Internal Revenue Service and Brooklyn District Office (Respondent) and National Treasury Employees Union (Charging Party) 

 



[ v06 p642 ]
06:0642(111)CA
The decision of the Authority follows:


 6 FLRA No. 111
 
 INTERNAL REVENUE SERVICE
 AND BROOKLYN DISTRICT OFFICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 2-CA-72
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
 AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD
 ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 19(A)(1) AND (2)
 OF EXECUTIVE ORDER 11491, AS AMENDED, AND RECOMMENDING THAT IT CEASE AND
 DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS.  NO EXCEPTIONS
 WERE FILED BY EITHER PARTY.
 
    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 2423.1 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
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO
 PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON
 CONSIDERATION OF THE JUDGE'S RECOMMENDED DECISION AND ORDER AND THE
 ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
 CONCLUSIONS, AND RECOMMENDATIONS.  /1/
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7125(B) OF THE STATUTE,
 THE AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE, BROOKLYN
 DISTRICT OFFICE, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERFERING WITH OR DISCOURAGING, BY IMPLIED THREATS OR
 OTHERWISE, WILLIAM R. MOULDER OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
 RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
 
    (B) REVIEWING, ADVERSELY RATING OR CRITICIZING THE WORK PERFORMANCE
 OF WILLIAM R. MOULDER OR ANY OTHER EMPLOYEE, BECAUSE ANY SUCH EMPLOYEE
 HAS FILED A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.
 
    (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSE AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
 
    (A) REMOVE THE ANALYSIS OF REVIEW OF CASE ASSIGNMENTS OF WILLIAM R.
 MOULDER, DATED NOVEMBER 6, 1978 (FORMS 5188 AND 5188-A) AND THE ENSUING
 60-DAY LETTER, DATED NOVEMBER 9, 1978, AND ALL REFERENCES THERETO, FROM
 ITS RECORDS.
 
    (B) POST AT ALL OFFICES OF THE BROOKLYN DISTRICT OF THE INTERNAL
 REVENUE SERVICE COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED
 BY THE AUTHORITY.  UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY
 THE DISTRICT DIRECTOR, BROOKLYN DISTRICT, AND SHALL BE POSTED AND
 MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
 PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED, INCLUDING, BUT NOT LIMITED TO, THE
 MINEOLA, SMITHTOWN AND RIVERHEAD BRANCH OFFICES.  THE DISTRICT DIRECTOR
 SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID NOTICES ARE NOT ALTERED,
 DEFACED OR COVERED BY ANY OTHER MATERIAL.
 
    (C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION II, FEDERAL LABOR
 RELATIONS AUTHORITY IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 21, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
                          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 INTERFERE WITH OR DISCOURAGE, BY IMPLIED THREATS OR
 OTHERWISE, WILLIAM R. MOULDER OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
 RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
 
    WE WILL NOT REVIEW, ADVERSELY RATE OF CRITICIZE THE WORK PERFORMANCE
 OF WILLIAM R. MOULDER OR ANY OTHER EMPLOYEE, BECAUSE ANY SUCH EMPLOYEE
 HAD FILED A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITE, RESTRAIN OR
 COERCE EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE EXECUTIVE ORDER
 11491, AS AMENDED.
 
    WE WILL REMOVE THE ANALYSIS OF REVIEW OF CASE ASSIGNMENTS OF WILLIAM
 R. MOULDER, DATED NOVEMBER 6, 1978 (FORMS 5188 AND 5188-A) AND THE
 ENSUING 60-DAY LETTER, DATED NOVEMBER 9, 1978, AND ALL REFERENCES
 THERETO, FROM ALL RECORDS OF THE INTERNAL REVENUE SERVICE.
 
                           (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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR, REGION II, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS
 IS:  ROOM 241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10278, AND WHOSE
 TELEPHONE NUMBER IS:  (212) 264-4934.
 
 
 
 
 
 -------------------- ALJ DECISION FOLLOWS --------------------
 
    ALAN HORN, ESQUIRE
    (THEODORE E. DAVIS, ESQUIRE
    ROBERT F. HERMANN, ESQUIRE
    ON BRIEF)
    FOR THE RESPONDENT
 
    RONI SCHNITZER, ESQUIRE
    ROBERT WARNER, ESQUIRE
 
    JAMES E. PETRUCCI, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    MR. DAVID H. LIPTON
    MR. GEORGE BRAVERMAN
    FOR THE CHARGING PARTY
 
    BEFORE:  WILLIAM B. DEVANEY
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS PROCEEDING, UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREINAFTER
 ALSO REFERRED TO AS THE "ORDER"), WAS INITIATED BY A CHARGE UNDER THE
 ORDER FILED WITH RESPONDENT ON, OR ABOUT, FEBRUARY 1, 1979 (G.C. EXH.
 A(A)) (ALSO REFERRED TO AS A PRE-COMPLAINT CHARGE, FILED PURSUANT TO 29
 C.F.R. 203.2(A)(1) OF THE RULES AND REGULATIONS OF THE ASSISTANT
 SECRETARY FOR LABOR-MANAGEMENT RELATIONS, AS DISTINGUISHED FROM A CHARGE
 UNDER THE STATUTE, PURSUANT TO 5 C.F.R. 2423.6(A)) ALLEGING AN UNFAIR
 LABOR PRACTICE ON AND AFTER OCTOBER 24, 1978.  RESPONDENT'S FINAL
 DECISION ON THE PRE-COMPLAINT CHARGE WAS ISSUED ON APRIL 25, 1979 (G.C.
 EXH. 1(B)), AND CHARGING PARTY FILED A CHARGE WITH THE REGIONAL DIRECTOR
 ON JUNE 11, 1979 (G.C. EXH. 1(C)), A FIRST AMENDED CHARGE ON JULY 23,
 1979 (G.C. EXH. 1(E)), A SECOND AMENDED CHARGE ON JULY 27, 1979 (G.C.
 EXH. 1(G)), AND A THIRD AMENDED CHARGE ON DECEMBER 18, 1979 (G.C. EXH.
 1(I)).  ON APRIL 30, 1980, THE COMPLAINT AND NOTICE OF HEARING ISSUED
 (G.C. EXH. 1(K)).
 
    THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT ON OR ABOUT OCTOBER 24,
 1978, RESPONDENT INTERROGATED UNIT EMPLOYEE WILLIAM MOULDER CONCERNING
 HIS HAVING SIGNED A GRIEVANCE;  MADE DISPARAGING REMARKS TO HIM BECAUSE
 HE HAD SIGNED A GRIEVANCE;  THREATENED HIM WITH AN IN-DEPTH REVIEW OF
 HIS WORK PERFORMANCE BECAUSE HE HAD SIGNED THE GRIEVANCE;  BETWEEN
 OCTOBER 24, 1978, AND NOVEMBER 9, 1978, RESPONDENT CONDUCTED AN IN-DEPTH
 REVIEW OF EMPLOYEE MOULDER'S WORK PERFORMANCE BECAUSE HE HAD SIGNED THE
 GRIEVANCE;  AND ON OR ABOUT NOVEMBER 9, 1979, RESPONDENT ISSUED A 60 DAY
 LETTER OF INEFFICIENCY TO EMPLOYEE MOULDER IN RETALIATION FOR HIS HAVING
 SIGNED THE GRIEVANCE, WHICH CONDUCT VIOLATED SECTIONS 19(A)(1) AND (2)
 OF THE ORDER.  THE COMPLAINT WAS NOT AMENDED NOR WAS ANY MOTION TO AMEND
 THE COMPLAINT MADE AT THE HEARING.  ACCORDINGLY, IN AGREEMENT WITH
 RESPONDENT (RESPONDENT'S BRIEF, P. 14), ONLY THE UNFAIR LABOR PRACTICES
 ALLEGED IN THE COMPLAINT WILL BE CONSIDERED.  /2/
 
    TRANSITION RULES AND REGULATIONS WERE ISSUED BY THE AUTHORITY ON
 DECEMBER 26, 1978, AND PUBLISHED IN THE FEDERAL REGISTER ON JANUARY 2,
 1979 (FED. REG., VOL. 44, NO. 1, 5 C.F.R. 2400.21) WHICH PROVIDED IN
 RELEVANT PART THAT " . . . ALL UNFAIR LABOR PRACTICE CASES FILED WITH
 THE AUTHORITY ON OR AFTER JANUARY 11, 1979, BASED ON OCCURRENCES PRIOR
 TO JANUARY 22, 1979, SHALL BE PROCESSED BY THE AUTHORITY IN ACCORDANCE
 WITH THE RULES AND REGULATIONS OF THE OFFICE OF THE ASSISTANT SECRETARY
 FOR LABOR-MANAGEMENT RELATIONS, TITLE 29, CODE OF FEDERAL REGULATIONS,
 PART 201, ET SEQ. . . . " ON JULY 30, 1979, THE AUTHORITY PUBLISHED
 INTERIM RULES AND REGULATIONS, FED. REG., VOL. 44, NO. 147, EFFECTIVE
 JULY 30, 1979, WHICH AMENDED SEC. 2400.2 OF THE TRANSITION RULES AND
 REGULATIONS TO DELETE PROVISIONS FOR THE PROCESSING OF ALL UNFAIR LABOR
 PRACTICE CASES FILED WITH THE AUTHORITY ON OR AFTER JANUARY 11, 1979,
 BASED ON OCCURRENCES PRIOR TO JANUARY 11, 1979, THE PORTION UNDERSCORED
 ABOVE.  AS A RESULT, UNFAIR LABOR PRACTICES FILED WITH THE AUTHORITY
 AFTER JANUARY 11, 1979, BASED ON OCCURRENCES PRIOR TO JANUARY 11, 1979,
 WERE MADE SUBJECT TO PART 2423 OF THE INTERIM RULES AND REGULATIONS
 RATHER THAN BEING PROCESSED UNDER THE RULES AND REGULATIONS OF THE
 ASSISTANT SECRETARY.  /3/ ACCORDINGLY, ON APRIL 30, 1980, THE REGIONAL
 DIRECTOR ISSUED A COMPLAINT AND NOTICE OF HEARING (G.C. EXH. 1(K)),
 PURSUANT TO WHICH A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED IN NEW
 YORK CITY ON JULY 16 AND 17, 1980.
 
    ALL PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
 INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN AND WERE
 AFFORDED THE OPPORTUNITY TO PRESENT ORAL ARGUMENT.  AT THE CONCLUSION OF
 THE HEARING, AUGUST 18, 1980, WAS FIXED AS THE DATE FOR MAILING
 POST-HEARING BRIEFS, WHICH TIME WAS SUBSEQUENTLY EXTENDED TO SEPTEMBER
 19, 1980.  COUNSEL FOR THE GENERAL COUNSEL AND FOR RESPONDENT TIMELY
 FILED 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, CONCLUSIONS
 AND RECOMMENDED ORDER:
 
                            PRELIMINARY MATTERS
 
    1.  RESPONDENT'S MOTION FOR A PROTECTIVE ORDER.
 
    ON AUGUST 15, 1980, RESPONDENT FILED A MOTION FOR A PROTECTIVE ORDER,
 DATED AUGUST 12, 1980, WHICH REQUESTED THAT, " . . . TAXPAYER NAMES . .
 . NOT BE PUBLISHED IN THE RECOMMENDED DECISION AND ORDER OF THE
 ADMINISTRATIVE LAW JUDGE OR IN ANY ULTIMATE DECISION OR ORDER." NO
 OPPOSITION WAS FILED.
 
    RESPONDENT'S MOTION IS HEREBY GRANTED /4/ AND NO TAXPAYER NAMES WILL
 BE DISCLOSED HEREIN.
 
    2.  RESPONDENT'S MOTION TO DISMISS COMPLAINT AS UNTIMELY AND/OR
 BARRED BY THE DOCTRINE OF LACHES.
 
    A) TIMELINESS OF COMPLAINT
 
    SECTION 7118(A)(4)(A) OF THE STATUTE, 5 U.S.C. 7118(A)(4)(A),
 PROVIDES THAT NO COMPLAINT SHALL BE ISSUED BASED ON ANY ALLEGED UNFAIR
 LABOR PRACTICE WHICH OCCURRED MORE THAN SIX MONTHS BEFORE THE FILING OF
 THE CHARGE WITH THE AUTHORITY.  HERE, THE INITIAL CHARGE WAS FILED WITH
 THE AUTHORITY ON JUNE 11, 1979, NEARLY EIGHT MONTHS AFTER THE ALLEGED
 UNFAIR LABOR PRACTICE OF OCTOBER 24, 1978, AND SEVEN MONTHS AFTER THE
 ALLEGED UNFAIR LABOR PRACTICE OF NOVEMBER 9, 1918.  IT IS ALSO TRUE THAT
 THE AUTHORITY IN ITS NOTICE OF MARCH 7, 1979, REFERRED TO IN FOOTNOTE 2,
 SUPRA, HAD FURTHER STATED, IN PART, AS FOLLOWS:
 
    "(2) WITH REFERENCE TO THE PRACTICE OF FILING CHARGES DIRECTLY WITH
 THE PARTY OR PARTIES
 
    AGAINST WHOM THE CHARGES ARE DIRECTED, BEFORE THE FILING OF CHARGES
 WITH THE AUTHORITY,
 
    SECTION 7118(A)(1) OF THE STATUTE (91 STAT. 1207) . . . PROVIDES
 SIMPLY FOR THE FILING OF A
 
    CHARGE WITH THE AUTHORITY BEFORE THE ISSUANCE OF A COMPLAINT BY THE
 GENERAL COUNSEL.  THERE IS
 
    NO REQUIREMENT FOR A 'PRE-CHARGE' CHARGE AND THE CURRENT PRACTICE OF
 REQUIRING SUCH A CHARGE
 
    WILL NO LONGER BE FOLLOWED . . . "
 
    FOR REASONS FULLY STATED IN ITS BRIEF (RESPONDENT'S BRIEF, PP.
 8-12), RESPONDENT ASSERTS THAT,
 
    " . . . THE SUBJECT COMPLAINT SHOULD BE DISMISSED ON THE BASIS OF 5
 U.S.C. 7118(A)(4) AND
 
    7135(B).  SECTION 7118(A)(4)(A) CLEARLY ESTABLISHED A SIX MONTH
 LIMITATION PERIOD FOR CHARGES
 
    FILED WITH THE AUTHORITY.  NTEU DID NOT FILE A CHARGE WITH THE
 AUTHORITY UNTIL JUNE 11, 1979,
 
    MORE THAN SIX MONTHS AFTER THE LAST ACT, ON NOVEMBER 9, 1978,
 ALLEGEDLY CONSTITUTING AN UNFAIR
 
    LABOR PRACTICE." (RESPONDENT'S BRIEF, PP. 10-11).
 
    I DO NOT AGREE.  WHILE RESPONDENT IS ENTIRELY CORRECT THAT
 7118(A)(4)(A) OF THE STATUTE PROVIDES THAT NO COMPLAINT SHALL BE ISSUED
 BASED ON ANY ALLEGED UNFAIR LABOR PRACTICE WHICH OCCURRED MORE THAN SIX
 MONTHS BEFORE THE FILING OF THE CHARGE WITH THE AUTHORITY, 7135(B) OF
 THE STATUTE SPECIFICALLY PROVIDED THAT, "POLICIES, REGULATIONS, AND
 PROCEDURES ESTABLISHED UNDER . . . EXECUTIVE ORDERS 11491 . . . AS IN
 EFFECT ON THE EFFECTIVE DATE OF THIS CHAPTER, SHALL REMAIN IN FULL FORCE
 AND EFFECT UNTIL REVISED OR REVOKED BY THE PRESIDENT, OR UNLESS
 SUPERSEDED BY SPECIFIC PROVISIONS OF THIS CHAPTER OR BY REGULATIONS . .
 . ISSUED PURSUANT TO THIS CHAPTER." BY ITS TRANSITION RULES AND
 REGULATIONS, THE AUTHORITY PROVIDED THAT "UNFAIR LABOR PRACTICE CASES
 FILED WITH THE AUTHORITY ON OR AFTER JANUARY 11, 1979, BASED ON
 OCCURRENCES PRIOR TO JANUARY 11, 1979, SHALL BE PROCESSED BY THE
 AUTHORITY IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE OFFICE OF
 THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS, TITLE 29 CODE OF
 FEDERAL REGULATIONS, PART 201 ET SEQ. . . . " THIS PROCEEDING WAS
 INITIATED BY THE CHARGE OF FEBRUARY 1, 1979, FILED, AS REQUIRED BY THE
 THEN APPLICABLE RULES AND REGULATIONS OF THE ASSISTANT SECRETARY, WITH
 RESPONDENT.  HAVING BEEN INITIATED UNDER THE RULES AND REGULATIONS OF
 THE ASSISTANT SECRETARY SPECIFICALLY MADE APPLICABLE BY THE AUTHORITY'S
 TRANSITION RULES AND REGULATIONS, THE CHARGE WAS PROPERLY AND TIMELY
 FILED WITH RESPONDENT ON FEBRUARY 1, 1979, AND WAS TIMELY FILED WITE THE
 AUTHORITY ON JUNE 11, 1979, FOLLOWING RESPONDENT'S FINAL DECISION OF
 APRIL 25, 1979, I.E., WITHIN 60 DAYS FROM THE DATE OF SERVICE OF THE
 FINAL DECISION AND WITHIN NINE MONTHS OF THE OCCURRENCE OF THE ALLEGED
 UNFAIR LABOR PRACTICE AS PROVIDED IN 202.2(B)(2) AND (3) OF THE RULES
 AND REGULATIONS OF THE ASSISTANT SECRETARY, PURSUANT TO WHICH THIS
 MATTER HAD BEEN TIMELY INITIATED ON FEBRUARY 1, 1979.  I FIND NOTHING IN
 THE AUTHORITY'S NOTICE OF MARCH 7, 1979 THAT PURPORTS TO AFFECT
 "PRE-CHARGE" CHARGES FILED PRIOR TO MARCH 7, 1979 (OR MARCH 13, 1979,
 THE DATE PUBLISHED IN THE FEDERAL REGISTER).  TO THE CONTRARY, THE
 AUTHORITY'S NOTICE SIMPLY STATED, " . . . THE CURRENT PRACTICE OF
 REQUIRING SUCH A CHARGE WILL NO LONGER BE FOLLOWED . . . " INDEED, IT
 WAS NOT UNTIL THE INTERIM RULES AND REGULATIONS WERE ISSUED ON JULY 30,
 1979, THAT THE AUTHORITY DELETED THE PORTION OF THE TRANSITION RULES AND
 REGULATIONS WHICH HAD MADE APPLICABLE THE RULES AND REGULATIONS OF THE
 ASSISTANT SECRETARY AND, OF COURSE, ON JUNE 11, 1979, PRIOR TO THE
 ISSUANCE OF THE INTERIM RULES AND REGULATIONS, THE INITIAL CHARGE HAD
 BEEN FILED WITH THE AUTHORITY.
 
    ACCORDINGLY, IN FULL AGREEMENT WITH THE DECISION OF JUDGE STERNBURG,
 IN NATIONAL LABOR RELATIONS BOARD, REGION 1, BOSTON, MASSACHUSETTS AND
 RONALD LASKY, 1-CA-28 (ALJ, MAY 14, 1980), I FIND THAT THE CHARGE HEREIN
 WAS TIMELY FILED.
 
    B) DEFENSE OF LACHES
 
    THE DEFENSE OF LACHES IS NOT AVAILABLE AGAINST THE AUTHORITY IN
 ACTIONS BY IT TO ENFORCE A PUBLIC INTEREST UNDER THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE.  CF.  W.C. NABORS COMPANY, 134 NLRB
 1078(1961);  BURNS AND GILLESPIE, 113 NLRB 443, 437(1955);  HIGHLAND
 PARK MANUFACTURING COMPANY, 84 NLRB 744, 746(1949);  STANDARD OIL
 COMPANY OF CALIFORNIA, 61 NLRB 1251, 1255 (1945).  HOWEVER, EVEN IF THE
 DEFENSE OF LACHES WERE AVAILABLE, RESPONDENT HAS NOT SHOWN GROUNDS
 ESSENTIAL TO INVOCATION OF THE DEFENSE, INTER ALIA, THAT A CHANGE IN
 CONDITION HAS OCCURRED WHICH WOULD RENDER IT INEQUITABLE TO ENFORCE THE
 CLAIM.  C.J.S. EQUITY 112.  IT IS TRUE, OF COURSE, THAT THE INITIAL
 CHARGE WAS FILED WITH THE AUTHORITY ON JUNE 11, 1979, AND THAT THE
 COMPLAINT WAS NOT ISSUED UNTIL APRIL 30, 1980.  THERE WERE NEITHER
 UNEXPLAINED TIME LAPSES NOR CIRCUMSTANCES PERMITTING UTMOST DILIGENCE.
 THE STATUTE WHICH CREATED THE AUTHORITY, ENACTED OCTOBER 13, 1978,
 BECAME EFFECTIVE JANUARY 11, 1979;  BUT CONSIDERABLE TIME WAS TO PASS
 BEFORE THERE WAS A GENERAL COUNSEL, BEFORE THERE WERE INTERIM
 REGULATIONS, AND OF COURSE, BEFORE A STAFF, ESSENTIAL TO PERFORMANCE OF
 THE DUTIES UNDER THE STATUTE AND THE REGULATIONS, WAS IN PLACE TO
 CONDUCT INVESTIGATIONS AND TO ISSUE COMPLAINTS.  MORE IMPORTANT, NO
 CHANGE IN CONDITION OCCURRED.  THE CHARGE FILED ON FEBRUARY 1, 1979,
 WITH RESPONDENT AND ON JUNE 11, 1979, WITH THE AUTHORITY HAD FULLY
 ADVISED RESPONDENT OF THE UNFAIR LABOR PRACTICE ASSERTED AND THERE IS
 NOTHING IN THE RECORD WHICH INDICATES, OR EVEN SUGGESTS, THAT RESPONDENT
 WAS PREJUDICED IN ANY MANNER IN THE PRESENTATION OF ITS DEFENSE.  /5/
 AMENDED CHARGES WERE FILED ON JULY 23, 27 AND DECEMBER 18, 1979;  BUT
 THE SUBSTANCE OF THE ALLEGATIONS, FIRST MADE IN THE CHARGE OF FEBRUARY
 1, 1979, REMAINED CONSISTENT.
 
    ACCORDINGLY, RESPONDENT'S DEFENSE OF LACHES IS REJECTED.
 
                         FINDINGS AND CONCLUSIONS
 
    A.  BACKGROUND
 
    THIS CASE CONCERNS THE MINEOLA OFFICE OF THE INTERNAL REVENUE
 SERVICE'S BROOKLYN DISTRICT.  THE CHARGING PARTY, NATIONAL TREASURY
 EMPLOYEES UNION, (HEREINAFTER ALSO REFERRED TO AS "NTEU") AND RESPONDENT
 (HEREINAFTER ALSO REFERRED TO AS "IRS") HAVE A HISTORY OF COLLECTIVE
 BARGAINING AND, AT ALL TIMES MATERIAL, WERE PARTIES TO A COLLECTIVE
 BARGAINING AGREEMENT COVERING A UNIT OF EMPLOYEES INCLUDING THE
 EMPLOYEES OF THE BROOKLYN DISTRICT.
 
    IN AUGUST, 1978, A CONSIDERABLE AMOUNT OF COLLECTION WORK WAS
 TRANSFERRED TO THE MINEOLA OFFICE FROM QUEENS, NEW YORK (SOMETIMES
 REFERRED TO AS THE "DUMP JOB") WHICH INVOLVED SOME 21 OR 22 ZIP CODES IN
 QUEENS COUNTY.  AT APPROXIMATELY THE SAME TIME, SOME WORK WAS
 TRANSFERRED FROM THE MINEOLA OFFICE TO THE SMITHTOWN OFFICE;  /6/
 HOWEVER, THE OVERALL RESULT OF THE TRANSFER OF COLLECTION WORK TO
 MINEOLA WAS THAT THE CASE LOAD OF EACH REVENUE OFFICER IN THE MINEOLA
 OFFICE WAS ROUGHLY DOUBLED.
 
    MR. RUPPERT GILL IS, AND HAS BEEN SINCE DECEMBER, 1977, FIELD BRANCH
 CHIEF IN THE MINEOLA OFFICE.  MR. GILL'S BRANCH INCLUDES THE MINEOLA
 OFFICE, THE SMITHTOWN OFFICE AND THE RIVERHEAD OFFICE.  HIS BRANCH
 CONSISTS OF SEVEN GROUPS OF WHICH M-1, M-2, AND M-3 WERE AT MINEOLA AND
 EACH GROUP HAD APPROXIMATELY 13 REVENUE OFFICERS.  MR. DANIEL E. GRIFFIN
 WAS, AND IS, A GROUP MANAGER IN THE MINEOLA OFFICE, HAVING BEEN GROUP
 MANAGER OF GROUP M-3 FOR ABOUT 2 1/2 YEARS, AND BOTH BEFORE AND AFTER
 THIS PERIOD WAS GROUP MANAGER OF GROUP M-2.
 
    MR. WILLIAM R. MOULDER IS A GS-11 REVENUE OFFICER WHO HAS BEEN
 EMPLOYED BY IRS NEARLY 20 YEARS.  MR. MOULDER WAS IN GROUP M-3 AT ALL
 TIMES MATERIAL AND WAS UNDER THE SUPERVISION OF MR. GRIFFIN FOR THE
 PERIOD, ABOUT 2 1/2 YEARS, THAT MR. GRIFFIN WAS GROUP MANAGER OF GROUP
 M-3.
 
    MR. MOULDER TESTIFIED THAT MR. GILL WROTE A LETTER TO MR. DAWSON, THE
 COLLECTION CHIEF, COMPLAINING ABOUT THE SO CALLED DUMP JOB AND BOTH MR.
 MOULDER AND MR.  JAMES HUSSEY, A FORMER REVENUE OFFICER IN GROUP M-3 NOW
 RETIRED AS THE RESULT OF A HEART ATTACK, EACH CREDIBLY TESTIFIED THAT
 MR. GRIFFIN HAD SUGGESTED TO MEMBERS OF GROUP M-3 THAT THEY SHOULD FILE
 A GRIEVANCE OVER THE MATTER (MOULDER, TR. 19;  HUSSEY TR. 211-212).  MR.
 GRIFFIN DID NOT DENY THE STATEMENT ATTRIBUTED TO HIM.  ON OCTOBER 23,
 1918, A MASS GRIEVANCE WAS FILED BY THE REVENUE OFFICERS OF GROUP M-3
 (JT. EXH. 1) AND OF GROUP M-2 (RES. EXH. 11).  NOTWITHSTANDING HIS PRIOR
 ENCOURAGEMENT OF JUST SUCH ACTION, WHEN THE MASS GRIEVANCE WAS FILED BY
 THE REVENUE OFFICERS OF HIS GROUP, M-3, MR. GRIFFIN, OBVIOUSLY ANGERED,
 REACTED HARSHLY, AS SET FORTH HEREINAFTER.
 
    B.  INTERROGATION OF WILLIAM R. MOULDER
 
    MR. MOULDER TESTIFIED THAT ON OCTOBER 24, 1978, THE DAY AFTER HE HAD
 SIGNED THE MASS GRIEVANCE, MR. GRIFFIN CALLED HIM TO HIS OFFICE, SHOWED
 HIM A COPY OF THE GRIEVANCE;  THAT MR. GRIFFIN ASKED HIM, "DID YOU READ
 THIS THING BEFORE SIGNING?" (TR. 20);  THAT HE RESPONDED, "YES, SIR.  IT
 APPEARS TO BE WELL-WRITTEN" (TR. 10);  AND THAT MR. GRIFFIN THEN SAID,
 
    "YOU DON'T NEED TO SIGN SOMETHING LIKE THAT.  YOU DON'T HAVE TO LIE
 DOWN WITH THESE
 
    SHIT-HEADS AND WHORES.  YOU DON'T NEED THE UNION, YOUR WORK IS GOOD.
 YOUR WORK IS VERY GOOD.
 
   .          .          .          .
 
 
    " . . . "WELL, I HOPE YOU GUYS KNOW WHAT YOU'RE DOING.  NOW, I'LL
 HAVE TO GIVE YOU AN
 
    IN-DEPTH REVIEW." (TR. 20-21).  (SEE, ALSO TR. 183).
 
    MR. GRIFFIN DENIED THAT HE CALLED MR. MOULDER TO HIS OFFICE AND/OR
 THAT HE MADE ANY PRIVATE REMARKS TO MR. MOULDER REGARDING THE FILING OF
 THE MASS GRIEVANCE.  (TR. 303-304, 458).  MR. SPERLING, ALSO A REVENUE
 OFFICER IN GROUP M-3, TESTIFIED THAT HE WAS CALLED TO MR. GRIFFIN'S
 OFFICE AND WAS ASKED WHETHER HE HAD SIGNED THE GRIEVANCE, WHETHER HE HAD
 READ IT CAREFULLY AND WHETHER HE KNEW WHAT HE WAS SIGNING;  THAT HE HAD
 STATED, " . . . IT'S NOTHING PERSONNEL . . . I JUST SIGNED IT BECAUSE I
 FELT WE (SIC) UNMANAGEABLE CASE LOADS . . . " (TR. 220);  THAT MR.
 GRIFFIN READ AN EXCERPT AND ASKED, "'IS THIS REALLY AFFECTING YOUR
 HEALTH?'" (TR. 220).  MR. PAUL PETERSON, ANOTHER REVENUE OFFICER IN
 GROUP M-3, TESTIFIED THAT HE HAD A "COUNSELLING MEETING" WITH MR.
 GRIFFIN IN MR. GRIFFIN'S OFFICE AT WHICH MR. GRIFFIN ASKED, " . . . HAD
 I READ THIS GRIEVANCE?  DID I KNOW WHAT WAS IN IT.  WAS THE JOB MAKING
 ME SICK?", TO WHICH HE HAD REPLIED "'YES'" (TR. 235).  WITHOUT FURTHER
 BELABORING THE POINT /7/, I CREDIT MR. MOULDER'S TESTIMONY THAT MR.
 GRIFFIN DID CALL HIM TO HIS OFFICE ON OCTOBER 24, 1978;  THAT MR.
 GRIFFIN DID QUESTION HIM ABOUT THE GRIEVANCE;  THAT MR. GRIFFIN DID
 COMMENT TO THE EFFECT "I HOPE YOU KNOW WHAT YOU'RE DOING";  AND THAT MR.
 GRIFFIN THEN STATED THAT HE WOULD HAVE TO GIVE MR. MOULDER AN IN-DEPTH
 REVIEW, BY WHICH HE CLEARLY AND DIRECTLY IMPLIED, IF HE DID NOT STATE,
 BECAUSE HE HAD JOINED IN THE GRIEVANCE.  I CREDIT MR. MOULDER'S
 TESTIMONY, IN PART, BECAUSE IT IS CONSISTENT WITH AND SUPPORTED BY THE
 TESTIMONY OF MESSRS. SPERLING AND PETERSON WHICH MR. GRIFFIN DID NOT
 DENY BUT BY INFERENCE ADMITTED (TR. 458), AND, IN PART, BECAUSE, AS MORE
 FULLY SHOWN HEREINAFTER, MR. GRIFFIN, IF HE DID NOT THREATEN TO CONDUCT
 AN IN-DEPTH REVIEW OF MR. MOULDER ON OCTOBER 24 BECAUSE HE HAD FILED A
 GRIEVANCE, HE ADMITTED THAT HE DID SO THE FOLLOWING DAY, OCTOBER 25, AND
 AGAIN ON OCTOBER 30, 1978.  /8/
 
    C.  THREAT TO CONDUCT AN IN-DEPTH REVIEW OF WILLIAM R. MOULDER
 
    THERE IS NO DISPUTE THAT MR. GRIFFIN CALLED ALL REVENUE OFFICERS IN
 GROUP M-3 TO HIS OFFICE FOR A MEETING ON OCTOBER 25, 1978;  THAT HE WAS
 VERY AGITATED;  AND THAT, AS MR. GRIFFIN ADMITTED, HE TOLD THEM, " . . .
 I WAS UPSET ABOUT THE NATURE OF THEIR FILING A GRIEVANCE . . . I HAD
 RESENTED THE FACT THAT THEY DIDN'T COME TO ME AND TALK TO ME PRIOR TO
 FILING THE GRIEVANCE." (TR. 304).  MR. MOULDER TESTIFIED THAT MR.
 GRIFFIN STATED, "WHAT'S THE MATTER WITH YOU PEOPLE?  DID YOU ALL SIGN
 THIS GRIEVANCE WITHOUT LOOKING AT IT?" (TR.  23-24);  THAT MR. EDWARD
 SIMOWITZ SAID, "DAN, THIS ISN'T AGAINST YOU.  THIS IS A MASS GRIEVANCE.
 IT'S NOT AGAINST YOU, PERSONALLY" AND MR. GRIFFIN TOLD HIM TO "SHUT UP
 AND SIT DOWN AND KEEP QUIET." (TR. 24).  MR. MOULDER TESTIFIED THAT HE
 SAID, "WAIT A MINUTE, DAN.  WE'RE ENTITLED TO AN OPINION" BUT MR.
 GRIFFIN TOLD HIM TO SHUT UP AND SIT DOWN (TR. 24).  MR. MOULDER STATED
 THAT HE THEN ASKED MR. GRIFFIN ABOUT THE STATEMENT MR. GRIFFIN HAD MADE
 TO HIM (TR.  24).  MR. GRIFFIN ADMITTED THAT HE TOLD MR. MOULDER TO
 "KEEP QUIET.  DON'T INTERRUPT MY MEETING UNTIL I'M FINISHED." (TR. 305).
  MR. MOULDER FURTHER STATED THAT MR. GRIFFIN THEN TOLD THE GROUP, "FROM
 NOW ON, THERE'S GOING TO BE A DIFFERENT STORY.  I'M GOING TO USE THE
 DROP FILE AND I'M GOING TO MAKE IN-DEPTH REVIEWS." (TR. 24).  MR.
 MOULDER'S TESTIMONY WAS FULLY CORROBORATED BY THE TESTIMONY OF REVENUE
 OFFICERS HUSSEY, SPERLING, AMARI, PETERSON AND GIBBIA (TR.  211-212,
 221-223, 228-230, 235, 248-249) AND IS FULLY CREDITED.
 
    MR. GRIFFIN CALLED ANOTHER MEETING ON OCTOBER 30, 1978, AT WHICH TIME
 HE APOLOGIZED "FOR ANYTHING HOSTILE OR REMARKS THAT I MIGHT HAVE MADE
 THAT I MIGHT HAVE OFFENDED ANY OF THESE PARTICULAR PEOPLE" (TR. 307);
 HOWEVER, MR. GRIFFIN TOLD THE REVENUE OFFICERS ASSEMBLED THAT HE WAS,
 INDEED, GOING TO CONDUCT IN-DEPTH REVIEWS OF THEIR WORK AND INTENDED TO
 START WITH MR. MOULDER.  MR. GRIFFIN TESTIFIED THAT HE " . . . ANNOUNCED
 THAT I HAD TO MAKE A COMPLETE ANALYSIS OF EACH AND EVERY INDIVIDUAL
 REVENUE OFFICER'S WORK LOAD, AND I WAS GOING TO START WITH MR. MOULDER."
 (TR. 308).  ON CROSS EXAMINATION, MR. GRIFFIN WAS ASKED
 
    "Q.  (BY MR. PETRUCCI RESUMING) YOU WERE PRESENT YESTERDAY WHEN
 VARIOUS EMPLOYEES TESTIFIED
 
    THAT, IN FACT, IN OCTOBER OF 1978, YOU DID INDEED TELL THEM, THAT YOU
 WOULD NOW, AS A RESULT
 
    OF THE MASS GRIEVANCE, HAVE TO DO IN-DEPTH REVIEWS.  IS IT YOUR
 TESTIMONY THAT THEIR TESTIMONY
 
    IS UNTRUE.
 
    "A.  THE TESTIMONY THAT THEY GAVE YESTERDAY WAS CORRECT.  YOU ASKED
 ME IF IT IS UNTRUE--
 
    NO, IT IS NOT UNTRUE." (TR. 457-457).
 
    ACCORDINGLY, AS THE RECORD SHOWS, AND AS MR. GRIFFIN ADMITTED, I FIND
 THAT MR. GRIFFIN ON OCTOBER 25 AND 30, 1978, THREATENED TO CONDUCT
 IN-DEPTH REVIEWS OF THE WORK OF EACH REVENUE OFFICER BECAUSE THEY HAD
 FILED A GRIEVANCE AND THAT HE HAD STATED HE WAS GOING TO START WITH MR.
 MOULDER.
 
    IT IS BOTH ELEMENTAL AND FIRMLY SETTLED THAT PROTECTED ACTIVITY
 FLOWING FROM EXCLUSIVE REPRESENTATION BY A LABOR ORGANIZATION INCLUDES
 THE PROCESSING OF GRIEVANCES AND THAT ANY INTERFERENCE WITH THE RIGHT TO
 FILE GRIEVANCES CONSTITUTES AN UNFAIR LABOR PRACTICE IN VIOLATION OF
 19(A)(1) OF THE ORDER AND/OR IN VIOLATION OF 7116(A)(1) OF THE STATUTE.
 UNITED STATES DEPARTMENT OF TREASURY, BUREAU OF ALCOHOL, TOBACCO AND
 FIREARMS, CHICAGO, ILLINOIS, 3 FLRA NO. 116(1980);  DEPARTMENT OF
 DEFENSE, ARKANSAS NATIONAL GUARD, A/SLMR NO. 53, 1 A/SLMR 274(1971);
 UNITED STATES ARMY SCHOOL/TRAINING CENTER, FORT MCCLELLAN, ALABAMA,
 A/SLMR NO. 42, 1 A/SLMR 225(1971);  NATIONAL LABOR RELATIONS BOARD,
 REGION 17, AND NATIONAL LABOR RELATIONS BOARD, A/SLMR 295, 3 A/SLMR
 427(1973);  DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD,
 BREMERTON, WASHINGTON, A/SLMR NO. 582, 5 A/SLMR 699(1975);  DEPARTMENT
 OF TRANSPORTATION, AIRWAY FACILITIES SECTOR, TAMPA, FLORIDA, A/SLMR NO.
 725, 6 A/SLMR 521(1976);  FEDERAL AVIATION ADMINISTRATION, AIR TRAFFIC
 CONTROL TOWER, GREATER PITTSBURGH AIRPORT, PITTSBURGH, PENNSYLVANIA,
 A/SLMR NO. 920, 7 A/SLMR 907(1977);  UNITED STATES DEPARTMENT OF THE
 ARMY, FORT POLK, LOUISIANA, A/SLMR NO. 1100, 8 A/SLMR 860(1978).
 
    MR. GRIFFIN'S QUESTIONING OF MR. MOULDER ON OCTOBER 24 AS TO WHY HE
 HAD SIGNED THE MASS GRIEVANCE, HIS CRITICAL COMMENTS ABOUT THE GRIEVANCE
 AND THOSE WHO SIGNED IT, AND HIS THREAT TO SUBJECT MR. MOULDER TO AN
 IN-DEPTH REVIEW BECAUSE HE HAD SIGNED THE GRIEVANCE WAS INHERENTLY
 DESTRUCTIVE OF THE RIGHT ASSURED BY SECTION 1(A) OF THE ORDER, /9/
 "FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND
 ASSIST A LABOR ORGANIZATION .  . . " AND VIOLATED 19(A)(1) OF THE ORDER.
  AS NOTED ABOVE, I HAVE CREDITED MR. MOULDER'S TESTIMONY AND HAVE FOUND
 THAT MR. GRIFFIN DID HAVE A PERSONAL DISCUSSION WITH MR. MOULDER ON
 OCTOBER 24, BUT EVEN IF, AS RESPONDENT ASSERTS, MR. GRIFFIN HAD NOT HAD
 A PERSONAL MEETING WITH MR. MOULDER ON OCTOBER 24, MR. GRIFFIN ADMITTED
 THAT ON OCTOBER 25, 1978, AT A MEETING HE CALLED WITH ALL REVENUE
 OFFICERS IN HIS GROUP, M-3, HE TOLD THEM HE WAS "UPSET ABOUT THE NATURE
 OF THEM FILING A GRIEVANCE," ADMITTED THAT WHEN EMPLOYEES SOUGHT TO
 COMMENT HE TOLD THEM TO SHUT UP, AND ADMITTED THAT HE TOLD THEM THAT AS
 A RESULT OF THE MASS GRIEVANCE HE WOULD HAVE TO DO IN-DEPTH REVIEWS.  I
 FURTHER CREDIT MR.  MOULDER'S TESTIMONY, FULLY CORROBORATED BY THE
 TESTIMONY OF THE OTHER REVENUE OFFICERS PRESENT AT THE MEETING OF
 OCTOBER 25 WHO TESTIFIED, AND FURTHER FIND THAT MR. GRIFFIN STATED TO
 THE GROUP THAT BECAUSE THEY HAD FILED A GRIEVANCE "FROM NOW ONE (SIC),
 THERE'S GOING TO BE A DIFFERENT STORY.  I'M GOING TO USE THE DROP FILE
 AND I'M GOING TO MAKE IN-DEPTH REVIEWS." I AM AWARE THAT MR.  GRIFFIN
 TESTIFIED THAT HE TOLD THE ASSEMBLED REVENUE OFFICERS ON OCTOBER 25 THAT
 "I HAD RESENTED THE FACT THAT THEY DIDN'T COME TO ME AND TALK TO ME
 PRIOR TO FILING THE GRIEVANCE." IF MR. GRIFFIN HAD DONE NO MORE THAN
 EXPRESS DISAPPOINTMENT THAT THE EMPLOYEES HAD NOT "FOLLOWED THE CHAIN OF
 COMMAND" BY COMING TO HIM BEFORE FILING THE MASS GRIEVANCE IT MIGHT BE
 ARGUABLE THAT HIS COMMENT DID NOT VIOLATE THE ORDER, CF. VETERANS
 ADMINISTRATION MEDICAL AND REGIONAL OFFICE CENTER, WHITE RIVER JUNCTION,
 VERMONT, CASE NO. 1-CA-147 (ALJ, SEPTEMBER 19, 1980);  BUT, OF COURSE,
 MR. GRIFFIN WENT MUCH FURTHER.  HE TOLD THE REVENUE OFFICERS THAT
 BECAUSE OF THEIR GRIEVANCE, "FROM NOW ON (SIC) THERE'S GOING TO BE A
 DIFFERENT STORY.  I'M GOING TO USE THE DROP FILE AND I'M GOING TO MAKE
 IN-DEPTH REVIEWS." THUS, MR. GRIFFIN TOLD THE REVENUE OFFICERS THAT
 BECAUSE THEY HAD FILED A GRIEVANCE HE WAS GOING TO RETALIATE BY USING
 THE DROP FILE /10/ AND BY MAKING IN-DEPTH REVIEWS.  OBVIOUSLY, MR.
 GRIFFIN'S THREAT, OR PROMISE, OF ACTION IN RETALIATION FOR THEIR HAVING
 FILED A GRIEVANCE INTERFERED WITH THE RIGHT OF EACH EMPLOYEE, INCLUDING
 MR. MOULDER, TO FILE AND PROCESS GRIEVANCES AND VIOLATED 19(A)(1) OF THE
 ORDER.  NOR WAS MR. GRIFFIN'S STATEMENT ANY LESS VIOLATIVE OF THE ORDER
 BECAUSE HE THREATENED THE USE OF EXISTING MANAGEMENT TECHNIQUES.  THAT
 IS, EVEN IF IN-DEPTH REVIEWS, FOR EXAMPLE, WERE REGULARLY REQUIRED, /11/
 THE THREAT TO CONDUCT AN IN-DEPTH REVIEW BECAUSE AN EMPLOYEE, OR
 EMPLOYEES, HAD FILED A GRIEVANCE INTERFERED WITH THE RIGHT OF AN
 EMPLOYEE, OR EMPLOYEES, TO FILE AND PROCESS GRIEVANCES FREELY AND
 WITHOUT FEAR OF PENALTY OR REPRISAL.  ALTHOUGH THE FILING OF A GRIEVANCE
 DOES NOT, AND CAN NOT, INSULATE THE EMPLOYEE'S CASE HANDLING FROM FAIR
 COMMENT AND CRITICISM IN AN OTHERWISE APPROPRIATE APPRAISAL, CF.
 NATIONAL LABOR RELATIONS BOARD, REGION 17, AND NATIONAL LABOR RELATIONS
 BOARD, A/SLMR NO. 670, 6 A/SLMR 325, 331(1976);  NATIONAL LABOR
 RELATIONS BOARD, REGION 17, AND NATIONAL LABOR RELATIONS BOARD, A/SLMR
 NO. 671, 6 A/SLMR 333, 334, 6 A/SLMR SUPP. 102, 106(1976), AN APPRAISAL
 THREATENED BECAUSE AN EMPLOYEE FILED A GRIEVANCE OR ADVERSE CRITICISM IN
 AN APPRAISAL BECAUSE AN EMPLOYEE HAS FILED A GRIEVANCE DOES VIOLATE
 19(A)(1) OF THE ORDER.
 
    ON OCTOBER 30, 1978, MR. GRIFFIN APOLOGIZED FOR HIS HOSTILE REMARKS
 OF OCTOBER 25;  BUT HE AGAIN INFORMED THE ASSEMBLED REVENUE OFFICERS
 THAT HE WAS GOING TO CONDUCT IN-DEPTH REVIEWS OF THEIR WORK BECAUSE THEY
 HAD FILE THE GRIEVANCE AND HE WAS GOING TO BEGIN WITH MR.  MOULDER.  MR.
 GRIFFIN'S STATEMENT ON OCTOBER 30, 1978, WAS, AS MATERIAL, A REITERATION
 OF HIS OCTOBER 25, 1978, STATEMENT EXCEPT THAT ON OCTOBER 30 HE ADMITTED
 THAT HE ANNOUNCED THAT HE WOULD BEGIN THE IN-DEPTH REVIEWS WITH MR.
 MOULDER.  FOR REASONS SET FORTH ABOVE, MR. GRIFFIN'S STATEMENT OF
 OCTOBER 30, 1978, VIOLATED 19(A)(1) OF THE ORDER.
 
    D.  IN-DEPTH REVIEW OF WILLIAM P. MOULDER
 
    ON NOVEMBER 6., 1978, MR. GRIFFIN, AS HE HAD INFORMED THE ASSEMBLED
 REVENUE OFFICERS ON OCTOBER 30, 1978, HE WAS GOING TO DO, ISSUED AN
 IN-DEPTH REVIEW OF MR.  MOULDER'S ENTIRE CASE INVENTORY.  CARRYING OUT
 OF THE THREAT TO MAKE AN IN-DEPTH REVIEW OF MR. MOULDER'S WORK BECAUSE
 HE HAD SIGNED THE GRIEVANCE FURTHER VIOLATED 19(A)(1) OF THE ORDER.
 UNDER THE CIRCUMSTANCES, IT IS NO DEFENSE, IN MY OPINION, EITHER THAT:
 A) RECORDS WARRANTED A REVIEW OF MR. MOULDER'S WORK PERFORMANCE;  OR B)
 THE REVIEW WAS CONDUCTED IN ACCORDANCE WITH RESPONDENT'S REGULATIONS,
 INASMUCH AS MR. GRIFFIN HAD TOLD MR. MOULDER ON OCTOBER 24 AND THE
 ASSEMBLED REVENUE OFFICERS OF GROUP M-3 ON OCTOBER 25 AND 30 THAT HE WAS
 GOING TO CONDUCT IN-DEPTH REVIEWS BECAUSE THEY HAD FILED THE GRIEVANCE
 AND ON OCTOBER 30 MR. GRIFFIN HAD ANNOUNCED THAT HE WOULD BEGIN THE
 IN-DEPTH REVIEWS WITH MR. MOULDER.  STATED OTHERWISE, I FIND THAT AN
 IN-DEPTH REVIEW OF MR.  MOULDER'S WORK BECAUSE HE SIGNED THE MASS
 GRIEVANCE VIOLATED 19(A)(1) OF THE ORDER.  AS THIS CONCLUSION
 NECESSARILY FLOWS FROM THE THREAT OF PENALTY OR REPRISAL BECAUSE AN
 EMPLOYEE HAD EXERCISED A PROTECTED RIGHT TO FILE A GRIEVANCE UNDER A
 NEGOTIATED GRIEVANCE PROCEDURE, IT IS NOT NECESSARY TO EXAMINE IN DETAIL
 THE REVIEW CONDUCTED TO ESTABLISH A VIOLATION OF 19(A)(1).  THE
 VIOLATION OF 19(A)(1) IN THIS REGARD IS NOT BOTTOMED ON THE THEORY THAT
 THE REVIEW WAS CONDUCTED WITH A DISCRIMINATORY DESIGN OR WAS PRETEXTUAL
 IN NATURE.
 
    SECTION 19(A)(2) OF THE ORDER, WHICH IS SUBSTANTIALLY IDENTICAL TO
 7116(A)(2) OF THE STATUTE, PROVIDED
 
    "SEC. 19.  UNFAIR LABOR PRACTICES.  A) AGENCY MANAGEMENT SHALL NOT--
 
    (2) ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
 DISCRIMINATION IN REGARD
 
    TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT;"
 
    IN OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO, ILLINOIS,
 A/SLMR NO. 334, 3 A/SLMR 668(1973), THE ASSISTANT SECRETARY, IN A CASE
 WHICH INVOLVED ALLEGED UNFAIR LABOR PRACTICES WITH RESPECT TO
 GRIEVANCES, STATED AS FOLLOWS WITH REGARD TO THE PROOF REQUIRED TO
 ESTABLISH A VIOLATION OF 19(A)(2):
 
    " . . . I FIND THAT THE RESPONDENT'S FAILURE TO PROCESS THE
 COMPLAINANTS' GRIEVANCES UNDER
 
    THE FORMER'S GRIEVANCE PROCEDURE DID NOT CONSTITUTE A VIOLATION OF
 SECTION 19(A)(1) OF THE
 
    ORDER.  AND, IN THE ABSENCE OF EVIDENCE OF DISCRIMINATORY MOTIVATION
 OR DISPARITY OF TREATMENT
 
    BASED ON UNION MEMBERSHIP CONSIDERATIONS, I FIND, IN AGREEMENT WITH
 THE ADMINISTRATIVE LAW
 
    JUDGE, THAT THE RESPONDENT'S CONDUCT HEREIN WAS NOT VIOLATIVE OF
 SECTION 19(A)(2) OF THE ORDER
 
    . . . " (3 A/SLMR AT 671)
 
    I AM AWARE THAT THE ASSISTANT SECRETARY, IN NATIONAL LABOR RELATIONS
 BOARD, REGION 17, AND NATIONAL LABOR RELATIONS BOARD, A/SLMR NO. 670, 6
 A/SLMR 325, 326(1976) STATED, IN PART, AS FOLLOWS:
 
    " . . . IN MY VIEW, INTERFERENCE WITH THE FILING OR PROCESSING OF
 GRIEVANCES IS NOT
 
    VIOLATIVE OF SECTION 19(A)(4) . . . , BUT MAY BE VIOLATIVE OF SECTION
 19(A)(1) AND (6) OF THE
 
    ORDER . . . " (6 A/SLMR AT 326.
 
    THE ASSISTANT SECRETARY'S STATEMENT THAT INTERFERENCE WITH THE FILING
 OR PROCESSING OF GRIEVANCES MAY VIOLATE 19(A)(1) AND (6) DOES NOT MEAN,
 OF COURSE, THAT A VIOLATION OF 19(A)(2) MAY NOT, ALSO, BE FOUND IF THERE
 IS EVIDENCE OF DISCRIMINATORY MOTIVATION OR DISPARITY OF TREATMENT BASED
 ON UNION MEMBERSHIP CONSIDERATIONS.
 
    THAT RESPONDENT'S CONDUCT ALSO VIOLATED 19(A)(2) IS SHOWN, INTER
 ALIA, BY THE FOLLOWING:
 
    FIRST, MR. MOULDER TESTIFIED THAT MR. GRIFFIN ON OCTOBER 24, 1978,
 STATED, INTER ALIA,
 
    "YOU DON'T NEED TO SIGN SOMETHING LIKE THAT . . . YOU DON'T NEED THE
 UNION, YOUR WORK IS
 
    GOOD . . . " (TR. 20).
 
    I HAVE CREDITED MR. MOULDER'S TESTIMONY AND FIND THAT MR. GRIFFIN DID
 MAKE THE FOREGOING STATEMENT.  IN ADDITION TO INTERROGATING MR. MOULDER
 ABOUT THE GRIEVANCE, MR. GRIFFIN ON OCTOBER 24 ALSO INTERROGATED REVENUE
 OFFICERS SPERLING AND PETERSON.
 
    SECOND, THE GRIEVANCE WAS, AS NOTED ABOVE, A MASS GRIEVANCE WHICH HAD
 BEEN SIGNED BY ALL REVENUE OFFICERS IN MR. GRIFFIN'S GROUP AND, AT THE
 MEETING OF THE REVENUE OFFICERS CALLED BY MR. GRIFFIN ON OCTOBER 25 IN
 HIS OFFICE, MR. GRIFFIN, AS MR. HUSSEY, TESTIFIED, " . .  . GAVE US ALL
 KIND OF HELL FOR SIGNING THE PETITION" (TR. 212) AND MR. GRIFFIN
 ADMITTED HE TOLD THE ASSEMBLED REVENUE OFFICERS THAT HE " . . . RESENTED
 THE FACT THAT THEY DIDN'T COME TO ME AND TALK TO ME PRIOR TO FILING THE
 GRIEVANCE." (TR. 304).
 
    THIRD, MR. GRIFFIN ON OCTOBER 25 TOLD THE ASSEMBLED REVENUE OFFICERS
 THAT BECAUSE THEY HAD FILED THE GRIEVANCE, "FROM NOW ONE (SIC), THERE'S
 GOING TO BE A DIFFERENT STORY.  I'M GOING TO USE THE DROP FILE AND I'M
 GOING TO MAKE IN-DEPTH REVIEWS" (TR. 24).
 
    FOURTH, ON OCTOBER 30, 1978, MR. GRIFFIN AGAIN TOLD THE ASSEMBLED
 REVENUE OFFICERS THAT BECAUSE THEY HAD FILED THE GRIEVANCE HE WAS GOING
 TO CONDUCT IN-DEPTH REVIEWS AND THAT HE WOULD BEGIN WITH MR. MOULDER.
 
    WHILE THE COMPLAINT ALLEGES A VIOLATION OF SECS. 19(A)(1) AND (2)
 ONLY AS TO MR. MOULDER AND, ALTHOUGH THE ASSISTANT SECRETARY STATED IN
 OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO, ILLINOIS, SUPRA, THAT
 INTERFERENCE WITH THE FILING AND PROCESSING OF GRIEVANCES VIOLATES SEC.
 19(A)(2) ONLY WHEN THERE IS EVIDENCE OF DISCRIMINATORY MOTIVATION OR
 DISPARITY OF TREATMENT BASED ON UNION MEMBERSHIP CONSIDERATIONS, I
 CONCLUDE THAT MR.  GRIFFIN'S CONDUCT WAS SUCH AS INHERENTLY TENDED TO
 DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION AND/OR EVINCES
 DISCRIMINATORY MOTIVATION BASED ON UNION MEMBERSHIP CONSIDERATIONS.
 THAT SUCH ACTION DID NOT CAUSE ACTUAL DISCOURAGEMENT OF UNION MEMBERSHIP
 IS IMMATERIAL, ENVIRONMENTAL PROTECTION AGENCY, PERRINE PRIMATA
 LABORATORY, A/SLMR NO. 136, 2 A/SLMR 87(1972), AND INDEED, PROOF OF
 CONDUCT WHICH IS INHERENTLY DESTRUCTIVE OF A BASIC RIGHT GUARANTEED
 UNDER THE ORDER, HERE THE RIGHT, INTER ALIA, TO FILE AND PROCESS
 GRIEVANCES, IS SUFFICIENT TO SUPPORT A VIOLATION OF SEC.  19(A)(2) EVEN
 IN THE ABSENCE OF PROOF OF SPECIFIC KNOWLEDGE OF THE UNION ACTIVITY.
 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MILWAUKEE AREA OFFICE,
 MILWAUKEE, WISCONSIN, A/SLMR NO.  925, 7 A/SLMR 948(1977).  OF COURSE,
 HERE, MR. GRIFFIN WAS WELL AWARE THAT THE REVENUE OFFICERS CONSTITUTING
 HIS GROUP HAD FILED A MASS GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE AND HIS CONDUCT, FROM INTERROGATION OF INDIVIDUAL REVENUE
 OFFICERS, HIS BELABORING OF THE ASSEMBLED REVENUE OFFICERS FOR FILING
 THE GRIEVANCES, TO HIS ANNOUNCEMENT TO THE ASSEMBLED REVENUE OFFICERS OF
 HIS INTENT TO USE THE DROP FILE AND TO CONDUCT IN-DEPTH REVIEWS OF THEIR
 WORK BECAUSE THEY HAD FILED THE GRIEVANCE, OBVIOUSLY WAS DESTRUCTIVE OF
 THE BASIC RIGHT ASSURED UNDER THE ORDER, NAMELY, "THE RIGHT, FREELY AND
 WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR
 ORGANIZATION" BY INTERFERENCE WITH THEIR RIGHT TO FILE GRIEVANCES UNDER
 THE NEGOTIATED GRIEVANCE PROCEDURE.  MR. GRIFFIN'S ANNOUNCEMENT ON
 OCTOBER 30, 1978, THAT HE INTENDED TO BEGIN THE IN-DEPTH REVIEWS WITH
 MR. MOULDER WAS A FURTHER NOTICE TO ASSEMBLED REVENUE OFFICERS THAT HE
 WAS PROCEEDING WITH HIS ANNOUNCED INTENT TO CONDUCT IN-DEPTH REVIEWS
 BECAUSE THEY HAD FILED THE GRIEVANCE AND, AT THE SAME TIME, SELECTION OF
 MR. MOULDER AS THE FIRST TO BE REVIEWED VIOLATED SEC. 19(A)(2).
 
    FIFTH, THE IN-DEPTH REVIEW OF MR. MOULDER BECAUSE HE HAD SIGNED THE
 GRIEVANCE VIOLATED SEC. 19(A)(2).  INTERFERENCE WITH HIS RIGHT TO FILE A
 GRIEVANCE UNDER THE NEGOTIATED AGREEMENT DID TEND TO DISCOURAGE
 MEMBERSHIP IN A LABOR ORGANIZATION.  INDEED, THE SPECIFIC RELATIONSHIP
 TO UNION MEMBERSHIP HAD BEEN SHOWN BY MR. GRIFFIN'S STATEMENT TO MR.
 MOULDER ON OCTOBER 24, INTER ALIA, THAT "YOU DON'T NEED THE UNION." IN
 VIEW OF THE UNLAWFUL MOTIVE FOR MAKING THE REVIEW, RESPONDENT VIOLATED
 SECS. 19(A)(1) AND (2) BY CONDUCTING THE REVIEW, OR AS STATED BY COUNSEL
 FOR THE GENERAL COUNSEL IN HIS BRIEF,
 
    " . . . INSOFAR AS THE IN-DEPTH REVIEW WAS MOTIVATED BY UNLAWFUL
 CONSIDERATIONS ANYTHING
 
    WHICH FLAWS (SIC) FROM IT IS EQUALLY UNLAWFUL IN RESULT." (GENERAL
 COUNSEL BRIEF, P. 15).
 
    ACCORDINGLY, IT IS NOT NECESSARY TO REVIEW THE DETAILS OF THE REVIEWS
 CONDUCTED AND I EXPRESSLY DECLINE TO DO SO.  /12/ NOTWITHSTANDING THAT,
 IF IT WERE NECESSARY, I WOULD FIND THAT THE IN-DEPTH REVIEW ITSELF
 EVINCED DISCRIMINATION AS TO MR. MOULDER "IN REGARD TO HIRING, TENURE,
 PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT."
 
                                  REMEDY
 
    ON NOVEMBER 9, 1978, RESPONDENT ISSUED MR. MOULDER A 60 DAY LETTER
 (JT. EXH. 3).  ON FEBRUARY 2, 1979, MR. GRIFFIN ISSUED TO MR. MOULDER A
 MEMORANDUM THE SUBJECT OF WHICH WAS, "FOLLOW-UP OF REVIEW OF 11-9-78"
 WHICH STATED, IN PART, "THIS FOLLOW-UP REVEALED A MARKED DIFFERENCE IN
 YOUR WORK . . . THIS TYPE OF PERFORMANCE IS THE SATISFACTORY MANNER
 WHICH YOU ARE CAPABLE . . ." (G.C. EXH. 6).  NEVERTHELESS, BECAUSE THE
 IN-DEPTH REVIEW OF NOVEMBER 6, 1978, AND THE ENSUING 60 DAY LETTER OF
 NOVEMBER 9, 1978, VIOLATED SECS. 19(A)(1) AND (2) OF THE ORDER, I SHALL
 RECOMMEND AS PART OF THE REMEDY THAT THE ANALYSIS OF REVENUE CASE
 ASSIGNMENTS OF MR. MOULDER, DATED NOVEMBER 6, 1978 (JOINT EXH. 2) AND
 THE 60 DAY LETTER OF NOVEMBER 9, 1978 (JOINT EXH. 3), AND ALL REFERENCES
 THERETO, BE REMOVED FROM RESPONDENT'S RECORDS.  ONLY BY SUCH ACTION CAN
 THE UNLAWFUL AND DISCRIMINATORY ACTION OF RESPONDENT AS TO MR. MOULDER
 BE ADEQUATELY OR FULLY REMEDIED INASMUCH AS, UNLESS REMOVED FROM
 RESPONDENT'S RECORDS, SUCH PRIOR ACTION MAY, IN THE FUTURE, ADVERSELY
 IMPACT ON MR. MOULDER.
 
                              RECOMMENDATION
 
    HAVING FOUND THAT RESPONDENT ENGAGED IN CONDUCT WHICH WAS IN
 VIOLATION OF SECTIONS 19(A)(1) AND (2) OF EXECUTIVE ORDER 11491, AS
 AMENDED, IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING:
 
                                   ORDER
 
    PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
 SECTION 203.26(B) OF THE REGULATIONS THEREUNDER, 29 C.F.R. 203.26 (B);
 AND SECTION 2400.2 OF THE FINAL RULES AND REGULATIONS OF THE AUTHORITY,
 5 C.F.R.CHAPTER XIV, SUBCHAPTER A, FED.REG., VOL.  45, NO. 12, JANUARY
 17, 1980, THE AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE
 AND ITS BROOKLYN DISTRICT OFFICE SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    A) INTERFERING WITE, OR DISCOURAGING, BY IMPLIED THREATS, OR
 OTHERWISE, WILLIAM R. MOULDER, OR ANY OTHER EMPLOYEE, FROM EXERCISING
 THE RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
 
    B) REVIEWING, ADVERSELY RATING OR CRITICIZING THE WORK PERFORMANCE OF
 WILLIAM R. MOULDER, OR ANY OTHER EMPLOYEE, BECAUSE ANY SUCH EMPLOYEE HAS
 FILED A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.
 
    C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 EXECUTIVE ORDER OR BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE OR ENCOURAGING OR DISCOURAGING MEMBERSHIP IN A LABOR
 ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
 OR OTHER CONDITIONS OF EMPLOYMENT BY INTERFERING WITH THE EXERCISE OF
 ANY RIGHT PROTECTED BY THE EXECUTIVE ORDER OR BY THE STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSE AND POLICIES OF THE ORDER AND THE STATUTE:
 
    A) REMOVE THE ANALYSIS OF REVIEW OF CASE ASSIGNMENTS OF WILLIAM R.
 MOULDER, DATED NOVEMBER 6, 1978 (FORMS 5188 AND 5188-A) AND THE ENSUING
 60 DAY LETTER, DATED NOVEMBER 9, 1978, AND ALL REFERENCES THERETO, FROM
 ITS RECORDS.
 
    B) POST IN ALL OFFICES OF THE BROOKLYN DISTRICT OF THE INTERNAL
 REVENUE SERVICE, 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 DISTRICT DIRECTOR, BROOKLYN DISTRICT, AND
 SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER
 IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
 WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED, INCLUDING, BUT NOT
 LIMITED TO, THE MINEOLA, SMITHTOWN AND RIVERHEAD BRANCH OFFICES.  THE
 DISTRICT DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID
 NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION 2, ROOM 241, 26
 FEDERAL PLAZA, NEW YORK, NEW YORK, IN WRITING WITHIN 30 DAYS FROM THE
 DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                            WILLIAM B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 12, 1981
 
    WASHINGTON, D.C.
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
              CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT INTERFERE WITH, OR DISCOURAGE, BY IMPLIED THREATS, OR
 OTHERWISE, WILLIAM R. MOULDER, OR ANY OTHER EMPLOYEE, FROM EXERCISING
 THE RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
 
    WE WILL NOT REVIEW, ADVERSELY RATE, OR CRITICIZE THE WORK PERFORMANCE
 OF WILLIAM R. MOULDER, OR ANY OTHER EMPLOYEE, BECAUSE ANY SUCH EMPLOYEE
 HAD FILED A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED, OR BY THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, OR ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR
 ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
 OR OTHER CONDITIONS OF EMPLOYMENT BY INTERFERING WITH THE EXERCISE OF
 ANY RIGHT PROTECTED BY THE EXECUTIVE ORDER OR BY THE STATUTE.
 
    WE WILL REMOVE THE ANALYSIS OF REVIEW OF CASE ASSIGNMENTS OF WILLIAM
 R. MOULDER, DATED NOVEMBER 6, 1978 (FORMS 5188 AND 5188-A) AND THE
 ENSUING 60 DAY LETTER, DATED NOVEMBER 9, 1978, AND ALL REFERENCES
 THERETO, FROM ALL RECORDS OF THE INTERNAL REVENUE SERVICE.
 
                           (AGENCY OF 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 ANY EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE, OR
 COMPLIANCE WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION 2,
 WHOSE ADDRESS IS:  ROOM 241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10278,
 AND WHOSE TELEPHONE NUMBER IS:  (212) 264-4934.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED ON THE BASIS OF
 EXECUTIVE ORDER 11491, AS AMENDED, AND AS IF THE NEW STATUTE HAD NOT
 BEEN ENACTED.  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER
 EITHER THE MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW
 STATUTE OR THE RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE
 CASE HAD ARISEN UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ THE CHARGES ALSO ASSERTED AS UNFAIR LABOR PRACTICES CONDUCT AT
 GROUP MEETINGS;  NEVERTHELESS, THE COMPLAINT DID NOT ENCOMPASS SUCH
 ALLEGATIONS AND, EVEN THOUGH TESTIMONY WAS PRESENTED AT THE HEARING
 CONCERNING GROUP MEETINGS, FACTS PERTAINING THERETO MAY NOT CONSTITUTE
 THE BASIS FOR A FINDING OF AN UNFAIR LABOR PRACTICE NOT ALLEGED IN THE
 COMPLAINT.  THIS DOES NOT MEAN, OF COURSE, THAT SUCH TESTIMONY WILL NOT
 BE CONSIDERED IN RELATION TO THE UNFAIR LABOR PRACTICES ALLEGED IN THE
 COMPLAINT.
 
    /3/ ON MARCH 7, 1979, THE AUTHORITY ISSUED A NOTICE "TO HEADS OF
 AGENCIES, PRESIDENTS OF LABOR ORGANIZATIONS AND OTHER INTERESTED
 PERSONS," PUBLISHED IN THE FEDERAL REGISTER ON MARCH 13, 1979, VOL. 44
 P. 14634, WHICH PROVIDED, IN PART, THAT,
 
    " . . . CHARGES FILED UNDER THE STATUTE, WHETHER BASED ON OCCURRENCES
 BEFORE OR ON OR AFTER
 
    JANUARY 11, 1979, WILL BE INVESTIGATED AND COMPLAINTS PROSECUTED BY
 THE GENERAL COUNSEL."
 
    /4/ OBVIOUSLY, MY AUTHORITY IS LIMITED TO MY RECOMMENDED DECISION AND
 ORDER.  I CAN NOT ASSERT, NOT DO I PURPORT TO ASSERT, AUTHORITY AS TO
 "ANY ULTIMATE DECISION OR ORDER," ALTHOUGH I AM CONFIDENT THAT DUE
 CONSIDERATION WILL BE GIVEN BY THE AUTHORITY TO RESPONDENT'S MERITORIOUS
 AND CONTINUING REQUEST TO INSURE CONFIDENTIALITY OF TAXPAYER NAMES OR
 OTHER RETURN INFORMATION.
 
    /5/ EXCEPT FOR CERTAIN ORAL STATEMENTS WHICH, AS MATERIAL, WERE
 LARGELY CONCEDED, THIS CASE CONCERNS AN EMPLOYEE'S WORK PERFORMANCE
 REVIEW.  ALTHOUGH RESPONDENT RELIED UPON ORAL TESTIMONY IN MANY
 RESPECTS, IT WAS APPARENT FROM THE TESTIMONY THAT RECORDS MAINTAINED BY
 RESPONDENT, WHICH RESPONDENT NEITHER SHOWED NOR CONTENDED WERE NOT
 READILY AVAILABLE, WERE NOT OFFERED.  THIS, RESPONDENT WAS FULLY
 ENTITLED TO DO;  BUT, CERTAINLY, IT MAY NOT ASSERT PREJUDICE AS A RESULT
 OF MEMORY DIMMED BY TIME WHEN RECORDS, WHICH WOULD HAVE REFRESHED
 RECOLLECTION ON PRECISELY THE MATTERS ON WHICH RECOLLECTION WAS NOT
 WHOLLY COMPLETE, WERE NOT OFFERED OR SHOWN NOT TO HAVE BEEN RETAINED.
 
    /6/ IN FEBRUARY, 1980, THIS WAS ALL REVERSED, I.E., THE WORK
 TRANSFERRED FROM QUEENS WAS RETURNED TO QUEENS AND THE MINEOLA WORK
 TRANSFERRED TO SMITHTOWN WAS RETURNED TO MINEOLA.  (TR. 255).
 
    /7/ SEE, FOR EXAMPLE, GENERAL COUNSEL'S BRIEF P. 12, TR. 458.
 
    /8/ WHILE I DO NOT FIND IT NECESSARY TO DECIDE WHETHER MR. GRIFFIN
 USED THE VULGAR LANGUAGE ATTRIBUTED TO HIM BY MR. M