16:0687(100)CA - Treasury, IRS, Memphis Service Center and NTEU -- 1984 FLRAdec CA



[ v16 p687 ]
16:0687(100)CA
The decision of the Authority follows:


 16 FLRA No. 100
 
 DEPARTMENT OF TREASURY
 INTERNAL REVENUE SERVICE
 MEMPHIS SERVICE CENTER
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION
 Charging Party
 
                                            Case No. 4-CA-912
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued her Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices and recommending that it cease and desist
 therefrom and take certain affirmative action.  Thereafter, the Charging
 Party filed exceptions to the Judge's Decision and the General Counsel
 filed an opposition to the exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing and finds that no prejudicial error was
 committed.  Except as noted below, the rulings are hereby affirmed.  /1/
 Upon consideration of the Judge's Decision and the entire record, the
 Authority hereby adopts the Judge's findings, conclusions and
 recommended Order, particularly noting that there were no exceptions to
 the Judge's conclusion that, in the circumstances, the Respondent
 violated section 7116(a)(1) of the Statute /2/ when it issued a
 reprimand to an employee for remarks made while she was representing a
 fellow employee in her Union capacity.  /3/
 
                                   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 Department of Treasury, Internal
 Revenue Service, Memphis Service Center, shall:
 
    1.  Cease and desist from:
 
    (a) Interfering with, restraining, or coercing its employees by
 reprimanding any representative of the National Treasury Employees
 Union, the exclusive representative of a unit of its employees, for
 protected conduct engaged in while performing representational duties.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Expunge from its files all records of, or references to, the
 reprimand given Belva Rosser which was confirmed by letter dated March
 25, 1981, and acknowledge this action to Ms. Rosser in writing.
 
    (b) Post at the Memphis Service Center 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
 Memphis Service Center, or his designee, and shall be posted and
 maintained for 60 consecutive days thereafter in conspicuous places,
 including bulletin boards and other 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.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IV, 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., November 30, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT interfere with, restrain, or coerce our employees by
 reprimanding any representative of the National Treasury Employees
 Union, the exclusive representative of a unit of our employees, for
 protected conduct engaged in while performing representational duties.
 
    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 expunge from our files all records of, or references to, the
 reprimand given Belva Rosser which was confirmed by letter dated March
 25, 1981, and acknowledge this action to Ms. Rosser in writing.
                                       (Activity)
 
    Dated:  By:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region IV, Federal Labor Relations Authority whose address is: 
 Suite 501, North Wing, 1776 Peachtree Street, NW., Atlanta, Georgia
 30309 and whose telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DEPARTMENT OF TREASURY
    INTERNAL REVENUE SERVICE
    MEMPHIS SERVICE CENTER,
                                Respondent
 
    and
 
    NATIONAL TREASURY EMPLOYEES UNION,
                              Charging Party
 
                                       Case No. 4-CA-912
 
    Harry G. Mason,
    Attorney for Respondent
 
    Brenda S. Green,
    Attorney for the General Counsel
    Federal Labor Relations Authority
 
    Joyce F. Glucksman,
    Attorney for Charging Party
 
    Before:  ISABELLE R. CAPPELLO
    Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191 (1978), 5 U.S.C. 7101 et seq, (Supp.
 III, 1979) (hereinafter referred to as the "Statute") and the Rules and
 Regulations of the Federal Labor Relations Authority (hereinafter, the
 "Authority"), 5 CFR Ch. XIV, Sec. 2410 et seq.
 
    By a Complaint dated June 29, 1981, the General Counsel of the
 Authority alleges that Respondent has interfered with, restrained and
 coerced employees in the exercise of rights granted to them by Section
 7102 of the Statute and thereby has engaged in, and is engaging in
 unfair labor practices, in violation of Section 7116(a)(1) of the
 Statute.  /4/
 
    The act constituting the violation is alleged to be the giving of a
 reprimand to a union steward based upon the steward's representing a
 bargaining-unit employee during a discussion with a management official
 or supervisor.  Respondent denies that the union steward was acting in
 her capacity as steward, at the time in question, and that the reprimand
 was based upon the representation.
 
    A hearing was held on December 2, 1981, in Memphis, Tennessee.  The
 parties appeared, put in evidence, and examined and cross-examined
 witnesses.  Briefs were filed by the Respondent and the Charging Party
 on January 22, 1982, and by the General Counsel on January 19.  Based
 upon the record made at the hearing, my observation of the demeanor of
 the witnesses, and the briefs submitted, I make the following findings
 of fact, conclusions of law, and recommended order.
 
                             Findings of Fact
 
    1.  At all times material herein, Respondent has been an agency,
 within the meaning of Section 7103(a)(3) of the Statute;  and the
 National Treasury Employees Union (hereinafter, the "Union") has been
 the exclusive representative of employees of Respondent, including
 certain employees at the Memphis Service Center, Memphis, Tennessee.
 
    2.  Belva Rosser is a Union steward and is employed in the Sort and
 Sequence unit (the "Unit") of the Memphis Service Center.  During the
 times pertinent herein, Betty Lewis was the supervisor of the Unit.
 
    3.  A controversy had arisen in the Unit over placing employees on an
 absence-without-leave (AWOL) status, for arriving late to work.  The
 Union was representing employees in grievances over the AWOL matter.
 Ms. Rosser had handled three or four grievances involving Ms. Lewis.
 Ms. Lewis had never called Ms. Rosser any "names or anything like that,"
 in their dealings over grievances.  (TR. 137) /5/ Ms. Rosser had once
 told Ms. Lewis that she was being "ridiculous," to which Ms. Lewis
 merely replied that that was "(Ms. Rosser's) opinion." (TR. 54-55)
 
    4.  On March 13, 1981, Peggy Traylor, an employee in the Unit, walked
 into the work area just as the morning buzzer sounded, at 7:30 a.m.  /6/
 Ms. Lewis informed her that she would be placed on AWOL for 15 minutes.
 A heated discussion ensued at Ms. Lewis' desk.  In the course of the
 discussion, Ms. Traylor told Ms. Lewis that she might as well "excuse
 her for the rest of the day because she was leavin'." (TR. 130) Ms.
 Lewis replied that she would then be placed on AWOL for eight hours.
 Ms. Traylor retorted that she did not care.  Ms. Lewis first said
 "okay," and then told her:  "No, you're just upset." (TR. 71) While Ms.
 Lewis was trying to calm Ms. Traylor, Ms. Rosser walked up to the desk,
 put her hand on the shoulder of Ms. Traylor, and told her not to argue
 with Ms. Lewis.  At that point, Ms. Lewis asked Ms. Rosser to take Ms.
 Traylor out of the Unit.
 
    5.  In her testimony, Ms. Lewis admitted that, at the time Ms.
 Traylor and Ms. Rosser left the Unit on the first occasion on March 13,
 she, Ms. Lewis, "did not know whether (Ms. Traylor) was returning or
 not." (TR. 132) Ms. Lewis was under the impression that Ms. Traylor
 "wasn't goin' to say there (in the Unit) no matter what." (TR 134) Ms.
 Lewis also admitted that she had never known Ms. Traylor to leave the
 Unit without first requesting leave.  Ms. Traylor did, in fact, fill out
 a leave slip on March 13, for leave to commence at 11:30 a.m.  This
 leave slip was submitted after Ms. Traylor returned to the Unit, around
 8:30 a.m.  See TR 132-133.
 
    6.  While Ms. Rosser and Ms. Traylor were out of the Unit, Ms. Lewis
 received a phone call from the sister of Ms. Traylor.  Ms. Lewis
 informed the sister that Ms. Traylor had left for the day.  As a result
 of this information, Ms. Traylor's sister drove to the Memphis Service
 Center to pick up Ms. Traylor.  When Ms. Traylor returned to the Unit,
 at 8:30 a.m., Ms. Lewis did not tell Ms. Traylor about the phone call.
 
    7.  About 9:30 a.m., Ms. Traylor's sister called again, to find out
 where Ms. Traylor was.  Ms. Traylor then learned that Ms. Lewis had
 given Ms. Traylor's sister erroneous information, and caused her to make
 an unnecessary trip to the Center.  Ms. Traylor then went to Ms. Rosser,
 as her "representative," told her of this situation, asked her to
 "represent" her, and speak to Ms. Lewis on her behalf, as she was "too
 angry" about the episode to speak for herself.  (TR. 71-A, 76).
 
    8.  Ms. Rosser and Ms. Traylor then approached Ms. Lewis, at her
 desk.  This occurred around 9:30 a.m.  Ms. Rosser asked Ms. Lewis about
 the matter.  Ms. Lewis replied that Ms. Traylor had left her with the
 impression that she was not going to stay for the rest of the day and,
 as far as Ms. Lewis was concerned, Ms. Traylor "was gone for the day."
 (TR. 12).  Ms. Rosser reminded Ms. Lewis that it was at Ms. Lewis
 request that she, Ms. Rosser, took Ms. Traylor out of the unit.  Ms.
 Rosser then told Ms. Lewis that she, Ms. Rosser, was going to take Ms.
 Traylor out of the Unit again.  Ms. Lewis replied:  "That's fine with
 me.  Go ahead." (TR 134).  Ms. Rosser then looked at Ms. Lewis and
 called her a "fool." (TR. 71-A, 134).  Ms. Lewis replied, "Thank you."
 (TR. 12, 135).  Ms. Rosser conducted herself in a calm manner.  The
 employees working the closest to Ms. Lewis' desk each observed the
 conversation taking place between Ms. Lewis and Ms. Rosser, but did not
 overhear it.  The conversation did not disrupt the work of the Unit.
 Later, it became common knowledge, in the Unit, that Ms. Rosser had
 called the Ms. Lewis a fool.  Ms. Lewis, herself, told one employee in
 the Unit.  Ms. Rosser also revealed the fact to certain employees in the
 Unit.
 
    9.  Ms. Rosser did not inform Ms. Lewis that she was acting as a
 Union steward when she approached Ms. Lewis's desk on the day in
 question.  Nevertheless, Ms. Lewis conceded that she recognized that Ms.
 Rosser was acting in that capacity, whenever Ms. Rosser appeared with an
 employee to discuss an employee problem.
 
    10.  Each time Ms. Rosser took Ms. Traylor out of the Unit, on March
 13, she signed out under "bank time" on the "Monthly Report of
 Negotiated Time Usage," and designated the purpose as being a
 "grievance." See GC Ex. 2.  /7/ This time usage sheet is located next to
 the desk of Ms. Lewis.
 
    11.  "Bank time" is a form of "official time." (TR. 68).  It is used
 when stewards confer with employees.  Stewards must obtain the
 supervisor's approval to release an employee;  and time so spent is put
 under "bank time." See TR. 90.  Another form of "official time" is known
 as "administrative time." (TR. 81).  Both are provided for in the
 collective bargaining agreement.  Someone on "bank time" is performing
 "representational activities." (TR. 82) Use of official time is audited
 by both the Union and Respondent.  Respondent never disputed the use of
 "bank time" by Ms. Rosser, for March.
 
    12.  Each time Ms. Rosser took Ms. Traylor out of the Unit, on March
 13, they consulted with the chief steward about the incidents involved.
 During the first absence from the Unit, they filled out a grievance
 form, which was subsequently filed, pursuant to the negotiated grievance
 procedure.
 
    13.  On March 25, Ms. Rosser was sent a letter by the Chief of the
 Tax Accounts Division, "to confirm the oral admonishment given (her) by
 (her) manager for conduct unbecoming an Internal Revenue employee." (GC
 Ex. 3).  /8/ The "conduct" was calling her manager a "fool," on March
 13.  The letter cautioned that "any future behavior of this nature or
 other misconduct, may result in more severe disciplinary action,
 including possible removal." The letter stated that a copy would be
 "retained by (her) manager for a period of two (2) years." The basis for
 the letter is cited as being Section 225.2 of the Internal Revenue
 Service's Handbook of Employee Responsibilities and Conduct, which
 states, in part, that "All relations with fellow employees and others
 must be conducted in a manner which will not needlessly cause dissention
 or discord among employees or disrupt official business." (GC Ex. 3).
 
                        Discussion and Conclusions
 
    1.  The General Counsel has established, by a preponderance of the
 evidence, that Respondent violated Section 7116(a)(1) of the Federal
 Service Labor-Management Relations Statute when it issued a letter of
 admonishment to a Union steward for calling her supervisor a "fool"
 during the course of performing her duties as a steward.
 
    Section 7116(a)(1) makes it an unfair labor practice for an agency to
 restrain any employee in the exercise of rights protected by the
 Statute.  One such right is the right to assist labor organizations,
 "freely and without fear of penalty or reprisal." See Section 7102,
 quoted in footnote 1, above.  A union steward, representing a
 bargaining-unit employee over an employment-related matter, is assisting
 a labor organization, within the meaning of Section 7102.
 
    Contrary to Respondent's assertions, the steward here clearly was
 acting in such a representative capacity when she made the remark at
 issue.  Upon the request of a bargaining-unit employee to represent her,
 the steward had just finished speaking to the supervisor about giving
 out erroneous information concerning the employee's presence at work,
 and was on her way out of the unit, with the employee, to consult with
 the chief steward about the matter.  Respondent hinges its argument on
 the ground that the steward was at the supervisor's desk simply "to ask
 for bank-time," and "bank-time" is used only for "conferring with
 employees," not with "management." (RBr 4).  In fact, the steward was at
 the desk both to secure "bank time" and to discuss the matter with the
 supervisor.  See finding 8, above.  But regardless of how the steward
 happened to designate her time usage, she was acting in her capacity as
 a union steward when the remark was made;  and this is what controls
 whether the action was a protected one, under the Statute.
 
    In ruling on the use of "intemperate language in the conduct of labor
 management relations in the Federal sector," this Authority "neither
 defends nor endorses" such usage;  but it recognizes that:  "The
 employee's right to engage in protected activity permits leeway for
 impulsive behavior, which is balanced against the employer's right to
 maintain order and respect of its supervisory staff on the job site."
 See Department of the Navy, Puget Sound Naval Shipyard, Bremerton,
 Washington and Bremerton Metal Trades Council, AFL-CIO, 2 FLRA 54, 55
 (1979).
 
    The Authority draws the line at "flagrant misconduct by an employee
 (however), even though occurring during the course of protected activity
 . . . ." (Ibid.) In the Puget Sound case, a chief steward shook his fist
 in the face of a general foreman, threatened to get his "ass," by means
 of an unfair labor practice proceeding, and "stormed out" of the office.
  See 2 FLRA at 75.  This incident took place in a foreman's office, in
 the presence of another foreman.  It was an "isolated incident," after a
 history of incidents which had interfered with the rights of stewards.
 (Id. at 75-76).  The Authority found that "the steward's conduct was not
 sufficiently flagrant to remove it from the ambit of protected activity
 . . . ." (Id. at 55).
 
    In arguing that the conduct here at issue was so flagrant, Respondent
 points to the unprovocative nature of the prior relationship between Ms.
 Rosser and Ms. Lewis, who had generally gotten along with each other
 during meetings over grievances.  Respondent also notes that Ms.
 Rosser's conduct took place in an open work area, in the presence of
 bargaining-unit employees, at least one of which (Ms. Traylor) heard the
 remark at the time it was made, and others later learned about it.
 Finally, Respondent points to the fact that the steward made the remark
 in a calm and calculated manner, and argues that she is thus not
 entitled to the degree of leeway usually available to union officials
 for emotional behavior.
 
    While these facts are basically undisputed, they still do not add up
 to a case of misconduct so flagrant as to strip the steward of the
 protection to which she would otherwise be entitled, while acting in her
 representational capacity.  While the steward was herself calm, she was
 caught up in an emotional situation between the employee she was
 representing, and her supervisor.  The steward did not disrupt order on
 the job site.  While she did exhibit a degree of disrespect for the
 supervisor, this must be balanced against the fact that the supervisor
 had, indeed, been acting in a somewhat foolish manner, by putting an
 employee in an AWOL status for arriving at the last minute, giving out
 erroneous information about which she not certain, and then not telling
 the employee about it.
 
    Ideally, labor and management representatives should never indulge in
 any type of conduct which is demeaning to the other, particularly in the
 presence of other employees.  Nevertheless, allowing to stand the
 admonishment suffered by the steward in this case, over an isolated
 incident that did nothing to disrupt the work in the Unit and was
 provoked, in some measure, by the foolish behavior of the supervisor,
 would unduly restrain the steward in her future handling of grievances.
 As Respondent states, at page 6 of its brief:  "A balance must be struck
 between leeway for impulsive behavior and the employer's right to
 maintain order and the respect for the supervisor on the job site." (RBr
 6) In this case, the scales tip towards allowing "leeway."
 
    2.  The Charging Party, in its brief, renews its motion to amend the
 complaint by adding an allegation that Section 7116(a)(2) of the Statute
 has been violated by the conduct of the Respondent.  (CPBr 12-14) This
 motion was originally made at the close of the General Counsel's case
 "to conform to the evidence." (TR. 122) It was denied on the ground that
 having to defend this charge with no time for adequate preparation,
 would violate Respondent's due-process rights.  See TR. 126.
 
    Section 7116(a)(2) makes it an unfair labor practice "to encourage or
 discourage membership in any labor organization by discrimination in
 connection with hiring, tenure, promotion, or other conditions of
 employment." The evidence relied upon the the Charging Party is that
 Respondent acted in a discriminatory manner, in admonishing the union
 steward for calling her supervisor "a fool," in that others had called
 the supervisor "worse things" and not been admonished.  (TR. 125)
 Preparing against such a charge involves considerable more preparation
 than for the one alleged in this Complaint.  The request to amend is
 again denied.
 
    3.  The Charging Party, in its brief, renews its objection to
 disclosing to Respondent, for purposes of cross-examination, affidavits
 obtained from employees to support issuance of the Complaint.  See CPBr
 9-12 and TR 24-32.  After certain witnesses had testified on behalf of
 the General Counsel, Respondent requested production of any written
 statements, in counsel's possession, which were given by the witnesses
 concerning the case.  Respondent requested the statements for possible
 use in impeaching the witnesses on cross-examination.  The General
 Counsel had no objection to complying and explained that it was the
 "policy" of the office "to turn over statements after the witnesses have
 testified." (TR 29) The Charging Party did object to the production and
 claims that the General Counsel was "without authority to make these
 affidavits available to respondent and was acting in violation of the
 FLRA's rules and regulations." (CPBr 9)
 
    The regulation relied upon by the Charging Party is found in 5 CFR Ch
 XIV, Part 2423, which relates to "Unfair Labor Practice Proceedings." As
 to the matter at hand, it provides as follows:
 
          Section 2423.7 Investigation of charges.
 
          (a) The Regional Director, on behalf of the General Counsel,
       shall conduct such investigation of the charge as the Regional
       Director deems necessary.
 
          (b) During the course of the investigation all parties involved
       will have an opportunity to present their evidence and views to
       the Regional Director.
 
          (c) In connection with the investigation of charges, all
       persons are expected to cooperate fully with the Regional
       Director.
 
          (d) The purposes and policies of the Federal Service
       Labor-Management Relations Statute can best be achieved by the
       full cooperation of all parties involved and the voluntary
       submission of all potentially relevant information from all
       potential sources during the course of the investigation.  To this
       end, it shall be the policy of the Authority and the General
       Counsel to protect the identify of individuals and the substance
       of the statements and information they submit or which is obtained
       during the investigation as a means of assuring the Authority's
       and the General Counsel's continuing ability to obtain all
       relevant information.
 
 (Emphasis suggested by the Charging Party.  See CPBr 11.)
 
    The ability to obtain relevant information is not impeded by the
 policy of the General Counsel to give up the statements of employees,
 once their identify has been revealed and their story told on the
 witness stand at the trial of the matter as to which the statements
 relate.  Rather, it is in accord with Federal court decisions that have
 recognized that the need to preserve the anonymity of employees who give
 statements to investigators probing violations of Federal labor laws,
 ceases once the employees take the stand and give their testimony, or
 direct examination.  See, e.g., a case arising under the Fair Labor
 Standards Act and cited by the Charging Party, at page 12 of its brief,
 Brennan v. Engineered Products, Inc., 506 F.2d 299, 302-304 (C.A.8,
 1974).  Brennan clearly recognizes the distinction between an employer
 attempting to learn, through early pretrial discovery, the identity of
 which of its employees gave statements and their substance, and its
 later attempt, at the trial to obtain such information for impeachment
 purposes.  Early in the stages of a case, the protection is justified
 because the case might eventually settle and/or the case proved without
 the need call the employee witness who gave the statement.  But once the
 case has come to trial, and the employee has taken the stand and
 testified, the protection becomes virtually meaningless.
 
    The National Labor Relations Board has a specific regulation allowing
 such production after an employee testifies.  See 29 CFR 102.118(b).
 This regulation was adopted after a Federal court held that the "Jencks
 Rule," /9/ applies to administrative hearings.  See National Labor
 Relations Board v. Adhesive Products Corp., 258 F.2d 403, 408 (C.A.2,
 1959) and footnote 6 to Texas Industries, Inc. v. National Labor
 Relations Board, 336 F.2d 128, 133, cited by the Charging Party at page
 12 of its brief.
 
    The Charging Party relies on the fact that this Authority failed to
 specifically adopt the Board's 29 CFR 102.118(b) regulation, while
 adopting subpart (a) of that regulation protecting statements of
 employees from disclosure pursuant to a subpoena.  See pages 9-11 of the
 Charging Party's brief and compare the Authority's regulation in 29 CFR
 2411.11.  The failure of the Authority to specifically adopt such a
 regulation might be of some persuasive value were it not for the
 explanation given by the Authority in the Part-by-part Analysis of
 Comments and Changes on its Final Rules.  See 45 Fed.Reg. 3483
 
 
 (1/7/80), where the Authority qualifies its Section 2423.7(d) policy of
 protecting the identify of individuals and the substance of the
 statements and information they submit, by explaining that the policy
 "is without prejudice to whatever rights any party may have at a hearing
 to examine material." One such right is that accorded to a Respondent by
 the so-called "Jencks Rule," as explained above.  The Charging Party's
 renewed objection is again overruled.
 
    The parties raise a few other issues.  However, their resolution
 would only extend, without altering this Decision, and the order to be
 recommended.  Accordingly, they will not be addressed.
 
                        Ultimate Findings and Order
 
    By the Acts described in the Complaint, Respondent has violated
 Section 7116(a)(1) of the Federal Service Labor-Management Relations
 Statute.
 
    Accordingly, it is ORDERED, pursuant to 5 U.S.C. 7118(a)(7)(A) (Supp.
 III. 1979) and the Rules and Regulations of the Federal Labor Relations
 Authority, 5 CFR Ch. XIV, Sec. 2423.29(b)(1), that the Department of
 Treasury, Internal Revenue Service, Memphis Service Center:
 
    1.  Cease and desist from:
 
          a.  Restraining employees from assisting labor organizations by
       reprimanding their agents for nonflagrant types of misconduct
       while performing representational duties.
 
          b.  In any like or related manner, violating Section 7116(a)(1)
       of the Federal Service Labor Statute.
 
    2.  Take the following affirmative action:
 
          a.  Remove the letter to Belva J. Rosser, dated March 25, 1981,
       from office files and destroy, expunge from all files all
       references to such letter, and acknowledge this action to Ms.
       Rosser, in writing.
 
          b.  Post, at the Memphis Service Center, copies of the attached
       notice marked "Appendix B," 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 Center and 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 ensure that said notices are not altered, defaced, or covered
       by any other material;  and
 
          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.
 
                                       ISABELLE R. CAPPELLO
                                       Administrative Law Judge
 
    Dated:  March 3, 1982
    Washington, D.C.
 
 
 
 
                                APPENDIX A
 
                          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 STATED CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 We Hereby Notify Our Employees That:
 
    WE WILL NOT restrain employees in their assistance to labor
 organizations by reprimanding their agents for nonflagrant types of
 misconduct, while performing representational duties.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce employees in the exercise of rights assured by the Federal
 Service Labor-Management Relations Statute.
 
    WE WILL remove from our files and destroy the letter to Belva Rosser
 of March 25, 1981, expunge from our files all references to such letter,
 and acknowledge the removal to Ms. Rosser, in writing.
                                       (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 of the Federal Labor Relations Authority, Region 4,
 whose address is:  1776 Peachtree Street, NW., Suite 501 - North Wing,
 Atlanta, Georgia 30309 and telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Charging Party excepted to the Judge's ruling permitting
 disclosure by the General Counsel to the Respondent, for purposes of
 cross-examination, of written statements previously obtained from
 employees to support issuance of the complaint, after such witnesses had
 testified at the hearing.  The Judge relied on the "Jencks Rule" as set
 forth by the U.S. Supreme Court in Jencks v. United States, 353 U.S. 657
 (1957).  The Authority specifically adopts the Judge's ruling, for the
 reasons she stated, noting that the "Jencks Rule" has been held
 applicable to administrative hearings.  See Communist Party of the
 United States v. Subversive Activities Control Board, 254 F.2d 314 (D.C.
 Cir. 1958);  N.L.R.B. v. Adhesive Products Corp., 258 F.2d 403 (2d Cir.
 1958).
 
 
    /2/ Section 7116(a)(1) provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for any agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter(.)
 
 
    /3/ At the hearing, NTEU moved to amend the complaint to conform to
 the evidence, which NTEU contends would support a section 7116(a)(2)
 violation.  The Judge denied the motion and NTEU has excepted to the
 ruling.  The Authority adopts the conclusion of the Judge, noting that
 the General Counsel opposes the motion to amend the complaint, and
 noting further that the Order herein fully remedies the violation.
 
 
    /4/ The statutory provisions provide:  Sec. 7102.  Employees' right
 
          Each employee shall have the right to form, or assist any labor
       organization, or to refrain from any such activity, freely and
       without fear of penalty or reprisal, and each employee shall be
       protected in the exercise of such right.  Except as otherwise
       provided under this chapter, such right includes the right-- . . .
 
          (1) to act for a labor organization in the capacity of a
       representative and the right, in that capacity, to present the
       views of the labor organization to heads of agencies and other
       officials of the executive branch of the Government, the Congress,
       or other appropriate authorities, and
 
          (2) to engage in collective bargaining with respect to
       conditions of employment through representatives chosen by
       employees under this chapter.
 
    Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;  . . . .
 
 
    /5/ "TR refers to the transcript.  Corrections to the transcript
 proposed by the Charging Party, and several additional ones, are set out
 in Appendix A. Other abbreviations used in this Decision are as follows.
  "GCEx" refers to the exhibits of the General Counsel.  "GCBr" refers to
 the brief of the General Counsel, "RBr" to that of the Respondent, and
 CP Br" to that of the Charging Party.
 
 
    /6/ Ms. Lewis testified th