National Treasury Employees Union (Union) and Department of the Treasury, Internal Revenue Service (Agency) 



[ v08 p136 ]
08:0136(27)NG
The decision of the Authority follows:


 8 FLRA No. 27
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE
 Agency
 
                                            Case No. 0-NG-332
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).
 THE ISSUE PRESENTED IS THE NEGOTIABILITY OF TWELVE UNION PROPOSALS,
 WHICH CONCERN THE ADVICE TO BE GIVEN TO EMPLOYEES PRIOR TO AN
 INVESTIGATORY INTERVIEW WHICH MAY RESULT IN DISCIPLINARY ACTION AGAINST
 THEM.  THE TEXT OF UNION PROPOSALS 1 THROUGH 12 IS SET FORTH IN THE
 APPENDIX.  UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING
 THE PARTIES CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
 DETERMINATIONS.
 
    CONTRARY TO THE AGENCY'S ALLEGATION, THE AUTHORITY CONCLUDES THAT THE
 PROPOSALS ARE WITHIN THE DUTY TO BARGAIN.  /1/ IN THIS REGARD, THE
 PROPOSALS RELATE TO THE MANNER IN WHICH EMPLOYEES ARE TO BE NOTIFIED BY
 INSPECTORS OF CERTAIN PROCEDURES, PRIVILEGES, AND OBLIGATIONS IN
 RELATION TO AN INTERROGATION WHICH COULD LEAD TO DISCIPLINARY ACTION.
 AS SUCH, CONTRARY TO THE AGENCY'S ASSERTION, THE PROPOSALS DIRECTLY
 RELATE TO CONDITIONS OF EMPLOYMENT AFFECTING BARGAINING UNIT EMPLOYEES.
 SEE NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE SERVICE, 3
 FLRA 692(1980).
 
    THE AGENCY HAS ALSO ASSERTED WITHOUT PROVIDING ANY SPECIFIC SUPPORT
 THAT THE UNION'S PROPOSALS WOULD INTERFERE WITH ITS RIGHT UNDER SECTION
 7106(A)(1) OF THE STATUTE TO DETERMINE ITS INTERNAL SECURITY PRACTICES.
 /2/ HOWEVER, AS IT PROVIDES NO SPECIFIC SUPPORT FOR THIS ALLEGATION AND
 NONE IS OTHERWISE APPARENT, THE AUTHORITY CONCLUDES THAT THE PROPOSALS
 IN THIS CASE DO NOT INTERFERE WITH THE AGENCY'S DETERMINATION WHETHER TO
 INTERVIEW A PARTICULAR EMPLOYEE IN CONNECTION WITH ITS INTERNAL
 SECURITY.  NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 61 AND
 DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, ALBANY DISTRICT,
 NEW YORK, 7 FLRA NO. 47(1981) AT 3.  SIGNIFICANTLY, THE AGENCY DOES NOT
 ARGUE THAT ANY OF THE PARTICULAR PROCEDURES SET FORTH IN THE PROPOSALS
 ARE PROHIBITED BY LAW, NOR DOES IT APPEAR THAT THE PROPOSALS WOULD
 SPECIFY SUBSTANTIVE CRITERIA PURSUANT TO WHICH MANAGEMENT MUST DETERMINE
 ITS INTERNAL SECURITY PRACTICES.  AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR
 FORCE BASE, OHIO, 2 FLRA 603(1980), ENFORCED SUB NOM. DEPARTMENT OF
 DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.ED 1140,
 1152(D.C.CIR. 1981).  RATHER, THE PROPOSALS CONSTITUTE PROCEDURES UNDER
 SECTION 7106(B)(2) OF THE STATUTE /3/ TO ENSURE THAT AN EMPLOYEE WHO IS
 ABOUT TO BE INTERROGATED IS NOTIFIED OF THE CIRCUMSTANCES UNDER WHICH
 QUESTIONING WILL OCCUR.  COMPARE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 15 AND DEPARTMENT OF THE TREASURY, INTERNAL
 REVENUE SERVICE, NORTH ATLANTIC REGION, 2 FLRA 874(1980).
 
    FINALLY, THE AGENCY ASSERTS THAT AN ATTORNEY GENERAL'S MEMORANDUM
 DATED JUNE 4, 1980, IS A BAR TO NEGOTIATION;  HOWEVER, IT DOES NOT
 ADVERT TO ANY INCONSISTENCY BETWEEN THE UNION'S PROPOSALS AND THE
 MEMORANDUM, NOR DOES IT APPEAR THAT ANY SUCH INCONSISTENCY EXISTS.
 ACCORDINGLY, WITHOUT REACHING THE QUESTION OF WHETHER THAT MEMORANDUM IN
 FACT CONSTITUTES A GOVERNMENT-WIDE RULE OR REGULATION, THE MEMORANDUM
 CANNOT SERVE AS A BAR TO NEGOTIATIONS.  SEE SECTION 7117(A)(1) OF THE
 STATUTE;  LONG BEACH NAVAL SHIPYARD, LONG BEACH CALIFORNIA AND
 INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL
 174, AFL-CIO, 7 FLRA NO. 53(1981) AT 6.
 
    ACCORDINGLY, THE UNION'S PROPOSALS MUST BE FOUND TO BE WITHIN THE
 DUTY TO BARGAIN.  THEREFORE, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
 THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE
 PARTIES) BARGAIN CONCERNING UNION PROPOSALS 1 THROUGH 12.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 11, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                        HENRY B. FRAZIER III MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                             UNION PROPOSAL I
 
    633.2(3):  STRIKE IN TOTO.
 
    ADD:
 
    ANY EMPLOYEE WHO REASONBL(Y) BELIEVES THAT AN INTERVIEW MAY RESULT IN
 DISCIPLINARY ACTION HAS THE RIGHT TO REPRESENTATION BY A PERSON
 DESIGNATED BY THE EXCLUSIVELY RECOGNIZED LABOR ORGANIZATION FOR THE UNIT
 IS WHICH HE/SHE WORKS.  BEFORE BEGINNING ANY INTERVIEW THE EMPLOYEE WILL
 BE ADVISED AS FOLLOWS:
 
    THIS IS AN INTERVIEW BY INSPECTIONS CONCERNING . . . (A BRIEF
 DESCRIPTION OF THE SUBJECT OF
 
    THE INTERVIEW AND INVESTIGATION) . . . ;  PURSUANT TO THE PROVISIONS
 OF SEC. 7114(A)(2)(B)(3)
 
    OF THE CIVIL SERVICE REFORM ACT OF 1978 YOU HAVE THE RIGHT TO BE
 REPRESENTED DURING THIS
 
    INTERVIEW BY A PERSON DESIGNATED BY THE EXCLUSIVELY RECOGNIZED LABOR
 ORGANIZATION FOR THE UNIT
 
    IN WHICH YOU WORK, IF THE (SIC) REASONABLY BELIEVE THAT THE RESULTS
 OF THIS INTERVIEW MAY
 
    RESULT IN DISCIPLINARY ACTION AND YOU REQUEST REPRESENTATION.  DO YOU
 WISH TO BE SO
 
    REPRESENTED?
 
    IF THE EMPLOYEE REQUESTS SUCH REPRESENTATION, THE UNION
 REPRESENTATIVE WILL BE ALLOWED AS PROVIDED IN (1) ABOVE.
 
                             UNION PROPOSAL 2
 
    632.32(3):  AMEND LAST SENTENCE TO READ:
 
    THE INSPECTOR IS REQUIRED TO ADVISE THE EMPLOYEE OF THE RIGHT TO
 UNION REPRESENTATION PURSUANT TO 633.2(3) ABOVE.
 
                             UNION PROPOSAL 3
 
    ADD AS 634.32(5):
 
    THE INSPECTOR IS REQUIRED TO ADVISE THE EMPLOYEE OF HIS/HER RIGHT TO
 REMAIN SILENT AND COUNSEL AND UNION REPRESENTATION BOTH ORALLY AND IN
 WRITING SO THAT THE EMPLOYEE MAY CHOOSE TO EXERCISE EITHER RIGHT TO
 COUNSEL AND/OR UNION REPRESENTATION;  THEN THE INSPECTOR WILL REPEAT THE
 ADVISING OF RIGHTS IN THE PRESENCE OF COUNSEL AND/OR UNION
 REPRESENTATIVE UPON THE RECOMMENCEMENT OF THE INTERVIEW BOTH ORALLY AND
 IN WRITING.
 
                             UNION PROPOSAL 4
 
    634.33(4):  ADD FOLLOWING SENTENCE:
 
    THE SUBJECT OF THE INVESTIGATION WILL BE ADVISED THAT NO
 ATTORNEY-CLIENT PRIVILEGE EXISTS BETWEEN AN EMPLOYEE AND A UNION
 REPRESENTATIVE WHO IS NOT AN ATTORNEY BEFORE QUESTIONING BEGINS.  THE
 EMPLOYEE AT THAT TIME MAY WISH TO WAIVE NON-ATTORNEY REPRESENTATION.
 
                             UNION PROPOSAL 5
 
    634.5(2):  AMEND AS FOLLOWS:
 
    WHEN PROSECUTION IS DECLINED, THE CASE INSPECTOR SHALL REQUEST THE
 PROSECUTING OFFICIAL TO AUTHORIZE THE IRS TO PROCEED ADMINISTRATIVELY
 AGAINST THE EMPLOYEE AS PROVIDED FOR UNDER 18 U.S.C. 6001,ET SEQ.
 
                             UNION PROPOSAL 6
 
    634.5(3):  AMEND AS FOLLOWS:
 
    PRIOR TO QUESTIONING THE EMPLOYEE, THE CASE INSPECTOR SHALL PROVIDE
 THE EMPLOYEE WITH A COPY OF THE ORDER OBTAINED PURSUANT TO 18 U.S.C.
 6001,ET SEQ AND ADVISE THE EMPLOYEE AS FOLLOWS:
 
    "YOU ARE HERE TO BE ASKED QUESTIONS PERTAINING TO YOUR EMPLOYMENT
 WITH THE INTERNAL REVENUE
 
    SERVICE AND THE DUTIES THAT YOU PERFORM FOR THE IRS.  YOU HAVE THE
 OPTION TO REMAIN SILENT,
 
    ALTHOUGH YOU MAY BE SUBJECT TO REMOVAL FROM YOUR EMPLOYMENT BY THE
 SERVICE IF YOU FAIL TO
 
    ANSWER MATERIAL AND RELEVANT QUESTIONS RELATING TO THE PERFORMANCE OF
 YOUR DUTIES AS AN
 
    EMPLOYEE.  YOU ARE FURTHER ADVISED THAT THE ANSWERS YOU MAY GIVE TO
 THE QUESTIONS PROPOUNDED
 
    TO YOU AT THIS INTERVIEW, OR ANY INFORMATION OR EVIDENCE WHICH IS
 GAINED BY REASON OF YOUR
 
    ANSWERS, MAY NOT BE USED AGAINST YOU IN A CRIMINAL PROCESSING (SIC)
 EXCEPT THAT YOU MAY BE
 
    SUBJECT TO A CRIMINAL PROSECUTION FOR ANY FALSE ANSWER THAT YOU MAY
 GIVE. YOUR ASSURANCE THAT
 
    YOU WILL NOT BE PROSECUTED IS THE IMMUNITY ORDER WHICH I HAVE GIVEN
 TO YOU."
 
                             UNION PROPOSAL 7
 
    634.5(4):  AMEND AS FOLLOWS:
 
    THE ABOVE REQUIRED ADMONITION EVOLVED FROM A LINE OF COURT DECISIONS
 WHICH ESTABLISH, IN EFFECT THAT WHEN AN AGENCY HAS A RULE OF CONDUCT
 REQUIRING AN EMPLOYEE TO RESPOND TO QUESTIONS IN MATTERS OF OFFICIAL
 INTEREST, THE AGENCY CANNOT TAKE DISCIPLINARY ACTION AGAINST THE
 EMPLOYEE FOR REFUSING TO ANSWER QUESTIONS UNLESS THAT EMPLOYEE HAS BEEN
 ASSURED THAT HIS/HER ANSWERS WILL NOT BE USED AGAINST HIM/HER IN A
 CRIMINAL PROSECUTION BY OPERATION OF 18 U.S.C.  6001,ET SEQ.
 
                             UNION PROPOSAL 8
 
    634.5(5):  ADD
 
    IN ADDITION, A COPY OF THE ORDER OBTAINED PURSUANT TO 18 U.S.C.
 6001,ET SEQ SHALL BE SERVED UPON THE EMPLOYEE BEFORE QUESTIONING BEGINS.
 
                             UNION PROPOSAL 9
 
    634.5(6):  ADD
 
    THE EMPLOYEE MAY AT THAT TIME EXERCISE HIS/HER CONSTITUTIONAL RIGHT
 TO SILENCE AND THE INTERVIEW WILL TERMINATE.  HOWEVER, IF THE EMPLOYEE
 IS COVERED BY AN ORDER OBTAINED PURSUANT TO 18 U.S.C. 6001,ET SEQ THEN
 HE/SHE HAS NO RIGHT TO SILENCE AND SHALL BE SO ADVISED.  THE INTERVIEW
 SHOULD CONTINUE.
 
                             UNION PROPOSAL 10
 
    634.6(1):  ADD
 
    FURTHER, THE EMPLOYEE WHO REFUSES TO RESPOND OR SHOWS ANY RELUCTANCE
 TO RESPOND IN A NON-CRIMINAL CONDUCT TYPE CASE SHALL BE ADVISED ORALLY
 AND IN WRITING:
 
    "YOU ARE HERE TO BE ASKED QUESTIONS PERTAINING TO YOUR EMPLOYMENT
 WITH THE INTERNAL REVENUE
 
    SERVICE AND THE DUTIES THAT YOU PERFORM FOR THE IRS.  YOU HAVE THE
 OPTION TO REMAIN SILENT,
 
    ALTHOUGH YOU MAY BE SUBJECT TO REMOVAL FROM YOUR EMPLOYMENT BY THE
 SERVICE IF YOU FAIL TO
 
    ANSWER MATERIAL AND RELEVANT QUESTIONS RELATING TO THE PERFORMANCE OF
 YOUR DUTIES AS AN
 
    EMPLOYEE.  YOU ARE FURTHER ADVISED THAT THE ANSWERS YOU MAY GIVE TO
 THE QUESTIONS PROPOUNDED
 
    TO YOU AT THIS INTERVIEW, OR ANY INFORMATION OR EVIDENCE WHICH IS
 GAINED BY REASON OF YOUR
 
    ANSWERS, MAY NOT BE USED AGAINST YOU IN A CRIMINAL PROCEEDING EXCEPT
 THAT YOU MAY BE SUBJECT
 
    TO A CRIMINAL PROSECUTION FOR ANY FALSE ANSWER THAT YOU MAY GIVE."
 (SEE DOCUMENT 5280.)
 
                             UNION PROPOSAL 11
 
    634.6(3):  STRIKE IN-TOTO
 
    ADD A SEPARATE SECTION TO BE NUMBERED ACCORDINGLY AS FOLLOWS:
 
    REFUSAL TO ANSWER QUESTIONS BASED UPON LACK OF RELEVANCY AND/OR
 MATERIALITY TO THE PERFORMANCE OF DUTY.
 
    (1.) AN EMPLOYEE MAY REFUSE TO ANSWER QUESTIONS WHICH ARE NOT
 RELEVANT OR MATERIAL TO THE
 
    PERFORMANCE OF HIS/HER DUTY.  SUCH QUESTIONS WILL BE WITHDRAWN WHEN
 ASKED AS WELL AS AVOIDED
 
    AT ALL COST.
 
    (2.) IF AN EMPLOYEE REFUSES TO ANSWER FOR THIS REASON AND THE
 INSPECTOR DISAGREES WITH THE
 
    EMPLOYEE'S (SIC) CONCLUSIONS CONCERNING THE MATERIALITY OR RELEVANCE
 OF A QUESTION, THE
 
    QUESTION WILL BE WRITTEN DOWN BY INSPECTIONS AND THE EMPLOYEE WILL BE
 GIVEN A REASONABLE TIME
 
    TO RESPOND IN WRITING AT A LATER DATE.
 
    (3.) A BARGAINING UNIT EMPLOYEE WILL ALSO HAVE THE RIGHT TO GRIEVE
 THE QUESTION ON THE
 
    GROUNDS OF MATERIALITY AND RELEVANCE THROUGH THE NEGOTIATED GRIEVANCE
 PROCEDURE.  IF THE
 
    EMPLOYER'S POSITION CONCERNING THE QUESTION IS SUSTAINED ANY
 ANSWER(S) OBTAINED PURSUANT TO
 
    (2) ABOVE SHALL BE PERMANENTLY SUPPRESSED AND
 
    EXPUNGED FROM ALL IRS FILES AND/OR RECORDS.
 
                             UNION PROPOSAL 12
 
    635:  AMEND AS FOLLOWS:
 
    (1) WHEN THE PERSON BEING INTERVIEWED IS ACCOMPANIED BY A
 REPRESENTATIVE FURNISHED BY THE
 
    EMPLOYEE'S LABOR ORGANIZATION, IN BOTH CRIMINAL AND NON-CRIMINAL
 CASES, THE REPRESENTATIVE
 
    MUST BE ADVISED AT THE OUTSET OF THE INTERVIEW THAT HIS/HER FUNCTION
 IS STRICTLY LIMITED TO
 
    GIVING ADVICE TO THE EMPLOYEE BEING INTERVIEWED.  IF THE
 REPRESENTATIVE REFUSES TO ABIDE BY
 
    SUCH LIMITATIONS, THE INTERVIEW MUST BE RECESSED;  THE GROUP MANAGER,
 OR OTHER INSPECTION
 
    OFFICIAL MUST BE CONTACTED FOR A DECISION AS TO WHETHER THE INTERVIEW
 SHOULD BE RESUMED OR
 
    TERMINATED.
 
    (2) WHEN THE PERSON BEING INTERVIEWED IS REPRESENTED BY COUNSEL AND
 INSPECTIONS IS ON
 
    REASONABLE NOTICE OF SUCH REPRESENTATION, THE EMPLOYEES COUNSEL SHAL