Internal Revenue Service, Fresno Service Center, Fresno, California (Respondent) and National Treasury Employees Union (Charging Party)



[ v07 p371 ]
07:0371(54)CA
The decision of the Authority follows:


 7 FLRA No. 54
 
 INTERNAL REVENUE SERVICE
 FRESNO SERVICE CENTER
 FRESNO, CALIFORNIA
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case Nos. 9-CA-366 
                                                      9-CA-409
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
 IN THE ABOVE-ENTITLED CONSOLIDATED PROCEEDINGS, FINDING THAT THE
 RESPONDENT, INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER (IRS), HAD
 ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT CEASE
 AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS.  THE JUDGE
 FURTHER FOUND THAT THE RESPONDENT HAD NOT ENGAGED IN OTHER ALLEGED
 UNFAIR LABOR PRACTICES AND RECOMMENDED DISMISSAL OF THE COMPLAINT WITH
 RESPECT TO THEM.  THEREAFTER, THE IRS, THE CHARGING PARTY (NTEU) AND THE
 GENERAL COUNSEL FILED RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION
 OF THE JUDGE'S JANUARY THROUGH JUNE.  THE PROMOTIONS ARE DOCUMENTED BY A
 FORM 50 (NOTIFICATION OF PERSONNEL ACTION).  UPON TERMINATION SUCH
 DECISION ON ADVERSELY AFFECTED EMPLOYEES.  IN FURTHER OF DISCRIMINATION.
  IN ADDITION TO AN EEO COUNSELOR, THE EMPLOYEE 7114(A)(2)(A).  /6/
 RATHER, THE AUTHORITY FINDS THAT THE SUBJECT OF THE MEETING CONCERNED A
 "GRIEVANCE" WITHIN THE DISCUSSIONS WITHIN THE MEANING OF SECTION
 7114(A)(2)(A) SO THAT IT WOULD HAVE THE OPPORTUNITY TO SELECT
 REPRESENTATIVES OF ITS OWN CHOOSING TO BE PRESENT AND THAT AN ACTIVITY'S
 FAILURE TO PROVIDE SUCH NOTICE WAS VIOLATIVE OF THE STATUTE.  THE FACT
 THAT AN EMPLOYEE WHO HAPPENS TO BE A UNION STEWARD MAY BE PRESENT AT
 SUCH A DISCUSSION DOES NOT WARRANT A CONTRARY CONCLUSION.  /10/
 
    FINALLY, IN AGREEMENT WITH THE JUDGE, AND FOR THE SAME REASONS, THE
 AUTHORITY FINDS THAT THE TREATMENT ACCORDED THE NTEU STEWARD BY THE
 CHIEF OF THE COMPUTER BRANCH DID NOT CONSTITUTE UNLAWFUL INTERFERENCE
 WITH THE STEWARD IN HER REPRESENTATIONAL CAPACITY.  /11/
 
    FOR THE FOREGOING REASONS, THE AUTHORITY FINDS THAT THE IRS, BY ITS
 FAILURE TO AFFORD NTEU APPROPRIATE PRIOR NOTIFICATION OF A FORMAL
 DISCUSSION, VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE RESPONDENT INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER,
 SHALL:
 
    1.  CEASE AND DESIST FROM:  IRS, BY ITS FAILURE TO AFFORD NTEU
 APPROPRIATE PRIOR NOTIFICATION OF A FORMAL DISCUSSION, VIOLATED SECTION
 7116(A)(1), (5) AND (8) OF THE STATUTE.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE RESPONDENT INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER,
 SHALL:
 
    1. CEASE AND DESIST FROM:
 
    (A) TERMINATING DUES DEDUCTIONS OF INDIVIDUALS PROMOTED TO THE
 POSITION OF TEMPORARY SUPERVISOR WITHOUT FIRST NOTIFYING THE NATIONAL
 TREASURY EMPLOYEES UNION, AND AFFORDING IT AN OPPORTUNITY TO NEGOTIATE
 OVER IMPACT AND IMPLEMENTATION OF SUCH TERMINATION PRIOR TO EFFECTUATION
 OF THAT ACTION.
 
    (B) FAILING TO PROVIDE APPROPRIATE PRIOR NOTIFICATION OF, AND
 OPPORTUNITY TO BE REPRESENTED AT, A FORMAL DISCUSSION BETWEEN ONE OR
 MORE REPRESENTATIVES OF THE AGENCY AND ONE OR MORE EMPLOYEES IN THE UNIT
 CONCERNING A GRIEVANCE.
 
    (C) IN ANY LIKE OR RELATED MANNER FAILING OR REFUSING TO COMPLY WITH
 ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    (3) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION, NEGOTIATE
 OVER IMPACT AND IMPLEMENTATION OF THE TERMINATION OF DUES DEDUCTIONS OF
 INDIVIDUALS PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR IN THE
 FRESNO SERVICE CENTER.
 
    (B) PROVIDE THE NATIONAL TREASURY EMPLOYEES UNION WITH APPROPRIATE
 PRIOR NOTIFICATION OF, AND OPPORTUNITY TO BE REPRESENTED AT, ANY FORMAL
 DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE AGENCY AND ONE OR
 MORE EMPLOYEES IN THE UNIT CONCERNING A GRIEVANCE.
 
    (C) POST AT THE FRESNO SERVICE CENTER, INTERNAL REVENUE SERVICE,
 COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL
 LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
 SIGNED BY THE DIRECTOR OF THE FRESNO SERVICE CENTER AND SHALL BE POSTED
 AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
 PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
 POSTED.  REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SUCH NOTICES ARE
 NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (D) NOTIFY THE REGIONAL DIRECTOR, REGION IX, FEDERAL LABOR RELATIONS
 AUTHORITY IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO
 WHAT STEPS HAVE BEEN TAKEN TO COMPLY WITH THIS ORDER.
 
    IT IS HEREBY FURTHER ORDERED THAT THE COMPLAINT IN CASE NO.
 9-CA-366, INSOFAR AS IT ALLEGES VIOLATIONS OF SECTION 7116(A)(1) AND (8)
 OF THE STATUTE AS A RESULT OF A FAILURE TO MAKE AN APPROPRIATE ALLOTMENT
 TO AN EXCLUSIVE REPRESENTATIVE PURSUANT TO SECTION 7115, AND THE
 COMPLAINT IN CASE NO. 9-CA-409, INSOFAR AS IT ALLEGES THAT THE TREATMENT
 OF KATHRYN BIEHAALDER BY THE CHIEF OF THE COMPUTER BRANCH AT THE JANUARY
 2, 1980, MEETING WAS VIOLATIVE OF THE STATUTE, BE, AND THEY HEREBY ARE,
 DISMISSED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 18, 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 TERMINATE DUES WITHHOLDING FOR INDIVIDUALS PROMOTED TO
 THE POSITION OF TEMPORARY SUPERVISOR IN THE INTERNAL REVENUE SERVICE,
 FRESNO SERVICE CENTER, WITHOUT NOTIFYING THE NATIONAL TREASURY EMPLOYEES
 UNION AND AFFORDING IT AN OPPORTUNITY TO NEGOTIATE OVER IMPACT AND
 IMPLEMENTATION OF SUCH TERMINATION PRIOR TO EFFECTUATION OF THAT ACTION.
 
    WE WILL NOT FAIL TO AFFORD THE NATIONAL TREASURY EMPLOYEES UNION
 APPROPRIATE NOTIFICATION OF AND OPPORTUNITY TO BE REPRESENTED AT A
 FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE AGENCY AND
 ONE OR MORE EMPLOYEES IN THE UNIT CONCERNING A GRIEVANCE.
 
    WE WILL NOT, IN ANY LIKE OR RELATED MANNER, FAIL OR REFUSE TO COMPLY
 WITH ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE.
 
    WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
 OR COERCE ANY EMPLOYEE IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL, UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES
 UNION OVER IMPACT AND IMPLEMENTATION OF THE TERMINATION OF DUES
 DEDUCTIONS OF INDIVIDUALS PROMOTED TO THE POSITION OF TEMPORARY
 SUPERVISOR IN THE FRESNO SERVICE CENTER.
 
    WE WILL PROVIDE THE NATIONAL TREASURY EMPLOYEES UNION WITH
 APPROPRIATE PRIOR NOTIFICATION OF, AND OPPORTUNITY TO BE REPRESENTED AT,
 ANY FORMAL DISCUSSION BETWEEN ONE OR MORE EMPLOYEES IN THE UNIT
 CONCERNING A GRIEVANCE.
 
                                (ACTIVITY)
 
    DATE:
 
                         BY:  (SIGNATURE) (TITLE)
 
    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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, REGION IX, FEDERAL LABOR RELATIONS AUTHORITY WHOSE
 ADDRESS IS:  540 BUSH STREET, SUITE 500, SAN FRANCISCO, CA. 94102.
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    PAUL DIXON, ESQUIRE
    ROBERT WILSON, ESQUIRE
                            FOR THE RESPONDENT
 
    NANCY E. PRITIKIN, ESQUIRE
                          FOR THE GENERAL COUNSEL
 
    ELIZABETH JOHNSON, ESQUIRE
                          FOR THE CHARGING PARTY
 
    BEFORE:  BURTON S. STERNBURG
                         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 U.S. CODE, 5 U.S.C.
 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 AMENDED CHARGES FIRST FILED ON MARCH 3, 1980, IN CASE NO.
 9-CA-366, AND MARCH 31, 1980, IN CASE NO. 9-CA-409, BY THE NATIONAL
 TREASURY EMPLOYEES UNION, (HEREINAFTER CALLED THE NTEU OR UNION), A
 CONSOLIDATED COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON JUNE 2, 1980,
 BY THE REGIONAL DIRECTOR FOR REGION IX, FEDERAL LABOR RELATIONS
 AUTHORITY, SAN FRANCISCO, CALIFORNIA.  THE COMPLAINT ALLEGES, IN
 SUBSTANCE, THAT THE INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER,
 FRESNO, CALIFORNIA, (HEREINAFTER CALLED THE RESPONDENT OR IRS), VIOLATED
 SECTIONS 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (HEREINAFTER CALLED THE STATUTE OR ACT), BY VIRTUE OF
 ITS ACTIONS IN (1) UNILATERALLY TERMINATING WITHOUT PRIOR NOTICE TO THE
 UNION THE DUES ALLOTMENTS OF SEVERAL EMPLOYEES AND THEREAFTER REFUSING
 THE UNION'S REQUEST TO BARGAIN THEREON, AND (2) DENYING THE UNION THE
 OPPORTUNITY TO REPRESENT AN EMPLOYEE AT A FORMAL AND/OR GRIEVANCE
 MEETING AND, SUBSEQUENTLY, DENYING THE UNION THE RIGHT TO ACTIVELY
 PARTICIPATE IN SUCH MEETING.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON JULY 8, 1980, IN
 FRESNO, CALIFORNIA.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
 BEARING ON THE ISSUES INVOLVED HEREIN.  THE PARTIES SUBMITTED POST
 HEARING BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    DUES WITHHOLDING
 
    THE UNION IS THE CERTIFIED EXCLUSIVE REPRESENTATIVE OF RESPONDENT'S
 EMPLOYEES AT THE FRESNO SERVICE CENTER AND PARTY TO A MULTI-CENTER
 AGREEMENT WITH THE INTERNAL REVENUE SERVICE WHICH IS APPLICABLE TO SUCH
 EMPLOYEES.
 
    ACCORDING TO THE UNCONTESTED TESTIMONY OF MR. DON GEIGER, PRESIDENT
 OF NTEU CHAPTER 97, IN 1977, HE MADE AN ORAL AGREEMENT WITH MR. LANCE
 CASPER, RESPONDENT'S CHIEF OF LABOR RELATIONS, THAT RESPONDENT WOULD
 ONLY STOP DUES DEDUCTIONS FROM UNIT EMPLOYEES PROMOTED TO THE POSITION
 OF TEMPORARY SUPERVISOR, WHEN SUCH TEMPORARY PROMOTIONS EXCEEDED ONE
 YEAR.  /12/ MR. GEIGER FURTHER TESTIFIED THAT THEREAFTER AND UP UNTIL
 DECEMBER 1979 HE WAS UNDER THE IMPRESSION THAT RESPONDENT WAS LIVING UP
 TO THE AGREEMENT MADE BETWEEN HIMSELF AND MR. LANCE.  ALTHOUGH MR.
 GEIGER ACKNOWLEDGED THAT THE UNION RECEIVED PERIODIC PRINT-OUTS FROM
 RESPONDENT SUMMARIZING THE DUES-PAYING STATUS OF THE UNIT EMPLOYEES,
 INCLUDING REVOCATIONS, HE ASSUMED SUCH REVOCATIONS APPEARING THEREON
 WERE OF A VOLUNTARY NATURE.
 
    IN DECEMBER 1979, MR. GEIGER WAS INFORMED BY A UNION STEWARD EMPLOYED
 IN RESPONDENT'S PERSONNEL BRANCH THAT SHE, THE STEWARD, HAD BEEN
 INSTRUCTED TO START MAKING OUT PAYROLL FORM 50S FOR ALL UNIT EMPLOYEES
 WHO HAD BEEN PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR.  THE FORM
 50S REFLECTED A WAGE INCREASE AND THE FACT THAT ANY UNION DUES
 WITHHOLDING IN EFFECT WAS TO CEASE.  MR. GEIGER THEN TELEPHONED MR.
 SEGELKE, RESPONDENT'S CURRENT CHIEF OF LABOR RELATIONS, AND ASKED WHY
 THE CHANGE HAD BEEN MADE.  MR. SEGELKE DISCLAIMED ANY KNOWLEDGE OF THE
 CHANGE AND INFORMED MR. GEIGER THAT HE WOULD CHECK INTO THE MATTER AND
 GET BACK TO HIM.  SUBSEQUENTLY, A MEETING WAS ARRANGED ON JANUARY 8TH OR
 9TH, 1980, BETWEEN MR. GEIGER, MR. SEGELKE AND MS. ELLEN MOORADIAN,
 CHIEF OF THE PROCESSING SECTION, PERSONNEL BRANCH.
 
    AT THE JANUARY 8TH MEETING, MR.GEIGER WAS INFORMED THAT RESPONDENT'S
 SUPERVISORY PERSONNEL IN THE PERSONNEL OFFICE HAD DETERMINED THAT THE
 IRS MANUAL REQUIRED THE CESSATION OF DUES WITHHOLDING DEDUCTIONS WHEN A
 UNIT EMPLOYEE WAS PROMOTED TO SUPERVISORY STATUS.  AFTER A SHORT
 DISCUSSION CONCERNING THE LEGALITY OF RESPONDENT'S ACTION, RESPONDENT'S
 REPRESENTATIVES INFORMED MR. GEIGER THAT IT WAS RESPONDENT'S INTENTION
 TO STOP THE DUES WITHHOLDING FOR ALL UNIT EMPLOYEES PROMOTED TO THE
 POSITION OF TEMPORARY SUPERVISOR EFFECTIVE JANUARY 27TH.  THE MEETING
 ENDED WITH MR. GEIGER MAKING IT CLEAR THAT THE UNION WOULD FILE A DEMAND
 FOR BARGAINING.
 
    ON JANUARY 14, 1980, THE UNION SENT A LETTER TO RESPONDENT WHEREIN IT
 DEMANDED "TO NEGOTIATE THE SUBSTANCE, IMPACT AND IMPLEMENTATION OF THE
 CHANGE IN WITHHOLDING MEMBERSHIP DUES FOR NTEU MEMBERS WHO ARE
 TEMPORARILY ASSIGNED AS SUPERVISORS." THE UNION TOOK THE POSITION THAT
 THE "TEMPORARY PROMOTIONS DID NOT EXCLUDE AN EMPLOYEE FROM THE
 BARGAINING UNIT AND THEREFORE SHOULD NOT RESULT IN STOPPING THEIR DUES
 WITHHOLDING." THE UNION FURTHER STATED THAT IT WAS PREPARED TO MEET FOR
 PURPOSES OF SETTING UP THE GROUND RULES FOR THE ANTICIPATED DISCUSSIONS
 AND EXPECTED THAT NO IMPLEMENTATION OF THE CHANGE WOULD TAKE EFFECT
 UNTIL NEGOTIATIONS WERE FINALIZED.
 
    ON FEBRUARY 11, 1980, THE RESPONDENT RESPONDED TO THE UNION'S LETTER,
 STATING IN PERTINENT PART AS FOLLOWS:
 
    . . . MANAGEMENT IS NOT OBLIGATED TO BARGAIN ON THIS MATTER BECAUSE
 THE PRACTICE OF HALTING
 
    UNION DUES ALLOTMENT FOR TEMPORARY SUPERVISORS IS IN IMPLEMENTATION
 OF GOVERNMENT-WIDE
 
    REGULATIONS, NAMELY 5 U.S.C. 7115(A), WHICH PROVIDES FOR ALLOTMENTS
 TO REPRESENTATIVES ONLY
 
    FOR AN EMPLOYEE IN AN APPROPRIATE UNIT.  CONSEQUENTLY, THIS MATTER IS
 EXCLUDED FROM
 
    NEGOTIATION IN ACCORDANCE WITH 5 U.S.C. 7117(A)(1).
 
    THE RECORD REVEALS THAT AFTER JANUARY 27TH, RESPONDENT UNIFORMLY
 STOPPED WITHHOLDING UNION DUES FROM THE WAGES OF VIRTUALLY ALL UNIT
 EMPLOYEES WHO HAD BEEN PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR
 FOR A PERIOD IN EXCESS OF THIRTY DAYS.  MS. MOORADIAN, CHIEF OF THE
 PROCESSING SECTION, PERSONNEL BRANCH, ACKNOWLEDGED THAT IN THE PAST
 THERE HAD BEEN NO UNIFORM APPLICATION OF A POLICY WITH RESPECT TO
 STOPPING THE DUES WITHHOLDING OF TEMPORARY SUPERVISORS.
 
    GRIEVANCE AND/OR FORMAL MEETING
 
    IN NOVEMBER OF 1979, MS. EDITH CALDERONE, WHO IS NO LONGER EMPLOYED
 BY RESPONDENT AND WHO DID NOT TESTIFY AT THE HEARING, WAS SELECTED FOR A
 POSITION AS A RESIDENT PROGRAMMER ANALYST TRAINEE IN THE FRESNO SERVICE
 CENTER'S COMPUTER BRANCH.  /13/ AT THE TIME OF THE SELECTION, MS.
 CALDERONE, WHO WAS THEN A GS-9 COMPUTER OPERATOR, WAS INFORMED THAT IN
 ORDER TO ACCEPT THE POSITION OF A PROGRAMMER ANALYST TRAINEE SHE WOULD
 HAVE TO TAKE A DOWNGRADE TO A GS-7.  UPON BEING INFORMED OF THE
 NECESSITY FOR A DOWN GRADE, MS. CALDERONE SOUGHT ADVICE FROM MS. KATHRYN
 BIEHAALDER, A KNOWN UNION STEWARD.
 
    THEREAFTER, MS. BIEHAALDER AND MS. CALDERONE PAID A VISIT TO THE
 PERSONNEL OFFICE AND INQUIRED AS TO WHAT GRADE LEVEL IN THE PROGRAM
 ANALYST GS SERIES MS. CALDERONE'S BACKGROUND AND QUALIFICATIONS ENTITLED
 HER TO. UPON BEING INFORMED THAT MS. CALDERONE QUALIFIED AS A GS-11, MS.
 BIEHAALDER SUGGESTED THAT MS. CALDERONE FILE A CONTRACTUAL GRIEVANCE.
 ADDITIONALLY, MRS. BIEHAALDER WAS OF THE OPINION THAT MS. CALDERONE HAD
 THE BASIS FOR AN EEO COMPLAINT SINCE SHE WAS FORCED TO TAKE A DOWN GRADE
 IN ORDER TO ACCEPT THE POSITION.  MS. CALDERONE FOUND MERIT IN MS.
 BIEHAALDER'S SUGGESTIONS AND DECIDED TO FILE BOTH A CONTRACTUAL AND EEO
 COMPLAINT.  /14/
 
    BEING CONCERNED ABOUT THE MECHANICS OF FILING THE EEO COMPLAINT, MS.
 BIEHAALDER AND MS. CALDERONE APPROACHED MS. VICKI BUTLER, RESPONDENT'S
 EEO OFFICER, AND REQUESTED INFORMATION ON FILING EEO COMPLAINTS.  MS.
 BUTLER INFORMED MS. BIEHAALDER THAT SHE COULD NOT DISCUSS ANY EEO MATTER
 WITH HER UNTIL SUCH TIME AS SHE HAD BEEN DESIGNATED AS MS. CALDERONE'S
 REPRESENTATIVE.  ACCORDINGLY, MS. BIEHAALDER, PUT HER OWN NAME DOWN AS
 MS. CALDERONE'S REPRESENTATIVE.  MS. BUTLER DENIED THAT SHE HAD REFUSED
 TO ALLOW THE NTEU TO BE NAMED AS MS. CALDERONE'S REPRESENTATIVE.  /15/
 
    ON OR ABOUT NOVEMBER 23, 1979, ACCORDING TO MS. BIEHAALDER'S
 TESTIMONY, MS. CALDERONE INFORMED MS. BIEHAALDER THAT SHE WAS HESITANT
 TO FILE OR PURSUE HER EEO COMPLAINT BECAUSE SHE HAD BEEN AT A MEETING
 WITH HER FUTURE SUPERVISOR AND BEEN INFORMED THAT HE, THE SUPERVISOR,
 WAS DISAPPOINTED THAT SHE HAD GONE TO THE UNION WITH HER PROBLEM INSTEAD
 OF COMING TO HIM FIRST.  SHE WAS FURTHER INFORMED THAT IF SHE MADE ANY
 PROBLEM WITH RESPECT TO HER SELECTION FOR THE NEW POSITION, I.E. FILING
 EEO COMPLAINTS, THERE WOULD NOT BE ANY FUTURE ANNOUNCEMENTS.  ALTHOUGH
 NOT CLEAR FROM THE RECORD, IT APPEARS THAT MS. CALDERONE DECIDED TO
 PROCEED WITH HER EEO COMPLAINT AND ALSO NOTIFY THE EEO OFFICER OF THE
 THREAT OF REPRISAL.
 
    ON JANUARY 2, 1980, MS. CALDERONE INFORMED MS. BIEHAALDER THAT MR.
 BRENT HILL, CHIEF OF THE COMPUTER BRANCH HAD INSTRUCTED HER TO ATTEND A
 MEETING IN THE CONFERENCE ROOM AT 3:30 P.M. THAT AFTERNOON.  MS.
 CALDERONE ASKED MS. BIEHAALDER TO ACCOMPANY HER TO THE MEETING.  /16/
 
    THE MEETING WHICH COMMENCED AS SCHEDULED, WAS ATTENDED BY MS.
 CALDERONE, MS. BIEHAALDER, MR. BRENT HILL, MS. BUTLER AND MR. TOMMY
 THOMPSON, ONE OF RESPONDENT'S EEO COUNSELORS.  MR. HILL, IN ACCORDANCE
 WITH AN EARLIER REQUEST FROM MR. THOMPSON, CHAIRED THE MEETING AND
 ATTEMPTED TO EXPLAIN WHY RESPONDENT HAD MADE THE STARTING POSITION IN
 THE TRAINEE PROGRAM A GS-7.  ON A NUMBER OF OCCASIONS MS. BIEHAALDER
 ATTEMPTED TO ANSWER THE QUESTIONS BEING PROPOUNDED BY MR. HILL TO MS.
 CALDERONE.  MR. HILL THEN INFORMED MS. BIEHAALDER THAT HE WANTED TO HEAR
 THE ANSWERS FROM MS. CALDERONE AND THAT HE DID NOT HAVE TO TALK TO HER,
 MS. BIEHAALDER.  MS. BIEHAALDER RESPONDED THAT SHE WAS MS. CALDERONE'S
 PERSONAL REPRESENTATIVE AND ALSO HER UNION REPRESENTATIVE AND WOULD SAY
 WHAT SHE WANTED.  THEREAFTER, THE MEETING CONTINUED WITHOUT FURTHER
 INCIDENT.  IN THIS LATTER REGARD, MS. BIEHAALDER TESTIFIED THAT SHE
 REFRAINED FROM ANY FURTHER ACTIVE PARTICIPATION UNDER FEAR OF
 PREJUDICING MS. CALDERONE'S CASE. THE RECORD REVEALS, HOWEVER, THAT MS.
 BIEHAALDER DID LATER ENTER INTO SOME DISCUSSIONS WITH MANAGEMENT
 REPRESENTATIVES WITH RESPECT TO THE RIGHTS OF AN EMPLOYEE TO PERSONALLY
 DISCUSS PROBLEMS WITH MANAGEMENT WITHOUT A UNION REPRESENTATIVE BEING
 PRESENT.
 
    ACCORDING TO MS. BUTLER, RESPONDENT'S EEO OFFICER, THE JANUARY 2,
 1980, MEETING WAS THE FIRST STEP IN THE "INFORMAL PROCESS" DESIGNED TO
 REACH RESOLUTION OF EEO DISPUTES.  THE FIRST STEP IS USUALLY A MEETING
 BETWEEN THE COMPLAINANT AND THE RESPECTIVE SUPERVISOR INVOLVED IN THE
 DISPUTE.  THEREAFTER, IF RESOLUTION IS NOT REACHED, THE DISPUTE MOVES
 ALONG TO EACH HIGHER LEVEL OF SUPERVISION.  IF THE DISPUTE CAN NOT BE
 SETTLED AT ANY OF THE SUPERVISORY LEVELS, IT THEN LEAVES THE
 INSTALLATION FOR FINAL RESOLUTION BEFORE AN OUTSIDE PARTY.
 
                        DISCUSSION AND CONCLUSIONS
 
    WITH RESPECT TO THE JANUARY 2, 1980, MEETING CALLED FOR PURPOSES OF
 DISCUSSING MS. CALDERONE'S EEO COMPLAINT, RESPONDENT TAKES THE POSITION
 THAT THE MEETING WAS NOT A FORMAL DISCUSSION WITHIN THE MEANING OF
 SECTION 7114(A)(2)(A) OF THE STATUTE AND THAT IN ANY EVENT THE UNION WAS
 NOT DENIED EITHER AN OPPORTUNITY TO REPRESENT AN EMPLOYEE AT THE MEETING
 OR TO REPRESENT ITSELF AT THE MEETING.  /17/ THE GENERAL COUNCIL, ON THE
 OTHER HAND, TAKES THE POSITION THAT THE JANUARY 2, 1980, MEETING WAS
 INDEED A FORMAL DISCUSSION AND THE UNION WAS DENIED THE OPPORTUNITY TO
 BE REPRESENTED AT THE MEETING.
 
    IN VIEW OF THE POSITIONS OF THE PARTIES, IT IS OBVIOUS THAT
 RESOLUTION OF THE INSTANT UNFAIR LABOR PRACTICE COMPLAINT TURNS ON THE
 NATURE OF THE JANUARY 2, 1980, MEETING, I.E. WHETHER SUCH MEETING WAS
 (1) FORMAL AND (2) INVOLVED TERMS AND CONDITIONS OF EMPLOYMENT WITHIN
 THE MEANING OF THE STATUTE.  /18/ AS TO (1), I FIND THAT THE MEETING OF
 JANUARY 2, 1980, WAS A FORMAL MEETING INASMUCH AS IT WAS, NOT IMPROMPTU,
 HELD IN AN OFFICE AWAY FROM THE EMPLOYEE'S NORMAL PLACE OF EMPLOYMENT,
 ATTENDED BY RESPONDENT'S CHIEF OF THE COMPUTER BRANCH AND DESIGNED TO,
 IF POSSIBLE, REACH AGREEMENT OR RESOLUTION OF THE EMPLOYEE'S PENDING EEO
 COMPLAINT.
 
    WITH RESPECT TO THE 2ND ISSUE, I.E. WHETHER EEO MATTERS FALL WITHIN
 THE DEFINITION OF "CONDITIONS OF EMPLOYMENT," THE FEDERAL LABOR
 RELATIONS AUTHORITY HAS CONSIDERED THE QUESTION AND CONCLUDED THAT
 MATTERS DEALING WITH DISCRIMINATION IN EMPLOYMENT ARE INCLUDED IN THE
 DEFINITION OF "CONDITIONS OF EMPLOYMENT." AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, AND AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO, CASE 0-NG-40, 2 FLRA NO. 77,
 (1/31/80).
 
    HAVING CONCLUDED THAT THE MEETING WAS FORMAL AND INVOLVED CONDITIONS
 OF EMPLOYMENT, THE SOLE ISSUE REMAINING FOR DETERMINATION IS WHETHER OR
 NOT THE UNION WAS DEPRIVED OF ITS RIGHT TO ACTIVELY PARTICIPATE IN THE
 MEETING.  OR STATED ANOTHER WAY, DID MR. HILL'S ADMONISHMENT TO MS.
 BIEHAALDER THAT SHE ALLOW MS. CALDERONE TO ANSWER THE QUESTION BEING
 PROPOUNDED DEPRIVE THE UNION OF ITS STATUTORY RIGHTS?  I FIND THAT UNDER
 THE CIRCUMSTANCES PRESENTED HEREIN, IT DID NOT.
 
    WHILE A UNION IS GIVEN A STATUTORY RIGHT TO PARTICIPATE IN FORMAL
 DISCUSSIONS CONCERNING CONDITIONS OF EMPLOYMENT, SUCH RIGHT DOES NOT
 EXTEND TO USURPATION OF THE PROCEDURES TO BE FOLLOWED.  THE UNION MAY
 ASK QUESTIONS AND PROPOSE RESOLUTIONS AND REMEDIES, IT MAY NOT, HOWEVER,
 DICTATE ANSWERS OR TAKE CHARGE OF THE PROCEEDINGS.  SIMILARLY, A UNION
 IS NOT EXPECTED TO REMAIN SILENT AND NOT BE A PROPONENT OF A PARTICULAR
 POSITION.  HOWEVER, IN FORMAL DISCUSSIONS, ITS ACTIONS SHOULD BE
 GOVERNED BY LOGIC AND RESPECT FOR ORDERLY PROCEDURES.  TO THE EXTENT ITS
 ACTIONS INTERFERE WITH MANAGEMENT'S ATTEMPT TO SOLICIT FACTS UNDERLYING
 THE COMPLAINT WHICH IS THE BASIS FOR THE FORMAL MEETING, I FIND THAT THE
 ADMONISHMENT TO CEASE SUCH ACTIVITY STANDING ALONE, FALLS SHORT OF
 PRECLUDING THE UNION'S PARTICIPATION IN THE MEETING AND THEREBY
 DEPRIVING IT OF A RIGHT PROVIDED BY THE STATUTE.  CF. DEPT. OF TREASURY,
 INTERNAL REVENUE SERVICE AND IRS CHICAGO DISTRICT, CHICAGO, ILLINOIS,
 A/SLMR NO. 987.  /19/
 
    FINALLY, ALTHOUGH I DO NOT CONDONE RESPONDENT'S ACTION IN FAILING TO
 GIVE FORMAL NOTICE TO THE UNION OF THE FORMAL DISCUSSION TO BE HELD ON
 JANUARY 2, 1980, I CONCLUDE THAT, UNDER ALL THE CIRCUMSTANCES PRESENT
 HEREIN, A SECTION 7116(A)(1), (5) AND (8) FINDING PREDICATED THEREON IS
 NOT IN ORDER.  IN REACHING THIS LATTER CONCLUSION IT IS NOTED THAT
 ALTHOUGH THE UNION DID NOT RECEIVE FORMAL NOTICE OF THE MEETING IT DID
 RECEIVE INDIRECT NOTICE AND DID ATTEND THE MEETING.  /20/
 
    WITH RESPECT TO THE SECOND ISSUE UNDERLYING THE INSTANT COMPLAINT,
 I.E. UNILATERAL CESSATION OF DUES WITHHOLDING FROM THE WAGES OF UNIT
 EMPLOYEES PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR, THE
 RESPONDENT TAKES THE POSITION THAT ITS ACTIONS IN THIS REGARD WERE NOT
 VIOLATIVE OF THE STATUTE SINCE THE STATUTE, PARTICULARLY SECTION
 7115(B)(1), MAKES IT CLEAR THAT DUES ALLOTMENTS ARE TO CEASE WHEN THE
 COLLECTIVE BARGAINING AGREEMENT IN EFFECT CEASES TO BE APPLICABLE TO THE
 EMPLOYEE INVOLVED.  RESPONDENT FURTHER ARGUES THAT THERE WAS NOT, IN ANY
 EVENT, A CHANGE IN PAST PRACTICE AND THEREFORE IT WAS UNDER NO
 OBLIGATION TO GIVE NOTICE AND BARGAIN OVER THE CESSATION OF DUES
 WITHHOLDING.  THE GENERAL COUNSEL TAKES THE POSITION THAT THERE WAS A
 CHANGE IN PAST PRACTICE AND THAT THE STATUTE REQUIRES, IN ANY EVENT,
 THAT THE DUES WITHHOLDING BE CONTINUED FOR EMPLOYEES PROMOTED TO THE
 POSITION OF TEMPORARY SUPERVISOR.
 
    CONTRARY TO THE POSITION OF THE RESPONDENT, I FIND THAT THE RECORD
 SUPPORTS THE CONCLUSION THAT RESPONDENT DID MAKE A CHANGE IN PAST
 PRACTICE WHEN IT MADE THE CESSATION OF DUES WITHHOLDING FROM TEMPORARY
 SUPERVISORS MANDATORY.  IN FACT RESPONDENT'S WITNESSES ACKNOWLEDGED THAT
 PRIOR TO DECEMBER 1979, THERE HAD BEEN NO HARD AND FAST PRACTICE WITH
 RESPECT TO THE CESSATION OF DUES WITHHOLDING FROM TEMPORARY SUPERVISORS
 AND THAT THE POLICY CHANGED WHEN RESPONDENT'S SUPERVISORY PERSONNEL IN
 THE PERSONNEL OFFICE DETERMINED THAT THE PAST PRACTICE OF NOT STOPPING
 THE DUES WITHHOLDING FOR TEMPORARY SUPERVISORS WAS NOT IN ACCORD WITH
 THE IRS MANUAL.
 
    HAVING DETERMINED THAT THERE WAS A CHANGE IN PAST PRACTICE WITH
 RESPECT TO DUES WITHHOLDING, THE NEXT ISSUE TO BE DECIDED IS WHETHER OR
 NOT RESPONDENT WAS OBLIGATED TO BARGAIN OVER ITS DECISION, AS WELL AS
 THE PROCEDURES TO BE UTILIZED AND THE IMPACT ON ADVERSELY AFFECTED
 EMPLOYEES.  WITH RESPECT TO THE DECISION ITSELF, I CANNOT AGREE WITH THE
 GENERAL COUNSEL'S POSITION THAT RESPONDENT WAS NOT PERMITTED TO CEASE
 MAKING THE DUES WITHHOLDING DEDUCTIONS WITHOUT FIRST BARGAINING ON THE
 DECISION WITH THE UNION.  WHILE IT IS TRUE THAT SECTION 7115(A) OF THE
 STATUTE OBLIGATES AN AGENCY TO WITHHOLD DUES FROM AN EMPLOYEE'S WAGES
 UPON RECEIPT OF A WRITTEN ASSIGNMENT FROM THE EMPLOYEE, IT IS ALSO TRUE
 THAT SECTION 7115(B)(1) OBLIGATES AN AGENCY TO CEASE SUCH WITHHOLDING
 WHEN THE EXISTING COLLECTIVE BARGAINING AGREEMENT IS NO LONGER
 APPLICABLE TO THE EMPLOYEE INVOLVED.  THUS, IT IS NOTED THAT THE
 MANDATORY WORD "SHALL" IS USED IN BOTH SECTIONS OF THE STATUTE.
 ACCORDINGLY, I FIND, CONTRARY TO THE CONTENTION OF THE GENERAL COUNSEL,
 THAT RESPONDENT WAS INDEED OBLIGATED BY THE STATUTE TO CEASE WITHHOLDING
 DUES FROM THE WAGES OF THE TEMPORARY SUPERVISORS SINCE THE CONTRACT
 BECAME INAPPLICABLE TO THEM WHEN THEY ASSUMED THE POSITION OF TEMPORARY
 SUPERVISOR.  THE FACT THAT THE TEMPORARY SUPERVISORS HAD A REASONABLE
 EXPECTANCY OF RETURNING TO THE UNIT DOES NOT ALTER THIS CONCLUSION.  IN
 THIS LATTER CONTEXT IT IS NOTED THAT UNDER THE EXECUTIVE ORDER THE
 ASSISTANT SECRETARY CONSISTENTLY HELD THAT TEMPORARY SUPERVISORS ARE NOT
 UNIT EMPLOYEES WHILE THEY ARE ENGAGED IN SUPERVISORY ACTIVITIES, AND
 ACCORDINGLY ARE NOT ELIGIBLE TO VOTE IN REPRESENTATIONAL PROCEEDINGS.
 DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT, LAKEVIEW, OREGON,
 A/SLMR NO. 212;  DEPARTMENT OF AGRICULTURE;  U.S. FOREST SERVICE,
 ANGELES NATIONAL FOREST, PASADENA, CALIF., A/SLMR NO. 339.
 
    WHILE I HAVE FOUND ABOVE THAT RESPONDENT DID NOT VIOLATE THE STATUTE
 WHEN IT UNILATERALLY DETERMINED IN ACCORDANCE WITH SECTION 7115(B)(1) OF
 THE STATUTE TO CHANGE PAST PRACTICE AND CEASE WITHHOLDING DUES FROM UNIT
 EMPLOYEES PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR, I FURTHER
 FIND THAT RESPONDENT WAS, HOWEVER, UNDER AN OBLIGATION TO BARGAIN WITH
 THE UNION CONCERNING THE PROCEDURES TO BE UTILIZED IN IMPLEMENTING ITS
 DECISION TO CHANGE PAST PRACTICE AS WELL AS THE IMPACT OF SUCH DECISION
 ON ADVERSELY AFFECTED EMPLOYEES. CF. INTERNAL REVENUE SERVICE, AUSTIN
 SERVICE CENTER, AND NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER
 72, 2 FLRA NO. 97.  /21/
 
    HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF
 THE STATUTE BY VIRTUE OF ITS ACTIONS IN INSTITUTING CHANGES IN PAST
 PRACTICE CONCERNING DUES WITHHOLDING WITHOUT FIRST ALLOWING THE UNION
 THE OPPORTUNITY TO NEGOTIATE CONCERNING THE PROCEDURES TO BE UTILIZED IN
 IMPLEMENTING THE CHANGES AND THEIR IMPACT ON ADVERSELY AFFECTED
 EMPLOYEES, I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER
 DESIGNED TO EFFECTUATE THE PURPOSES OF THE STATUTE.  /22/
 
                                   ORDER
 
    PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7118(A)(7)(A), AND SECTION
 2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. 2423.29(B)(1), THE
 AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE, FRESNO
 SERVICE CENTER, FRESNO, CALIFORNIA SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INSTITUTING ANY CHANGE IN DUES WITHHOLDING FROM UNIT EMPLOYEES
 PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR IN THE FRESNO SERVICE
 CENTER WITHOUT FIRST NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION,
 AND AFFORDING THEM THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
 CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE PROCEDURES TO BE
 OBSERVED IN IMPLEMENTING SUCH CHANGE, AND CONCERNING THE IMPACT SUCH
 CHANGE WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES.
 
    (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 EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION, MEET AND
 CONFER TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE
 PROCEDURES TO BE USED IN IMPLEMENTING THE CHANGE IN DUES WITHHOLDING
 FROM UNIT EMPLOYEES PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR IN
 THE FRESNO SERVICE CENTER AND CONCERNING THE IMPACT OF SUCH CHANGE ON
 ADVERSELY AFFECTED EMPLOYEES.
 
    (B) POST AT THE FRESNO SERVICE CENTER OF THE UNITED STATES INTERNAL
 REVENUE SERVICE, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
 FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
 RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE DIRECTOR OF THE FRESNO
 SERVICE CENTER, UNITED STATES INTERNAL REVENUE SERVICE, AND SHALL BE
 POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
 PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES ARE
 CUSTOMARILY POSTED.  REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID
 NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
 COMPLY HEREWITH.
 
    IT IS HEREBY FURTHER ORDERED THAT THE REMAINING ALLEGATIONS OF THE
 COMPLAINT, WHICH HAVE BEEN FOUND SUPRA NOT TO BE VIOLATIVE OF THE
 STATUTE, BE, AND HEREBY ARE, DISMISSED.
 
                            BURTON S. STERNBURG
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  SEPTEMBER 30, 1980
 
    WASHINGTON, D.C.
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
            CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
 
                    HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT INSTITUTE ANY CHANGE IN DUES WITHHOLDING FOR UNIT
 EMPLOYEES PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR IN THE
 INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER, FRESNO, CALIFORNIA,
 WITHOUT NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND AFFORDING
 THEM AN OPPORTUNITY TO MEET AND CONFER TO THE EXTENT CONSONANT WITH LAW
 AND REGULATIONS, ON THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING SUCH
 CHANGE, AND ON THE IMPACT SUCH CHANGE WILL HAVE ON ADVERSELY AFFECTED
 EMPLOYEES.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL UPON REQUEST MEET AND NEGOTIATE WITH THE NATIONAL TREASURY
 EMPLOYEES UNION, CONCERNING THE PROCEDURES TO BE UTILIZED IN
 IMPLEMENTING THE CHANGE IN DUES WITHHOLDING FOR UNIT EMPLOYEES PROMOTED
 TO THE POSITION OF TEMPORARY SUPERVISOR AND THE IMPACT OF SUCH CHANGE ON
 ADVERSELY AFFECTED UNIT EMPLOYEES.
 
    DATED:  BY:
 
                      DIRECTOR, FRESNO SERVICE CENTER
 
    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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION IX,
 WHOSE ADDRESS IS:  450 GOLDEN GATE AVENUE, ROOM 11408, P.O.  BOX 36016,
 SAN FRANCISCO, CA 94102.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7115, ALLOTMENTS TO REPRESENTATIVES, PROVIDES IN
 PERTINENT PART:
 
    (A) IF AN AGENCY HAS RECEIVED FROM AN EMPLOYEE IN AN APPROPRIATE UNIT
 A WRITTEN ASSIGNMENT
 
    WHICH AUTHORIZED THE AGENCY TO DEDUCT FROM THE PAY OF THE EMPLOYEE
 AMOUNTS FOR THE PAYMENT OF
 
    REGULAR AND PERIODIC DUES OF THE EXCLUSIVE REPRESENTATIVE OF THE
 UNIT, THE AGENCY SHALL HONOR
 
    THE ASSIGNMENT AND MAKE AN APPROPRIATE ALLOTMENT PURSUANT TO THE
 ASSIGNMENT.  ANY SUCH
 
    ALLOTMENT SHALL BE MADE AT NO COST TO THE EXCLUSIVE REPRESENTATIVE OR
 THE EMPLOYEE.  EXCEPT AS
 
    PROVIDED UNDER SUBSECTION (B) OF THIS SECTION, ANY SUCH ASSIGNMENT
 MAY NOT BE REVOKED FOR A
 
    PERIOD OF 1 YEAR.
 
    (B) AN ALLOTMENT UNDER SUBSECTION (A) OF THIS SECTION FOR THE
 DEDUCTION OF DUES WITH
 
    RESPECT TO ANY EMPLOYEE SHALL TERMINATE WHEN--
 
    (1) THE AGREEMENT BETWEEN THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE
 INVOLVED CEASES TO BE
 
    APPLICABLE TO THE EMPLOYEE;  OR
 
    (2) THE EMPLOYEE IS SUSPENDED OR EXPELLED FROM MEMBERSHIP IN THE
 EXCLUSIVE REPRESENTATIVE.
 
    /2/ SECTION 7112(B) PROVIDES IN PART:
 
    (B) A UNIT SHALL NOT BE DETERMINED TO BE APPROPRIATE UNDER THIS
 SECTION SOLELY ON THE BASIS
 
    OF THE EXTENT TO WHICH EMPLOYEES IN THE PROPOSED UNIT HAVE ORGANIZED,
 NOR SHALL A UNIT BE
 
    DETERMINED TO BE APPROPRIATE IF IT INCLUDES --
 
    (1) EXCEPT AS PROVIDED UNDER SECTION 7135(A)(2) OF THIS TITLE, ANY
 MANAGEMENT OFFICIAL OR
 
    SUPERVISOR(.)
 
    /3/ SEE H.R. REP. NO. 1403, 95TH CONG., 2D SESS. 49(1978) WHERE, IN
 DISCUSSING LANGUAGE IN H.R. 11280 WHICH WAS IDENTICAL TO THAT OF SECTION
 7115(A) AND (B) OF THE STATUTE, THE HOUSE COMMITTEE ON POST OFFICE AND
 CIVIL SERVICE NOTED:
 
    SUBSECTION (B), HOWEVER, REQUIRES THAT AN ALLOTMENT TERMINATE WHEN:
 (1) THE EXISTING
 
    COLLECTIVE BARGAINING AGREEMENT BETWEEN THE AGENCY AND LABOR
 ORGANIZATION CEASES TO BE
 
    APPLICABLE TO THE EMPLOYEE (THE EMPLOYEE IS PROMOTED TO A MANAGEMENT
 POSITION OR LEAVES THE
 
    EMPLOY OF THE AGENCY);  OR (2) THE EMPLOYEE IS SUSPENDED OR EXPELLED
 FROM THE LABOR
 
    ORGANIZATION.
 
    /4/ THE GENERAL COUNSEL AND NTEU SOUGHT AS A REMEDY THAT NTEU BE MADE
 WHOLE BY IRS FOR MONETARY LOSSES.  INASMUCH AS THE TERMINATION OF DUES
 WITHHOLDING WAS SPECIFICALLY REQUIRED BY THE STATUTE, THE AUTHORITY
 FINDS THAT SUCH A REMEDY WOULD BE INAPPROPRIATE.
 
    /5/ SECTION 7114(A)(2)(A) PROVIDES:
 
    (2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
 SHALL BE GIVEN THE
 
    OPPORTUNITY TO BE REPRESENTED AT--
 
    (A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
 AGENCY AND ONE OR MORE
 
    EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
 GRIEVANCE OR ANY PERSONNEL
 
    POLICY OR PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT(.)
 
    /6/ IN THIS REGARD, CONGRESSMAN UDALL OF ARIZONA MADE THE FOLLOWING
 STATEMENT ON THE HOUSE FLOOR DURING DEBATE OF THE "UDALL SUBSTITUTE"
 WHICH BECAME THE FINAL HOUSE VERSION OF TITLE VII AND WHICH, AS RELEVANT
 HEREIN, WAS ENACTED AND SIGNED INTO LAW.
 
    THE REPORTED SECTION 7114 PROVIDES THE RIGHT OF REPRESENTATION FOR
 ANY DISCUSSION BETWEEN
 
    ONE OR MORE REPRESENTATIVES OF THE AGENCY AND ONE OR MORE UNIT
 EMPLOYEES OR THEIR
 
    REPRESENTATIVES CONCERNING ANY GRIEVANCE, PERSONNEL POLICY OR
 PRACTICE, OR OTHER CONDITIONS OF
 
    EMPLOYMENT.  BY INSERTING THE WORD "GENERAL" BEFORE "CONDITIONS OF
 EMPLOYMENT," THE SUBSTITUTE
 
    LIMITS THE RIGHT OF REPRESENTATION TO THOSE FORMAL DISCUSSIONS (OTHER
 THAN GRIEVANCE
 
    DISCUSSIONS) WHICH CONCERN CONDITIONS OF EMPLOYMENT AFFECTING
 EMPLOYEES IN THE UNIT GENERALLY.
 
    124 CONG.REC. H9634 (DAILY ED. SEPT. 13, 1978).
 
    /7/ SECTION 7103(A)(9) PROVIDES AS FOLLOWS:
 
    (9) "GRIEVANCE" MEANS ANY COMPLAINT--
 
    (A) BY ANY EMPLOYEE CONCERNING ANY MATTER RELATING TO THE EMPLOYMENT
 OF THE EMPLOYEE;
 
    (B) BY ANY LABOR ORGANIZATION CONCERNING ANY MATTER RELATING TO THE
 EMPLOYMENT OF ANY
 
    EMPLOYEE;  OR
 
    (C) BY ANY EMPLOYEE, LABOR ORGANIZATION, OR AGENCY CONCERNING--
 
    (I) THE EFFECT OR INTERPRETATION, OR A CLAIM OF BREACH, OF A
 COLLECTIVE BARGAINING
 
    AGREEMENT;  OR
 
    (II) ANY CLAIMED VIOLATION, MISINTERPRETATION, OR MISAPPLICATION OF
 ANY LAW, RULE, OR
 
    REGULATION AFFECTING CONDITIONS OF EMPLOYMENT(.)
 
    /8/ THE AUTHORITY'S CONCLUSION IS CONSISTENT WITH THE FOLLOWING
 STATEMENT CONTAINED IN THE REPORT OF THE COMMITTEE ON POST OFFICE AND
 CIVIL SERVICE REGARDING LANGUAGE CONTAINED IN H.R. 11280 WHICH WAS
 IDENTICAL TO THAT CONTAINED IN SECTION 7103(A)(9) OF THE STATUTE:
 
    SUBSECTION (A)(9) OF SECTION 7103 DEFINES "GRIEVANCE" TO MEAN ANY
 COMPLAINT BY AN AGENCY,
 
    LABOR ORGANIZATION, OR EMPLOYEE CONCERNING:  (1) ANY MATTER RELATING
 TO THE EMPLOYMENT OF SUCH
 
    PERSON, WITH AN AGENCY;  OR, (2) THE EFFECT OR INTERPRETATION, OR
 CLAIM OF BREACH, OF A
 
    COLLECTIVE BARGAINING AGREEMENT;  OR, (3) ANY CLAIMED VIOLATION,
 MISINTERPRETATION, OR
 
    MISAPPLICATION OF ANY LAW, RULE, OR REGULATION AFFECTING CONDITIONS
 OF EMPLOYMENT.  IT SHOULD
 
    BE NOTED THAT, ALTHOUGH THIS SUBSECTION IS VIRTUALLY ALL-INCLUSIVE IN
 DEFINING
 
    "GRIEVANCE," SECTION 7121 EXCLUDES CERTAIN GRIEVANCES FROM BEING
 PROCESSED UNDER A NEGOTIATED
 
    GRIEVANCE PROCEDURE, THEREBY LIMITING THE NET EFFECT OF THE TERM.
 
    H.R. REP. NO. 1403, 95TH CONG.,2D SESS. 40(1978).
 
    /9/ IRS ASSERTED THAT TO HOLD A MEETING SUCH AS HERE INVOLVED IS
 "ALWAYS A FORMAL DISCUSSION," WHICH ENTITLES THE UNION AS A MATTER OF
 COURSE TO AN OPPORTUNITY TO BE REPRESENTED, DIRECTLY CONFLICTS WITH
 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION REGULATIONS AND THE PRIVACY ACT.
  HOWEVER, THE AUTHORITY HOLDS ONLY THAT IN THE SPECIFIC CIRCUMSTANCES OF
 THIS CASE, THE MEETING WAS A FORMAL DISCUSSION WITHIN THE MEANING OF
 SECTION 7114(A)(2)(A) OF THE STATUTE.
 
    /10/ NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA AND TIDEWATER
 VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, 6 FLRA NO. 22 (1980).
 
    /11/ THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON THE JUDGE'S
 STATEMENT AT N.8 OF HIS DECISION THAT A DIFFERENT CONCLUSION MIGHT HAVE
 BEEN IN ORDER HAD THE MEETING INVOLVED FALLEN WITHIN THE AMBIT OF
 SECTION 7114(A)(2)(B) OF THE STATUTE.
 
    /12/ THE RECORD INDICATES THAT THE POSITION OF TEMPORARY SUPERVISOR
 CARRIED ALL THE BENEFITS, WAGES AND RESPONSIBILITIES OF A PERMANENT
 SUPERVISOR.
 
    /13/ ACCORDING TO THE RECORD, A RESIDENT PROGRAMMER ANALYST HAD A
 NON-COMPETITIVE PROMOTION POTENTIAL THROUGH A GRADE GS-12.
 
    /14/ ONLY THE EEO COMPLAINT IS INVOLVED IN THE INSTANT CASE.
 
    /15/ INASMUCH AS THIS CONFLICT IN TESTIMONY IS NOT CRUCIAL TO THE
 RESOLUTION OF THE INSTANT COMPLAINT, I MAKE NO FINDINGS WITH REGARD
 THERETO.
 
    /16/ RESPONDENT, ADMITTEDLY, HAD NOT GIVEN MS. BIEHAALDER NOTICE OF
 THE MEETING.
 
    /17/ TO THE EXTENT RESPONDENT RELIES UPON SECTION 7114(A)(5)(A) AS A
 DEFENSE TO ITS ACTIONS DESCRIBED IN THE FACTUAL PORTION OF THIS
 DECISION, I FIND SUCH RELIANCE TO BE MISPLACED.  SECTION 7114(A)(5)(A)
 MERELY GIVES AN EMPLOYEE THE RIGHT, IF HE OR SHE SO DESIRES, TO HAVE HIS
 OR HER OWN PERSONAL REPRESENTATIVE AT A GRIEVANCE OR APPEAL ACTION, IT
 DOES NOT PRECLUDE A UNION FROM ATTENDING AS THE EXCLUSIVE REPRESENTATIVE
 OF THE UNIT EMPLOYEES.  TO REACH A CONTRARY CONCLUSION WOULD MAKE A
 MOCKERY OUT OF SECTION 7114(A)(1) WHICH IMPOSES UPON THE UNION THE
 OBLIGATION OF PROTECTING THE RIGHTS AND/OR INTERESTS OF ALL UNIT
 EMPLOYEES.  IN THE ABSENCE OF AN OPPORTUNITY TO ATTEND FORMAL
 DISCUSSIONS CONCERNING CONDITIONS OF EMPLOYMENT, I QUESTION HOW A UNION
 CAN FULFILL THE REPRESENTATIONAL RESPONSIBILITIES AND DUTIES IMPOSED
 UPON IT BY THE STATUTE. ADDITIONALLY, I FIND, PARTICULARLY UNDER THE
 FACTS PRESENTED HEREIN, I.E. WHERE THE KNOWN UNION STEWARD WAS INVITED
 TO THE EEO MEETING BY THE ALLEGED DISCRIMINATEE, AN INDIVIDUAL'S RIGHT
 TO PRIVACY DOES NOT PRECLUDE THE UNION'S APPEARANCE AT FORMAL HEARINGS
 INVOLVING CONDITIONS OF EMPLOYMENT. CF., CELMINS V. U.S. DEPT. OF
 TREASURY, INTERNAL REVENUE SERVICE, 457 D. SUPP. 13 (DIST. CT., D.C.
 1977).
 
    /18/ SECTION 7114(2)(A) OF THE STATUTE PROVIDES THAT "AN EXCLUSIVE
 REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY SHALL BE GIVEN THE
 OPPORTUNITY TO BE REPRESENTED AT (A) ANY FORMAL DISCUSSION BETWEEN ONE
 OR MORE REPRESENTATIVES OF THE AGENCY AND ONE OR MORE EMPLOYEES IN THE
 UNIT OR THEIR REPRESENTATIVES CONCERNING ANY GRIEVANCE OR ANY PERSONAL
 POLICY OR PRACTICES OR OTHER CONDITIONS OF EMPLOYMENT."
 
    /19/ HAD THE UNION'S ATTENDANCE AT THE MEETING BEEN PURSUANT TO
 SECTION 7114(2)(B) A DIFFERENT CONCLUSION MIGHT WELL HAVE BEEN IN ORDER.
  HOWEVER, SUCH WAS NOT THE CASE, NO DISCIPLINARY ACTION AGAINST MS.
 CALDERONE WAS CONTEMPLATED AND THE UNION WAS SELECTED BY MS. CALDERONE
 AS HER REPRESENTATIVE PURSUANT TO EEO PROCEDURES, A VIOLATION OF WHICH
 IS NOT ACTIONABLE UNDER THE FSLMR STATUTE.
 
    /20/ CF.U.S. DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND,
 MARYLAND AND IAM, LOCAL 2424, AFL-CIO, A/SLMR NO. 837, WHEREIN A SIMILAR
 RESULT WAS REACHED UNDER EXECUTIVE ORDER 11491.
 
    /21/ TO THE EXTENT THAT GENERAL COUNSEL AND CHARGING PARTY REQUEST
 THAT RESPONDENT BE ORDERED TO MAKE THE UNION WHOLE FOR ANY LOSS IT MAY
 HAVE SUSTAINED AS A RESULT OF THE UNILATERAL TERMINAT