09:0480(57)CA - IRS, Western Region, San Francisco, CA and NTEU -- 1982 FLRAdec CA



[ v09 p480 ]
09:0480(57)CA
The decision of the Authority follows:


 9 FLRA No. 57
 
 INTERNAL REVENUE SERVICE,
 WESTERN REGION,
 SAN FRANCISCO, CALIFORNIA
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 9-CA-381
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN THE
 UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT
 CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION.
 THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION AND
 A BRIEF IN SUPPORT THEREOF, AND THE GENERAL COUNSEL FILED AN OPPOSITION.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (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 DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
 HEREBY ADOPTS THE JUDGE'S FINDINGS, /1/ CONCLUSIONS /2/ AND
 RECOMMENDATIONS, AS MODIFIED HEREIN.
 
    THE AUTHORITY ADOPTS THE JUDGE'S CONCLUSION THAT THE RESPONDENT
 VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE BY REFUSING TO
 FURNISH NECESSARY INFORMATION TO THE UNION AS REQUESTED UNDER SECTION
 7114(B)(4) OF THE STATUTE.  THUS, AS FOUND BY THE JUDGE, THE UNION WAS
 ENTITLED TO SUCH DATA TO ENABLE IT TO PROPERLY REPRESENT A UNIT EMPLOYEE
 AT AN ORAL HEARING PRIOR TO MANAGEMENT'S CONSIDERATION OF A PROPOSED
 ADVERSE ACTION, WHICH HEARING IS PROVIDED FOR IN THE NEGOTIATED
 AGREEMENT.  /3/
 
    IN HIS PROPOSED REMEDY, THE JUDGE RECOMMENDED THAT THE RESPONDENT BE
 REQUIRED TO PROVIDE THE INFORMATION TO THE UNION UPON REQUEST, AND TO
 HOLD ANOTHER ORAL HEARING AT WHICH THE UNION WOULD HAVE AN OPPORTUNITY
 TO PERSUADE THE RESPONDENT TO RECONSIDER THE ADVERSE ACTION PREVIOUSLY
 IMPOSED ON THE UNIT EMPLOYEE.  HOWEVER, THE AUTHORITY TAKES OFFICIAL
 NOTICE THAT THE MERIT SYSTEMS PROTECTION BOARD HAS ALREADY RESOLVED THE
 ADVERSE ACTION ISSUE AND DETERMINED THAT THE DISCIPLINARY ACTION IMPOSED
 WAS THE MINIMUM REQUIRED BY LAW FOR THE VIOLATION FOUND TO HAVE BEEN
 COMMITTED BY THE EMPLOYEE.  RICHARD P. RODRIGUEZ V. DEPARTMENT OF THE
 TREASURY, INITIAL DECISION NO. SF07528010416 (FEBRUARY 12, 1981).  /4/
 UNDER THESE CIRCUMSTANCES, A RE-RUN OF THE PRE-DECISIONAL ORAL HEARING
 TO ENABLE THE RESPONDENT TO RECONSIDER THE ADVERSE ACTION IMPOSED WOULD
 SERVE NO PURPOSE, AND THEREFORE SHALL NOT BE DIRECTED BY THE AUTHORITY.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
 HEREBY ORDERED THAT THE INTERNAL REVENUE SERVICE, WESTERN REGION, SAN
 FRANCISCO, CALIFORNIA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING TO FURNISH TO THE NATIONAL TREASURY EMPLOYEES UNION THE
 DOCUMENTS AND MATERIAL REQUESTED BY IT ON JANUARY 29, 1980, AND ANY
 OTHER MATERIAL WHICH IS REASONABLY AVAILABLE AND NECESSARY TO ENABLE THE
 NATIONAL TREASURY EMPLOYEES UNION, AS THE EXCLUSIVE REPRESENTATIVE OF
 THE RESPONDENT'S EMPLOYEES, TO DISCHARGE ITS REPRESENTATIONAL OBLIGATION
 TO EMPLOYEE RICHARD RODRIGUEZ OR ANY OTHER UNIT EMPLOYEE.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS 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 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) UPON REQUEST, FURNISH TO THE NATIONAL TREASURY EMPLOYEES UNION
 THE DOCUMENTS AND MATERIAL REQUESTED BY IT ON JANUARY 29, 1980, AND ANY
 OTHER MATERIAL WHICH IS REASONABLY AVAILABLE AND NECESSARY TO ENABLE THE
 NATIONAL TREASURY EMPLOYEES UNION, AS THE EXCLUSIVE REPRESENTATIVE OF
 THE RESPONDENT'S EMPLOYEES, TO DISCHARGE ITS REPRESENTATIONAL OBLIGATION
 TO EMPLOYEE RICHARD RODRIGUEZ OR ANY OTHER UNIT EMPLOYEE.
 
    (B) POST AT ITS FACILITIES AT THE INTERNAL REVENUE SERVICE, WESTERN
 REGION, SAN FRANCISCO, CALIFORNIA, 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 REGIONAL COMMISSIONER
 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.  THE
 REGIONAL COMMISSIONER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
 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 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 HEREWITH.  
 
 ISSUED, WASHINGTON, D.C., JULY 16, 1982
 
                       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 REFUSE TO FURNISH TO THE NATIONAL TREASURY EMPLOYEES UNION
 THE DOCUMENTS AND MATERIAL REQUESTED BY IT ON JANUARY 29, 1980, AND ANY
 OTHER MATERIAL WHICH IS REASONABLY AVAILABLE AND NECESSARY TO ENABLE THE
 NATIONAL TREASURY EMPLOYEES UNION, AS THE EXCLUSIVE REPRESENTATIVE OF
 OUR EMPLOYEES, TO DISCHARGE ITS REPRESENTATIONAL OBLIGATION TO EMPLOYEE
 RICHARD RODRIGUEZ OR ANY OTHER UNIT EMPLOYEE.  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 STATUTE.  WE WILL, UPON
 REQUEST, FURNISH TO THE NATIONAL TREASURY EMPLOYEES UNION THE DOCUMENTS
 AND MATERIAL REQUESTED BY IT ON JANUARY 29, 1980, AND ANY OTHER MATERIAL
 WHICH IS REASONABLY AVAILABLE AND NECESSARY TO ENABLE THE NATIONAL
 TREASURY EMPLOYEES UNION, AS THE EXCLUSIVE REPRESENTATIVE OF OUR
 EMPLOYEES, TO DISCHARGE ITS REPRESENTATIONAL OBLIGATION TO EMPLOYEE
 RICHARD RODRIGUEZ OR ANY OTHER UNIT EMPLOYEE.
 
                           (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 ANY OF ITS
 PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR,
 FEDERAL LABOR RELATIONS AUTHORITY, REGION IX, WHOSE ADDRESS IS:  540
 BUSH STREET, ROOM 542, SAN FRANCISCO, CALIFORNIA 94108 AND WHOSE
 TELEPHONE NUMBER IS:  (415) 556-8105.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    PAUL L. DIXON, ESQ.
    FOR THE RESPONDENT
    NANCY PRITIKIN, ESQ.
    FOR THE GENERAL COUNSEL
 
    ALAN S. HERSH, ESQ.
    FOR THE CHARGING PARTY
 
    BEFORE:  WILLIAM NAIMARK
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON AUGUST 29,
 1980 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
 SAN FRANCISCO REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON
 JANUARY 15, 1981 AT SAN FRANCISCO, CALIFORNIA.
 
    THIS CASE ARISES UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (HEREIN CALLED THE ACT).  THE COMPLAINT HEREIN IS BASED UPON AN
 AMENDED CHARGE FILED ON MAY 23, 1980 BY NATIONAL TREASURY EMPLOYEES
 UNION (HEREIN CALLED THE UNION) AGAINST INTERNAL REVENUE SERVICE,
 WESTERN REGION, SAN FRANCISCO, CALIFORNIA (HEREIN CALLED RESPONDENT).
 THE COMPLAINT ALLEGED IN SUBSTANCE THAT RESPONDENT, SINCE OR ABOUT
 JANUARY 29, 1980, REFUSED TO BARGAIN WITH THE UNION AS THE EXCLUSIVE
 BARGAINING REPRESENTATIVE OF ITS EMPLOYEES BY REFUSING TO FURNISH
 NECESSARY AND RELEVANT INFORMATION RELATING TO AN ADVERSE ACTION OF UNIT
 EMPLOYEE RICHARD RODRIGUEZ - ALL IN VIOLATION OF SECTIONS 7116(A)(1),
 (5) AND (8) OF THE ACT.
 
    RESPONDENT FILED AN ANSWER ON SEPTEMBER 23, 1980 IN WHICH IT DENIED
 THE APPROPRIATENESS OF THE UNIT AS WELL AS THE STATUS OF THE UNION AS
 THE COLLECTIVE BARGAINING REPRESENTATIVE.  /5/ IT ALSO DENIED THE
 COMMISSION OF ANY UNFAIR LABOR PRACTICE.
 
    ALL PARTIES WERE REPRESENTED AT THE HEARING.  EACH WAS AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
 CROSS-EXAMINE WITNESSES.  THEREOF THE BRIEFS WERE FILED WITH THE
 UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
 ADDUCED AT THE HEARING, I MADE THE FOLLOWING FINDINGS AND CONCLUSIONS.
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN, AND STILL IS,
 THE EXCLUSIVE BARGAINING REPRESENTATIVE OF PROFESSIONAL AND
 NON-PROFESSIONAL EMPLOYEES WHO ARE EMPLOYED BY RESPONDENT IN ITS
 NATIONAL, REGIONAL AND DISTRICT OFFICES.
 
    2.  INCLUDED WITHIN THE WESTERN REGION OF THE INTERNAL REVENUE
 SERVICE ARE 10 WESTERN STATES.  EACH STATE HAS A DISTRICT OFFICE, EXCEPT
 THAT CALIFORNIA IS DIVIDED INTO TWO DISTRICTS:  ONE IN LOS ANGELES AND
 THE OTHER IN SAN FRANCISCO.  INFORMATION WITH RESPECT TO ADVERSE ACTION
 TAKEN AGAINST PARTICULAR EMPLOYEES IS KEPT AT THE DISTRICT OFFICE WHERE
 SUCH EMPLOYEE IS STATIONED.  AUTHORITY TO TAKE ADVERSE ACTION AGAINST AN
 EMPLOYEE REPOSES IN THE DISTRICT DIRECTOR, AND THE AUTHORITY IS
 DELEGATED BY THE NATIONAL OFFICE.
 
    3.  BOTH THE UNION AND RESPONDENT ARE PARTIES TO A COLLECTIVE
 BARGAINING AGREEMENT WHICH, BY ITS TERMS, BECAME EFFECTIVE FOR A FOUR
 YEAR PERIOD COMMENCING ON JANUARY 31, 1977 AND IS AUTOMATICALLY
 RENEWABLE, ABSENT PROPER NOTICE, FOR YEARLY PERIODS AFTER ITS
 TERMINATION DATE.
 
    4.  ARTICLE 34 OF SAID AGREEMENT, WHICH DEALS WITH ADVERSE ACTIONS,
 PROVIDES IN PERTINENT PART AS FOLLOWS:
 
                                ARTICLE 34
 
                              ADVERSE ACTIONS
 
    SECTION 2
 
    "A.  IN ALL CASES OF PROPOSED ADVERSE ACTION, THE EMPLOYEE WILL BE
 GIVEN WRITTEN NOTICE OF
 
    THE SPECIFIC CHARGES WHICH FORM THE BASIS FOR THE PROPOSED ADVERSE
 ACTION THIRTY (30) DAYS IN
 
    ADVANCE OF THE ACTION. . .  THE EMPLOYEE WILL BE GIVEN THE
 OPPORTUNITY TO RESPOND ORALLY
 
    AND/OR IN WRITING TO THE CHARGES PRIOR TO A DECISION ON THE CHARGES .
 . .  IF THE EMPLOYEE
 
    ELECTS TO MAKE AN ORAL REPLY, THE EMPLOYER WILL RECORD THE REPLY
 VERBATIM AND PROVIDE A COPY
 
    OF THE VERBATIM TRANSCRIPT TO THE EMPLOYEE PRIOR TO THE TIME THE
 DECIDING OFFICIAL CONSIDERS
 
    THE CASE."
 
    5.  BY A LETTER DATED JANUARY 16, 1980 /6/ RESPONDENT INFORMED
 RICHARD RODRIGUEZ, AN EMPLOYEE IN THE BARGAINING UNIT WHO WAS EMPLOYED
 IN THE PHOENIX, ARIZONA DISTRICT, THAT IT PROPOSED TO SUSPEND HIM FROM
 DUTY FOR 30 DAYS BECAUSE OF HIS UNAUTHORIZED USE OF A GOVERNMENT VEHICLE
 FOR OTHER THAN OFFICIAL PURPOSES.  /7/
 
    6.  IN A WRITTEN DECLARATION, DATED JANUARY 18, RODRIGUEZ STATED THAT
 HE CHOSE NTEU CHAPTER 33 TO REPRESENT HIM IN THE PROPOSED ADVERSE ACTION
 AGAINST HIM.
 
    7.  ON JANUARY 21 THE UNION WROTE RESPONDENT THAT IT HAD BEEN ASKED
 BY RODRIGUEZ TO REPRESENT HIM AT ALL MEETINGS RE THE PROPOSED "ADVERSE
 ACTION ISSUED TO HIM." FURTHER, THE UNION REQUESTED AN ORAL REPLY BE
 MADE ON BEHALF OF RODRIGUEZ.
 
    8.  BY LETTER DATED JANUARY 29 CAROL W. PERKINS, ASSISTANT COUNSEL
 FOR THE UNION HEREIN WROTE STUART ZIDEL, LABOR RELATIONS SPECIALIST OF
 RESPONDENT, STATING THAT SHE NEEDED AND REQUESTED THE FOLLOWING
 INFORMATION IN ORDER TO PROPERLY REPRESENT RODRIGUEZ AND PREPARE HIS
 CASE RE HIS PROPOSED SUSPENSION:
 
    "1.  COPIES OF ALL ADVERSE OR DISCIPLINARY ACTIONS FOR THE PAST THREE
 YEARS WITHIN YOUR
 
    REGION DEALING WHOLLY OR IN PART WITH VIOLATION OF 31 U.S.C.
 638(A)(C)(2) OR ANY OTHER CHARGES
 
    INVOLVING WHOLLY OR IN PART THE UNAUTHORIZED OR IMPROPER USE OR LOSS
 OR THEFT, OR DAMAGE OR
 
    NEGLIGENCE IN CONNECTION WITH A GOVERNMENT VEHICLE OR THE
 TRANSPORTATION OF UNAUTHORIZED
 
    PERSONS IN A GOVERNMENT VEHICLE.
 
    2.  COPIES OF ALL MATERIAL RELIED UPON TO SUPPORT THE CHARGES IN THE
 AFORESAID ACTIONS.
 
    3.  COPIES OF ALL ORAL AND WRITTEN REPLIES IN THESE ACTIONS.
 
    4.  COPIES OF THE LETTERS OF FINAL AGENCY DISPOSITION OF THE ACTIONS.
 
    5.  COPIES OF REPORTS OF ANY SUBSEQUENT MITIGATION OR ALTERATION IN
 THE AFORESAID
 
    DISPOSITION.
 
    6.  COPIES OF ALL RELEVANT PARTS OF INSPECTION INVESTIGATIONS AND/OR
 INTERVIEWS INTO THE
 
    IMPROPER USE, LOSS, THEFT, DAMAGE OR NEGLIGENCE (IN CONNECTION WITH A
 GOVERNMENT VEHICLE OR
 
    TRANSPORTATION OF UNAUTHORIZED PERSONS IN A GOVERNMENT VEHICLE) IN
 WHICH THE EMPLOYEE SUBJECT
 
    OF THE INVESTIGATION WAS NOT PROPOSED FOR DISCIPLINARY OR ADVERSE
 ACTION."
 
    9.  IN REPLY TO THE AFORESAID REQUEST, ZIDEL WROTE PERKINS THAT
 RESPONDENT COULD NOT FURNISH THE INFORMATION SOUGHT BY THE UNION.  HE
 STATED THAT DATA PERTAINING TO OFFICES OTHER THAN THE PHOENIX DISTRICT
 WOULD NOT QUALIFY AS INFORMATION NECESSARY FOR FULL AND PROPER
 DISCUSSION;  THAT NO ACTIONS WERE TAKEN IN THE PHOENIX DISTRICT DURING
 THE PAST THREE YEARS INVOLVING THE SUBJECT AREA ABOUT WHICH PERKINS
 INQUIRED;  AND THEREFORE NO INFORMATION IS AVAILABLE.
 
    10.  THE ORAL REPLY PROCEEDING WAS HELD ON MARCH 20.  IT WAS
 CONDUCTED BY PETER COONS, THE ORAL REPLY OFFICER DESIGNATED BY THE
 DISTRICT DIRECTOR, AND A TRANSCRIPT WAS MADE THEREOF.  THE OFFICER
 STATED FOR THE RECORD THAT THE PROCEEDING WAS NOT A HEARING;  THAT IT
 WAS HELD SOLELY TO PERMIT RODRIGUEZ TO PRESENT HIS POSITION AND FURNISH
 INFORMATION AND AFFIDAVITS IN SUPPORT OF IT, AND THAT THE ORAL REPLY WAS
 NON-ADVERSARY IN NATURE WITH NO CROSS-EXAMINATION CONDUCTED.  THE DATA
 SOUGHT BY THE UNION, FOR USE AT THE ORAL REPLY PROCEEDING, WAS NOT
 FURNISHED BY RESPONDENT.
 
    11.  BY LETTER DATED APRIL 17 PRESCOTT A. BERRY, THE PHOENIX DISTRICT
 DIRECTOR, INFORMED RODRIGUEZ THAT HIS SUSPENSION WAS WARRANTED, AND THAT
 THE EMPLOYEE WOULD BE SUSPENDED FROM APRIL 19 UNTIL MAY 18.  THE
 DIRECTOR ALSO ADVISED RODRIGUEZ HE HAD THE RIGHT TO APPEAL THIS ACTION
 TO THE MERIT SYSTEMS PROTECTION BOARD.  THE EMPLOYEE WAS SUSPENDED FOR
 30 DAYS EFFECTIVE APRIL 19.
 
    12.  THEREAFTER AN APPEAL WAS TAKEN TO THE MERIT SYSTEM PROTECTION
 BOARD (MSPB) FROM RESPONDENT'S ADVERSE ACTION TOWARD RODRIGUEZ.  BY
 LETTER DATED JULY 14 TO GEORGE SWEGMAN, PRESIDING OFFICIAL, MSPB, CAROL
 PERKINS REQUESTED A SUBPOENA BE ISSUED TO COMPEL THE PRODUCTION BY
 RESPONDENT HEREIN OF THE SAME INFORMATION INITIALLY REQUESTED OF IT FOR
 USE AT THE ORAL REPLY PROCEEDING.
 
    13.  UNDER DATE OF AUGUST 7, SWEGMAN NOTIFIED PERKINS IN WRITING THAT
 A PRE-HEARING CONFERENCE IN RE THE APPEAL OF RODRIGUEZ WOULD BE HELD ON
 AUGUST 15.  THE PURPOSE OF THE CONFERENCE, AS STATED, WAS TO CLARIFY THE
 ISSUES BEFORE MSPB AND TO RESOLVE THE PROBLEMS IN CONNECTION WITH THE
 ATTEMPT TO OBTAIN THE INFORMATION FROM RESPONDENT.
 
    14.  SUBSEQUENT TO THE PRE-HEARING CONFERENCE AT THE MSPB, AN ORDER
 WAS ISSUED ON AUGUST 25 BY PRESIDING OFFICIAL GEORGE SWEGMAN.  HE STATED
 THEREIN THAT THE INFORMATION SOUGHT BY APPELLANT RODRIGUEZ WAS
 "POTENTIALLY RELEVANT TO THE ISSUES RAISED BY APPELLANT." HE FURTHER
 DECIDED THAT RECORDS FOR TWO YEARS, RATHER THAN THREE AS REQUESTED,
 WOULD PROVIDE ADEQUATE STATISTICAL DATA TO SHOW A PATTERN OF BEHAVIOR.
 SWEGMAN ORDERED THE AGENCY TO ASCERTAIN WHETHER THE INFORMATION SOUGHT
 IN THE SECOND PART OF APPELLANT'S SPECIFICATIONS 1 AND 6 EXISTS, AND
 DIRECTED THE AGENCY TO INDICATE WHERE AND IN WHAT FORM RECORDED.
 FURTHER, THE OFFICIAL ORDERED THE EMPLOYER TO DETERMINE THE NUMBER OF
 SUCH RECORDED INCIDENTS AND ADVERSE ACTIONS DURING THE TWO YEAR PERIOD;
 THAT, IN ACCORD WITH AN AGREEMENT REACHED WITH APPELLANT, IT BE LIMITED
 TO 5 OF THE 11 DISTRICTS WITHIN THE REGION.  FINALLY, SWEGMAN ORDERED
 THE AGENCY TO PROVIDE THESE ANSWERS TO THE PRESIDING OFFICIAL AND
 APPELLANT WITHIN 10 DAYS OF RECEIPT OF THIS ORDER.
 
    15.  ON SEPTEMBER 8 THE AGENCY FILED WITH THE MSPB A MOTION TO QUASH
 THE ORDER ISSUED BY SWEGMAN ON AUGUST 25.  THIS WAS OVERRULED BY
 PRESIDING OFFICIAL F. L. LIGGETT OF MSPB ON THE GROUND THAT A MOTION TO
 QUASH MUST BE ADDRESSED TO A SUBPOENA;  THAT NO SUBPOENA HAD BEEN
 ISSUED, BUT RATHER AN ORDER BY THE APPEALS BODY.  IN HIS ORDER DATED
 SEPTEMBER 25 LIGGETT STATED THAT THE ORDER OF AUGUST 25 DID NOT REQUIRE
 THE AGENCY TO PRODUCE ANY OF THE INFORMATION REQUESTED BY APPELLANT;
 THAT THE ORDER OF AUGUST 25 WAS SIMPLY AN ATTEMPT BY THE PRESIDING
 OFFICIAL TO ASCERTAIN WHETHER THE INFORMATION REQUESTED BY APPELLANT
 EXISTED IN ANY RETRIEVABLE FORM AT THE IDENTIFIED DISTRICT.  SINCE THERE
 WAS NO COMPLIANCE WITH THE EARLIER ORDER, LIGGETT ORDERED THE AGENCY TO
 SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED UPON IT.
 
    16.  BY LETTER DATED OCTOBER 1, ADDRESSED TO LEGGETT, THE RESPONDENT
 STATED THAT:  (A) THE INFORMATION REQUESTED IN SPECIFICATION 1 IS
 MAINTAINED IN THE RECORDS OF THE DISTRICT OFFICES OF PHOENIX, LOS
 ANGELES, RENO, SALT LAKE CITY, AND PORTLAND;  (B) THE TYPE OF DATA
 SOUGHT IN SPECIFICATION 6 IS NOT MAINTAINED IN THE RECORDS OF THE SAID
 DISTRICTS, BUT MAY EXIST IN THE INTERNAL SECURITY MANAGEMENT INFORMATION
 SYSTEM.  HOWEVER, SAID INFORMATION IS NOT RETRIEVABLE BY THE SUBJECT
 CATEGORIES SET FORTH IN SAID SPECIFICATION;  (C) THERE HAVE BEEN NO
 ADVERSE ACTIONS, DURING THE PAST TWO YEARS, OF THE TYPE STATED IN
 SPECIFICATION 1 IN THE AFORESAID DISTRICTS;  (D) THE RESPONSIBLE
 OFFICIALS IN SAID DISTRICTS HAVE NO KNOWLEDGE OF INCIDENTS OF THE TYPE
 STATED IN SPECIFICATION 6 DEALING WITH ADVERSE OR DISCIPLINARY ACTIONS
 DURING THE LAST TWO YEARS.
 
                                CONCLUSIONS
 
    IT IS CONTENDED BY RESPONDENT THAT A REFUSAL TO FURNISH THE
 INFORMATION REQUESTED BY THE UNION DOES NOT CONSTITUTE AN UNFAIR LABOR
 PRACTICE.  THE EMPLOYER ALSO INSISTS THAT THIS ISSUE WAS RAISED IN THE
 APPEALS PROCEDURE BEFORE THE MERIT SYSTEM PROTECTION BOARD (MSPB), AND
 THUS IT IS BARRED FROM CONSIDERATION HEREIN UNDER SECTION 7116(D) OF THE
 ACT.  FURTHER, IT TAKES THE POSITION THAT THE MATERIAL WAS NEITHER
 RELEVANT NOR NECESSARY TO A DETERMINATION OF WHETHER RODRIGUEZ WAS
 PROPERLY SUSPENDED FOR 30 DAYS.  RESPONDENT ALSO INSISTS THAT NO
 OBLIGATION EXISTS TO PROVIDE INFORMATION TO A UNION OFFICIAL DIVORCED
 FROM THE BARGAINING PROCESS.
 
                APPLICABILITY OF SECTION 7116(D) OF THE ACT
 
    IT IS PROVIDED IN PERTINENT PART, UNDER SECTION 7116(D) OF THE ACT AS
 FOLLOWS:
 
    "ISSUES WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE MAY
 NOT BE RAISED AS UNFAIR
 
    LABOR PRACTICES PROHIBITED UNDER THIS SECTION." RESPONDENT CONTENDS
 THAT THE ABOVE SECTION WAS ENACTED IN SUBSTANTIALLY THE SAME LANGUAGE AS
 ITS PRECURSOR, SECTION 19(D) OF EXECUTIVE ORDER 11491, AS AMENDED.
 FURTHER, THAT ITS INTENT, AS SET FORTH IN THE LEGISLATIVE HISTORY, WAS
 TO PRECLUDE RELITIGATION OF THE SAME ISSUES.  WHERE ADVERSE ACTION
 MATTERS ARE COVERED BY A NEGOTIATED GRIEVANCE PROCEDURE, AN EMPLOYEE
 MUST ELECT BETWEEN THAT COURSE OF ACTION OR APPLICABLE STATUTORY
 PROCEDURES.  IT IS ARGUED THAT THE UNION REQUESTED THE INFORMATION
 HEREIN TO REPRESENT RODRIGUEZ RE HIS PROPOSED SUSPENSION;  THAT THE
 ISSUE PRESENTED WAS WHETHER THE INFORMATION WAS RELEVANT TO THE ADVERSE
 ACTION AGAINST THIS EMPLOYER;  AND THAT THE ISSUE WAS ADJUDICATED UNDER
 THE STATUTORY PROCEDURE BEFORE THE MERIT SYSTEM PROTECTION BOARD.  TO
 THIS END, AND IN SUPPORT OF ITS POSITION, THE EMPLOYER RELIES UPON
 SEVERAL CASES WHERE UNFAIR LABOR PRACTICE COMPLAINTS WERE DISMISSED ON
 THE GROUND THAT THE ISSUES PRESENTED THEREIN WERE RAISED IN A PRIOR
 PROCEEDING.  SEE INTERNAL REVENUE SERVICE, CHICAGO, ILLINOIS, 3 FLRA NO.
 75;  BOSTON DISTRICT OFFICE, INTERNAL REVENUE SERVICE, A/SLMR NO. 727.
 
    WHILE THE MATTER IS NOT FREE FROM DOUBT, I AM PERSUADED THAT THE
 CITED CASES ARE DISTINGUISHABLE FROM THE ONE AT BAR.  MOREOVER, I AM
 CONSTRAINED TO FIND THAT THE PRECISE ISSUE RAISED BY THE UNION'S UNFAIR
 LABOR PRACTICE CHARGE HEREIN IS DISSIMILAR FROM THE QUESTION RAISED OR
 RESOLVED AT THE STATUTORY APPEALS PROCEEDING.  AS HEREINAFTER SET FORTH
 IN MORE DETAIL, I CONCLUDE THAT THE MERIT SYSTEM PROTECTION BOARD LACKED
 THE AUTHORITY TO, AND DID NOT, PASS UPON THE ENTITLEMENT OF THE UNION AS
 THE BARGAINING REPRESENTATIVE TO THE INFORMATION INITIALLY REQUESTED
 FROM RESPONDENT IN PURSUANCE OF ITS DUTIES.
 
    IN THE CHICAGO, IRS CASE, SUPRA, THE EMPLOYER PROPOSED TO SUSPEND TWO
 BARGAINING UNIT EMPLOYEES AS A DISCIPLINARY ACTION.  BOTH INDIVIDUALS
 FILED GRIEVANCES UNDER THE NEGOTIATED AGREEMENT.  A UNION REPRESENTATIVE
 REQUESTED CERTAIN INFORMATION FROM THE EMPLOYER, ON BEHALF OF THE TWO
 GRIEVANTS, IN CONNECTION WITH THE REPRESENTATION OF THEM IN THEIR
 GRIEVANCES OF THE DISCIPLINARY ACTIONS.  THE INFORMATION WAS NOT
 PRODUCED.  IN THE COMPLAINT PROCEEDING BEFORE THE AUTHORITY IT WAS
 ALLEGED THAT THE UNION AND THE AGGRIEVED EMPLOYEES HAD REQUESTED
 RELEVANT AND NECESSARY INFORMATION RELATING TO THE SUSPENSION OF THESE
 INDIVIDUALS;  THAT SAID REQUEST WAS FOR THE PURPOSE OF REPRESENTING THE
 EMPLOYEE RE THE PROPOSED ACTION;  AND THAT THE EMPLOYER REFUSED TO
 FURNISH SAME.
 
    IT WAS HELD THAT THE ELECTION BY THE GRIEVANTS TO RAISE THE
 NON-PRODUCTION OF INFORMATION IN THEIR GRIEVANCES PRECLUDES THE UNION
 FROM RAISING THE SAME ISSUES UNDER UNFAIR LABOR PRACTICE PROCEDURES.
 THE INFORMATION WAS REQUESTED ON THEIR BEHALF RE THE DISCIPLINARY
 ACTION, AND FAILURE TO FURNISH THE INFORMATION WAS RAISED IN THEIR
 GRIEVANCE.  SINCE THE DATA WAS NEEDED TO REPRESENT THE INDIVIDUALS AT
 THE DISCIPLINARY PROCEEDING, THE UNION WAS NOT PERMITTED TO RAISE THE
 SAME REFUSAL TO FURNISH THE INFORMATION IN AN UNFAIR LABOR PRACTICE
 MATTER.  AS SUCH, IT WAS BARRED BY SECTION 7116(D) OF THE ACT.
 
    IN THE BOSTON, IRS CASE, SUPRA, AN ADVERSE ACTION PROCEEDING WAS
 INITIATED BY THE EMPLOYER AGAINST AN EMPLOYEE FOR IMPROPER CONDUCT.
 COUNSEL FOR THE BARGAINING AGENT REQUESTED INFORMATION FROM THE AGENCY
 WHICH IT DEEMED RELEVANT IN THE REPRESENTATION OF THE INDIVIDUAL DURING
 SUCH PROCEEDING.  IT WAS REFUSED.  THEREAFTER ARBITRATION WAS INVOKED
 AND THE UNION ASSERTED IT NEEDED THE DATA TO FULFILL ITS ROLE AS THE
 EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEE.  THE UNION RELIED UPON PAST
 DECISIONS IN THE PUBLIC SECTOR RE THE RIGHTS OF SUCH REPRESENTATIVE TO
 OBTAIN SUCH MATERIAL.  THE ISSUE WAS LITIGATED BEFORE THE ARBITRATOR,
 AND THE LATTER ISSUED A WRITTEN RULING AS TO WHETHER THE UNION WAS
 ENTITLED TO SUCH INFORMATION.
 
    AN UNFAIR LABOR PRACTICE COMPLAINT /8/ WAS FILED BY THE UNION PRIOR
 TO THE HEARING BEFORE THE ARBITRATOR.  IN A DECISION INVOLVING THE
 ALLEGED UNFAIR LABOR PRACTICE, BASED ON A FAILURE TO FURNISH THE
 INFORMATION REQUESTED FROM THE AGENCY, THE ASSISTANT SECRETARY CONCLUDED
 THE ACTION WAS BARRED BY 19(D) OF THE ORDER.  HE RELIED ON THE FACT THAT
 THE ISSUE WAS LITIGATED BEFORE THE ARBITRATOR, AND THAT THE UNION
 PRESSED ITS RIGHT AS A LABOR ORGANIZATION TO OBTAIN MATERIAL FROM AN
 ACTIVITY IN PROCESSING A GRIEVANCE OR PURSUING ITS RESPONSIBILITIES AS
 AN EXCLUSIVE REPRESENTATIVE.
 
    BOTH OF THE CITED DECISIONS INVOLVE FACTUAL DIFFERENCES WHICH, IN MY
 OPINION, COMPEL THE CONCLUSION THAT THEY ARE NOT DETERMINATIVE OF THE
 MATTER AT HAND.  THUS, IN THE CHICAGO, IRS CASE THE INFORMATION
 REQUESTED WAS SOLELY FOR THE PURPOSE OF REPRESENTING THE TWO EMPLOYEES
 IN THE GRIEVANCE PROCEEDING.  THE DATA WAS SOUGHT ON THEIR BEHALF IN
 CONNECTION WITH THE DISCIPLINARY ACTIONS.  IT WAS NOT REQUESTED BY THE
 UNION IN CONJUNCTION WITH ITS RIGHT AS BARGAINING AGENT IN ORDER TO
 FULFILL ITS DUTIES AS SUCH REPRESENTATIVE.  IN FACT, JUDGE DEVANEY
 SPECIFICALLY STATED THAT "THIS CASE DOES NOT INVOLVE A REQUEST BY THE
 UNION FOR INFORMATION 'QUA' THE UNION, AND NOTHING HEREIN IS INTENDED,
 NOR SHALL IT BE SO CONSTRUED, AS DISPOSITION OF A UNION'S INDEPENDENT
 RIGHT TO REQUEST INFORMATION NECESSARY OR APPROPRIATE FOR THE DISCHARGE
 OF THE UNION'S OVERALL BARGAINING RESPONSIBILITY . . . ".  THUS, NO
 DETERMINATION WAS MADE AS TO THE APPLICABILITY OF SECTION 7116(D) WHERE
 THE UNION, QUA THE UNION, REQUESTED INFORMATION AND AN INDIVIDUAL
 GRIEVANCE HAS RESULT IN A REFUSAL TO FURNISH INFORMATION.  IN THE
 BOSTON, IRS CASE THE UNION PRESSED ITS RIGHT TO THE DATA REQUESTED AS A
 BARGAINING REPRESENTATIVE TO FULFILL ITS DUTIES AS THE EXCLUSIVE AGENT.
 ITS POSITION, IN THIS RESPECT, WAS CONSIDERED BY THE ARBITRATOR, AND
 THEREFORE COULD NOT BE ADJUDICATED AGAIN IN THE UNFAIR LABOR PRACTICE
 PROCEEDING.
 
    IN THE CASE AT BAR THE ISSUE RAISED BEFORE THE MSPB, WITH RESPECT TO
 THE DATA REQUESTED, WAS WHETHER EMPLOYEE RODRIGUEZ, OR SOMEONE ON HIS
 BEHALF, SHOULD RECEIVE THE INFORMATION FOR USE IN THE APPEALS
 PROCEEDING.  THE ISSUE RAISED BEFORE THE UNDERSIGNED, IN THIS UNFAIR
 LABOR PRACTICE MATTER, IS WHETHER THE UNION WAS ENTITLED TO THE
 INFORMATION REQUESTED (ALBEIT THE SAME MATERIAL) TO FULFILL ITS DUTIES
 AS BARGAINING REPRESENTATIVE OF THE EMPLOYEES, INCLUDING RODRIGUEZ.  IN
 THE FIRST INSTANCE THE EMPLOYEE, AS THE APPELLANT, SEEKS THE INFORMATION
 TO CONVINCE THE MSPB THAT HIS SUSPENSION WAS WRONGFUL OR NOT
 JUSTIFIABLE.  THE UNION, AS BARGAINING REPRESENTATIVE, WOULD HAVE HAD NO
 STANDING QUA UNION BEFORE THE APPEALS BODY.  /9/ IN THE SECOND INSTANCES
 THE UNION NEEDED THE MATERIAL AT THE OUTSET TO ACT AS REPRESENTATIVE OF
 THE BARGAINING UNIT.  IN THE COURSE THEREOF IT COULD ATTEMPT TO CONVINCE
 MANAGEMENT AT THE ORAL REPLY MEETING THAT UNIT EMPLOYEE RODRIGUEZ SHOULD
 NOT BE SUSPENDED.  TO PURSUE THIS ENDEAVOR CERTAIN INFORMATION
 REQUESTED, I.E. DISCIPLINE METED TO OTHER EMPLOYEES FOR SIMILAR
 INFRACTIONS, OR THE FAILURE TO INVOKE DISCIPLINARY ACTIONS, COULD WELL
 BE MATERIAL AND HELPFUL.  THE MSPB, IN THE STATUTORY APPEALS PROCEDURE,
 COULD NOT PASS UPON THE QUESTION AS TO WHETHER THE UNION SHOULD OBTAIN
 THE MATERIAL TO FULFILL ITS FUNCTION AS AFORESAID.  THIS DETERMINATION
 MUST BE MADE IN AN UNFAIR LABOR PRACTICE PROCEEDING.  A CONTRARY RESULT
 WOULD MEAN THAT IF A UNION SEEKS INFORMATION TO REPRESENT A BARGAINING
 UNIT EMPLOYEE LIKELY TO BE DISCIPLINED, IT COULD NOT PERFORM ITS
 FUNCTION AND OBTAIN SAME IN THE EVENT THE EMPLOYEE APPEALS THE ADVERSE
 ACTION AND SEEKS SIMILAR DATA FOR USE BEFORE THE APPEALS BODY.  THIS
 NECESSARILY CONSTRICTS THE EFFECTIVENESS OF THE BARGAINING
 REPRESENTATIVE.  ACCORDINGLY, I CONCLUDE THAT THE PRESENT PROCEEDING IS
 NOT BARRED UNDER SECTION 7114(D) OF THE ACT.
 
             RELEVANCE AND NECESSITY OF INFORMATION REQUESTED
 
    THE ESSENTIAL DATA SOUGHT BY THE UNION COMPRISES DISCIPLINARY ACTIONS
 TAKEN BY THIS EMPLOYER WHICH INVOLVE INFRACTIONS BY OTHER EMPLOYEES OF A
 SIMILAR NATURE.  IN THIS RESPECT THE BARGAINING AGENT DESIRED MATERIAL
 RELIED UPON TO SUPPORT THE CHARGES IN OTHER ACTIONS, AS WELL AS REPLIES
 FROM THE EMPLOYEES AND ALL REPORTS SHOWING DISPOSITION OR MITIGATIONS,
 OF SUCH ACTIONS.  SUCH MATERIAL IS, IN MY OPINION, CLEARLY RELEVANT AND
 NECESSARY /10/ FOR THE UNION TO FULFILL ITS OBLIGATION IN REPRESENTING A
 UNIT EMPLOYEE UNDERGOING DISCIPLINARY TREATMENT.  THE AUTHORITY HAS
 RECOGNIZED THE RELEVANCE OF SUCH DATA IN INTERNAL REVENUE SERVICE,
 JACKSONVILLE DISTRICT, JACKSONVILLE, FLORIDA, 1 FLRA NO. 35.  IN THE
 CITED CASES MANAGEMENT PROPOSED DISCIPLINARY ACTION TOWARD A
 PROBATIONARY EMPLOYEE.  THE UNION THEREIN SOUGHT DATA RE WORK RECORDS OF
 SIX OTHER PROBATIONERS IN ORDER TO PROPERLY REPRESENT THE PARTICULAR
 EMPLOYEE.  IT WAS HELD THAT SUCH INFORMATION WAS RELEVANT AND NECESSARY
 FOR THE BARGAINING AGENT TO FULFILL ITS OBLIGATION.  DISPARITY OF
 TREATMENT ACCORDED EMPLOYEES COULD WELL BE A SIGNIFICANT CONSIDERATION,
 AND PERFORMANCE DATA OF OTHER PROBATIONERS WAS DEEMED RELEVANT IN
 DETERMINING WHETHER DISCIPLINE OF THE PROBATIONERS WAS JUSTIFIABLE.
 
    I CONSIDER THE AFOREMENTIONED CASE TO BE DECISIVE IN CONCLUDING THAT
 THE INFORMATION SOUGHT HEREIN WAS BOTH RELEVANT AND NECESSARY.  ACTION
 TAKEN BY RESPONDENT IN RESPECT TO OTHER EMPLOYEES CHARGED WITH THE SAME
 INFRACTION MIGHT WELL ASSIST THE UNION IN CONTENDING THAT THE PROPOSED
 SUSPENSION OF RODRIGUEZ IN 30 DAYS WAS UNFAIR AND SHOULD NOT OCCUR.  AS
 SUCH, IT IS CLEARLY RELEVANT AND NECESSARY.  FAILURE TO FURNISH SAME
 CONSTITUTES A VIOLATION OF SECTION 7116(A)(1), (5) AND (8) OF THE ACT.
 /11/ ACCORDINGLY, I CONCLUDED THAT:  (A) THE PRESENT COMPLAINT WAS NOT
 BARRED UNDER SECTION 7116(D) OF THE ACT BY REASON OF THE MSPB PROCEEDING
 WHEREIN RODRIGUEZ SOUGHT THE SAME INFORMATION AS REQUESTED INITIALLY BY
 THE UNION HEREIN;  (B) RESPONDENT'S FAILURE TO FURNISH SUCH DATA TO THE
 UNION, WHICH IS CLEARLY RELEVANT AND NECESSARY TO ITS PROPER
 REPRESENTATIONAL DUTIES, RAN AFOUL OF SECTION 7116(A)(1), (5) AND (8) OF
 THE ACT.
 
                                  REMEDY
 
    IN ITS BRIEF THE GENERAL COUNSEL SEEKS, IN ADDITION TO THE
 INFORMATION REQUESTED, THAT THE ORAL REPLY BE CONDUCTED AGAIN TO ALLOW
 RESPONDENT TO RECONSIDER THE ADVERSE ACTION TAKEN AGAINST RODRIGUEZ.  A
 FULL STATUS QUO ANTE REMEDY APPEARS UNWARRANTED IN VIEW OF THE DECISION
 RENDERED BY THE MERIT SYSTEM PROTECTION BOARD.  COMPLETE RESTORATION
 WOULD REQUIRE DISTURBANCE OF THE RULING BY AN APPELLATE BODY.
 NEVERTHELESS, I BELIEVE THE UNION SHOULD BE ENTITLED, UPON REQUEST OF
 THE DATA SOUGHT HEREIN, TO EVALUATE AND UTILIZE IT IN REPRESENTING
 RODRIGUEZ DURING AN ORAL INTERVIEW.  IN FULFILLING ITS DUTIES AS
 BARGAINING REPRESENTATIVE THE UNION MAY ATTEMPT TO PERSUADE RESPONDENT
 THAT ITS ACTION WAS UNJUSTIFIABLE IN LIGHT OF THE INFORMATION FURNISHED
 BY THE EMPLOYER.  ACCORDINGLY, I AGREE THAT A PROPER REMEDY, IN ADDITION
 TO SUPPLYING THE DATA REQUESTED, CALLS FOR ANOTHER ORAL REPLY TO ENABLE
 THE RESPONDENT TO RECONSIDER ITS ADVERSE ACTIONS.
 
    HAVING FOUND AND CONCLUDED THAT RESPONDENT VIOLATED SECTIONS
 7116(A)(1), (5) AND (8) OF THE ACT, IT IS RECOMMENDED THAT THE AUTHORITY
 ISSUE THE FOLLOWING ORDER:
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE, WESTERN
 REGION, SAN FRANCISCO, CALIFORNIA SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING TO FURNISH TO THE NATIONAL TREASURY EMPLOYEES UNION THE
 DOCUMENTS AND MATERIAL
 
    REQUESTED BY IT ON JANUARY 29, 1980, WHICH WERE NECESSARY AND
 RELEVANT TO A DETERMINATION BY
 
    THE NATIONAL TREASURY EMPLOYEES UNION IN ORDER TO DISCHARGE ITS
 REPRESENTATIONAL OBLIGATION TO
 
    EMPLOYEE RICHARD RODRIGUEZ.
 
    (B) CONDUCTING AN ORAL REPLY PROCEEDING TO CONSIDER ANY PROPOSED
 DISCIPLINE OF, OR ADVERSE
 
    ACTION TOWARD, EMPLOYEE RICHARD RODRIGUEZ WITHOUT FIRST FURNISHING,
 UPON REQUEST, TO THE
 
    NATIONAL TREASURY EMPLOYEES UNION ANY DOCUMENTS AND MATERIAL WHICH
 ARE NECESSARY AND RELEVANT
 
    TO A DETERMINATION BY THE NATIONAL TREASURY EMPLOYEES UNION IN ORDER
 TO DISCHARGE ITS
 
    REPRESENTATIONAL OBLIGATION TO EMPLOYEE RICHARD RODRIGUEZ.
 
    (C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND FAILURE OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) UPON REQUEST, FURNISH TO THE NATIONAL TREASURY EMPLOYEES UNION
 THE DOCUMENTS AND
 
    MATERIAL REQUESTED BY IT ON JANUARY 29, 1980, WHICH WERE NECESSARY
 AND RELEVANT TO A
 
    DETERMINATION BY THE NATIONAL TREASURY EMPLOYEES UNION IN ORDER TO
 DISCHARGE ITS
 
    REPRESENTATIONAL OBLIGATION TO EMPLOYEE RICHARD RODRIGUEZ.
 
    (B) CONDUCT A NEW ORAL REPLY PROCEEDING TO RECONSIDER THE PAST
 SUSPENSION AND/OR DISCIPLINE
 
    OF EMPLOYEE RICHARD RODRIGUEZ AFTER FURNISHING, UPON REQUEST, THE
 DOCUMENTS AND MATERIAL
 
    REQUESTED BY THE NATIONAL TREASURY EMPLOYEES UNION ON JANUARY 29,
 1980, WHICH WERE NECESSARY
 
    AND RELEVANT TO A DETERMINATION OF THE NATIONAL TREASURY EMPLOYEES
 UNION IN ORDER TO DISCHARGE
 
    ITS REPRESENTATIONAL OBLIGATION TO EMPLOYEE RICHARD RODRIGUEZ.
 
    (C) POST AT ITS FACILITIES IN SAN FRANCISCO, CALIFORNIA 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 REGIONAL
 COMMISSIONER 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.  THE
 
    REGIONAL COMMISSIONER SHALL TAKE REASONABLE STEPS TO INSURE THAT
 NOTICES ARE NOT ALTERED,
 
    DEFACED, OR COERCED BY ANY OTHER MATERIALS.
 
    (D) NOTIFY THE REGIONAL DIRECTOR OF REGION IX, 450 GOLDEN GATE
 AVENUE, ROOM 11408, P.O. BOX
 
    36016, SAN FRANCISCO, CALIFORNIA 94102 IN WRITING WITHIN 30 DAYS FROM
 THE DATE OF THIS ORDER
 
    AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                         WILLIAM NAIMARK
                         ADMINISTRATIVE LAW JUDGE
 
 DATED:  MAY 6, 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 REFUSE TO FURNISH TO THE NATIONAL TREASURY EMPLOYEES UNION
 THE DOCUMENTS AND MATERIAL REQUESTED BY IT ON JANUARY 29, 1980, WHICH
 WERE NECESSARY AND RELEVANT TO A DETERMINATION BY THE NATIONAL TREASURY
 EMPLOYEES UNION IN ORDER TO DISCHARGE ITS REPRESENTATIONAL OBLIGATION TO
 EMPLOYEE RICHARD RODRIGUEZ.  WE WILL NOT CONDUCT AN ORAL REPLY
 PROCEEDING TO CONSIDER ANY PROPOSED DISCIPLINE OF, OR ADVERSE ACTION
 TOWARD, RICHARD RODRIGUEZ WITHOUT FIRST FURNISHING, UPON REQUEST, TO THE
 NATIONAL TREASURY EMPLOYEES UNION ANY DOCUMENTS AND MATERIAL WHICH ARE
 NECESSARY AND RELEVANT TO A DETERMINATION BY THE NATIONAL TREASURY
 EMPLOYEES UNION IN ORDER TO DISCHARGE ITS REPRESENTATIONAL OBLIGATION TO
 EMPLOYEE RICHARD RODRIGUEZ.  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, FURNISH TO THE NATIONAL TREASURY
 EMPLOYEES UNION THE DOCUMENTS AND MATERIAL REQUESTED BY IT ON JANUARY
 29, 1980, WHICH WERE NECESSARY AND RELEVANT TO A DETERMINATION BY THE
 NATIONAL TREASURY EMPLOYEES UNION IN ORDER TO DISCHARGE ITS
 REPRESENTATIONAL OBLIGATION TO EMPLOYEE RICHARD RODRIGUEZ.  WE WILL
 CONDUCT A NEW ORAL REPLY PROCEEDING TO RECONSIDER THE PAST SUSPENSION
 AND/OR DISCIPLINE OF EMPLOYEE RICHARD RODRIGUEZ AFTER FURNISHING, UPON
 REQUEST, THE DOCUMENTS AND MATERIAL REQUESTED BY THE NATIONAL TREASURY
 EMPLOYEES UNION ON JANUARY 29, 1980, WHICH WERE NECESSARY AND RELEVANT
 TO A DETERMINATION OF THE NATIONAL TREASURY EMPLOYEES UNION IN ORDER TO
 DISCHARGE ITS REPRESENTATIONAL OBLIGATION TO EMPLOYEE RICHARD RODRIGUEZ.
 
                           (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 MATERIALS.  IF EMPLOYEES HAVE ANY
 QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS, THEY
 MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR FOR THE FEDERAL
 LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:  REGION 9, 450 GOLDEN GATE
 AVENUE, ROOM 11408, P.O. BOX 36016, SAN FRANCISCO, CALIFORNIA 94102;
 TELEPHONE (415) 556-8105.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN HIS DECISION, THE JUDGE INADVERTENTLY INTERCHANGED REFERENCES
 TO THE RESPONDENT, THE INTERNAL REVENUE SERVICE, WESTERN REGION, SAN
 FRANCISCO, CALIFORNIA, WITH REFERENCES TO INTERNAL REVENUE SERVICE,
 PHOENIX DISTRICT OFFICE.  THE AUTHORITY CORRECTS THIS INADVERTENT ERROR,
 NOTING THAT THE INTERNAL REVENUE SERVICE, WESTERN REGION, SAN FRANCISCO,
 CALIFORNIA, IS THE RESPONDENT HEREIN, AND THE INTERNAL REVENUE SERVICE,
 PHOENIX DISTRICT OFFICE IS ORGANIZATIONALLY PART OF THE RESPONDENT.  THE
 RESPONDENT WESTERN REGION WAS THE PARTY WHICH REFUSED TO PROVIDE THE
 INFORMATION REQUESTED BY THE UNION IN ITS CAPACITY AS EXCLUSIVE
 REPRESENTATIVE OF A MEMBER OF THE BARGAINING UNIT.
 
    /2/ THE JUDGE CONCLUDED THAT THE COMPLAINT HEREIN WAS NOT BARRED BY
 SECTION 7116(D) OF THE STATUTE, AS CONTENDED BY THE RESPONDENT.  IN THIS
 REGARD, HE FOUND THAT THE ISSUE RAISED IN THE UNFAIR LABOR PRACTICE
 PROCEEDING AS TO WHETHER THE UNION WAS ENTITLED TO INFORMATION REQUESTED
 IN ORDER TO FULFILL ITS DUTIES AS EXCLUSIVE BARGAINING REPRESENTATIVE OF
 THE EMPLOYEES IN THE BARGAINING UNIT WAS NOT THE SAME ISSUE AS THAT
 RAISED BY AN EMPLOYEE WHO WAS ASSERTING HIS OWN RIGHT TO SUCH
 INFORMATION AS THE APPELLANT IN A STATUTORY APPEAL PROCEEDING BEFORE THE
 MERIT SYSTEMS PROTECTION BOARD (MSPB).  FOR THE REASONS MORE FULLY
 STATED BY THE JUDGE IN HIS DECISION, THE AUTHORITY AGREES THAT THE
 UNION'S RIGHT TO THE INFORMATION COULD NOT HAVE BEEN RAISED OR DECIDED
 IN THE PROCEEDING BEFORE MSPB AND THEREFORE WAS NOT BARRED BY SECTION
 7116(D) FROM BEING RAISED HEREIN AS AN UNFAIR LABOR PRACTICE.
 
    /3/ SEE VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO, 7
 FLRA NO. 100 (1982);  DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD,
 4 FLRA NO.  82 (1980);  INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT,
 JACKSONVILLE, FLORIDA, 1 FLRA 265 (1979).
 
    /4/ THIS DECISION WAS NOT APPEALED, AND UNDER THE MSPB'S RULES HAS
 BECOME FINAL.
 
    /5/ STIPULATIONS AT THE HEARING BETWEEN THE PARTIES REFLECT THAT THE
 UNION IS THE COLLECTIVE BARGAINING AGENT FOR EMPLOYEES OF RESPONDENT IN
 AN APPROPRIATE UNIT, AND THAT THE EMPLOYEE INVOLVED HEREIN IS A MEMBER
 OF SUCH UNIT.
 
    /6/ UNLESS OTHERWISE INDICATED, ALL DATES HEREINAFTER MENTIONED OCCUR
 IN 1980.
 
    /7/ SUCH USE IS PROHIBITED UNDER 31 U.S.C. 638(A)(C)(2) AND PROVIDES
 FOR SUSPENSION FROM DUTY OF THE EMPLOYEE FOR NOT LESS THAN ONE MONTH.
 
    /8/ IN CONFORMITY WITH THE PROCEDURES APPLICABLE UNDER EXECUTIVE
 ORDER 11491, AS AMENDED, THE CHARGING PARTY FILED A COMPLAINT AGAINST
 RESPONDENT.
 
    /9/ IN ITS BRIEF RESPONDENT STATES THE UNION HAD NO RIGHT TO
 REPRESENT RODRIGUEZ BEFORE THE MSPB.  THIS CONTENTION SUPPORTS THE
 CONCLUSION THAT THE LATTER COULD NOT HAVE PASSED UPON THE UNION'S
 ENTITLEMENT TO THE INFORMATION AS BARGAINING