National Treasury Employees Union and National Treasury Employees Union, Chapter 53 (Respondent) and Internal Revenue Service and Brooklyn District Office (Complainant)

 



[ v06 p218 ]
06:0218(37)CO
The decision of the Authority follows:


 6 FLRA No. 37
 
 NATIONAL TREASURY EMPLOYEES
 UNION AND NATIONAL TREASURY
 EMPLOYEES UNION, CHAPTER 53
 Respondent
 
 and
 
 INTERNAL REVENUE SERVICE
 AND BROOKLYN DISTRICT OFFICE
 Complainant
 
                                            Case No. 2-CO-3
 
                            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 PRACTICE ALLEGED IN THE COMPLAINT AND
 RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
 AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER.  EXCEPTIONS WERE FILED 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
 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 ENTIRE RECORD IN THE
 SUBJECT CASE, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.  IN SO ADOPTING, THE
 AUTHORITY FINDS THAT THE RIGHT GUARANTEED TO EMPLOYEES UNDER SECTION
 7102 OF THE STATUTE TO FORM, JOIN, OR ASSIST ANY LABOR ORGANIZATION, OR
 TO REFRAIN FROM SUCH ACTIVITY, IS SUFFICIENTLY BROAD TO INCLUDE WITHIN
 ITS SCOPE THE RIGHT OF AN EMPLOYEE TO APPEAR AS A WITNESS IN AN
 AUTHORITY PROCEEDING TO WHICH A UNION IS A PARTY AND TO GIVE TESTIMONY
 SUPPORTING OR OPPOSING THE UNION'S INTEREST IN THAT PROCEEDING.  IN THIS
 REGARD, IT IS NO LESS INTERFERENCE WITH THE SECTION 7102 STATUTORY RIGHT
 FOR A UNION TO DISCIPLINE OR DISCRIMINATE AGAINST AN EMPLOYEE FOR GIVING
 TESTIMONY IN AN AUTHORITY PROCEEDING THAN IT IS FOR AN EMPLOYER TO DO SO
 AS PROSCRIBED UNDER SECTION 7116(A)(4) OF THE STATUTE.  SUCH
 INTERFERENCE WITH EMPLOYEE RIGHTS UNDER SECTION 7102 IS THUS A VIOLATION
 OF SECTION 7116(B)(1) OF THE STATUTE.  HOWEVER, THIS SHOULD NOT BE
 CONSTRUED AS ABROGATING THE UNION'S CONTROL OF ITS OWN INTERNAL AFFAIRS
 IN THE ABSENCE OF A STATUTORY VIOLATION SUCH AS HERE INVOLVED.
 
    IN REACHING THIS DECISION, IT IS NOTED THAT, WHILE THE ADMINISTRATIVE
 LAW JUDGE FOUND THAT THE RESPONDENT'S PRESIDENT WAS INFORMED OF A
 CERTAIN CHANGE IN WORKING CONDITIONS SPECIFICALLY ON JANUARY 17, 1978,
 THE RECORD SHOWS ONLY THAT SUCH INFORMATION WAS PASSED ON TO HIM
 "SHORTLY AFTER" JANUARY 17, 1978.
 
    OUR ORDER THAT THE UNION STEWARD BE REINSTATED TO HIS UNION POSITION
 IS, OF COURSE, CONFINED TO THE CIRCUMSTANCES OF THIS CASE WHERE, AS
 FOUND BY THE ADMINISTRATIVE LAW JUDGE, THE UNION STEWARD, EXCEPT FOR HIS
 TESTIMONY AT THE AUTHORITY PROCEEDING, WOULD NOT HAVE BEEN REMOVED FROM
 THAT POSITION.
 
                                   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 NATIONAL TREASURY EMPLOYEES UNION AND
 NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 53 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERFERING WITH, RESTRAINING OR COERCING ITS MEMBERS IN THE
 EXERCISE OF THEIR RIGHTS GUARANTEED IN THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE BY REMOVING A MEMBER FROM THE
 POSITION OF UNION STEWARD BECAUSE HE GAVE TESTIMONY IN A HEARING
 CONDUCTED UNDER THE AUSPICES OF THE FEDERAL LABOR RELATIONS AUTHORITY.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING 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 CARRY OUT THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) REINSTATE MR. HERMAN MODIN TO HIS POSITION OF UNION SHOP STEWARD,
 BROOKLYN DISTRICT OFFICE.
 
    (B) POST AT THE BUSINESS OFFICE OF THE NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 53, AND IN NORMAL MEETING PLACES, INCLUDING ALL PLACES
 WHERE NOTICES TO MEMBERS OF THE NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 53 ARE CUSTOMARILY POSTED, COPIES OF THE ATTACHED NOTICE MARKED
 "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY.  UPON RECEIPT OF
 SUCH FORMS, THEY SHALL BE SIGNED BY THE PRESIDENT OF THE NATIONAL
 TREASURY EMPLOYEES UNION, CHAPTER 53, AND SHALL BE POSTED FOR 60
 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
 WHERE NOTICES TO MEMBERS ARE CUSTOMARILY POSTED.  REASONABLE STEPS SHALL
 BE TAKEN BY NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 53 TO INSURE THAT
 SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) SUBMIT SIGNED COPIES OF SAID NOTICE TO THE INTERNAL REVENUE
 SERVICE FOR POSTING IN CONSPICUOUS PLACES WHERE MEMBERS OF NTEU, CHAPTER
 53 ARE LOCATED, WHERE THEY SHALL BE MAINTAINED FOR A PERIOD OF 60
 CONSECUTIVE DAYS FROM THE DATE OF POSTING.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION 2, FEDERAL LABOR
 RELATIONS AUTHORITY, ROOM 241, 26 FEDERAL PLAZA, NEW YORK, N.Y. 10007,
 IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS
 HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., JULY 1, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                    NOTICE TO ALL MEMBERS AND 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 MEMBERS AND ALL EMPLOYEES OF THE
 
         INTERNAL REVENUE SERVICE, BROOKLYN DISTRICT OFFICE THAT:
 
    WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE OUR MEMBERS IN THE
 EXERCISE OF THEIR RIGHTS ASSURED IN THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE BY REMOVING A MEMBER FROM THE POSITION OF UNION
 STEWARD BECAUSE HE GAVE TESTIMONY IN A HEARING CONDUCTED UNDER THE
 AUSPICES OF THE FEDERAL LABOR RELATIONS AUTHORITY.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
 OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL REINSTATE MR. HERMAN MODIN TO HIS POSITION OF UNION SHOP
 STEWARD, BROOKLYN DISTRICT OFFICE.
 
                                  (UNION)
 
    DATED:  BY:
 
                            (SIGNATURE) (TITLE)
 
                            (SIGNATURE) (TITLE)
 
    THIS NOTICE MUST REMAIN POSTED FOR SIXTY (60) CONSECUTIVE DAYS FROM
 THE DATE OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:  ROOM
 241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007, AND WHOSE TELEPHONE
 NUMBER IS:  (212) 264-4934.
 
 
 
 
 
 -------------------- ALJ DECISION FOLLOWS --------------------
 
    WILLIAM F. WHITE, ESQUIRE
 
    LYNN SYLVESTER, ESQUIRE
 
                            FOR THE RESPONDENT
 
    ALLAN W. STADTMAUR, ESQUIRE
 
    JAMES PETRUCCI, ESQUIRE
 
                          FOR THE GENERAL COUNSEL
 
    ROBERT F. HERMANN, ESQUIRE
 
                          FOR THE CHARGING PARTY
 
    BEFORE:  BURTON S. STERNBURG
 
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL LABOR-MANAGEMENT RELATIONS
 STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. SECTION 7101,
 ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG.,
 VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R.CHAPTER XIV, PART 2411, ET
 SEQ.
 
    PURSUANT TO AN AMENDED CHARGE FIRST FILED ON JULY 20, 1979, BY THE
 INTERNAL REVENUE SERVICE AND BROOKLYN DISTRICT OFFICE, (HEREINAFTER
 CALLED THE IRS OR THE CHARGING PARTY), A COMPLAINT AND NOTICE OF HEARING
 WAS ISSUED ON FEBRUARY 27, 1980, BY THE REGIONAL DIRECTOR FOR REGION II,
 FEDERAL LABOR RELATIONS AUTHORITY, NEW YORK, N.Y.  THE COMPLAINT ALLEGES
 THAT NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 53, (HEREINAFTER CALLED THE NTEU, UNION OR RESPONDENT),
 VIOLATED SECTION 7116(B)(1) AND (B)(3) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, (HEREINAFTER CALLED THE STATUTE OR
 ACT), BY VIRTUE OF ITS ACTION IN REMOVING HERMAN MODIN FROM THE POSITION
 OF UNION SHOP STEWARD BECAUSE MR. MODIN GAVE TESTIMONY AT A HEARING HELD
 PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON MAY 14, 1980, IN NEW
 YORK, N.Y.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
 EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING
 ON THE ISSUES HEREIN.  ALL PARTIES SUBMITTED BRIEFS ON JULY 3, 1980,
 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 RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    THE UNION IS THE EXCLUSIVE BARGAINING REPRESENTATIVE AT A NUMBER OF
 THE INTERNAL REVENUE SERVICE OFFICES IN THE NEW YORK CITY AREA, AMONG
 WHICH IS THE BROOKLYN DISTRICT OFFICE WHEREIN THE INSTANT ALLEGED UNFAIR
 LABOR PRACTICE OCCURRED.  MR. GEORGE BRAVERMAN HAD BEEN THE PRESIDENT OF
 CHAPTER 53 SINCE 1966 AND ITS CHIEF STEWARD SINCE ABOUT 1973.  MR.
 HERMAN MODIN, THE ALLEGED DISCRIMINATEE HEREIN, SERVED AS SHOP STEWARD
 IN THE BROOKLYN DISTRICT OFFICE FOR SOME FOUR OR FIVE YEARS PRIOR TO
 BEING DISCHARGED BY MR. BRAVERMAN FROM SUCH POSITION ON MARCH 21, 1979.
 IN ADDITION TO BEING SHOP STEWARD, MR. MODIN HAS, OVER THE YEARS, HELD A
 NUMBER OF ELECTIVE POSITIONS IN CHAPTER 53, NTEU.  HE CURRENTLY HOLDS
 THE POSITION OF "VICE PRESIDENT OF COLLECTIONS."
 
    ON OR ABOUT JANUARY 18, 1979, A HEARING WAS HELD UNDER EXECUTIVE
 ORDER 11491, AS AMENDED.  THE HEARING WAS BASED UPON A COMPLAINT FILED
 BY THE NTEU AND NTEU CHAPTER 53 ALLEGING, AMONG OTHER THINGS, THAT THE
 INTERNAL REVENUE SERVICE HAD VIOLATED THE EXECUTIVE ORDER BY
 UNILATERALLY INSTITUTING A CHANGE IN WORKING CONDITIONS WITHOUT
 ACCORDING THE NTEU NOTICE OF SAME AND ALLOWING IT THE OPPORTUNITY TO
 REQUEST BARGAINING OVER THE IMPACT OF THE CHANGE.  PURSUANT TO MOTION
 DULY MADE, THE WITNESSES AT THE HEARING WERE SEQUESTERED.
 
    MR. BRAVERMAN APPEARED AND TESTIFIED AT THE HEARING THAT HE HAD NO
 PRIOR NOTICE OF THE UNILATERAL CHANGE UNDERLYING THE COMPLAINT AND THAT
 HE HAD FIRST LEARNED OF THE CHANGE ONLY AFTER THE CHANGE HAD BEEN FULLY
 IMPLEMENTED ON OR ABOUT FEBRUARY 21, 1978.  LATER IN THE HEARING MR.
 MODIN WAS CALLED TO THE STAND AS A WITNESS FOR THE RESPONDENT.  MR.
 MODIN TESTIFIED THAT HE HAD BEEN INFORMED BY HIS IMMEDIATE SUPERVISOR ON
 JANUARY 17, 1978, OF IRS'S PLANS CONCERNING THE PROPOSED CHANGE IN
 WORKING CONDITIONS AND THAT HE HAD LATER IN THE DAY TELEPHONED MR.
 BRAVERMAN AND INFORMED HIM OF IRS'S PROPOSED CHANGE IN WORKING
 CONDITIONS.
 
    FOLLOWING THE CLOSE OF THE HEARING, MR. BRAVERMAN, ALONG WITH MR.
 DAVE LIPTON AND MR. FRANK FERRIS, WHO PARTICIPATED IN THE HEARING AS
 ADVISOR AND COUNSEL, RESPECTIVELY, TOOK THE SUBWAY TO PENN. STATION.
 DURING THE COURSE OF THE SUBWAY RIDE, MR. FERRIS INFORMED MR. BRAVERMAN
 OF MR. MODIN'S "DAMAGING TESTIMONY" CONCERNING THE CRUCIAL ISSUE OF
 NOTICE.  WHEREUPON, MR. BRAVERMAN TOOK HIS DIARY FROM HIS BRIEFCASE AND
 TURNED TO JANUARY 17, 1978.  THE DIARY REVEALED THAT MR. BRAVERMAN,
 WHOSE OFFICE IS LOCATED IN MINEOLA, N.Y., HAD SPENT SOME EIGHT HOURS IN
 BROOKLYN, N.Y. ON JANUARY 17, 1978, CONDUCTING BOTH A GRIEVANCE
 INVESTIGATION AND A GRIEVANCE HEARING.  IN VIEW OF THE FOREGOING, MR.
 BRAVERMAN CONCLUDED THAT MR. MODIN'S TESTIMONY WAS INACCURATE SINCE IT
 WOULD HAVE BEEN IMPOSSIBLE FOR MR. MODIN TO HAVE REACHED HIM BY
 TELEPHONE ON JANUARY 17, 1978.  MR. BRAVERMAN ACKNOWLEDGED THAT HE WAS
 BOTH SURPRISED AND ANGRY AT MR. MODIN'S CONFLICTING TESTIMONY.
 
    THEREAFTER, MR. BRAVERMAN CONTINUALLY CONSIDERED THE REPLACEMENT OF
 MR. MODIN AND APPROACHED OTHER REVENUE OFFICERS FROM THE BROOKLYN
 DISTRICT OFFICE ABOUT ASSUMING MR. MODIN'S POSITION OF UNION STEWARD.
 ALL THE REVENUE OFFICERS APPROACHED BY MR. BRAVERMAN DECLINED THE OFFER.
 
    ON MARCH 21, 1979, MR. BRAVERMAN, AFTER UNSUCCESSFULLY ATTEMPTING TO
 CONVINCE MR. MODIN THAT HE SHOULD RESIGN, POSTED A NOTICE ON THE UNION
 BULLETIN BOARD STATING THAT MR. MODIN WAS "REMOVED AS SHOP STEWARD FOR
 THE BROOKLYN POST OF DUTY." MR. BRAVERMAN APPOINTED A REVENUE AGENT FROM
 ANOTHER OFFICE TO MR. MODIN'S FORMER POSITION AS UNION STEWARD FOR THE
 BROOKLYN DISTRICT OFFICE SOME TWO MONTHS LATER.
 
    MR. BRAVERMAN FURTHER TESTIFIED THAT FOR SEVERAL YEARS HE HAD BEEN
 DISAPPOINTED IN MR. MODIN'S PERFORMANCE AS UNION STEWARD AND HAD BEEN
 UNSUCCESSFUL IN ATTEMPTING TO FIND A REPLACEMENT.  IN THIS CONTEXT MR.
 BRAVERMAN POINTED OUT THAT MR. MODIN HAD BEEN LAX IN FILING GRIEVANCES
 AND CONTINUALLY CHOSE TO SIT WITH HIS SUPERVISOR RATHER THAN
 RANK-AND-FILE UNION MEMBERS DURING COFFEE BREAKS THEREBY CREATING THE
 IMPRESSION THAT HE WAS MORE INTERESTED IN THE PROBLEMS OF MANAGEMENT
 RATHER THAN THOSE OF THE UNIT MEMBERS.  ACCORDING TO MR. BRAVERMAN, HE
 FINALLY DECIDED TO TERMINATE MR. MODIN FROM HIS POSITION AS UNION
 STEWARD WHEN HE WAS INFORMED BY TWO NEWLY TRANSFERRED REVENUE OFFICERS
 THAT THEY HAD NEVER BEEN APPROACHED OR CONTACTED BY A UNION
 REPRESENTATIVE SINCE ARRIVING AT THE BROOKLYN DISTRICT OFFICE POST OF
 DUTY.
 
    BASED UPON THE COMPLAINTS FROM THE REVENUE OFFICERS, MR. MODIN'S PAST
 PERFORMANCE AND MR. MODIN'S "FRAUDULENT" TESTIMONY DURING THE JANUARY
 UNFAIR LABOR PRACTICE PROCEEDING, MR. BRAVERMAN REMOVED MR. MODIN FROM
 HIS POSITION AS UNION STEWARD FOR THE BROOKLYN DISTRICT OFFICE.  /1/
 
    MR. ALLEN HORN, WHO ACTED AS COUNSEL FOR THE INTERNAL REVENUE SERVICE
 IN THE PRIOR PROCEEDING, TESTIFIED THAT DURING A POST HEARING DISCUSSION
 WITH MR. FRANK FERRIS, UNION COUNSEL IN THE PRIOR PROCEEDING, CONCERNING
 AN EXTENSION OF TIME TO FILE POST HEARING BRIEFS, HE HAD BEEN INFORMED
 BY MR. FERRIS THAT MR. MODIN HAD BEEN REMOVED FROM THE POST OF UNION
 STEWARD BECAUSE OF HIS TESTIMONY IN THE UNFAIR LABOR PRACTICE
 PROCEEDING.  MR. FERRIS IN A POST HEARING DEPOSITION IN THE INSTANT CASE
 DENIED IMPARTING SUCH INFORMATION TO MR. HORN.  /2/
 
                        DISCUSSION AND CONCLUSIONS
 
    RESPONDENT URGES DISMISSAL OF THE INSTANT COMPLAINT ON THE BASIS OF A
 NUMBER OF PROCEDURAL GROUNDS, NAMELY:  (1) THAT THE INTERNAL REVENUE
 SERVICE IS WITHOUT STANDING TO FILE THE CHARGES UNDERLYING THE INSTANT
 COMPLAINT, (2) SECTION 7116(B) OF THE STATUTE DOES NOT CONTAIN A SIMILAR
 PROHIBITION CONCERNING DISCRIMINATION FOR FILING CHARGES AND/OR GIVING
 TESTIMONY AS SET FORTH IN SECTION 7116(A)(4) OF THE STATUTE, (3) REMOVAL
 OF A STEWARD IS AN INTERNAL UNION AFFAIR NOT COGNIZABLE UNDER SECTION
 7116(B) OF THE STATUTE, AND (4) THE AUTHORITY DOES NOT, IN ANY EVENT,
 HAVE JURISDICTION SINCE THE TESTIMONY WAS GIVEN UNDER EXECUTIVE ORDER
 11491, AS AMENDED, AND NOT THE STATUTE.
 
    WITH RESPECT TO NUMBER (1) ABOVE BOTH THE STATUTE, SECTIONS 7103 AND
 7118(A)(1), AND THE REGULATIONS, SECTION 2423.3, MAKE IT CLEAR THAT ANY
 PERSON MAY FILE A CHARGE ALLEGING A VIOLATION OF THE STATUTE.
 ACCORDINGLY, I FIND RESPONDENT'S FIRST DEFENSE TO BE WITHOUT MERIT.  CF.
 NATIONAL TREASURY EMPLOYEES UNION, 1 FLRA NO. 104;  NATIONAL TREASURY
 EMPLOYEES UNION, WASHINGTON, D.C., 2 FLRA NO. 51, WHEREIN A SIMILAR
 CONCLUSION WAS REACHED UNDER EXECUTIVE ORDER 11491, AS AMENDED.
 
    WITH RESPECT TO (2) ABOVE, IRRESPECTIVE OF THE FACT THAT THE
 PROHIBITION SET FORTH IN SECTION 7116(A)(4) OF THE STATUTE IS NOT
 SPECIFICALLY INCLUDED UNDER SECTION 7116(B), UNION UNFAIR LABOR
 PRACTICES, I FIND THAT IT WAS THE INTENT OF THE CONGRESS TO BAR ANY AND
 ALL INTERFERENCE WITH THE AUTHORITY'S PROCESSES.  IN THIS CONTEXT IT IS
 NOTED THAT THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE IS
 MODELED AFTER THE NATIONAL LABOR RELATIONS ACT WHICH ALSO DOES NOT
 SPECIFICALLY CONTAIN PROHIBITIONS CONCERNING DISCRIMINATION BECAUSE OF
 TESTIMONY AND/OR FILING CHARGES UNDER SECTION 8(B), WHICH DEALS WITH
 UNION UNFAIR LABOR PRACTICES.  HOWEVER, DESPITE SUCH OMISSION THE
 NATIONAL LABOR RELATIONS BOARD, WITH THE APPROVAL OF THE COURTS, HAS
 FOUND SUCH DISCRIMINATION BY A UNION TO BE A VIOLATION OF SECTION
 8(B)(1)(A) OF THE NATIONAL LABOR RELATIONS ACT.  IBEW, LOCAL UNION NO.
 34, AFL-CIO, 208 NLRB 638;  LOCAL 138 OPERATING ENGINEERS (CHARLES
 SKURA), 148 NLRB 679, CITED WITH APPROVAL IN NLRB V. INTERNATIONAL UNION
 MARINE & SHIPBUILDING WORKERS OF AMERICA, 391 U.S. 418.  IN REACHING THE
 ABOVE CONCLUSION THE NATIONAL LABOR RELATIONS BOARD, CITING
 INTERNATIONAL LADIES GARMENT WORKERS' UNION, AFL-CIO V. NLRB AND
 BERNHARD ALTMAN TEXAS CORP., 366 U.S. 731, 738 FOUND THAT CONGRESS
 CLEARLY INTENDED TO IMPOSE UPON UNIONS THE SAME RESTRICTIONS WHICH WERE
 IMPOSED UPON EMPLOYERS REGARDING EMPLOYEES RIGHTS.
 
    WITH RESPECT TO (3) ABOVE, THE PROVISO CONTAINED IN SECTION
 7116(B)(8)(C) WITH RESPECT TO INTERNAL UNION AFFAIRS IS SIMILAR TO THAT
 CONTAINED IN SECTION 8(B)(1)(A) OF THE NATIONAL LABOR RELATIONS ACT.
 THE NATIONAL LABOR RELATIONS BOARD, WITH COURT APPROVAL, HAS CONCLUDED
 THAT WHILE SECTION 8(B)(1)(A) ASSURES A UNION FREEDOM OF SELF REGULATION
 WHERE LEGITIMATE INTERNAL AFFAIRS ARE CONCERNED, SUCH FREEDOM OF
 REGULATION DOES NOT EXTEND TO, OR ENCOMPASS, THE IMPOSITION OF PENALTIES
 FOR UTILIZING OR PARTICIPATING IN THE PROCESSES OF THE NATIONAL LABOR
 RELATIONS BOARD.  NLRB V. INTERNATIONAL UNION MARINE & SHIPBUILDING
 WORKERS OF AMERICA, SUPRA.  ACCORDINGLY, CONTRARY TO THE POSITION OF
 RESPONDENT, I FIND THAT UNDER ALL THE CIRCUMSTANCES PRESENT HEREIN, THE
 REMOVAL OF A UNION STEWARD FOR UTILIZING OR PARTICIPATING IN THE
 AUTHORITY'S PROCESSES IS COGNIZABLE UNDER SECTION 7116(B) OF THE
 STATUTE.  CF. SHEET METAL WORKER'S INTERNATIONAL ASSOCIATION, 246 NLRB
 NO. 50.
 
    FINALLY, WITH RESPECT TO RESPONDENT'S LAST PROCEDURAL ARGUMENT, I
 FIND, CONTRARY TO THE CONTENTION OF RESPONDENT, THAT THE AUTHORITY DOES
 HAVE JURISDICTION, DESPITE THE FACT THAT MR. MODIN'S TESTIMONY WAS GIVEN
 IN A HEARING ALLEGING VIOLATIONS OF EXECUTIVE ORDER 11491, AS AMENDED,
 AND NOT THE STATUTE.  THUS, IT IS NOTED THAT ON JANUARY 11, 1979, THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE BECAME EFFECTIVE AND
 THE FEDERAL LABOR RELATIONS AUTHORITY ASSUMED THE DUTIES AND
 RESPONSIBILITIES OF THE ASSISTANT SECRETARY OF LABOR.  THEREAFTER ALL
 HEARINGS WERE CONDUCTED UNDER THE AUSPICES OF THE AUTHORITY AND THE
 AUTHORITY BECAME RESPONSIBLE FOR ASSURING THE INTEGRITY OF ITS
 PROCESSES.  ACCORDINGLY, INASMUCH AS THE JANUARY 18, 1979 HEARING
 ALLEGING VIOLATIONS OF THE EXECUTIVE ORDER WAS SANCTIONED BY THE
 AUTHORITY PURSUANT TO THE POWERS GRANTED IT BY THE STATUTE, THE HEARING
 OF JANUARY 18, 1979, FALLS WITHIN THE PROTECTION OF THE STATUTE.
 
    IN VIEW OF THE ABOVE CONCLUSIONS AND BASED PRIMARILY ON THE ADMISSION
 OF MR. BRAVERMAN THAT MR. MODIN'S TESTIMONY AT THE JANUARY 18, 1979,
 HEARING ENTERED INTO HIS DECISION TO REPLACE MR. MODIN AS UNION STEWARD,
 I FIND THAT RESPONDENT VIOLATED SECTION 7116(B)(1) OF THE STATUTE.  THE
 FACT THAT MR. BRAVERMAN MAY HAVE HAD OTHER LEGITIMATE GROUNDS FOR
 REMOVING MR. MODIN AND HAD INDEED ATTEMPTED TO SECURE A REPLACEMENT IN
 THE PAST DOES NOT ALTER THIS CONCLUSION.  IT WAS ONLY AFTER MR. MODIN
 TESTIFIED THAT MR. BRAVERMAN DECIDED TO REMOVE HIM FROM THE POSITION OF
 UNION STEWARD, DESPITE THE ABSENCE OF A SUITABLE REPLACEMENT.
 ACCORDINGLY, IT IS CONCLUDED THAT BUT FOR MR. MODIN'S TESTIMONY HE WOULD
 NOT HAVE BEEN REMOVED FROM HIS POSITION OF UNION STEWARD ON MARCH 21,
 1979.
 
    FURTHER, CONTRARY TO THE CONTENTION OF THE GENERAL COUNSEL, I FIND
 THAT MR. BRAVERMAN'S ACTION IN THE ABOVE RESPECT DID NOT CONSTITUTE A
 VIOLATION OF SECTION 7116(B)(3).  SECTION 7116 (B)(3) PROHIBITS COERCION
 OR ANY OTHER DISCIPLINE BY A UNION DESIGNED TO HINDER OR IMPEDE AN
 EMPLOYEE'S WORK PERFORMANCE.  INASMUCH AS THE REMOVAL OF MR. MODIN FROM
 THE POSITION OF UNION STEWARD WAS UNRELATED TO, AND NOT DESIGNED TO
 INTERFERE WITH, MR. MODIN'S WORK PERFORMANCE, INSUFFICIENT BASIS EXISTS
 FOR A SECTION 7116(B)(3) FINDING.
 
    HAVING FOUND THAT RESPONDENT VIOLATED SECTION 7116(B)(1) OF THE
 STATUTE, I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING:
 
                                   ORDER
 
    PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL LABOR-MANAGEMENT
 RELATIONS STATUTE AND SECTION 2423.29 OF THE FINAL RULES AND
 REGULATIONS, IT IS HEREBY ORDERED THAT THE NATIONAL TREASURY EMPLOYEES
 UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 53 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERFERING, RESTRAINING OR COERCING ITS MEMBERS IN THE EXERCISE
 OF THEIR RIGHTS GUARANTEED IN THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE BY REMOVING A MEMBER FROM THE POSITION OF UNION
 STEWARD BECAUSE HE GAVE TESTIMONY IN A HEARING CONDUCTED UNDER THE
 AUSPICES OF THE FEDERAL LABOR RELATIONS AUTHORITY.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING 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 CARRY OUT THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) REINSTATE MR. HERMAN MODIN TO HIS POSITION OF UNION SHOP STEWARD,
 BROOKLYN DISTRICT OFFICE.
 
    (B) POST AT THE BUSINESS OFFICE OF NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 53, AND IN NORMAL MEETING PLACES, INCLUDING ALL PLACES WHERE
 NOTICES TO MEMBERS OF THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 53,
 ARE CUSTOMARILY POSTED, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX"
 ON FORMS TO BE FURNISHED BY THE AUTHORITY.  UPON RECEIPT OF SUCH FORMS,
 THEY SHALL BE SIGNED BY THE PRESIDENT OF NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 53, AND SHALL BE POSTED FOR 60 CONSECUTIVE DAYS
 THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
 MEMBERS ARE CUSTOMARILY POSTED.  REASONABLE STEPS SHALL BE TAKEN TO
 INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    (C) SUBMIT SIGNED COPIES OF SAID NOTICE TO THE INTERNAL REVENUE
 SERVICE FOR POSTING IN CONSPICUOUS PLACES WHERE MEMBERS OF CHAPTER 53,
 NTEU, ARE LOCATED, WHERE THEY SHALL BE MAINTAINED FOR A PERIOD OF 60
 CONSECUTIVE DAYS FROM THE DATE OF POSTING.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE FINAL RULES AND REGULATIONS,
 NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS
 FROM THE DATE OF HIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY
 HEREWITH.
 
                            BURTON S. STERNBURG
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JULY 15, 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 MEMBERS THAT:
 
    WE WILL NOT INTERFERE, RESTRAIN OR COERCE OUR MEMBERS IN THE EXERCISE
 OF THEIR RIGHTS ASSURED IN THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE BY REMOVING A MEMBER FROM THE POSITION OF UNION
 STEWARD BECAUSE HE GAVE TESTIMONY IN A HEARING CONDUCTED UNDER THE
 AUSPICES OF THE FEDERAL LABOR RELATIONS AUTHORITY.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE, RESTRAIN OR
 COERCE OUR MEMBERS IN THE EXERCISE OF THE RIGHTS ASSURED BY THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL REINSTATE MR. HERMAN MODIN TO HIS POSITION OF UNION SHOP
 STEWARD, BROOKLYN DISTRICT OFFICE.
 
                                  (UNION)
 
    DATED:  BY:
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR SIXTY (60) CONSECUTIVE DAYS FROM
 THE DATE OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OF COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:  ROOM
 241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007 AND WHOSE TELEPHONE
 NUMBER IS (212) 264-4934.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ MR. BRAVERMAN ACKNOWLEDGED THAT IN HIS PRE-HEARING AFFIDAVIT
 SUBMITTED TO THE GENERAL COUNSEL HE DID NOT USE THE WORD "FRAUDULENT"
 WHEN DISCUSSING THE REASONS FOR HIS REMOVAL OF MR. MODIN.  THUS, IN HIS
 AFFIDAVIT, MR. BRAVERMAN SET FORTH AS THE GROUNDS FOR MR. MODIN'S
 REMOVAL, MR. MODIN'S PAST PERFORMANCE AND TESTIMONY IN THE PRIOR UNFAIR
 LABOR PRACTICE PROCEEDING.
 
    /2/ IN VIEW OF MR. BRAVERMAN'S ADMISSION THAT MR. MODIN'S TESTIMONY
 DID IN FACT PLAY A PART IN HIS DECISION TO REMOVE MR. MODIN FROM HIS
 POSITION AS UNION STEWARD, I DEEM IT UNNECESSARY TO RESOLVE THE CONFLICT
 IN TESTIMONY OF MR. HORN AND MR. FERRIS.