23:0063(9)CA - IRS and IRS Brooklyn District and NTEU and NTEU Chapter 53 -- 1986 FLRAdec CA



[ v23 p63 ]
23:0063(9)CA
The decision of the Authority follows:


 23 FLRA No. 9
 
 INTERNAL REVENUE SERVICE AND 
 INTERNAL REVENUE SERVICE 
 BROOKLYN DISTRICT
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION 
 AND NATIONAL TREASURY EMPLOYEES 
 UNION, CHAPTER 53
 Charging Party
 
                                            Case No. 2-CA-50241
 
                            DECISION AND ORDER
 
    I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 filed by the Respondent to the attached Decision of the Administrative
 Law Judge.  The General Counsel and the Charging Party (the Union) filed
 oppositions to the Respondent's exceptions.  The complaint in this case
 alleged a violation of section 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute (the Statute) by failing and refusing
 to execute and implement a memorandum of understanding (the agreement)
 reached by representatives of the parties at a negotiating session on
 February 14, 1985.
 
    II.  Background
 
    The Union represents Internal Revenue Service (IRS) employees who
 work in the Brooklyn District.  The parties had entered into a
 settlement agreement in October 1984, in which the Respondent agreed to
 negotiate concerning the impact and implementation of the relocation of
 Group 1117 employees whose post of duty was in Mineola, Long Island.
 After some effort, a negotiating session was set for February 14, 1985.
 In prior negotiating sessions involving other matters, the Respondent
 took the position that its negotiators did not have final authority to
 bind the Respondent to an agreement and that such authority only resided
 with higher level management, the District Director.  At the beginning
 of the February 14, 1985 session, there was a discussion concerning the
 extent to which the Respondent's representatives had the authority to
 bind the Respondent to any agreement which might be reached.  The Union
 representatives who attended the negotiating session testified at the
 hearing that the Respondent's representatives left the room, apparently
 to make phone calls, and returned to announce that they now had full
 authority to bind the Respondent.  The Judge, however, credited the
 Respondent's witnesses' testimony to the effect that they announced
 their lack of authority at the commencement of the meeting, that they
 never sought or announced a change in that position, and that they
 assumed that the Union's representatives acquiesced in that position in
 the interest of concluding an agreement subject to approval by the
 District Director.
 
    In the course of the February 14, 1985 bargaining session, the
 parties reached agreement on all the outstanding issues presented by the
 move of Group 1117 employees.  The Union left the session with the
 belief that it had a binding agreement.  Subsequently, the District
 Director raised concerns about portions of the February 14, 1985
 agreement and refused to execute the agreement.  The Union refused to
 change the agreement reached at the bargaining table and filed the
 unfair labor practice charges that led to this complaint.
 
    III.  Judge's Decision
 
    The Judge concluded that the General Counsel had not established, by
 a preponderance of the evidence, that a final agreement was reached at
 the bargaining session held on February 14, 1985.  The Judge based that
 conclusion on her finding that the Respondent's representatives
 indicated at the beginning of the session that they did not have the
 authority to bind the agency and that they did not waver from that
 position.  The Judge found that the Union's President at the time of the
 incident was aware of the Respondent's past failure to send fully
 authorized representatives to bargaining sessions.  Therefore, the
 conclusions reached at that session were, in effect, only tentative
 pending the approval of higher level management officials.  Under those
 circumstances, the Judge concluded that the Respondent did not act in
 violation of section 7116(a)(1) and (5) of the Statute, as alleged, when
 it failed to give final approval to, and implement, any agreement
 reached at the February 14, 1985 bargaining session.
 
    The Judge also concluded that the Respondent failed to send
 representatives to the February 14, 1985 bargaining session who had the
 capability of binding the Respondent to an agreement, in violation of
 section 7116(a)(1) and (5) of the Statute.  In so concluding, the Judge
 acknowledged the Respondent's contention that the complaint did not
 specifically charge it with the misconduct which is the basis of the
 violation.  However, the Judge concluded that the allegation that the
 Respondent failed to send fully authorized representatives to the
 February 14, 1985 bargaining session was inherent in the complaint and
 that the matter was fully litigated at the hearing.  In that regard, the
 Judge found that the testimony at the hearing presented by the
 Respondent demonstrated that its representatives made clear to the
 Union's representatives at the outset of the session that they did not
 have the authority to bind the Respondent and that they consistently
 maintained that position.  The Respondent's defense was that the Union
 understood the position of management's representatives and agreed to
 continue with the negotiating session on the terms set by the
 Respondent.  The Judge concluded that any Union acquiescence to the
 continuation of bargaining without fully empowered management
 representatives was not so clear and unambiguous as to constitute a
 waiver of its statutory right to bargin with agency representatives who
 were fully empowered to commit the Respondent to an agreement.  The
 Judge recommended that the Respondent be ordered to continue the
 negotiations of February 14, 1985, with duly authorized representatives.
 
    IV.  Positions of the Parties
 
    The Respondent excepts to the Judge's finding that it violated
 section 7116(a)(1) and (5) of the Statute by failing to send to the
 February 14, 1985 negotiations representatives who were fully empowered
 to represent the Respondent.  The Respondent does not except to the
 substance of the Judge's finding, but rather to the Judge's conclusion
 that the complaint was sufficiently broad so as to encompass the
 activity she found to be violative and that the matter of whether or not
 there were fully empowered representatives was fully litigated at the
 hearing.  The Respondent contends that the complaint was never amended
 to specifically allege that it violated the Statute by failing to
 provide fully empowered representatives.
 
    The Respondent also excepted to the Judge's failure to strike and
 disregard the testimony of one of the witnesses for the General Counsel
 who had been shown, prior to the hearing, a document obtained by the
 General Counsel from the Respondent in the course of its investigation.
 The Judge found that it was a violation of 5 CFR Section 2423.7(d) for
 the General Counsel's witness to have been shown the document in
 question, but she concluded that a sufficient remedy was for her to
 treat the matter as casting doubt on the credibility of the affected
 witness and the other Union witnesses with whom the affected witness was
 likely to have discussed the matter prior to the hearing.  The
 Respondent contends that the Judge's action was insufficient as a remedy
 for such "egregious" conduct by the General Counsel.
 
    Neither the General Counsel nor the Charging Party excepts to the
 Judge's decision.  In their oppositions to the Respondent's exceptions,
 the General Counsel and the Charging Party essentially support the
 validity of the Judge's decision with respect to the matters to which
 the Respondent excepts.
 
    V.  Analysis
 
    The Authority finds that the Judge's decision is correct and should
 be adopted. With respect to the question of whether the Respondent
 violated section 7116(a)(1) and (5) of the Statute by failing to provide
 representatives who were fully empowered to commit the Respondent to any
 agreement reached with the Union at their February 14, 1985 negotiating
 session, the Judge found that the matter was fully litigated at the
 hearing.  The Authority concludes that this finding by the Judge, as
 well as the Judge's resolution of the issue of whether the Respondent
 was provided with adequate notice at the hearing that it was being
 charged with such misconduct, are supported by the record.  Thus, in its
 opening statement, the Charging Party stated:
 
          The Union's post-hearing brief will show that the Authority
       case law clearly holds that failure to authorize representative at
       the table to commit the party to a formal agreement or a final
       agreement.  In the absence of mutual consent otherwise constitutes
       bad faith bargaining and violation of Sections (a)(1) and (5) of
       the Statute.  (sic) (Transcript of Proceedings before the Judge,
       July 16, 1985, at 20.)
 
    Further, the Charging Party's representative at the hearing repeated
 this contention in his closing argument, and the General Counsel
 supported this position as an alternative to the allegation that the
 Respondent violated section 7116(a)(1) and (5) of the Statute by failing
 to bargain in good faith by failing to execute the agreement reached on
 February 14, 1985.
 
    The Judge found that the General Counsel, by showing one of its
 witnesses, prior to the hearing, a document obtained from the Respondent
 in the course of its investigation, violated the policy set forth in
 section 2423.7(d) of the Authority's Rules and Regulations.  We conclude
 that the Judge, based on the reasoning set forth in her decision, acted
 appropriately in deciding that the actions cast doubt on the credibility
 of that witness' testimony, as well as the testimony of other Union
 witnesses with whom the affected witness was likely to have discussed
 the matter, rather than striking and disregarding their entire testimony
 as requested by the Respondent before the Judge and its exceptions to
 the Judge's decision.
 
    VI.  Conclusion
 
    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, finds that no prejudicial error was
 committed, and affirms these rulings.  The Authority has considered the
 Judge's Decision, the Respondent's exceptions to the Judge's finding of
 a violation, the oppositions to the Respondent's exceptions submitted by
 the General Counsel and the Charging Party, and the entire record, and
 adopts the Judge's findings, conclusions, and recommended Order.  We
 therefore conclude that the Respondent violated section 7116(a)(1) and
 (5) of the Statute by refusing to bargain in good faith at the February
 14, 1985 negotiating session with the Union by sending representatives
 who were not fully authorized to conclude an agreement as required by
 section 7114(b)(2) of the Statute.  In agreement with the Judge, and
 noting that no exceptions were filed to this aspect of her conclusions,
 we also conclude that the Respondent did not violate section 7116(a)(1)
 and (5) of the Statute by failing to execute and implement the agreement
 reached between the parties on February 14, 1985 because, as found by
 the Judge, no final agreement requiring execution and implementation was
 reached at that time.  Accordingly, those aspects of the complaint shall
 be dismissed.
 
                                   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, it is ordered that the
 Internal Revenue Service, Brooklyn District shall:
 
    1.  Case and desist from:
 
    (a) Failing to bargain in good faith by resing and failing to
 designate an agency representative empowered to negotiate fully with the
 National Treasury Employees Union and enter into a final and binding
 agreement as to the impact and implementation of the relocation of the
 Group 1117 employees, Examination Division, Brooklyn District, Mineola,
 New York, subject only to review pursuant to section 7114(c) of the
 Statute.
 
    (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) Upon request by the National Treasury Employees Union for
 continued bargaining, designate an agency representative empowered to
 negotiate fully and enter into a final and binding agreement as to the
 impact and implementation of the relocation of the Group 1117 employees,
 Examination Division, Brooklyn District, Mineola, New York, subject only
 to review pursuant to section 7114(c) of the Statute.
 
    (b) Post at its facilities 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 District Director, Brooklyn
 District, Internal Revenue Service, or a designee, and shall be
 maintained for 60 consecutive days thereafter in conspicuous places,
 including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that said Notices are not altered, defaced, or covered by any
 other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region II, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply.
 
    IT IS FURTHER ORDERED that the complaint, insofar as it alleges a
 violation of section 7116(a)(1) and (5) of the Statute for failure to
 approve a binding agreement, shall be, and it hereby is, dismissed.
 
    Issued, Washington, D.C., August 12, 1986.
 
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, 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 fail to bargain in good faith by refusing and failing to
 designate an agency representative empowered to negotiate fully with the
 National Treasury Employees Union and enter into a final and binding
 agreement as to the impact and implementation of the relocation of the
 Group 1117 employees, Examination Division, Brooklyn District, Mineola,
 New York, subject only to review pursuant to section 7114(c) of the
 Statute.
 
    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 by the National Treasury Employees Union for
 continued bargaining, designate and an agency representative empowered
 to negotiate fully and enter into a final and binding agreement as to
 the impact and implementation of the relocation of the Group 1117
 employees, Examination Division, Brooklyn District, Mineola, New York,
 subject only to review pursuant to section 7114(c) of the Statute.
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.  If employees have any questions concerning this Notice or
 compliance with its provisions, they may communicate directly with the
 Regional Director, Region II, Federal Labor Relations Authority, whose
 address is:  26 Federal Plaza, Room 3700, New York, New York 10278, and
 whose telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 2-CA-50241
 
 INTERNAL REVENUE SERVICE AND INTERNAL 
 REVENUE SERVICE, BROOKLYN DISTRICT
    Respondent
 
                                    and
 
 NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL 
 TREASURY EMPLOYEES UNION, CHAPTER 53
    Charging Party/Union
 
 
    Eileen P. Collins and
    Robert F. Hermann,
    For the Respondent
 
    Michael J. Wolf,
    For the Charging Party/Union
 
    Cecille O'Connor and
    E. A. Jones,
    For the General Counsel
    Federal Labor Relations Authority
 
    Before:  ISABELLE R. CAPPELLO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under Title VII of the Civil Service Reform Act
 of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 5 U.S.C.7101 et seq.
 (1982), commonly known as the Federal Service Labor-Management Relations
 Statute, and hereinafter referred to as the Statute, and the rules and
 regulations issued thereunder and published at 5 CFR 2411 et seq.
 
    Pursuant to a charge of an unfair labor practice filed by the
 Charging Party on April 8, 1985, the Regional Director of Region II of
 the Federal Labor Relations Authority (hereinafter, the Authority),
 investigated and, on May 31, filed the complaint initiating this
 proceeding.
 
    In paragraph 8(a) of the complaint it is alleged that, on or about
 February 14, 1985, the Charging Party/Union and agents of Respondent
 "negotiated, reached agreement, and initialed off at the bargaining
 table on a written memorandum of understanding embodying the terms
 agreed to regarding the impact and implementation of the relocation at
 the Mineola post-of-duty." In paragraph 9 of the complaint it is alleged
 that "at all times thereafter, Respondent, by (its agent, District
 Director) John Jennings, failed and refused, and continues to fail and
 refuse, to execute and implement the memorandum of understanding . . ."
 See General Counsel's Exhibit 9(c).  It is then alleged, in paragraphs
 10 and 11, that by the acts alleged in paragraph 9, Respondent violated
 Sections 7116(a)(1) and (5) of the Statute.  /1/ The unfair labor
 practice charge filed by the Charging Party/Union also alleges a
 violation of Sections 7116(a)(1) and (5) by the specific act of the
 activity refusing to execute and implement a negotiated agreement
 entered into on February 14.  See General Counsel Exhibit 9(a).
 
    Respondent denies that the alleged violations occurred.
 
    A hearing was held on July 16 and 17, 1985, in New York City.  The
 parties appeared, adduced documentary evidence, and examined witnesses.
 Briefs were filed by the General Counsel and the Charging Party on
 September 9 and by the Respondent on September 10.  Based upon the
 record made in this proceeding and the briefs, I enter the following
 findings of fact and conclusions of law, and recommend the entry of the
 following order.
 
                           Findings of Fact /2/
 
    1.  At all times material herein, the Charging Party has been, and is
 now, a labor organization within the meaning of Section 7103(a)(4) of
 the Statute.
 
    2(a).  At all times material herein, the Internal Revenue Service
 (IRS) has been, and is now, an agency within the meaning of Section
 7103(a)(3) of the Statute.
 
    (b).  At all times material herein, IRS, Brooklyn District has been,
 and is now, a constituent entity within IRS and an agent acting on its
 behalf.
 
    3.  At all times material herein, the following named persons
 occupied positions in the IRS Brooklyn District as set forth below,
 opposite their names:
 
          John Jennings - District Director
 
          Donald Mitgang - Assistant District Director
 
          Harvey Silverman - Chief, Examination Division
 
          Gail Peck - Chief, Labor Relations
 
    4.  At all times material herein, the individuals named above in
 paragraph 3, have been, and are now, supervisors and/or management
 officials as defined in Section 7103(a)(10) and (11), respectively, of
 the Statute and have been, and are now, agents of Respondent acting on
 its behalf.
 
    5(a).  At all times material herein, the National Treasury Employees
 Union (NTEU) has been, and is now, the certified exclusive
 representative of a consolidated nationwide unit of certain employees of
 IRS, including all professional nonprofessional employees employed in
 the District, Region and National Offices of IRS, excluding all
 management officials, supervisors, confidential employees, federal
 employees engaged in personnel work in other than a purely clerical
 capacity, guards and other employees not relevant herein.
 
    (b).  At all times material herein, NTEU has delegated to its Chapter
 53 authority to act as its representative for the purpose of collective
 bargaining for approximately 1200 of Respondent's employees, including
 those employed in the IRS, Brooklyn District, at Mineola, New York.
 Chapter 53's delegation has been recognized by Respondent.  George
 Greenberg is President of Chapter 53.
 
    6(a).  On or about October 19, 1984 and October 26, 1984, the
 Charging Party and Respondent, respectively, entered into an informal
 settlement agreement which provided, in part, that IRS Brooklyn District
 would negotiate with NTEU over the impact and implementation of the
 relocation of bargaining unit employees in Group 1117 of IRS's
 Examination Division, Brooklyn District.
 
    (b).  On or About November 8, 1984, the agreement described above in
 paragraph 6(a) became, by its terms, effective.  On December 11, 1984,
 NTEU made a demand to negotiate and submitted a set of proposals to Ms.
 Peck.  No response was received and, on or about January 25, 1985, NTEU
 renewed its demand, resubmitted its proposals, and suggested specific
 bargaining dates.  The afternoon of February 14, 1985, was finally set
 as the bargaining date at a labor-management meeting on February 1.
 
    7(a).  Prior to a February 14, 1985, bargaining session between
 Chapter 53 and Respondent over a relocation of Group 1117, these parties
 had had approximately five or six other negotiations.  See TR. II. 99.
 Evidence was adduced as to three, in particular.
 
    (b).  One involved bargaining over the establishment of Revenue Agent
 Group 1103.  Agreement was reached on this matter in November 1984.  Mr.
 Mitgang signed for IRS and Mr. Greenberg for Chapter 53.  Before the
 agreement was signed, David Krieg, Chief of Personnel and the supervisor
 of Ms. Peck, sent a "draft agreement" to Mr. Mitgang for his "OK" and,
 if "OK," it was to be sent out to NTEU "for review" (R. Exh. 10).
 
    (c).  Another involved bargaining over Taxpayer Delinquent Accounts
 (TDA).  Negotiations began on this subject in or around July 1984.
 Final agreement was reached around July 1985.  The delay was over an
 "outstanding issue" (TR. II. 206).  Ms. Peck and Mr. Greenberg, as well
 as former Chapter 53 President, Peter Grimaldi, negotiated the TDA
 matter.  Ms. Peck and Mr. Greenberg each kept bargaining notes.  Ms.
 Peck's practice was to produce typed draft agreements from her
 bargaining notes and route a copy to the District Director for his
 approval.  These drafts did not include items which the negotiators had
 put on "hold" or "impasse." There was no evidence that this practice was
 ever acquiesced in by, or communicated to NTEU.  And it is not an
 express written rule, regulation or policy of the District.  When Ms.
 Peck sent a copy of the TDA draft to Mr. Greenberg, it contained no
 changes made by the District Director.  It was Ms. Peck's practice to
 forward a copy of her typed notes to Mr. Greenberg, who would check it
 for conformance with his bargaining notes.  If there was a disparity,
 Mr. Greenberg could request further negotiations.  Ms. Peck forwarded
 many such memoranda to Mr. Greenberg prior to reaching final agreement
 because the memoranda did not reflect items which the parties had agreed
 to hold or had come to impasse upon.
 
    (d).  Another involved bargaining over Employee Performance Folders
 (EPF).  Ms. Peck, Mr. Greenberg and Mr. Grimaldi negotiated concerning
 EPF, with Ms. Peck and Mr. Greenberg each keeping bargaining notes.
 These sessions took place in July and September 1984.  Mr. Greenberg
 noted "impasse" or "hold" next to items which reflected issues that were
 not agreed to during negotiations, as was his practice.  After the
 negotiation session, a draft memorandum of agreement was transmitted to
 the District Director for his approval.  Mr. Mitgang reviewed it for
 substance.  On November 23, 1984, a copy of the "proposed" memorandum
 was sent by Ms. Peck to Mr. Greenberg for his acceptance, if agreeable
 to him (R. Exh. 4).  On February 11, 1985, Mr. Greenberg wrote to Ms.
 Peck that:
 
          I have consistently told you that Chapter 53 wishes to
       negotiate the outstanding items before management broke off
       negotiations.  We will not sign an agreement which you have
       unilaterally drawn up.
 
    See R. Exh. 5 and see also TR. II. 213.  Additional negotiations took
 place in February 1985.  EPF negotiations were concluded in March 1985
 and final agreement reached.
 
    8.  Mr. Mitgang has been Assistant District Director since September
 1982.  At one time, he participated in a negotiation over alternate work
 schedules ("AUS"), was the spokesperson, and had authority to bind the
 District at the bargaining table.  The District Director signed the
 agreement at a later date.
 
    9.  Since the AWS negotiations, Mr. Mitgang has not participated at
 the bargaining table;  and agency representatives at the table have had
 authority only to "discuss the proposals of NTEU and management and to
 arrive at a proposed tentative agreement for the director" (TR. II. 142
 and see also 144).  It has been the practice of Mr. Mitgang to review
 the draft memoranda of agreement reached at the table, discuss them with
 the District Director, and then discuss any problems detected with the
 management bargaining team.  Prior to the agreement reached at the
 February 14 bargaining session, no changes in substance had ever been
 renegotiated, except for matters which had been declared as
 non-negotiable.  /3/
 
    10.  On cross-examination, Mr. Mitgang conceded that, as a result of
 this hearing, he is "now aware" that the State requires management to
 send a team to the bargaining table which is fully authorized to enter
 into a binding agreement (TR. II. 196).  He also conceded that the
 practice in issue in this case was inconsistent with management's
 obligation.  See TR. II. 200.
 
    11.  Mr. Mitgang testified that "to (his) knowledge" the union was
 apprised of the fact that the agency bargaining team at the table had
 such limited authority (TR. II. 143) and that they were apprised of it
 through "various negotiations over the past period of time or two years
 or whatever it is" (TR. II. 144).  Ms. Peck was also "confident" that
 the union knew of the tentative nature of agreements reached at the
 bargaining table and that they needed the approval of the Director (TR.
 II. 94).  Mr. Mitgang admitted that there was no written policy on this
 limited authority;  that no letter had been sent to George Greenberg,
 Chapter 53's President, about such authority;  and Greenberg, Chapter
 53's President, about such authority;  and that he had never personally
 notified Mr. Greenberg of it.  See TR. II. 181 and 194 and also TR. II.
 94-95.  Peter Grimaldi, Chapter 53's President from June 1983 until
 September 1984, was unaware that the agency was sending unauthorized
 representatives to the bargaining table;  but his experience was
 "limited in that area" because Chapter 53 and Respondent only "came to
 possibly one agreement" during his administration (TR. II. 218).  At
 first, Mr. Greenberg indicated that he knew of the practice.  See TR. I.
 99-100 where he responded as follows to questions put by Counsel for the
 General Counsel at the hearing on July 16, 1985, about a meeting between
 Mr. Greenberg and Michael J. Wolf, Assistant Counsel of NTEU, just
 before the negotiation session in February 14, 1985, began:
 
          Q.  What problems with management bargaining in the past did
       you express to Mr. Wolf during that meeting prior to the
       negotiation session?
 
          A.  I expressed that I didn't understand why we could not -- in
       other words, in negotiations that I had with the Assistant
       Director, Donald Mitgang, he always went and made a big issue as
       to the fact that he was ready to sign agreements and commit the
       district, and was the union so ready to do.  And I didn't know --
       I didn't understand why in the interim period that wasn't
       happening with management, why we couldn't take the same position
       that I or someone on my team was authorized to sign, why wasn't
       management authorized.  Why couldn't we have the same standard as
       the Assistant District Director of Brooklyn.
 
          And he (Mr. Wolf) seemed to feel that we could;  and that that
       would be the thing that we would pursue.
 
    See also TR. I. 97-98, where Mr. Greenberg testified that, at a
 February 1, 1985 labor-management meeting, the problem was discussed as
 to Mr. Jennings authorizing anyone from the management team, at
 negotiations, "to commit" (TR. I. 97-98).
 
    When recalled as a rebuttal witness, on July 17, 1985, however, Mr.
 Greenberg responded as follows to questions put by Counsel for the
 General Counsel:
 
          Q.  Mr. Greenberg, prior to the 1117 negotiations has any IRS
       representative ever told you at the negotiating table that they
       didn't have authority to commit the agency?
 
          A.  No.
 
          Q.  Have you ever been aware of any practice of the agency in
       sending negotiators to the table without authority to bargain
       prior to February 14, 1985?
 
          A.  No.
 
          Q.  So you've never agreed to that practice?
 
          A.  No.
 
    See TR. II. 204-205.  Mr. Greenberg appeared to me to be candid and
 honest in the responding to the above-quoted questions put to him on
 July 16, and less so in responding to those put to him on July 17.
 Furthermore, Mr. Greenberg was not asked, on July 17, whether he was
 aware (as distinct from being told) of an agency practice of sending
 negotiators to the table without authority to commit and sign for the
 agency (as distinct from bargaining on its behalf).  Thus his July 17
 testimony is not necessarily in conflict with that given on July 16.
 Also, the Assistant Counsel for NTEU seemed aware that there was a
 "problem with (the District Director) authorizing people to negotiate
 for him" (TR. I. 97).  Accordingly, I find that the current President of
 Chapter 53 was aware of the management practice of sending unauthorized
 representatives to the bargaining table, prior to the February 14, 1985,
 negotiations.
 
    12(a).  On February 14, 1985, bargaining teams from Chapter 53 and
 Respondent met to negotiate over the impact and implementation of a
 relocation of Group 1117 employees.  Representing management were Gail
 Peck and Harvey Silverman.  Ms. Peck has been Chief, Labor Relations,
 since 1982 and provides advice and guidance to managers, on labor
 matters.  She also reviews union proposals and often participates in
 local negotiations with Chapter 53.  Mr. Silverman has represented the
 Examination Division, as part of management's team, two to four times
 during the last two to three years.  Representing Chapter 53 were
 Michael Wolf, Assistant Counsel for NTEU;  George Greenberg, Chapter 53
 President;  and three Chapter 53 officers, Roslyn Haber, Gene Spitzer,
 and Peter Grimaldi.  Prior to the meeting, Mr. Wolf and Mr. Greenberg
 agreed that Mr. Wolf would act as spokesperson and that unless the
 management team was "prepared to fully negotiate, to arrive at
 agreement," Chapter 53 would not negotiate until someone from Respondent
 was at the table "fully authorized" (TR. I. 35 and see also TR. II.
 99-101).  Nationwide, it is the practice of IRS and NTEU to send fully
 authorized representatives to the bargaining table.  The contrary
 practice in the IRS Brooklyn District is an "anomaly" (TR II. 87).
 
    (b).  As to what exactly transpired at the February 14 meeting, there
 is conflict. The two members of the management team testified, in
 agreement, that Ms. Peck was the "chief spokesman" for management and
 that she made it clear, at the outset of the meeting, and in response to
 a question put by Mr. Wolf, that her authority was limited and that
 final authority to sign rested with the Director.  See the testimony of
 Ms. Peck at TR. II. 9, 100 and compare to that of Mr. Silverman at TR.
 II. 113-114, 122-123, 129, 131-133, who testified that Ms. Peck told Mr.
 Wolf that the agency's representatives lacked both the authority to sign
 and to commit the agency.
 
    The union members of the team also testified;  but their
 recollections of specifics varied in some important details.  Mr. Wolf
 recalled that Mr. Silverman was the chief spokesman for the agency (TR.
 I. 34 and 82) and could not recall Ms. Peck making any statement, at the
 outset, about the limited authority of the management team (TR I. 83).
 Mr. Greenberg and Ms. Haber affirmed that Ms. Peck made a statement, at
 the outset, that the management team could not commit to an agreement.
 (See TR. I. 101, 147, and 184).  This "so annoyed" Ms. Haber that she
 "wrote it down" (TR. I. 184).  The other members of the union team could
 not recall the reply, if any, of Ms. Peck.  (See TR. I. 176 and 198).
 Generally, as to who from the management team was the chief spokesman,
 Mr. Greenberg affirmed that:  "Basically, Mr. Silverman's response to
 (him) always is that he follows whatever he's told from Labor Relations
 is his standard response" (TR. I. 98).
 
    Ms. Peck and Mr. Silverman impressed me as credible witnesses, and
 their testimony was basically consistent.  While they had some
 difficulty in recollecting all the events of the three-hour meeting on
 February 14, their recollections seemed more firm and honest than those
 of the union witnesses.  One problem with relying on the recollections
 of the witnesses from the union team as to what the management team said
 is that they were admittedly "quite a boisterous group" at the
 bargaining table (TR. I. 68) with "arguments going on" and "a lot of
 voices being heard" (TR. I. 193).  Accordingly, I find that Ms. Peck,
 Chief of Labor Relations, was management's chief spokesman at the
 February 14 meeting and clearly stated at the outset, that the authority
 of the management team was limited, and it could not commit the agency.
 
    (c).  This announcement made the union team unhappy;  and Mr. Wolf
 and Mr. Greenberg spoke out against it.  See TR. I. 184-185 and TR. II.
 123, 130 and 133.  Mr. Wolf stated that such conduct constituted bad
 faith bargaining.  Ms. Peck asked if they could not do business as
 usual.  She did not explain what she meant by this statement.  No one
 else recollected her making this statement.
 
    (d).  According to the witnesses from the union team, either Ms. Peck
 or Mr. Silverman, or both (the witnesses were in disagreement as to
 this) thereupon left the room and, upon their return, gave the
 impression that they had authority to bind the agency.
 
    (e).  Mr. Wolf recalled that both left the room and was "quite
 certain" that Mr. Silverman and not Ms. Peck made a phone call (TR. I.
 37-38), to whom or about what he could not say (TR. I. 81);  that upon
 their return to the room Mr. Silverman said something to the effect
 that:  "I can bargain;  let's go (TR. I. 38) or that "he was ready to
 bargain and that there was not a problem" (TR. I. 86) and that he had
 "verified his authority before coming to the table" (TR. I. 39) and
 "knew what his parameters were" and what he could agree to and what he
 couldn't agree to "and was prepared to come to an agreement" on
 everything, at least "if possible" (TR. I. 39).
 
    (f).  Mr. Greenberg testified that, upon returning to the room, Ms.
 Peck "announced that they spoke to Brooklyn and they now have the
 authority to commit the district to this agreement" (TR. I, 102 and see
 also TR. I. 121, 131 and 157).  /4/
 
    (g).  Mr. Spitzer testified that both Ms. Peck and Mr. Silverman
 stepped outside the room to make a phone call and came back and said
 they "had the authority to negotiate" (TR. I. 172 and see also TR. I.
 176).  He then testified that he "guess(ed) that Ms. Peck said this, but
 could not "really remember" (TR. I. 172).
 
    (h).  Ms. Haber testified that both Ms. Peck and Mr. Silverman left
 the room and, upon their return, Ms. Peck said that "they were now
 authorized" (TR. I. 185).
 
    (i).  Mr. Grimaldi testified that Ms. Peck left the room to make a
 telephone call and he "assume(d) that it was to confirm the fact that
 she had the power to sign for management" (TR. I. 98-199).  He at first
 testified that Mr. Silverman stayed in the room and later testified he
 was not sure of this.  See TR. I. 199 and 207.  He could not recall the
 exact words of Ms. Peck upon her return, but inferred that she had the
 power to sign for management because the meeting continued (TR. I. 199).
 
    (j).  Neither Ms. Peck nor Mr. Silverman could recall leaving the
 conference room to make phone calls while they were meeting with Chapter
 53 on February 14.  See TR. II. 78, 126 and 134.  Ms. Peck did think
 that at a midway point, the parties broke to get a cup of coffee and to
 use the lounge.  See TR. II. 97.
 
    (k).  Based upon the testimony of Ms. Peck and Mr. Silverman, both
 credible witnesses, that they did not leave the conference room on
 February 14 to confirm their authority, and that both knew they had only
 the authority to reach a tentative agreement, I find that no such phone
 calls were made and that they never receded from Ms. Peck's statement,
 at the outset, that they had only limited authority.  I find the
 testimony of the witnesses from the union bargaining team to be
 conflicting and not as credible as that of Ms. Peck and Mr. Silverman.
 Ms. Peck and Mr. Silverman testified to the effect that they believed
 that the union team acquiesced in their proceeding with limited
 authority because it did not break off negotiations.  See TR. II. 80,
 115 and 130.
 
    13.  Give-and-take negotiations took place on February 14, 1985,
 until agreement at the table was reached on each item.  At the
 suggestion of Mr. Wolf, the parties initialled off on each item as
 agreement was reached on it.  The parties were pleased with this
 process.  One improvement was the fact that it eliminated the need and
 practice of the parties to keep separate bargaining notes.  The
 negotiations concluded with good feelings all round.  The
 initialling-off process avoided the problem of the participants reaching
 some kind of accord on the language of a particular proposal and then,
 later, disagreeing on what was actually agreed to and in what context.
 See TR. II. 117 and 139.  The management team by initialling, did not
 intend to bind the agency.  But the process may have misled some of the
 union negotiators into believing that the substance of the agreement
 reached was final, as this process had never been used before in Chapter
 53 negotiations.  Mr. Wolf conceded that he, however, had "great
 concerns" about the District Director and the "finality of the
 agreement" reached at the table, despite Mr. Silverman's apparent
 elation and his generous words about the negotiators' product at the
 conclusion of the bargaining session on February 14 (TR. I. 67).  When
 Mr. Wolf emphasized to the management bargaining team that the NTEU
 expected an immediate signature from the District Director, Mr.
 Silverman responded that he had no control over the District Director.
 
    14.  Contrary to Ms. Peck's expectations, the agreement reached at
 the table did not meet the approval of the Assistant District Director
 or the Director.  Several substantive concerns were expressed by them
 which Ms. Peck was asked to communicate to Mr. Greenberg.  Mr. Mitgang
 found "unacceptable" to management items six, seven and eight of the
 agreement forwarded to him by Ms. Peck following the February 14
 negotiations and discussed them with the District Director (TR. II.
 173).
 
    (a).  Item six provides that:  "The Agency will provide reasonable
 isolation from distracting noise and mechanical equipment to each
 employee.  Reasonable effort will be made to provide each employee with
 a window and blinds" (R. Exh. 1).  Mr. Mitgang explained that there were
 approximately 13 employees who were relocated into a single office type
 setup with only so many windows, so that it was "impossible" to provide
 each employee with a window (TR. II. 174).  He also objected that the
 employees were not put into any position where isolation from mechanical
 equipment or noise was of any concern.
 
    (b).  Item seven provides:  "Lack of access by revenue agents to
 conference room facilities can be used as a defense to any performance
 based actions brought against a revenue agent" (R. Exh. 1).  Mr.
 Mitgang's objection to this item was that the employees had only moved
 from one floor to another and "still had access to all the conference
 rooms that they had access to prior to the move and (he) felt that
 putting that in the agreement was totally irrelevant to the agreement or
 the move itself" (TR. II. 175).  He also felt that management could not
 accept lack of conference room facilities as a defense to any
 performance-based action.
 
    (c).  Item eight provides that:  "No employee will be required to
 work in an area which fails to comply with all applicable health and
 safety requirements.  Health and safety conditions including those
 specified in 29 C.F.R. 1960 et al., will be monitored by a joint team of
 two persons, one appointed by the union and one appointed by the agency.
  Unhealthy or unsafe working conditions which are not rectified by the
 agency once brought to its attention can be grieved" (R. Exh. 1).  He
 objected to this item because there is already a joint labor-management
 safety committee, so a second would be "a duplication of effort" (TR.
 II. 178).  He also objected because 29 CFR 1960 already requires
 Respondent to provide safe working conditions.
 
    15.  Mr. Greenberg has refused to change the agreement reached at the
 table.  See TR. II, 21.  The agreement has not been signed.
 
    16.  It is a common practice, throughout IRS, for District Directors
 to perform the ministerial task of formally executing agreements which
 have been earlier reached at the bargaining table.
 
    17.  The National Office of Respondent reviews all agreements reached
 by NTEU and its District Directors for legality and negotiability.
 
                        Discussion and Conclusions
 
    I.  It has not been established, by a preponderance of the evidence,
 /5/ that a final agreement was reached at the bargaining table on
 February 14, 1985.
 
    The complaint alleges that Respondent violated Sections 7116(a)(1)
 and (5) of the Statute when its Brooklyn District Director failed and
 refused to execute and implement a memorandum of understanding reached
 on February 14, 1985, by management and union agents at the bargaining
 table.  Establishing this violation requires proof that agreement was
 reached by the bargaining agents at the bargaining table.  Based upon
 the most credible evidence of record, I have found that final agreement
 was not reached;  and therefore it was not an unfair labor practice for
 the District Director to refuse to execute the agreement.
 
    The most that the General Counsel proved was that some members of the
 union bargaining team misinterpreted certain words and actions of the
 management team.  In particular, they misunderstood the action of
 writing up and initialling off on each item as agreement was reached on
 it.  This new process was suggested by the Assistant Counsel of NTEU and
 acquiesced in by the management team.  The process worked well;  and all
 parties were pleased with it.  It eliminated the need for each side to
 keep bargaining notes.  And it also eliminated the chance of the parties
 later disagreeing as to the language actually agreed upon.  But by
 initialling off on an item the management team did not intend, and never
 said, that this meant that they were therby binding the agency.  The
 management team made clear, at the outset of the bargaining session,
 that it had authority only to reach a tentative agreement at the
 bargaining table.  It never receded from this statement.
 
    The problem the union bargaining team had with understanding what the
 management team was saying may have been caused by the fact that the
 union team was, admittedly, a boisterous group of individuals, given to
 a lot of argument, with a lot of voices apparently being heard at one
 time.  See finding 12(b), above.  I found nothing in the credited record
 to suggest that any misunderstanding on the part of the union team was
 induced by words or actions of the management team, as is argued.  See
 C.P. Br. 18, 20 and 41.
 
    And I find significant the fact that the NTEU Assistant Counsel,
 after the three-hour bargaining session concluded, had "grave concerns"
 about the finality of the agreement reached insofar as the District
 Director was concerned.  See finding 13, above.  His astuteness proved
 to be correct -- there was no final agreement.
 
    II.  It has been demonstrated, by a preponderance of the evidence,
 that Respondent violated Section 7116(a)(1) and (5) of the Statute when,
 on February 14, 1985, it failed to send representatives to the
 bargaining table with authority to commit it to an agreement.
 
    It is not disputed that this management obligation is included in the
 duty of parties to bargain in good faith, as required by Section
 7116(a)(5) of the Statute, and not to interfere with the statutory
 rights of employees, as required by Section 7116(a)(1).  See National
 Treasury Employees Union, 13 FLRA 554, 556.
 
    What Respondent argues is that this was not a specific act with which
 it was charged and "would be prejudicial to Respondent and would deny
 Respondent due process of law (to now rely on this act as constituting a
 statutory violation) as Respondent was not put on notice that this was a
 charge in the case" (R. Br. 24).  Respondent's defense would apparently
 have been to show that "the Charging Party knew of Respondent's past
 practice in this area, knew of this limited authority of (its
 negotiators), yet acquiesced in this practice by negotiating with them"
 (R. Br. 25).
 
    Under similar circumstances, the Authority has rejected arguments of
 a respondent that it was denied the opportunity to present a proper
 defense, if the matter was fully litigated at the hearing.  See Social
 Security Administration, 16 FLRA 56, fn. 1.
 
    I believe the matter was fully litigated here.  It was shown that the
 President of Chapter 53 was aware that Respondent was sending
 representatives to the bargaining table who were not fully authorized to
 commit it to an argument.  See finding 11, above.  And Respondent had a
 full opportunity to show that the union team, on February 14, 1985,
 acquiesced in the practice.  Counsel for Respondent was advised, in the
 opening statement of the NTEU Assistant Counsel, that he was raising
 this matter as an issue.  See TR. I. 20.  Respondent thereafter called,
 as witnesses, both management representatives who were present at the
 February 14 bargaining table.  The management representatives testified
 that negotiations continued even after it was made clear to the union
 team that the management team had no authority to bind the agency.  See
 findings 12 and 13, above.  From these facts Respondent argues that the
 union team "acquiesced" in Respondent's sending unauthorized-to-bind
 representatives to the bargaining table (R. Br. 20).  It is unlikely
 that Respondent could have proved more, had it received earlier notice
 of this act as a violation.
 
    Respondent did not prove union acquiescence, however.  Respondent's
 own witnesses testified that the union team was "unhappy" about the
 situation.  See finding 12(c) and TR. II. 130 and also 123 and 133.  The
 union team had had to go through a difficult, lengthy process in getting
 management to the bargaining table over the matter on the table on
 February 14.  See finding 6, above.  And the NTEU Assistant Counsel, who
 is based in Washington, D.C. and does not normally participate in local
 negotiations, was present to assist in those local negotiations.  Under
 these circumstances, unhappy though it was, the union team proceeded
 with negotiations.  But I cannot conclude from this set of circumstances
 that it truly acquiesced in bargaining with management representatives
 who could not commit the agency.  When a union waives a statutory right
 such as the right to face a management representative at the bargaining
 table who is authorized to commit the agency, it must so appear more
 clearly and unmistakably than it does in this case.  See, e.g., Harry S.
 Truman Memorial Veterans Hospital, Columbia, Missouri, 17 FLRA 408, 411
 and Internal Revenue Service (District, Region National Office Units),
 16 FLRA 904, 922-923.
 
    III.  As a remedy the General Counsel and the Charging Party propose,
 inter alia, that Respondent execute and fully implement the agreement
 reached at the bargaining table on February 14, 1985.  See C.P. Exh. 1
 and G.C. Exh. 8.  I do not consider this to be appropriate, since I have
 found that Respondent did not intend for its negotiators to enter into a
 binding agreement.  Furthermore, I conclude that the objections raised
 by the Assistant District Director to the agreement reached at the
 bargaining table are not frivolous ones.  See finding 14, above.
 
    Under all the circumstances, I believe a more appropriate order would
 be one requiring Respondent, upon request by NTEU, to bargain promptly
 and to send representatives to the bargaining table who are fully
 authorized to commit it to an agreement.
 
    A cease-and-desist and a posting order is also deemed to be
 appropriate.
 
    IV.  Respondent continues to raise objections to the fact that the
 NTEU Assistant Counsel was allowed to participate in this proceeding as
 a witness and also as a counsel for NTEU.  See R. Br. 14-15.
 
    As stated at the hearing, I do not consider this practice to be a
 desirable one.  See TR. I. 9-12.  One undesirable feature is that
 credibility as a witness may suffer when the witness also assumes the
 role of advocate.  Nevertheless, I allowed that NTEU Assistant Counsel
 to be the lead-off witness;  and he did not attempt to take the stand as
 a rebuttal witness.  Thus, NTEU gained no perceptible trial advantage
 from this procedure.  The one possible advantage NTEU did gain was
 saving money by having its Assistant Counsel assume dual roles.  In my
 view, reducing the cost to parties of administrative proceedings is a
 matter which is appropriately weighed in the circumstances such as this.
 
    Since the credibility issues in this case have been resolved in favor
 of Respondent, it has no cause for further relief as to this matter.
 
    In view of the above conclusions, other issues raised by the parties
 need not be resolved.
 
                  Ultimate Findings and Recommended Order
 
    1.  The General Counsel has not established, by a preponderance of
 the evidence, that Respondent committed the violative act named in
 paragraphs 8 and 9 of the complaint.
 
    2.  The General Counsel has established that Respondent violated
 Sections 7116(a)(1) and (5) of the Statute, as alleged in paragraphs 10
 and 11 of the complaint by failing to send representatives to the
 bargaining table, on February 14, 1985, who were fully authorized to
 commit it to an agreement.
 
    Pursuant to Section 7118 of the Statute, and 5 CFR 2423.29, it is
 hereby ORDERED that:
 
    1.  Internal Revenue Service, Brooklyn District shall cease and
 desist from:
 
          (a) Failing to bargain in good faith by refusing and failing to
       authorize a designated agency representative to negotiate fully
       upon proper demand by the National Treasury Employees Union and
       enter into a final and binding agreement, subject only to review
       by the Respondent's National Office for legality and
       negotiability.
 
          (b) In any like or related manner, interfere with, restrain or
       coerce any employee in the exercise of rights assured by the
       Federal Service Labor-Management Relations Statute.
 
    2.  Internal Revenue Service, Brooklyn District shall take the
 following affirmative action in order to effectuate the purposes and
 policies of the Statute:
 
          (a) Upon proper demand by the National Treasury Employees Union
       for bargaining, promptly send a designated agency representative
       to negotiate fully and enter into a final and binding agreement,
       subject only to review by the Respondent's National Office for
       legality and negotiability, as to the relocation of the Group 1117
       employees, Examination Division, Brooklyn District, Mineola, New
       York.
 
          (b) Post in all offices and posts of duty of the Internal
       Revenue Service, Brooklyn District, copies of the Notice of All
       Employees, attached hereto as Appendix A, on forms to be furnished
       by the Regional Director, Region II, Federal Labor Relations
       Authority.  Upon receipt of such forms they shall be signed by the
       District Director, Brooklyn District, and shall be posted and
       maintained by him for sixty (60) consecutive days thereafter, in
       conspicuous places, including all bulletin boards and other places
       where notices to bargaining unit employees are customarily posted.
        The District Director shall take all reasonable steps to ensure
       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 II, Federal
       Labor Relations Authority, in writing within 30 calendar days from
       the date of this order, as to what steps have been taken to comply
       herewith.
 
                                       ISABELLE R. CAPPELLO
                                       Administrative Law Judge
 
    Dated:  December 17, 1985
    Washington, D.C.
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Section 7116 provides, in pertinent part, that:
 
    (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;  . . .
       (or)
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter . . . .
 
    (2) The following abbreviations will be used herein.  "TR. I" refers
 to the transcript dated July 16.  "TR. II" refers to the transcript
 dated July 17.  "G.C. Exh." refers to the exhibits of the General
 Counsel and "R. Exh." to those of Respondent.  "G.C. Br." refers to the
 brief of the General Counsel, "R. Br." to that of Respondent, and "C.P.
 Br." to that of the Charging Party/Union.
 
    Corrections to the transcript are attached hereto and are made
 pursuant to 5 CFR 2423.19(r) and the unopposed motion of the General
 Counsel.
 
    (3) Respondent's Chief of Labor Relations so testified and seemed
 certain.  See TR. II. 208.
 
    Mr. Mitgang testified that "changes" were made by him on "some" of
 the agreements reached at the bargaining table, but did not clarify
 whether they were of substance and seemed unclear on the point.  See TR.
 II. 149.
 
    (4) Mr. Greenberg was the only union witness to have been shown a
 note written by Ms. Peck, in which she summarized the beginning of the
 February 14 meeting and noted that she had stated that no member of the
 management team had authority to sign for the agency.  See R. 11.  The
 note was apparently turned over to the Authority by Ms. Peck as part of
 its investigation.  Ms. O'Connor showed the note to Mr. Greenberg prior
 to his testimony, asked him if he were aware of it, and discussed that
 there would be a difference of opinion as to what happened, preliminary
 to the negotiations.  See TR. I. 138-141.  Respondent argues that
 revealing this note to Mr. Greenberg violated 5 CFR 2423.7(d) and
 diminishes his credibility as a witness, as knowledge of it allowed him
 to fashion his testimony so that it would not conflict with this
 potential documentary proof and testimony of Ms. Peck.
 
    Upon reflection, I conclude that revealing the note to Mr. Greenberg
 was in violation of Authority policy, as stated in 5 CFR 2423.7(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 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 manner of assuring the
       Authority's and the General Counsel's continuing ability to obtain
       all relevant information.  (Emphasis added).
 
    Respondent urges that the "only appropriate remedy is to strike the
 testimony of the General Counsel's witnesses and dismiss the complaint"
 (R. Br. 13).  In the particular circumstances of this case, I believe
 the better remedy is to treat this matter as casting doubt on the
 credibility of Mr. Greenberg, and to resolve any conflicts between his
 testimony and that of Respondent's witnesses in favor of the latter.
 Since, as President of Chapter 53, Mr. Greenberg may have discussed with
 the other union witnesses, particularly Mr. Wolf who acted as counsel
 for the Chapter in this proceeding, the information as to how Ms. Peck
 would be likely to testify, some doubt is also cast on the credibility
 of the account of the February 14 meeting given by all the union
 witnesses.
 
    In a prior instance where the General Counsel revealed documentary
 evidence to a union witness, before the hearing, the Authority declined
 to dismiss the complaint and, instead, held that "this impropriety
 affects the weight to be accorded" to the testimony of the union
 witness.  See footnote 2 to Internal Revenue Service, Boston District
 Office, Boston, Massachusetts and Internal Revenue Service, Andover
 Service Center, Andover, Massachusetts, 5 FLRA 700, at 701.
 
    (5) This is the statutory burden of proof.  See 5 U.S.C. Sections
 7118(7) and (8).
 
 
  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 STATES CODE
 FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY
 OUR
 EMPLOYEES THAT:
 
    WE WILL NOT fail to bargain in good faith by refusing and failing to
 authorize a designated agency representative to negotiate fully upon
 proper demand by National Treasury Employees Union and enter into a
 final and binding agreement, subject only to review by the Respondent's
 National Office for legality and negotiability.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce any employee in the exercise of the rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon proper demand by the National Treasury Employees Union
 for bargaining, promptly send a designated agency representative to
 negotiate fully and enter into a final and binding agreement, subject
 only to review by the Respondent's National Office for legality and
 negotiability, as to the relocation of the Group 1117 employees,
 Examination Division, Brooklyn District, Mineola, New York.
                                       (Agency or Activity)
 
    Dated:  . . . By:  (Signature)
 
    This Notice must remain posted for sixty (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 II,
 whose address is:  26 Federal Plaza, Room 2237, New York,