MYRON, I SHARE YOUR CONFIDENCE THAT YOU CAN QUICKLY RESOLVE YOUR
 PERFORMANCE
 
    DEFICIENCIES.  HOWEVER, I WOULD LIKE TO PUT YOU ON NOTICE THAT I WILL
 NOT HESITATE TO TAKE
 
    APPROPRIATE NEXT ACTION SHOULD YOUR WORK CONTINUE TO DISPLAY SUCH
 DISREGARD FOR OUR
 
    PROCEDURES. "...I WILL AGAIN REVIEW YOUR CASE WORK DURING THE FIRST
 WEEK OF (SIC) JULY 1979." (RES. EXH. 7-B).
 
    B.  THE PRESS OF WORK DELAYED THE 100 PERCENT REVIEW OF MR. GOFF'S
 CASE WORK FROM THE EXPECTED FIRST WEEK OF JULY UNTIL AUGUST, 1979.  IN
 AUGUST, MR. ZIELINSKI CALLED FOR AND REVIEWED MR. GOFF'S CASES, TAKING
 DOWN GENERAL IMPRESSIONS, AND RETURNED THE CASES TO MR.  GOFF.  AFTER
 LOOKING AT WHAT HE HAD WRITTEN, MR. ZIELINSKI DECIDED THAT MR. GOFF FELL
 INTO THE CATEGORY WHERE A CRITICAL FACTORS LETTER WAS NECESSARY AND,
 WANTING TO BE VERY SPECIFIC IN HIS COMMENTS AND INSTRUCTIONS, ASKED FOR
 MR. GOFF'S CASES AGAIN AND COMPLETED THE WRITTEN DOCUMENTATION ON AUGUST
 13 AND 14, 1979.  ON AUGUST 14, MR. ZIELINSKI, HAVING COMPLETED THE
 FORMS 5188 AND 5188 A (RES.  EXH. 8), WENT TO MR. GOFF'S WORK AREA AND
 ASKED HIM TO COME TO HIS OFFICE TO DISCUSS THE RESULTS OF THE REVIEW.
 MR. GOFF ASKED MR. ZIELINSKI, "IS IT BAD?" AND MR. ZIELINSKI STATED
 THAT, "I SORT OF SHOOK MY HEAD OR SAID, 'YES,' SOMETHING LIKE THAT."
 (TR. 168).  MR. GOFF THEN SAID "I WANT MY STEWARD THERE WITH ME" AND MR.
 ZIELINSKI TOLD HIM "NO." MR. GOFF ASKED TO TALK TO THE STEWARD AND MR.
 ZIELINSKI SAID "FINE." (TR. 167).  AFTER MEETING WITH THE STEWARD, MR.
 GOFF RETURNED WITH A WRITTEN REQUEST FOR UNION REPRESENTATION (G.C. EXH.
 7).  MR. ZIELINSKI AGAIN TOLD MR. GOFF THAT THIS WAS A WORK REVIEW AND
 THAT TO THE BEST OF HIS KNOWLEDGE HE WAS NOT ENTITLED TO UNION
 REPRESENTATION BUT THAT HE WOULD GET BACK WITH HIM IN A LITTLE WHILE.
 
    C.  MR. ZIELINSKI CALLED THE BRANCH CHIEF, MR. WILLIAM MEEHAN, TO ASK
 HIS OPINION AND MR. MEEHAN SAID THAT "UNION REPRESENTATION WAS NOT AN
 OPTION AT THIS TIME" BUT TO CHECK WITH LABOR MANAGEMENT RELATIONS.
 LABOR MANAGEMENT RELATIONS PERSONNEL CONFIRMED MR.  MEEHAN'S OPINION,
 I.E., THAT THIS WAS NOT AN INVESTIGATION AND, THEREFORE, THE EMPLOYEE
 HAD NO RIGHT TO UNION REPRESENTATION, AND AUTHORIZED MR. ZIELINSKI TO
 RESPOND IN WRITING.  MR. ZIELINSKI THEN WROTE A STATEMENT DENYING MR.
 GOFF'S REQUEST (G.C. EXH. 8).
 
    D) MESSRS. GOFF AND ZIELINSKI THEN MET TO DISCUSS MR. GOFF'S CASE
 REVIEW.  AT THE OUTSET, MR. ZIELINSKI GAVE MR. GOFF A COPY OF FORMS 5188
 AND 5188 A.  MR. GOFF READ THE NARRATIVE SECTION (5188) AND ASKED ABOUT
 THE LETTER REFERRED TO ON PAGE 2 ("MYRON, I AM INFORMING YOU THAT YOUR
 PERFORMANCE HAS BEEN UNACCEPTABLE FOR THE CRITICAL ELEMENTS OF YOUR
 POSITION.  YOU CAN EXPECT A LETTER NOTIFYING YOU OF THE ACTIONS THAT
 WILL RESULT FROM YOUR PERFORMANCE.").  MR. ZIELINSKI TOLD MR. GOFF HE
 WOULD BE RECEIVING A CRITICAL ELEMENTS LETTER.  MR. GOFF STATED THAT
 THIS WAS A DISCIPLINARY ACTION AND MR. ZIELINSKI TRIED TO ASSURE HIM
 THAT IT WAS NOT A DISCIPLINARY ACTION.  MR. GOFF STATED THAT HE WAS TOO
 UPSET TO CONTINUE AND REQUESTED, AND WAS GRANTED, SICK LEAVE FOR THE
 REMAINDER OF THE DAY.  PRIOR TO GOING ON SICK LEAVE, HOWEVER, MR. GOFF
 SIGNED OFF ON THE NARRATIVE SECTION.
 
    E) THE REVIEW WAS COMPLETED THE FOLLOWING DAY, AUGUST 15, 1980, BUT
 MR. GOFF REFUSED TO SIGN THE FORM 5188-AS.  /4/
 
    F) ON AUGUST 27, 1980, MR. ZIELINSKI ISSUED A CRITICAL ELEMENTS
 LETTER (G.C. EXH. 9), WHICH STATED IN THE OPENING PARAGRAPH, IN PART, AS
 FOLLOWS:
 
    "THIS LETTER CONFIRMS OUR DISCUSSION OF AUGUST 15, 1979, DURING WHICH
 I INFORMED YOU THAT
 
    YOUR WORK PERFORMANCE HAS BEEN UNACCEPTABLE FOR THE CRITICAL ELEMENTS
 OF YOUR
 
    POSITION... (G.C. EXH. 9) THE PENULTIMATE PARAGRAPH STATED AS
 FOLLOWS:
 
    "AS WE DISCUSSED, IT IS NECESSARY FOR YOU TO IMPROVE YOUR PERFORMANCE
 TO AN ACCEPTABLE
 
    LEVEL IN THE CRITICAL ELEMENTS IDENTIFIED WITHIN THIRTY (30) DAYS.
 AT THE END OF THE THIRTY
 
    DAY PERIOD, BEGINNING ON THE DATE YOU RECEIVE THIS LETTER, I WILL
 AGAIN EVALUATE YOUR
 
    PERFORMANCE ON THESE ELEMENTS.  I WILL INFORM YOU SOON, THEREAFTER,
 WHAT FURTHER ACTIONS WILL
 
    BE TAKEN AS A RESULT OF YOUR PERFORMANCE." (G.C. EXH. 9)
 
    G) ON SEPTEMBER 20 AND OCTOBER 10, 1979, MR. ZIELINSKI MADE FIELD
 VISITATIONS WITH MR. GOFF AND HIS COMMENTS INDICATED THAT TRAVEL WAS
 WELL PLANNED AND HISTORY NOTATIONS HAD SUBSTANTIALLY IMPROVED (G.C.
 EXHS. 4 AND 5).
 
    H) IN JANUARY, 1980, MR. ZIELINSKI MADE ANOTHER 100 PERCENT REVIEW;
 AGAIN NUMEROUS DEFICIENCIES WERE FOUND, AND THE WRITTEN ANALYSIS WAS
 GIVEN TO MR. GOFF WITHOUT DISCUSSION.
 
    I) FROM THE TESTIMONY OF MESSRS. ZIELINSKI AND MEEHAN (CHIEF OF FIELD
 BRANCH), THE REGULATIONS AND FROM THE TESTIMONY OF MR. INGERSOLL, UNION
 STEWARD, AND MR. GOFF HIMSELF, IT IS CLEAR THAT NEITHER THE EVALUATION
 NOR THE CRITICAL ELEMENTS LETTER CONSTITUTED DISCIPLINE.  INDEED, THE
 PURPOSE OF A CRITICAL ELEMENTS LETTER IS TO ADVISE THE EMPLOYEE OF
 ELEMENTS OF HIS WORK WHICH REQUIRE IMPROVEMENT AND TO AFFORD HIM
 OPPORTUNITY TO IMPROVE HIS PERFORMANCE.  ON THE OTHER HAND, THERE CAN BE
 NO DOUBT THAT DEFICIENT PERFORMANCE CAN, IF NOT CORRECTED, RESULT IN
 DISCIPLINE, INCLUDING REMOVAL (SEE, FOR EXAMPLE, RES. EXH. 13) /5/
 
    J) AS OF THE DATE OF THE HEARING, NO DISCIPLINARY ACTION HAD BEEN
 TAKEN AGAINST MR. GOFF.
 
                                CONCLUSIONS
 
    ALTHOUGH RESPONDENT'S PERFORMANCE EVALUATION OF REVENUE OFFICERS, AND
 IN PARTICULAR THE 100 PERCENT CASE REVIEW, IS HIGHLY DETAILED, THERE IS
 NO DISPUTE THAT THE AUGUST 14-15 REVIEW OF MR. GOFF'S PERFORMANCE WAS A
 PERFORMANCE EVALUATION.  CF. NATIONAL LABOR RELATIONS BOARD, REGION 17,
 AND NATIONAL LABOR RELATIONS BOARD, A/SLMR NO. 295, 3 A/SLMR 427 (1973);
  A/SLMR NO. 664, 6 A/SLMR 287 (1976);  A/SLMR NO. 670, 6 A/SLMR 325
 (1976);  A/SLMR NO. 671, 6 A/SLMR 333, 6 A/SLMR SUPP. 102 (1976).  BOTH
 GENERAL COUNSEL AND RESPONDENT AGREE THAT THE SOLE ISSUES IN DISPUTE ARE
 WHETHER:  A) RESPONDENT'S PERFORMANCE EVALUATION OF REVENUE OFFICER GOFF
 WAS AN "EXAMINATION...IN CONNECTION WITH AN INVESTIGATION...;" AND B)
 WHETHER MR. GOFF REASONABLY BELIEVED "THAT THE EXAMINATION MAY RESULT IN
 DISCIPLINARY ACTION..." WITHIN THE MEANING OF SEC. 14(A)(2)(B) OF THE
 STATUTE.  INDEED, IT IS FAIR TO STATE THAT THE CONTROLLING ISSUE IS
 WHETHER A PERFORMANCE EVALUATION IS AN "EXAMINATION...IN CONNECTION WITH
 AN INVESTIGATION" WITHIN THE MEANING OF SEC.  14(A)(2)(B).  WHILE SEC.
 14(A)(2)(B)(I) FURTHER PROVIDES THAT THE EMPLOYEE MUST REASONABLY
 BELIEVE "THAT THE EXAMINATION MAY RESULT IN DISCIPLINARY ACTION AGAINST
 THE EMPLOYEE," IF A PERFORMANCE EVALUATION IS AN EXAMINATION IN
 CONNECTION WITH AN INVESTIGATION IT WOULD BE DIFFICULT TO MAKE A LOGICAL
 DISTINCTION BETWEEN THE FEAR OF DISCIPLINARY ACTION AS THE RESULT OF AN
 EMPLOYEE'S PERFORMANCE EVALUATION AND THE FEAR OF DISCIPLINARY ACTION AS
 THE RESULT OF ANY OTHER INVESTIGATION, NOTWITHSTANDING THAT I HAVE FOUND
 THAT NEITHER THE PERFORMANCE EVALUATION NOR THE SUBSEQUENT CRITICAL
 ELEMENTS LETTER CONSTITUTED DISCIPLINE, INASMUCH AS THE RECORD SHOWS,
 AND RESPONDENT CONCEDES, THAT DISCIPLINE, INCLUDING REMOVAL FROM THE
 SERVICE, COULD EVENTUALLY RESULT FROM UNACCEPTABLE PERFORMANCE.
 
    WITH FULL RECOGNITION THAT THIS CASE INVOLVES RESPONDENT'S
 PERFORMANCE EVALUATION OF A REVENUE OFFICER, IF UNION REPRESENTATION
 WERE REQUIRED AT MR. GOFF'S PERFORMANCE EVALUATION, UNION REPRESENTATION
 WOULD BE REQUIRED AT EVERY PERFORMANCE EVALUATION, WHEN REQUESTED, IF
 THE EMPLOYEE REASONABLY BELIEVED THAT HIS, OR HER, PERFORMANCE
 EVALUATION MIGHT BE UNSATISFACTORY.  FOR REASONS MORE FULLY SET FORTH
 HEREINAFTER, I CONCLUDE THAT A REGULAR PERFORMANCE EVALUATION IS NOT AN
 EXAMINATION IN CONNECTION WITH AN INVESTIGATION WITHIN THE MEANING OF
 SEC. 14(A)(2)(B) OF THE STATUTE AND, ACCORDINGLY, THAT RESPONDENT DID
 NOT VIOLATE SEC.  16(A)(1) OR (8) OF THE STATUTE BY DENYING MR. GOFF'S
 REQUEST FOR REPRESENTATION.
 
    AS THE RESULT OF THE LEGISLATIVE PROCESS, THE LANGUAGE OF SEC. 14
 (A)(2), AS ENACTED, DIFFERED FROM INITIAL PROPOSED LANGUAGE.
 UNDERSTANDABLY, SOME REFERENCES IN THE LEGISLATIVE HISTORY /6/ RELIED
 UPON BY THE PARTIES, BECAUSE THE SPECIFIC COMMENT CONCERNED LANGUAGE
 PROPOSED BUT NOT ENACTED PRECISELY IN THE FORM PROPOSED, MUST BE
 CONSIDERED IN CONTEXT.  THE MIRANDA TYPE PROTECTION, ELEMENTS OF WHICH
 WERE ENACTED IN SEC.14(A)(2) AND (3), ORIGINATED IN THE 95TH CONGRESS,
 2ND/SESSION, IN H.R. 3793, INTRODUCED BY CONGRESSWOMAN SPELLMAN ON
 FEBRUARY 29, 1977 (LEGISLATIVE HISTORY, P. 229).  INDEED, AS STATED IN
 MINORITY VIEWS, H. REP.  95-920, MARCH 3, 1978, H.R. 3793 WAS "VIRTUALLY
 IDENTICAL TO H.R. 6227 OF THE 94TH CONGRESS." (LEGISLATIVE HISTORY;  P.
 657).  THE STATED PURPOSE OF H.R. 3793 WAS "TO AMEND TITLE 5, UNITED
 STATES CODE, TO PROVIDE FEDERAL EMPLOYEES UNDER INVESTIGATION FOR
 MISCONDUCT THE RIGHT TO REPRESENTATION DURING QUESTIONING REGARDING SUCH
 MISCONDUCT." (LEGISLATIVE HISTORY, P. 229).  SEC. 7171 OF H.R. 3793
 PROVIDED, IN PART, AS FOLLOWS:
 
    "SEC. 7171.  RIGHT TO REPRESENTATION DURING QUESTIONING
 
    "(A) ANY EMPLOYEE OF AN EXECUTIVE AGENCY UNDER INVESTIGATION FOR
 MISCONDUCT WHICH COULD
 
    LEAD TO SUSPENSION, REMOVAL, OR REDUCTION IN RANK OR PAY OF SUCH
 EMPLOYEE SHALL NOT BE
 
    REQUIRED TO ANSWER QUESTIONS RELATING TO THE MISCONDUCT UNDER
 INVESTIGATION UNLESS--
 
    "(1) THE EMPLOYEE IS ADVISED IN WRITING OF--
 
    "(A) THE FACT THAT SUCH EMPLOYEE IS UNDER INVESTIGATION FOR
 MISCONDUCT,
 
    "(B) THE SPECIFIC NATURE OF SUCH ALLEGED MISCONDUCT, AND
 
    "(C) THE RIGHTS SUCH EMPLOYEE HAS UNDER PARAGRAPH (2) OF THIS
 SUBSECTION, AND
 
    "(2) THE EMPLOYEE HAS BEEN PROVIDED REASONABLE TIME, NOT TO EXCEED 5
 WORKING DAYS, TO
 
    OBTAIN A REPRESENTATIVE OF HIS CHOICE, AND IS ALLOWED TO HAVE SUCH
 REPRESENTATIVE PRESENT
 
    DURING SUCH QUESTIONING, IF HE SO ELECTS.
 
    "(C) ANY STATEMENT MADE OR EVIDENCE OBTAINED DURING QUESTIONING OF AN
 EMPLOYEE...MAY NOT BE
 
    USED AS EVIDENCE IN THE COURSE OF ANY ACTION FOR SUSPENSION, REMOVAL,
 OR REDUCTION IN RANK OR
 
    PAY SUBSEQUENTLY TAKEN AGAINST THE EMPLOYEE, UNLESS THE REQUIREMENTS
 OF PARAGRAPHS (1) AND (2)
 
    OF SUBSECTION (A) OF THIS SECTION WERE COMPLIED WITH DURING SUCH
 QUESTIONING." (LEGISLATIVE
 
    HISTORY, PP. 230-231).  THE REPORT ON H.R. 3793, NO. 95-920, MARCH 3,
 1978 (LEGISLATIVE HISTORY, P. 643 ET SEQ.) STATED, IN PART, THAT
 
    "H.R. 3793 EXTENDS TO FEDERAL EMPLOYEES THE SAME PROTECTION ALREADY
 AVAILABLE TO EMPLOYEES
 
    IN THE PRIVATE SECTOR UNDER THE NATIONAL LABOR RELATIONS ACT."
 (LEGISLATIVE HISTORY, P. 644),
 
    CITING, NATIONAL LABOR RELATIONS BOARD V. WEINGARTEN, 420 U.S.  251
 (1975) /7/
 
    H.R. 9094, 95TH CONG. 1ST SESS., INTRODUCED ON SEPTEMBER 14, 1977, BY
 REPRESENTATIVE CLAY, FOR HIMSELF AND FOR REPRESENTATIVE FORD,
 CONSTITUTED A PROPOSED "FEDERAL SERVICE LABOR-MANAGEMENT ACT OF 1977."
 SECTION 7113 OF H.R. 9094 PROVIDED, IN PART, AS FOLLOWS:
 
    SEC. 7113.  REPRESENTATIVES RIGHTS AND DUTIES.
 
    "...THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO BE
 REPRESENTED AT DISCUSSIONS
 
    BETWEEN MANAGEMENT AND EMPLOYEES OR REPRESENTATIVES CONCERNING
 GRIEVANCES, PERSONNEL POLICIES
 
    AND PRACTICES, DISCUSSIONS BETWEEN AN EMPLOYEE AND A REPRESENTATIVE
 OF AN AGENCY WHERE THE
 
    EMPLOYEE REASONABLY BELIEVES HE MAY BE THE SUBJECT OF DISCIPLINARY OR
 ADVERSE ACTION, OR OTHER
 
    MATTERS AFFECTING GENERAL WORKING CONDITIONS..." (LEGISLATIVE
 HISTORY, PP. 260-261).
 
    H.R. 11280, THE ADMINISTRATION'S CIVIL SERVICE REFORM BILL, WAS
 INTRODUCED ON MARCH 3, 1978, AND, AS INTRODUCED, DID NOT INCLUDE A TITLE
 VII ON LABOR-MANAGEMENT RELATIONS.  THE CLAY-FORD-SOLARZ DRAFT OF TITLE
 VII (LEGISLATIVE HISTORY, P. 211 ET SEQ.) AND H.R.  11280 AS REPORTED ON
 JULY 31, 1978 WITH AMENDMENTS, WHICH INCLUDED INCORPORATION OF TITLE
 VII, IN SEC.  7114(A) PROVIDED, IN PART, AS FOLLOWS:
 
    "SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
    "(A)...AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN
 AGENCY SHALL BE GIVEN THE
 
    OPPORTUNITY TO BE REPRESENTED AT--
 
    (2) ANY DISCUSSION BETWEEN AN EMPLOYEE IN THE UNIT AND A
 REPRESENTATIVE OF THE AGENCY IF
 
    THE EMPLOYEE REASONABLY BELIEVES THAT THE EMPLOYEE MAY BE THE SUBJECT
 OF DISCIPLINARY
 
    ACTION." (LEGISLATIVE HISTORY DRAFT OF TITLE VII, P. 336;  H.R.
 11280 AS REPORTED, P. 402).  ON SEPTEMBER 13, 1978, CONGRESSMAN COLLINS
 OFFERED AN AMENDMENT WHICH WOULD HAVE SUBSTITUTED A DIFFERENT TITLE VII
 (LEGISLATIVE HISTORY P. 894 ET SEQ.) TO WHICH CONGRESSMAN UDALL OFFERED
 AN AMENDMENT AS A SUBSTITUTE FOR THE COLLINS AMENDMENT (LEGISLATIVE
 HISTORY, P. 907, ET SEQ.).  SECTION 7114 OF THE UDALL SUBSTITUTE WAS
 ADOPTED AS SECTION 7114 OF H.R. 11280 AS PASSED BY THE HOUSE ON
 SEPTEMBER 13, 1978, AND PROVIDED, IN PART, AS FOLLOWS:
 
    "SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
    "(A)...
 
    "(2) BEFORE ANY REPRESENTATIVE OF AN AGENCY COMMENCES ANY
 INVESTIGATORY INTERVIEW OF AN
 
    EMPLOYEE IN A UNIT CONCERNING MISCONDUCT WHICH COULD REASONABLY LEAD
 TO SUSPENSION, REDUCTION
 
    IN GRADE OR PAY, OR REMOVAL, THE EMPLOYEE SHALL BE INFORMED OF THAT
 EMPLOYEE'S RIGHT UNDER
 
    PARAGRAPH (3)(B) OF THIS SUBSECTION TO BE REPRESENTED BY AN EXCLUSIVE
 REPRESENTATIVE.
 
    "(3) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
 SHALL BE GIVEN THE
 
    OPPORTUNITY TO BE REPRESENTED AT--
 
    "(B) ANY INVESTIGATORY INTERVIEW OF AN EMPLOYEE IN THE UNIT BY A
 REPRESENTATIVE OF THE
 
    AGENCY IF--
 
    "(I) THE EMPLOYEE REASONABLY BELIEVES THAT SUCH INTERVIEW MAY RESULT
 IN DISCIPLINARY ACTION
 
    AGAINST SUCH EMPLOYEE;  AND
 
    "(II) THE EMPLOYEE REQUESTS SUCH REPRESENTATION." (LEGISLATIVE
 HISTORY:  UDALL SUBSTITUTE,
 
    P. 914;  H.R. 11280 AS PASSED, P. 973)
 
    CONGRESSMAN UDALL SUBMITTED A SECTIONAL ANALYSIS OF HIS TITLE VII
 SUBSTITUTE (LEGISLATIVE HISTORY, P. 923, ET SEQ.) WHICH, AS PERTAINS TO
 SECTION 7114, STATED, IN PART, AS FOLLOWS:
 
    "THE RIGHT OF AN EMPLOYEE TO REQUEST REPRESENTATION BY THE EXCLUSIVE
 REPRESENTATIVE AND THE
 
    RIGHT OF AN EXCLUSIVE REPRESENTATIVE TO BE PRESENT AT CERTAIN TYPES
 OF MANAGEMENT-EMPLOYEE
 
    MEETINGS ARE SET FORTH IN SUBSECTION (A)(2) AND (A)(3) OF THE
 SUBSTITUTE.  SUBSECTION (A)(2)
 
    PROVIDES THAT BEFORE ANY REPRESENTATIVE OF AN AGENCY COMMENCES ANY
 INVESTIGATORY INTERVIEW OF
 
    AN EMPLOYEE IN A BARGAINING UNIT, WHERE THE INTERVIEW CONCERTS
 MISCONDUCT WHICH COULD
 
    REASONABLY LEAD TO SUSPENSION, REDUCTION IN GRADE OR PAY, OR REMOVAL,
 THE EMPLOYEE MUST BE
 
    INFORMED OF HIS OR HER RIGHT TO BE REPRESENTED BY THE EXCLUSIVE
 REPRESENTATIVE.  SUBSECTION
 
    (A)(3) PROVIDES THAT AN EXCLUSIVE REPRESENTATIVE HAS THE RIGHT TO BE
 GIVEN THE OPPORTUNITY TO
 
    BE REPRESENTED AT:  ...(2) ANY INVESTIGATORY INTERVIEW OF AN EMPLOYEE
 IN THE UNIT BY A
 
    REPRESENTATION OF AN AGENCY IF THE EMPLOYEE REASONABLY BELIEVES THAT
 SUCH INTERVIEW MAY RESULT
 
    IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE, AND THE EMPLOYEE
 REQUESTS SUCH REPRESENTATION.
 
    "THE SUBSTITUTE'S PROVISIONS CONCERNING INVESTIGATORY INTERVIEWS
 REFLECT THE U.S. SUPREME
 
    COURT'S HOLDING IN NATIONAL LABOR RELATIONS BOARD V. J.  WEINGARTEN,
 INC., 420 U.S. 251
 
    (1975)...
 
    "THE WEINGARTEN RIGHT, OF COURSE, IS TIED TO THE NATIONAL LABOR
 RELATIONS ACT'S 'GUARANTEE
 
    OF THE RIGHT OF EMPLOYEES TO ACT AS IN CONCERT FOR MUTUAL AID AND
 PROTECTION.' OTHER THAN
 
    THIS DIFFERENCE IN DERIVATION, THE SUBSTITUTE'S PROVISIONS DIFFER
 FROM WEINGARTEN ONLY IN
 
    PROVIDING THAT THE EMPLOYEE MUST BE INFORMED OF THE RIGHT OF
 REPRESENTATION PRIOR TO THE
 
    COMMENCEMENT OF ANY INVESTIGATORY INTERVIEW CONCERNING MISCONDUCT
 WHICH COULD REASONABLY LEAD
 
    TO SUSPENSION, REDUCTION IN GRADE OR PAY, OR REMOVAL." (LEGISLATIVE
 HISTORY, P. 926).  H. REPORT 95-1403, JULY 31, 1978, LEGISLATIVE HISTORY
 P. 675 ET SEQ., WITH RESPECT TO SEC. 7114, WHILE REFERRING TO THE
 LANGUAGE OF H.R. 11280 AS REPORTED AND NOT SPECIFICALLY TO THE LANGUAGE
 OF THE UDALL SUBSTITUTE AS PASSED, NOTED, IN PART, AS FOLLOWS:
 
    "...IT (LABOR ORGANIZATION) HAS THE RIGHT TO BE GIVEN THE OPPORTUNITY
 TO BE REPRESENTED
 
    AT:  ...(2) ANY DISCUSSION BETWEEN AN EMPLOYEE AND AN AGENCY
 REPRESENTATIVE IF THE EMPLOYEE
 
    REASONABLY BELIEVES HE MAY BE THE SUBJECT OF A DISCIPLINARY ACTION
 (WHEN AN EMPLOYEE IS
 
    INTERVIEWED BY A SUPERVISOR CONCERNING ALLEGED ABUSE OF LEAVE OR
 INTERROGATED BY THE AGENCY'S
 
    INTERNAL SECURITY DIVISION CONCERNING ALLEGED IRREGULARITIES IN A
 TRAVEL VOUCHER)
 
    . . . " (LEGISLATIVE HISTORY, P. 694).
 
    S. 2640 CONTAINED NO COMPARABLE PROVISION (SEE, AMENDMENT NO. 2084 TO
 S. 2640, SEC. 7169, (LEGISLATIVE HISTORY, PP. 464-465;  S. 2640 AS
 REPORTED, 7/10/78, SEC.  7215, LEGISLATIVE HISTORY, P. 520;  S. 2650, AS
 PASSED, 8/24/78, SEC. 7215, LEGISLATIVE HISTORY, P. 577).
 
    IN CONFERENCE, THE FOLLOWING LANGUAGE WAS AGREED TO AND WAS
 SUBSEQUENTLY ENACTED AS SEC. 14(A)(2) AND (3) OF THE STATUTE:
 
    SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
    "(A)...
 
    (2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
 SHALL BE GIVEN THE
 
    OPPORTUNITY TO BE REPRESENTED AT--
 
    "(B) 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 THAT THE EXAMINATION MAY RESULT
 IN DISCIPLINARY
 
    ACTION AGAINST THE EMPLOYEE;  AND
 
    "(II) THE EMPLOYEE REQUESTS REPRESENTATION.
 
    (3) EACH AGENCY SHALL ANNUALLY INFORM ITS EMPLOYEES OF THEIR RIGHTS
 UNDER PARAGRAPH (2)(B)
 
    OF THIS SUBSECTION..."(P.L. 95-454, 92 STAT. 1202, LEGISLATIVE
 HISTORY, P. 92;  5
 
    U.S.C. 7114(A)(2) AND (3)).  THE CONFERENCE REPORT, NO. 95-1717,
 OCTOBER 5, 1978 (LEGISLATIVE HISTORY P. 793, ET SEQ.), WITH RESPECT TO
 SECTION 7114(A)(2) AND (3) STATED AS FOLLOWS:
 
    "HOUSE SECTION 7114(A)(2) AND (3) GIVE A LABOR ORGANIZATION...THE
 RIGHT TO BE PRESENT AT
 
    THE EMPLOYEE'S REQUEST AT ANY INVESTIGATORY INTERVIEW OF AN EMPLOYEE
 BY AN AGENCY IF THE
 
    EMPLOYEE REASONABLY BELIEVES THAT THE INTERVIEW MAY RESULT IN
 DISCIPLINARY ACTION AGAINST THE
 
    EMPLOYEE.  IN ADDITION, THE HOUSE BILL REQUIRES THE AGENCY TO INFORM
 THE EMPLOYEE OF HIS RIGHT
 
    OF REPRESENTATION AT ANY INVESTIGATORY INTERVIEW OF AN EMPLOYEE
 CONCERNING 'MISCONDUCT' WHICH
 
    'COULD REASONABLY LEAD' TO SUSPENSION, REDUCTION IN GRADE OR PAY, OR
 REMOVAL.  THE SENATE BILL
 
    CONTAINS NO COMPARABLE PROVISION.
 
    "THE CONFEREES AGREED TO ADOPT THE WORDING IN THE HOUSE BILL WITH AN
 AMENDMENT DELETING THE
 
    HOUSE PROVISION REQUIRING THE AGENCY TO INFORM EMPLOYEES BEFORE
 CERTAIN INVESTIGATORY
 
    INTERVIEWS OF THE RIGHT TO REPRESENTATION, AND SUBSTITUTING A
 REQUIREMENT THAT EACH AGENCY
 
    INFORM ITS EMPLOYEES ANNUALLY OF THE RIGHT TO REPRESENTATION.  THE
 CONFEREES FURTHER AMENDED
 
    THE PROVISION SO AS TO GIVE THE LABOR REPRESENTATIVE THE RIGHT TO BE
 PRESENT AT ANY
 
    EXAMINATION OF AN EMPLOYEE BY A REPRESENTATIVE OF THE AGENCY IN
 CONNECTION WITH AN
 
    INVESTIGATION IF THE EMPLOYEE REASONABLY BELIEVES THAT THE
 EXAMINATION MAY RESULT IN
 
    DISCIPLINARY ACTION AGAINST THE EMPLOYEE.  THE CONFEREES RECOGNIZE
 THAT THE RIGHT TO
 
    REPRESENTATION IN EXAMINATIONS MAY EVOLVE DIFFERENTLY IN THE PRIVATE
 AND FEDERAL SECTORS, AND
 
    SPECIFICALLY INTEND THAT FUTURE COURT DECISIONS INTERPRETING THE
 RIGHT IN THE PRIVATE SECTOR
 
    WILL NOT NECESSARILY BE DETERMINATIVE FOR THE FEDERAL SECTOR."
 (LEGISLATIVE HISTORY, PP.  823-824) THE FOREGOING STATEMENT IN THE
 CONFERENCE REPORT CONSTITUTES THE ONLY DISCUSSION OR COMMENT CONCERNING
 THE INTENT AND PURPOSE OF THE CHANGES AGREED TO BY THE CONFEREES,
 WHEREBY THE WORDING OF THE HOUSE BILL, WITH REGARD TO SECTION 7114(A),
 WAS MODIFIED TO THE WORDING OF SECTION 7114(A) AS ENACTED, PRIOR TO
 ENACTMENT OF P.L. 95-454, ALTHOUGH CONGRESSMAN FORD ON OCTOBER 14, 1978,
 AFTER THE PRESIDENT, ON OCTOBER 13, 1978, HAD SIGNED THE LEGISLATION,
 MADE A LENGTHY STATEMENT CONCERNING TITLE VII INCLUDING, IN PARTICULAR,
 SECTION 7114.  /8/
 
    GENERAL COUNSEL PLACES GREAT EMPHASIS ON THE FACT THAT "THE TERM
 'EXAMINATION' WAS USED INSTEAD OF THE WORD 'INVESTIGATORY INTERVIEW'
 BECAUSE THE FORMER TERM WAS 'A MUCH BROADER TERM THAN (SIC) WILL
 ENCOMPASS MORE SITUATIONS.'" (G.C. BRIEF P. 6).  /9/ WHILE IT IS VERY
 CORRECT, AS STATED IN THE CONFERENCE REPORT, THAT PARAGRAPH (3) (B) OF
 SECTION 7114(A) OF H.R. 11280 WAS AMENDED TO GIVE THE LABOR
 REPRESENTATIVE THE RIGHT TO BE PRESENT AT "ANY EXAMINATION" RATHER THAN
 AT "ANY INVESTIGATORY INTERVIEW;" AND THAT THE NOTICE "BEFORE..AN AGENCY
 COMMENCES ANY INVESTIGATIVE INTERVIEW...CONCERNING MISCONDUCT" OF
 PARAGRAPH (2) OF SECTION 7114(A) OF H.R. 11280 WAS DELETED AND THAT THE
 CONFEREES SUBSTITUTED THEREFORE "A REQUIREMENT THAT EACH AGENCY INFORM
 ITS EMPLOYEES ANNUALLY OF THE RIGHT TO REPRESENTATION" (SEC. (A)(3) OF
 THE STATUTE), WHICH MEANS THAT ANNUALLY EACH AGENCY SHALL INFORM THEIR
 EMPLOYEES OF THEIR RIGHT TO HAVE A UNION REPRESENTATIVE PRESENT AT "ANY
 EXAMINATION...IN CONNECTION WITH AN INVESTIGATION" IF THE EMPLOYEE
 REASONABLY BELIEVES THE EXAMINATION MAY RESULT IN DISCIPLINARY ACTION
 AGAINST THE EMPLOYEE AND ITS EMPLOYEE REQUESTS REPRESENTATION, SUCH
 CHANGES ARE PERIPERAL TO THE ISSUE IN THIS CASE.
 
    THE CONTROLLING, AND LIMITING, THRESHOLD CONSIDERATIONS ARE THAT:  A)
 THERE BE AN "INVESTIGATION;" AND B) THERE BE AN "EXAMINATION OF ANY
 EMPLOYEE..BY...THE AGENCY IN CONNECTION WITH AN INVESTIGATION..." THERE
 IS NO QUESTION THAT REPRESENTATION "IN CONNECTION WITH AN INVESTIGATION"
 WAS INTENDED TO REFLECT THE RIGHT TO REPRESENTATION AT INVESTIGATIVE
 INTERVIEWS UPHELD BY THE SUPREME COURT IN WEINGARTEN.  THE WORDS
 "INVESTIGATORY," AS USED IN H.R. 11280 AS PASSED (UDALL SUBSTITUTE), AND
 "INVESTIGATION," AS ENACTED, ARE MERELY DIFFERENT GRAMMATICAL FORMS, OR
 PARTS OF SPEECH, WITH A COMMON MEANING.  "INVESTIGATE" IS, OF COURSE A
 VERB AND IS THE ACT;  "INVESTIGATOR" IS A NOUN AND MEANS ONE WHO
 INVESTIGATES;  "INVESTIGATION" IS A NOUN AND MEANS THE PROCEDURE OR
 PROCESS;  AND "INVESTIGATORY" IS AN ADJECTIVE MEANING BY NATURE OF AN
 INVESTIGATION, FOR EXAMPLE, AS USED IN THE UDALL SUBSTITUTE,
 "INVESTIGATORY INTERVIEW." NOR, OF COURSE, IS THERE ANYTHING CONTAINED
 IN THE LEGISLATIVE HISTORY WHICH REFLECTS THE SLIGHTEST INTENTION TO
 DIFFERENTIATE BETWEEN THE TERM "INVESTIGATORY" AND "INVESTIGATION."
 INDEED, IT PLAINLY APPEARS FROM H. REPORT 95-1403 THAT EVEN IN THE
 ABSENCE OF EITHER THE TERM "INVESTIGATORY INTERVIEW" OR THE TERM
 "INVESTIGATION," IT WAS INTENDED NEVERTHELESS, THAT PRESENCE OF THE
 LABOR ORGANIZATION AT "ANY DISCUSSION...IF THE EMPLOYEE REASONABLY
 BELIEVES HE MAY BE THE SUBJECT OF A DISCIPLINARY ACTION," MEANT AN
 INVESTIGATION AS THE REPORT STATED BY WAY OF EXAMPLE "(WHEN AN EMPLOYEE
 IS INTERVIEWED BY A SUPERVISOR CONCERNING ALLEGED ABUSE OF LEAVE OR
 INTERROGATED BY THE AGENCY'S INTERNAL SECURITY DIVISION CONCERNING
 ALLEGED IRREGULARITIES IN A TRAVEL VOUCHER)" (H.R. REPORT 95-1403,
 SUPRA).
 
    CONGRESSMAN CLAY, DISCUSSING SECTION 7114 OF THE UDALL SUBSTITUTE,
 STATED, IN PART, AS FOLLOWS:
 
    "...SECTION 7114(A)(3)(A) /10/ SPECIFICALLY GIVES THE EXCLUSIVE
 REPRESENTATIVE THE
 
    OPPORTUNITY TO APPEAR AT 'FORMAL DISCUSSIONS' BETWEEN AGENCY
 REPRESENTATIVES AND
 
    EMPLOYEES.  IN THE UDALL SUBSTITUTE THE WORD 'FORMAL' WAS INSERTED
 BEFORE 'DISCUSSIONS' IN
 
    ORDER TO MAKE CLEAR THE INTENTION THAT THIS SUBSECTION DOES NOT
 REQUIRE THAT AN EXCLUSIVE
 
    REPRESENTATIVE BE PRESENT DURING HIGHLY PERSONAL, INFORMAL MEETINGS
 SUCH AS COUNSELING
 
    SESSIONS-- UNLESS COVERED BY SUBSECTION 7114(A)(3)(B)..."
 (LEGISLATIVE HISTORY, P. 933).  SEC. 14(A)(2)(A) OF THE STATUTE RETAINS
 THE SAME LANGUAGE, I.E., "ANY FORMAL DISCUSSION," SO THAT, AS
 CONGRESSMAN CLAY STATED, AN EXCLUSIVE REPRESENTATIVE WAS NOT INTENDED,
 PURSUANT TO PARAGRAPH (2)(A), TO BE PRESENT (UNLESS GREATER RIGHTS WERE
 NEGOTIATED) AT "HIGHLY PERSONAL, INFORMAL MEETINGS SUCH AS COUNSELING
 SESSIONS," UNLESS COVERED BY PARAGRAPH (2)(B) (IN THE UDALL SUBSTITUTE,
 AND H.R. 11280 AS PASSED BY THE HOUSE, PARAGRAPH (3)(B)).  OBVIOUSLY,
 CONGRESSMAN CLAY'S STATEMENT DOES NOT INDICATE WHEN, OR EVEN IF,
 INFORMAL COUNSELING BECOMES AN "INVESTIGATORY INTERVIEW;" BUT IT IS
 APPARENT THAT HE RECOGNIZED THAT THERE WAS INFORMAL COUNSELING WHICH WAS
 NOT INVESTIGATORY IN NATURE AND, THEREFORE, NOT COVERED BY PARAGRAPH
 (3)(B) OF THE UDALL SUBSTITUTE, AS WELL AS INFORMAL MEETINGS WHICH COULD
 BE COVERED BY PARAGRAPH (3)(B).
 
    WITH FULL RECOGNITION THAT THE CONFEREES DELETED THE 7114(A)(2)
 NOTICE PROVISION OF THE HOUSE PASSED H.R. 11280 WHICH WAS LIMITED TO
 "INVESTIGATORY INTERVIEW...CONCERNING MISCONDUCT," THAT SEC. 14(A)(2)
 CONTAINS NO COMPARABLE LANGUAGE LIMITING ITS APPLICATION TO
 "MISCONDUCT," AND EVEN ACCEPTING CONGRESSMAN FORD'S POST ENACTMENT
 STATEMENT THAT THE CONFEREES REJECTED AN ATTEMPT TO LIMIT SEC. 14(A)(3)
 TO MISCONDUCT CASES WITH THE INTENTION THAT THE SEC. 14(A)(3) RIGHT
 "APPLY IN BOTH MISCONDUCT AND NONPERFORMANCE CASES," IT NEVERTHELESS
 SEEMS CLEAR THAT:  A) "...THE LANGUAGE ULTIMATELY SELECTED...CLOSELY
 TACKS WEINGARTEN." INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND
 INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE, 1-CA-77 (ALJ MARCH
 13, 1980).  THAT IS, THE SUPREME COURT UPHELD THE NATIONAL LABOR
 RELATIONS BOARD'S INTERPRETATION THAT UNDER THE NLRA AN EMPLOYEE HAD THE
 RIGHT TO UNION REPRESENTATION AT "...AN INVESTIGATIVE INTERVIEW WHICH HE
 REASONABLY BELIEVES MAY RESULT IN THE IMPOSITION OF DISCIPLINE..." (95
 S. CT.  959, 966) AND SEC. 14(A)(2) PROVIDES THAT "AN EXCLUSIVE
 REPRESENTATIVE...SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT--
 ...(B) ANY EXAMINATION OF AN EMPLOYEE...IN CONNECTION WITH AN
 INVESTIGATION IF...THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION
 MAY RESULT IN DISCIPLINARY ACTION..."
 
    B) THAT SEC. 14(A)(2)(B) IS LIMITED TO EXAMINATION OF AN EMPLOYEE IN
 CONNECTION WITH AN INVESTIGATION.
 
    C) THAT SEC. 14(A)(2)(B) IS FURTHER LIMITED BY THE REQUIREMENT THAT
 THE EMPLOYEE REASONABLY BELIEVE THAT THE EXAMINATION MAY RESULT IN
 DISCIPLINARY ACTION AGAINST THE EMPLOYEE;  AND, FINALLY, THAT THE
 EMPLOYEE MUST REQUEST REPRESENTATION.
 
    THERE IS NO DISPUTE THAT MR. GOFF REQUESTED REPRESENTATION;  BUT THE
 RECORD STRONGLY AND AFFIRMATIVELY SHOWS THAT THE PERFORMANCE EVALUATION
 OF AUGUST 14-15, 1979, WAS NOT:  1) AN EXAMINATION;  2) WAS NOT AN
 INVESTIGATION;  AND 3) THAT THE RISK OF DISCIPLINE DID NOT REASONABLY
 INHERE.  /11/
 
    REGULAR PERFORMANCE EVALUATIONS, INCLUDING RESPONDENT'S REQUIRED 100%
 REVIEW OF REVENUE OFFICERS' WORK, ARE NOT INVESTIGATIONS OF EITHER
 "MISCONDUCT" OR "NONPERFORMANCE" CASES.  RATHER, A PERFORMANCE
 EVALUATION IS INTENDED TO EVALUATE AN EMPLOYEE'S JOB PERFORMANCE IN
 RELATION TO ESTABLISHED PERFORMANCE STANDARDS.  AS FOUND HEREINABOVE,
 FROM THE TESTIMONY OF MESSRS. ZIELINSKI AND MEEHAN, THE REGULATIONS AND
 FROM THE TESTIMONY OF MR. INGERSOLL AND MR. GOFF HIMSELF, IT IS CLEAR
 THAT THE EVALUATION DID NOT CONSTITUTE DISCIPLINE.  NOR, DID MR.
 ZIELINSKI'S STATEMENT TO MR. GOFF THAT HE INTENDED TO ISSUE A CRITICAL
 ELEMENTS LETTER CONVERT THE EVALUATION INTO A DISCIPLINARY PROCEEDING
 SINCE, AS FURTHER FOUND, A CRITICAL ELEMENTS LETTER DOES NOT CONSTITUTE
 DISCIPLINE.  A CRITICAL ELEMENTS LETTER IDENTIFIES SERIOUS WORK
 PERFORMANCE DEFICIENCIES AND DOES ADVISE THE EMPLOYEE WHAT IS EXPECTED
 TO IMPROVE PERFORMANCE TO AN ACCEPTABLE LEVEL WITHIN A SPECIFIED PERIOD
 OF TIME, AT THE END OF WHICH THERE WILL BE A FURTHER EVALUATION OF THE
 EMPLOYEE'S PERFORMANCE ON THESE IDENTIFIED ELEMENTS (SEE, G.C. EXH. 9),
 WITHOUT DOUBT, CONTINUED UNACCEPTABLE PERFORMANCE MAY VERY WELL RESULT
 IN ADVERSE ACTION (SEE, E.G. RES. EXH 13);  BUT THE REGULAR, PERIODIC
 EVALUATION OF MR. GOFF ON AUGUST 14-15, 1979, WAS NOT DISCIPLINARY IN
 NATURE AND INVOLVED NO ADVERSE ACTION.
 
    NOR WAS THERE "ANY EXAMINATION" OF MR. GOFF BY MR. ZIELINSKI ON
 AUGUST 14-15, 1979, WITHIN THE MEANING OF SEC. 14(A)(2)(B).  THE WRITTEN
 ANALYSIS IS REQUIRED BY RESPONDENT'S REGULATIONS TO BE PREPARED BY THE
 GROUP MANAGER (RES. EXHS. 1, 2, 4, 5) AND MR.  ZIELINSKI GAVE MR. GOFF A
 COPY OF FORMS 5188 AND 5188-A (RES. EXH. 8) AT THE OUTSET OF THE MEETING
 ON AUGUST 14, 1979.  MR. GOFF TESTIFIED, AS NOTED ABOVE, THAT THE REVIEW
 CONDUCTED BY THE GROUP MANAGER CONSISTS OF A DISCUSSION OF THE GROUP
 MANAGER'S WRITTEN COMMENTS AND THAT ON ABOUT HALF OF HIS 100 PERCENT
 REVIEWS, CHANGES HAD BEEN MADE FOLLOWING THE DISCUSSION.  THIS DOES NOT
 CONSTITUTE AN "EXAMINATION" OF AN EMPLOYEE WITHIN THE MEANING OF SEC.
 14(A)(2)(B) OF THE STATUTE;  NOR WAS THERE ANY BASIS FOR A REASONABLE
 BELIEF THAT DISCIPLINARY ACTION MIGHT RESULT FROM THE REVIEW CONDUCTED
 BY THE GROUP MANAGER.  AS RESPONDENT'S MANUAL STATES, THE OBJECTIVES OF
 THE ANALYSIS ARE, INTER ALIA, TO ASCERTAIN THAT CURRENT PROCEDURES AND
 POLICIES ARE BEING FOLLOWED;  TO HELP THE REVENUE OFFICER DEVELOP BETTER
 COLLECTION TECHNIQUES;  TO PROVIDE GUIDANCE, ASSISTANCE AND
 CONSULTATION;  AND TO INSURE THAT EACH REVENUE OFFICER IS ASSIGNED WORK
 AT THE APPROPRIATE GRADE LEVEL (1 R MANUAL SEC. 5185.1(4), RES. EXH. 1).
 
    THAT EVALUATIONS OF PERFORMANCE ARE NOT DISCIPLINARY OR
 INVESTIGATIONS WITHIN THE MEANING OF 214(A)(2)(B) IS BORNE OUT BY THE
 PROVISIONS OF ARTICLE 9 OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
 (JR. EXH. 2).  INDEED, AS MR. INGERSOLL TESTIFIED, ARTICLE 9, SECTION D
 2 PROVIDED THAT,
 
    "2.  THE EMPLOYEE MAY MAKE WRITTEN COMMENTS CONCERNING ANY
 DISAGREEMENT WITH THE
 
    EVALUATION..." (JT. EXH. 2, P. 29) RECOGNIZING, AS CONGRESSMAN CLAY
 STATED,
 
    "...NOTHING IN THIS SECTION PROHIBITS AN AGENCY FROM NEGOTIATING
 GREATER RIGHTS FOR
 
    EXCLUSIVE REPRESENTATIVES..." (LEGISLATIVE HISTORY, P. 933), THE
 AGREEMENT OF THE PARTIES DOES NOT PROVIDE FOR REPRESENTATION OF
 EMPLOYEES AT PERFORMANCE EVALUATIONS.  SEE, NATIONAL TREASURY EMPLOYEES
 UNION, CASE NO.  O-NG-56, 3 FLRA NO. 119 (JULY 31, 1980).
 
    THE NARRATIVE STATEMENT, GIVEN TO MR. GOFF ON AUGUST 14, 1979, DID
 STATE THAT "...YOUR PERFORMANCE HAS BEEN UNACCEPTABLE FOR THE CRITICAL
 ELEMENTS OF YOUR POSITION.  YOU CAN EXPECT A LETTER NOTIFYING YOU OF THE
 ACTIONS THAT WILL RESULT FROM YOUR PERFORMANCE" AND MR. ZIELINSKI TOLD
 MR. GOFF HE WOULD BE RECEIVING A CRITICAL ELEMENTS LETTER WHICH WAS, OF
 COURSE, ISSUED ON AUGUST 27, 1979.  A CRITICAL ELEMENTS LETTER IS NOT A
 DISCIPLINARY ACTION OR AN ADVERSE ACTION AS DEFINED BY ARTICLES 33 AND
 34 OF THE PARTIES' AGREEMENT (JT. EXH. 2, ARTICLES 33 AND 34, PP.
 79-86).  I AM FULLY AWARE THAT EVENTUALLY DISCIPLINE, INCLUDING
 SEPARATION, MAY RESULT FROM DEFICIENT WORK PERFORMANCE (SEE, 1 R MANUAL
 0751, DISCIPLINE, JT. EXH. 3);  NEVERTHELESS, THE EVALUATION OF AUGUST
 14-15, 1979, WAS NOT AN EXAMINATION IN CONNECTION WITH AN INVESTIGATION
 OF MR. GOFF WITHIN THE MEANING OF SEC. 14(A)(2) (B), NOR DID MR. GOFF
 REASONABLY BELIEVE THAT THE REVIEW OF HIS PERFORMANCE EVALUATION MIGHT
 RESULT IN DISCIPLINARY ACTION AGAINST HIM.
 
    THERE COULD BE NO DOUBT FROM HOUSE REPORT 95-920 (TO ACCOMPANY H.R.
 3793), FROM CONGRESSMAN UDALL'S STATEMENT ON HIS SUBSTITUTE, OR FROM THE
 LANGUAGE OF H.R.  11280 AS PASSED BY THE HOUSE, THAT UNION
 REPRESENTATION WAS NOT CONTEMPLATED AT REGULAR PERFORMANCE EVALUATIONS.
 NOR DO I FIND ANY INTENT ON THE PART OF THE CONFEREES TO SO BROADEN THE
 COVERAGE OF SEC.  14(A)(2)(B), NOTWITHSTANDING DELETION OF THE
 LIMITATION TO MISCONDUCT CONTAINED IN SECTION 7114(A)(2) OF H.R. 11280
 AS PASSED BY THE HOUSE ON SEPTEMBER 13, 1978.  /12/ FINALLY, ARTICLE 9,
 SECTION E (JT. EXH. 2, P. 29), FOR EXAMPLE, WHILE RECOGNIZING THAT AN
 EVALUATION MAY BE INVOLVED IN EITHER A DISCIPLINARY ACTION OR AN ADVERSE
 ACTION MAKES A CAREFUL DISTINCTION BETWEEN A PERFORMANCE EVALUATION,
 WHICH IS NEITHER DISCIPLINARY NOR ADVERSE ACTION, AND THE USE OF THE
 EVALUATION IN A PROCEEDING WHICH IS DISCIPLINARY OR ADVERSE ACTION.
 
    HAVING FOUND THAT SEC. 14(A)(2)(B) OF THE STATUTE DOES NOT REQUIRE
 THAN AN EXCLUSIVE REPRESENTATIVE BE REPRESENTED AT A REGULAR, PERIODIC
 PERFORMANCE EVALUATION, RESPONDENT'S DENIAL OF MR. GOFF'S REQUEST FOR
 REPRESENTATION ON AUGUST 14, 1979, DID NOT VIOLATE SEC. 16(A)(1) OR (8)
 OF THE STATUTE AND I RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED.
 
                          WILLIAM B. DEVANEY
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  AUGUST 8, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE STATUTE ARE
 HEREINAFTER, ALSO, REFERRED TO WITHOUT INCLUSION OF THE INITIAL "71"
 PORTION OF THE STATUTE REFERENCE.  FOR EXAMPLE, SECTION 7116(A)(1)
 SIMPLY AS "16(A)(1);" HOWEVER, UNLESS OTHERWISE SPECIFICALLY INDICATED,
 ALL SUCH REFERENCES ARE TO CHAPTER 71 OF THE STATUTE.
 
    /2/ SECTION 2423.5 OF THE RULES AND REGULATIONS SPECIFICALLY
 PROVIDES, IN PART, THAT "REQUESTS FOR EXTENSION OF TIME SHALL BE
 RECEIVED NOT LATER THAN FIVE (5) DAYS BEFORE THE DATE SUCH BRIEFS ARE
 DUE." IN THE ABSENCE OF UNUSUAL CIRCUMSTANCES, WHOLLY ABSENT IN THIS
 CASE, JUSTIFYING NON-COMPLIANCE WITH SEC. 2423.5, UNTIMELY REQUESTS FOR
 EXTENSION OF TIME ARE NOT GIVEN FAVORABLE CONSIDERATION.
 
    /3/ BOTH MR. GOFF'S WRITTEN REQUEST (G.C. EXH. 7) AND MR.
 ZIELINSKI'S WRITTEN RESPONSE REFER TO SEC. 14(A)(2)(A);  HOWEVER, IT IS
 OBVIOUS THAT EACH INTENDED TO REFER TO SEC. 14(A)(2)(B).  FOR EXAMPLE,
 MR. GOFF REFERRED TO SEC. 14(A)(2)(A) I, WHEREAS "I" APPEARS ONLY UNDER
 SUBPARAGRAPH (B).
 
    /4/ ALTHOUGH MR. GOFF WAS NOT ASKED TO EXPLAIN THE REASON FOR HIS
 REFUSAL TO SIGN THE 5118-AS, FROM THE TESTIMONY OF MR. WARRNE J.
 INGERSOLL, JR., STEWARD, IT PLAINLY APPEARS THAT THE REASON FOR REFUSING
 TO SIGN IS TO PROTECT THE EMPLOYEE'S RIGHT TO SUBMIT WRITTEN COMMENTS
 CONCERNING ANY DISAGREEMENT WITH AN EVALUATION AS PERMITTED BY ARTICLE
 9, SECTION 1, PARAGRAPH D 2, P. 29, OF THE PARTIES' AGREEMENT (JT. EXH.
 2).  MR. INGERSOLL STATED, "...IF THE REVENUE OFFICER SIGNS IT...IT IS
 OVER.  IF THE REVENUE OFFICER DOESN'T AGREE...HE TAKES COPIES OF THE
 5188AS AND THE 5188 AND RETURNS TO HIS WORK STATION AND REVIEWS THEM.
 AND IF HE WISHES, HE HAS A PRIVILEGE, UNDER THE CONTRACT, TO WRITE A
 REBUTTAL..." (TR. 88).
 
    /5/ DESPITE SOME ATTEMPT TO CONFUSE THE TERMS, A CRITICAL ELEMENTS
 LETTER IS NOT A "THIRTY DAY LETTER," AS THAT TERM, I.E., "30 DAY
 LETTER," IS USED TO SIGNIFY A DETERMINATION WHICH THE SERVICE INTENDS TO
 EFFECTUATE "AT ANY TIME AFTER THIRTY (30) CALENDAR DAYS." (RES. EXH.
 13).
 
    /6/ REFERENCES HEREIN TO THE LEGISLATIVE HISTORY ARE TO:  LEGISLATIVE
 HISTORY OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, TITLE
 VII OF THE CIVIL SERVICE REFORM ACT OF 1978, COMMITTEE PRINT NO. 96-97,
 COMMITTEE ON POST OFFICE AND CIVIL SERVICE, HOUSE OF REPRESENTATIVES
 96TH CONG., 1ST SESS., NOVEMBER 19, 1979.  THIS VOLUME WILL BE REFERRED
 TO AS "LEGISLATIVE HISTORY," FOLLOWED BY THE APPROPRIATE PAGE NUMBER.
 
    /7/ THE REPORT REFLECTED A COMMON MISUNDERSTANDING OF THE SUPREME
 COURT'S DECISION.  AS JUDGE KRAMER VERY CORRECTLY STATED, IN UNITED
 STATES AIR FORCE, LACKLAND AIR FORCE BASE, HEADQUARTERS AIR FORCE
 MILITARY TRAINING CENTER (ATC), LACKLAND AIR FORCE BASE, TEXAS, A/SLMR
 NO. 652, 6 A/SLMR 226, 6 A/SLMR SUPP. 84 (1976), "THE SUPREME COURT HELD
 THAT SUCH CONSTRUCTION OF THE PROVISIONS OF SECTION 7 WAS A PERMISSIBLE
 CONSTRUCTION AND THAT THE COURTS OF APPEAL 'IMPERMISSIBLY ENCROACHED
 UPON THE BOARD'S FUNCTION,' THE '"SPECIAL FUNCTION OF APPLYING THE
 GENERAL PROVISIONS OF THE ACT TO THE COMPLEXITIES OF INDUSTRIAL LIFE"'
 'IN LIGHT OF CHANGING INDUSTRIAL PRACTICES AND THE BOARD'S CUMULATIVE
 EXPERIENCE.'...THE SUPREME COURT HELD...THAT THE BOARD'S 'NEWLY ARRIVED
 AT CONSTRUCTION OF SECTION 7 'WAS A PERMISSIBLE CONSTRUCTION, AS HAD
 BEEN ITS EARLIER CONTRARY CONSTRUCTION, OVER A PERIOD OF SOME THIRTY
 YEARS, ARRIVED AT IN THE LIGHT OF ITS GREATER ACCUMULATION OF EXPERIENCE
 IN CHANGING INDUSTRIAL PRACTICES." (6 A/SLMR SUPP. AT 87-88).  CF. NLRB
 V. COLUMBIA UNIVERSITY, 541 F. 2ND 922, 932, 93 LRRM 2085, 2092
 (2ND/CIR. 1976)
 
    /8/ POST ENACTMENT STATEMENTS, NO MATTER HOW COGENT, ARE NOT ACTUALLY
 PART OF THE LEGISLATIVE HISTORY AND BECAUSE UNCOMMUNICATED TO THE
 LEGISLATIVE BODY PRIOR TO ENACTMENT, PLAYED NO PART IN THE LEGISLATIVE
 CONSIDERATIONS.  ACCORDINGLY, POST ENACTMENT STATEMENTS ARE ENTITLED TO
 LITTLE WEIGHT.  REPRESENTATIVE FORD STATED, IN PART, AS FOLLOWS:
 
    "HOUSE SECTION 7114(A)(2), WHICH ONLY APPLIED TO MISCONDUCT CASES,
 WAS DROPPED IN THE
 
    CONFERENCE REPORT IN LIEU OF AN ANNUAL NOTIFICATION TO EMPLOYEES OF
 THEIR RIGHTS UNDER THIS
 
    SECTION.  IN ADOPTING HOUSE SECTION 7114(A)(2), THERE WAS
 CONSIDERABLE DISCUSSION BY THE
 
    CONFEREES TO THE EFFECT THAT THE (A)(3) RIGHT SHOULD SIMILARILY BE
 LIMITED TO MISCONDUCT
 
    CASES.  THE CONFEREES REJECTED THIS APPROACH AND CONTINUED TO APPLY
 THIS RIGHT IN BOTH
 
    MISCONDUCT AND NONPERFORMANCE CASES.  FURTHERMORE, IN EXCHANGE FOR
 DROPPING THE (A)(2) RIGHT,
 
    THE TERM 'INVESTIGATORY INTERVIEW' IN (A)(3) WAS REPLACED BY THE TERM
 'EXAMINATION,' A MUCH
 
    BROADER TERM THAT WILL ENCOMPASS MORE SITUATIONS..." (LEGISLATIVE
 HISTORY, P. 995).
 
    /9/ THE LAST QUOTATION BY GENERAL COUNSEL IS NOT, AS REPRESENTED,
 FROM THE CONFERENCE REPORT.  RATHER, IT IS FROM CONGRESSMAN FORD'S POST
 ENACTMENT STATEMENT, SUPRA, LEGISLATIVE HISTORY, P. 995.
 
    /10/ "(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVE OF
 THE AGENCY AND ONE OR MORE EMPLOYEES IN THE UNIT OR THEIR
 REPRESENTATIVES CONCERNING ANY GRIEVANCE OR ANY PERSONNEL POLICY OR
 PRACTICE OR OTHER GENERAL CONDITION OF EMPLOYMENT;  OR" (LEGISLATIVE
 HISTORY, P. 914).
 
    /11/ THE WELL REASONED DECISION OF JUDGE ARRIGO, IN INTERNAL REVENUE
 SERVICE, WASHINGTON, D.C. AND INTERNAL REVENUE SERVICE, HARTFORD
 DISTRICT OFFICE, SUPRA, HAS BEEN CAREFULLY CONSIDERED AND APPLYING ALL
 OBJECTIVE CONSIDERATIONS, I CONCLUDE THAT AN EMPLOYEE COULD NOT
 REASONABLY BELIEVE THAT THE DISCUSSION OF A PERFORMANCE EVALUATION "MAY
 RESULT IN DISCIPLINARY ACTION AGAI