23:0876(108)CA - Treasury, IRS, Jacksonville District and Treasury, IRS, Southeast ROI and NTEU -- 1986 FLRAdec CA



[ v23 p876 ]
23:0876(108)CA
The decision of the Authority follows:


 23 FLRA No. 108
 
 DEPARTMENT OF THE TREASURY, INTERNAL 
 REVENUE SERVICE, JACKSONVILLE DISTRICT 
 AND DEPARTMENT OF THE TREASURY, 
 INTERNAL REVENUE SERVICE, SOUTHEAST 
 REGIONAL OFFICE OF INSPECTION
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 4-CA-40568
 
                            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 Charging Party (the Union) filed an opposition to the
 exceptions.  The issue is whether the Respondent violated section
 7116(a)(1) of the Federal Service Labor-Management Relations Statute
 (the Statute) by conducting an "examination" of an employee in conflict
 with the employee's right to request union representation under section
 7114(a)(2)(B) of the Statute.  The Authority finds that the Respondent
 did not commit an unfair labor practice as alleged.
 
                   II.  Background and Judge's Decision
 
    As part of an investigation into the manner in which a Revenue
 Officer handled a tax collection manner, the Respondent's inspector
 arranged to have the taxpayer discuss the issue with the Revenue Officer
 in phone conversations initiated from the taxpayer's home.  Unknown to
 the Revenue Officer, the conversation was monitored and taped by the
 Respondent.  The information obtained from the phone conversations was
 eventually used in disciplinary action brought against the Revenue
 Officer.
 
    The Judge decided that the phone conversations constituted an
 "examination," that the Revenue Officer's right to request union
 representation under section 7114(a)(2)(B) of the Statute had been
 violated, and that the use of the investigative technique thus violated
 section 7116(a)(1) of the Statute, as alleged.  As a remedy, the Judge
 recommended an order which would require the Respondent to rescind the
 disciplinary action and to reconsider the basis for such action without
 referring to the information obtained from the phone conversations.
 
                      III.  Positions of the Parties
 
    The Respondent argues that it did not commit the violation alleged in
 the complaint because the investigation at issue was in connection with
 a criminal matter and section 7114(a)(2)(B) was not intended to be
 applicable to criminal investigations.  As part of this argument, it
 also implicitly argues that application of section 7114(a)(2)(B) to
 preclude it from using such investigative techniques would interfere
 with its right to determine its internal security practices under
 section 7106(a)(1) of the Statute.  The Respondent also disputes the
 Judge's recommended remedy.  The Union supports the Judge's Decision.
 
                       IV.  Analysis and Discussion
 
                  A.  Rights under Section 7114(a)(2)(B)
 
    Section 7114(a)(2)(B) of the Statute provides that in any examination
 of a unit employee by an agency representative in connection with an
 investigation, the employee shall have the right to have a union
 representative present if the employee reasonably believes that the
 examination may result in disciplinary action and requests
 representation.
 
    The legislative history of this section discloses that Congress'
 purpose in enacting section 7114(a)(2)(B) was to create representation
 rights for Federal employees equivalent to the rights provided employees
 by the National Labor Relations Board (NLRB) in interpreting the
 National Labor Relations Act (NLRA).  See 124 Cong. Rec. 29184 (1978),
 reprinted in Legislative History of the Federal Service Labor-Management
 Relations Statute, H.R. Comm. Print 96-7, 96th Cong., 1st Sess. 926
 (1979), where Congressman Udall explained that the purpose of the House
 bill provisions which led to enactment of section 7114(a)(2)(B) was to
 reflect the Supreme Court's decision in NLRB v. J. Weingarten Inc., 420
 U.S. 251 (1975), in which the Court deferred to the NLRB's
 interpretation of the NLRA.  See also Internal Revenue Service v. FLRA,
 6711 F.2d 560, 563 (D.C. Cir. 1982), enforcing Internal Revenue Service,
 Washington, D.C., 4 FLRA 237 (1980) (holding that under section
 7114(a)(2)(B), whether an employee has a reasonable belief that
 discipline may result from an examination is determined, as under
 Weingarten, by an objective test).
 
    The Senate/House conferees recognized, however, that the right might
 evolve differently under the Statute than under the NLRA, and
 accordingly stated their intent that the evolution of decisions
 interpreting the right in the private sector would not necessarily be
 determined for the Federal sector.  Civil Service Reform Act:
 Conference Report, H.R. Rep. No. 1717, 95th Cong., 2d Sess. 156 (1978),
 reprinted in Legislative History at 824.
 
            B.  Whether section 7114(a)(2)(B) is applicable to
 
                examinations arising out of criminal investigations
 
    Section 7114(a)(2)(B) refers to "any examination" of an employee . .
 . in connection with "an investigation" (emphasis added).  The
 Conference Report essentially tracks the statutory language.  Conference
 Report, H.R. Rep. No. 1717, 95th Cong., 2d Sess. 156 (1978) reprinted in
 Legislative History at 824.  Congress was undoubtedly aware that, unlike
 the private sector, many Federal agencies (including the Respondent)
 conduct criminal investigations that sometimes (as here) include their
 own employees.  Section 7114(a)(2)(B), however, does not exclude or
 refer in any way to criminal investigations.  Accordingly, it is our
 view that Congress intended section 7114(a)(2)(B) to apply to all
 examinations in connection with all investigations, not just to
 examinations of employees in connection with non-criminal matters.
 
    Our conclusion is buttressed by the practice in the Postal Service
 wherein the NLRB has applied Weingarten rights to the examination of
 postal employees, who are governed by private sector labor law, in
 connection with criminal investigations.  See United States Postal
 Service, 241 NLRB 141 (1979);  United States Postal Service, 254 NLRB
 703 (1981).  Further, Weingarten itself involved the investigation of an
 employee accused of criminal acts.
 
    Finally, we find that applying section 7114(a)(2)(B) rights to
 examinations in connection with criminal investigations would not
 interfere with the right of management to determine its internal
 security practices under section 7106(a)(1) of the Statute.  The
 presence of a Union representative at an examination does not interfere
 with management's right to insist that the employee be responsive, or
 its right to decide the scope of the examination, or the extent of the
 Union's legitimate role as a representative.  See Weingarten, 420 U.S.
 at 261;  Office of Personnel Management, Washington, D.C. 17 FLRA 302
 (1985);  Norfolk Naval Shipyard, 9 FLRA 458 (1982).
 
    We find that section 7114(a)(2)(B) applies to requests by an employee
 for union representation at an examination by an agency representative
 in connection with a criminal investigation.  We conclude that this
 result (1) comports with the language of section 7114(a)(2)(B) and the
 intent of Congress, (2) is consistent with the Supreme Court's
 explanation of the parameters of the right to representation in
 Weingarten, /1/ and (3) does not conflict with management's legitimate
 prerogatives or its right to determine its internal security practices.
 
         C.  Whether the Respondent interfered with the employee's
 
                rights under section 7114(a)(2)(B) of the Statute
 
    The Authority concludes that the telephone surveillance at issue
 here, involving the agency's monitoring of phone calls of an employee
 suspected of having engaged in improper or illegal conduct does not
 constitute an examination within the meaning of section 7114(a)(2)(B).
 As discussed above in section A, the legislative history of section
 7114(a)(2)(B) establishes that its incorporation in our Statute was for
 the purpose of granting to Federal employees the same rights to
 representation in employer examinations held by private sector employees
 set forth in the Supreme Court's Weingarten decision.  The Court in
 Weingarten was not addressing those facets of a criminal investigation
 such as a telephone surveillance in which it is essential to the success
 of the surveillance for the employee to be unaware that his conversation
 is being monitored.  In fact, the presence of a Union representative is
 utterly incongruous with the surreptitious nature of the agency's
 surveillance activities.
 
    In contrast, in Weingarten, the Court was concerned with the right of
 an employee to have "the assistance of his union representative in a
 confrontgation with his employer" (emphasis added).  Weingarten at 260.
 In the Court's view, "(a) single employee confronted by an employer
 investigating whether certain conduct deserves discipline may be too
 fearful or inarticulate to relate accurately the incident being
 investigated, or too ignorant to raise extenuating factors" (emphasis
 added).  Id. at 262-63.  In these circumstances, the Court concluded
 "(a) knowledgeable union representative could assist the employer by
 eliciting favorable facts and save the employer production time by
 getting to the bottom of the incident occasioning the interview.  Id. at
 263.
 
    In this case, there was no direct questioning or examination of the
 employee by agency management.  Management's involvement was limited to
 monitoring the conversation between a Revenue Officer and a taxpayer.
 Moreover, the conversations took place without the employee being aware
 that the questions and his answers were being monitored.  Thus, at no
 time during these conversations did the employee feel compelled to
 respond to questions posed by the taxpayer.  Although an officer of the
 agency may have precipitated the taxpayer's action, there was no direct
 interaction between the employee and agency management since it was the
 taxpayer who initiated the talks and elicited information.  Thus, we
 find that the monitoring here, in which management played the passive
 role of listening rather than participating in the conversations, does
 not constitute an "examination of any employee . . . by a representative
 of the agency in connection with an investigation" within the meaning of
 the Statute but rather is a form of surveillance.
 
    The General Counsel's allegation encompasses an expansion of employee
 representational rights that is inconsistent with section 7114(a)(2)(B)
 and unduly interferes with management's right under section 7106(a)(1)
 of the Statute to investigate alleged wrongdoing by its employees and
 determine internal security practices.  It would produce the anomalous
 prohibition that agencies could not engage in unannounced surveillance
 of allegedly dishonest employees as an investigative technique without
 first informing the employee of what was being done and providing an
 opportunity to request representation.  We do not believe that Congress
 intended such an unlikely result.
 
    Based on the analysis set forth above we conclude that the monitoring
 of the conversation between the IRS agent and the taxpayer did not
 constitute an "examination" within the meaning of section 7114(a)(2)(B)
 of the Statute.  Given this conclusion, there is no basis to find that
 the agency violated section 7116(a)(1) of the Statute as alleged in the
 complaint.
 
                              V.  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 those rulings.  The Authority has considered the
 Judge's Decision, the exceptions to that Decision, the opposition to the
 exceptions, the positions of the parties, and the entire record, and
 adopts the Judge's findings and conclusions only to the extent
 consistent with this decision.  We conclude that the Respondent, in the
 circumstances of this case, did not interfere with, restrain, or coerce
 employee Miller in the exercise of any of his rights under section
 7114(a)(2)(B) of the Statute, and we shall dismiss the complaint.  In
 view of this conclusion, we do not pass upon the merits of the Judge's
 recommended remedial order.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 4-CA-40568 be, and it
 hereby is, dismissed in its entirety.
 
    Issued, Washington, D.C., October 31, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 4-CA-40568
 
 DEPARTMENT OF THE TREASURY, INTERNAL REVENUE 
 SERVICE, JACKSONVILLE DISTRICT AND DEPARTMENT OF 
 THE TREASURY, INTERNAL REVENUE SERVICE,
 SOUTHEAST REGIONAL OFFICE OF INSPECTION
    Respondent
 
                                    and
 
 NATIONAL TREASURY EMPLOYEES UNION
    Charging Party
 
 
    Regina N. Kane, Esquire
       For the General Counsel
 
    Robert M. Finer, Esquire
       For the Respondent
 
    Timothy C. Welsh, Esquire
       For the Charging Party
 
    Before:  BURTON S. STERNBURG
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101 et seq. and the Rules and Regulations issued thereunder.
 
    Pursuant to a charge filed on July 24, 1984, by the National Treasury
 Employees Union (hereinafter called the NTEU or Union), a Complaint and
 Notice of Hearing was issued on August 20, 1985, by the Regional
 Director for Region IV, Federal Labor Relations Authority, Atlanta,
 Georgia.  The Complaint alleges that the Department of the Treasury,
 Internal Revenue Service, Jacksonville District and the Department of
 the Treasury, Internal Revenue Service, Southeast Regional Office of
 Inspection (hereinafter called Respondent or IRS), violated Section
 7116(a)(1) of the Federal Service Labor-Management Relations Statute,
 hereinafter called the Statute), by utilizing a third party to conduct a
 wire tapped telephone examination of bargaining unit employee Steven W.
 Miller in such a manner as to preclude Mr. Miller from exercising his
 Section 7114(a)(2)(B) right to request the presence of a union
 representative.
 
    A hearing was held in the captioned matter on October 1, 1985 in
 Daytona Beach, Florida.  All parties were afforded the opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The Charging Party, Respondent
 and General Counsel submitted post-hearing briefs on December 2, 1985,
 which have been duly considered.  /2/
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact, /3/
 conclusions, and recommendations.
 
                             Findings of Fact
 
    The NTEU is the exclusive representative "of certain employees of the
 Department of the Treasury." Included in the unit are a number of
 employees working in the IRS, Jacksonville, Florida, District Office,
 which encompasses, among other areas, the Daytona Beach, Florida, Field
 Office.
 
    Mr. Steven W. Miller was employed as an Internal Revenue Officer in
 Daytona Beach, Florida and as such was included in the unit represented
 by the NTEU.  Among Mr. Miller's duties as a Revenue Officer was the
 collection of funds from delinquent taxpayers.
 
    Sometime in April 1983, Mr. George Edwards, Mr. Miller's group
 supervisor, contacted Mr. Robert Dan Clark, Jr. an inspector with the
 IRS Internal Security Division /4/ in Jacksonville, Florida, and
 informed him that he had reason to believe that Mr. Miller may have
 mishandled a "collection" which had been assigned to him.  Mr. Edwards
 further informed Mr. Clark that he had also received information that
 Mr. Miller might be "personally or socially acquainted with the
 taxpayer." /5/
 
    Mr. Clark subsequently initiated an investigation of the matter and
 determined that the delay in the collection of delinquent taxes from
 Taxpayer A was based on false information appearing on a certain form in
 the taxpayer's file which indicated that Taxpayer A had been unemployed
 at the time in question.
 
    Inasmuch as Taxpayer A had in fact been employed at the time and
 denied giving false information to the contrary to Mr. Miller, who was a
 friend of a co-worker of Taxpayer A, it was incumbent on Mr. Clark to
 determine who in fact was responsible for the false information on the
 form, Mr. Miller or Taxpayer A.
 
    Envisioning an "obvious response" from an inquiry to Mr. Miller, that
 the document "truly reflects what she, Taxpayer A, told him," Mr. Clark
 was of the opinion that the best way to resolve any credibility dispute
 was to monitor a telephone conversation on the matter between Taxpayer A
 and Mr. Miller.
 
    On March 30, 1984, at 8:52 a.m. and 9:20 a.m. pursuant to
 arrangements with Mr. Clark, Taxpayer A placed two telephone calls from
 her residence to Mr. Miller at the Internal Revenue Office located in
 Daytona Beach, Florida.  Both the telephone calls were monitored and
 recorded by Mr. Clark and fellow inspector Mailoux.  Taxpayer A
 consented to the wire taps.
 
    The transcripts of the two telephone conversations reveal that
 Taxpayer A discussed the subject matter of the investigation, namely the
 false information concerning her work status and elicited damaging
 testimony from Mr. Miller concerning the false information on the IRS
 form.
 
    At no time during the telephone conversations was Mr. Miller informed
 that the conversations were being initiated by, and monitored by, IRS
 representatives.  Similarly, Mr. Miller was never informed of his right
 to Union representation.
 
    Mr. Clark testified that the use of wire taps was an extremely
 valuable tool in which to resolve credibility both for and against IRS
 agents who have been accused by taxpayers of various indiscretions etc.
 He further testified that denying the IRS the use of such investigative
 aids, would impede their work.
 
                        Discussion and Conclusions
 
    The General Counsel and the Charging Party take the position that the
 monitored telephone conversations constituted a Section 7114(a)(2)(B)
 interview wherein Mr. Miller should have been provided the opportunity
 to request representation.  Inasmuch as Respondent's action in
 surreptitiously monitoring the telephone conversation was designed to
 interview Mr. Miller without his knowledge, Respondent knowingly and
 intentionally deprived Mr. Miller of his Section 7114(a)(2)(B) right to
 request representation.  In such circumstances Respondent violated
 Section 7116(a)(1) of the Statute.
 
    Respondent urges dismissal of the complaint on the ground that there
 is no evidence in the record indicating that Mr. Miller would have
 requested representation if he had been made aware of the fact that his
 conversations were being monitored.  Additionally, Respondent urges
 dismissal on the ground that the legislative history does not establish
 that the so-called "Weingarten" rights to representation were intended
 to apply to criminal investigations.'
 
    Before Section 7114(a)(2)(B) of the Statute becomes applicable it
 must be shown (1) that an examination is being conducted, (2) in
 connection with an investigation, (3) that the employee involved
 reasonably believes that the examination may result in discipline and
 (4) the employee requests representation.
 
    With respect to (1) and (2) above it is clear that the monitored
 telephone calls from Taxpayer A to Mr. Miller were intended to be an
 examination in connection with an investigation to determine who was
 responsible for the false information appearing on the IRS form.  If in
 fact it could be determined from such telephone calls that Mr. Miller
 was the guilty party there is no doubt that discipline would result.
 /6/ In this latter connection the transcript of the telephone
 conversation indicates that Mr. Miller was concerned about what action
 would be taken by Respondent if it concluded that he was responsible for
 the false information.  Finally, with regard to the last element, i.e.
 employee request for representation, while it is true as contended by
 Respondent that the record is devoid of any evidence indicating that Mr.
 Miller would have requested representation, I find that under all the
 circumstances herein, Respondent is foreclosed from relying upon the
 absence of such evidence.  Having purposely deprived Mr. Miller of
 knowledge of the examination, Respondent can hardly defend its actions
 on the ground that there is no evidence of a request for representation
 when, due to Respondent's surreptitious behavior, Mr. Miller was clearly
 not aware of the fact that an examination was being conducted and as a
 consequence was deprived of the opportunity to request representation.
 To insist at this late date, i.e. subsequent to a notice of proposed
 suspension based on damaging testimony elicited during the wiretapped
 conversations, that Mr. Miller take the stand and attest to the fact
 that he would have requested representation if he had known that an
 examination was being conducted is absurd.  This is particularly true
 when one of the requested remedies is the suppression of the testimony
 secured by Respondents through the wiretap.
 
    Concerning Respondent's second ground for dismissal, i.e., that
 Section 7114(a)(2)(B) of the Statute is not applicable to criminal
 investigations, I find that the Authority has found to the contrary.
 Thus, in Lackland Air Force Base, Texas, and American Federation of
 Government Employees, Local 2911, AFL-CIO, 5 FLRA 473, 485, the
 Authority affirmed the Administrative Law Judge's conclusion that
 employee was entitled to union representation during the course of an
 examination to determine whether or not the employee was guilty of a
 crime.  The Administrative Law Judge noted that since the examination
 was conducted jointly by the Respondent's managers and Respondent's
 independent criminal investigative branch, the employee was entitled to
 union representation at all interviews, criminal and administrative
 alike.
 
    While Respondent acknowledges the Authority's decision in Lackland
 Air Force Base, supra, it takes the position that it is not controlling
 since the issue of the applicability of Section 7114(a)(2)(B) to
 criminal investigations was not specifically discussed.  According to
 Respondent, since the legislative history is silent on the matter, there
 was no intention of Congress to include criminal investigations within
 the representational rights accorded employees under Section
 7114(a)(2)(B) of the Statute. Respondent's argument in this latter
 regard was raised and thoroughly treated by Chief Administrative Law
 Judge John H. Fenton in Department of the Treasury, Bureau of Alcohol,
 Tobacco and Firearms, Southeaast Regional Office, Atlanta, Georgia, and
 NTEU, Case No. 4-CA-1138, OALJ-84-03, October 21, 1983.  To the extent
 that Judge Fenton found after an exhaustive analysis of the legislative
 history, that Section 7114(a)(2)(B) applies to any investigation which
 may reasonably lead to discipline, I agree.  In reaching this latter
 conclusion I adopt, Judge Fenton's well reasoned analysis of the
 legislative history.
 
    Accordingly, having failed to allow Mr. Miller the opportunity to
 exercise his Section 7114(a)(2)(B) rights, I find that the Respondent
 has interfered with, restrained and coerced Mr. Miller in violation of
 Section 7116(a)(1) of the Statute.
 
    Having found that Respondent violated Section 7116(a)(1) of the
 Statute by virtue of its action in depriving Mr. Miller of his Section
 7114(a)(2)(B) rights to union representation, it is hereby recommended
 that the Authority issue the following order designed to effectuate the
 purposes and policies of the Statute.  /7/
 
                                   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 Department of the Treasury, Internal
 Revenue Service, Jacksonville District and Department of the Treasury,
 Internal Revenue Service, Southeast Regional Office of Inspection shall:
 
    1.  Cease and desist from:
 
          (a) Engaging in investigatory interviews of bargaining unit
       employees, which may lead to disciplinary action, by means of
       consensually monitored telephone calls which conceal the fact that
       an investigation is underway, and thus operate to deprive
       employees of the right to request and receive representation by
       the National Treasury Employees Union, their exclusive collective
       bargaining representative.
 
          (b) Using or relying upon in any internal disciplinary
       proceeding the transcript and/or information derived from, any
       consensually monitored telephone call made by an undisclosed agent
       of management which conceals the nature and purpose of the
       telephonic investigation and/or examination and precludes the
       affected employee from requesting Union representation.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) To the extent that management may have relied upon
       information derived from monitored telephone calls made by an
       undisclosed agent of management which concealed the nature and
       purpose of the telephonic investigation and/or examination,
       reevaluate any internal discipline imposed, taking care to exclude
       from such deliberations the information surreptitiously obtained
       through the monitored telephonic investigation.
 
          (b) Post at its Jacksonville, Florida, District Office and
       Southeast Regional Office of Inspection facilities copies of the
       attached notice marked "Appendix" on forms to be furnished by the
       Federal Labor Relations Authority.  Upon receipt of such forms
       they shall be signed by authorized representatives, and shall be
       posted and 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 for Region IV, in
       writing, within 30 days from the date of this order, as to what
       steps have been taken to comply herewith.
 
                                       /s/ BURTON S. STERNBURG
                                       Administrative Law Judge
 
    Dated:  December 30, 1985
    Washington, D.C.
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
    (1) For a discussion of extensions of Weingarten in the private
 sector, see C. J. Morris (ed.), The Developing Labor Law:  Vol. I,
 151-54 (2d ed. 1983) and J. Harper II, S. Logothetis, & H. Datz (eds.),
 The Developing Labor Law:  Second Edition, First Supplement, 32-35
 (1985).
 
    (2) In the absence of any objection, Respondent's Motion To Correct
 the Transcript, should be, and hereby is, granted.
 
    (3) The facts, for the most part, are not in dispute.
 
    (4) Mr. Clark described his duties as follows:  "Conduct
 investigations which may be either criminal or non-criminal.  These
 investigations generally impact upon the integrity of IRS, normally
 concerning violations or suspected violations of U.S. Criminal Code or
 the Internal Revenue Code, Title 18 and Title 26.  Normally involving
 suspected attempts to interfere with proper functioning by employees or
 persons outside the service, by threats and assault, bribery,
 impersonations, conflict of interest.  We also conduct some
 investigations of an administrative type nature or non-criminal type
 cases involving suspected misconduct by IRS employees."
 
    (5) The parties agreed that the taxpayer's name would not be
 disclosed.  Accordingly, the taxpayer will be referred to as "Taxpayer
 A."
 
    (6) In fact the telephone interview did lead to a proposed suspension
 for Mr. Miller.
 
 
 
 
 
 
                                 APPENDIX
 
  NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 THE FEDERAL
 LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 POLICIES OF
 CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
 EMPLOYEES THAT:
 
    WE WILL NOT interfere with, restrain or coerce any bargaining unit
 employee in the exercise of the Statutory right to be represented by the
 National Treasury Employees Union during an investigatory interview
 which may reasonably lead to discipline, by conducting a monitored
 examination through another individual who is an undisclosed agent of
 management, thus concealing the nature and purpose of the interrogation
 and precluding the opportunity for Union representation.
 
    WE WILL NOT use in any internal disciplinary proceedings transcripts,
 and/or information derived from any consensually monitored telephone
 calls made by an undisclosed agent of management which conceals the
 nature and purpose of the telephonic investigation and/or examination
 and precludes the affected employee from requesting union
 representation.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce any employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, to the extent that we have relied upon information derived
 from telephone calls made by an undisclosed agent of management which
 concealed the nature and purpose of the telephonic investigation and/or
 examination, re-evaluate any internal discipline imposed, taking care to
 exclude from such deliberations the information surreptitiously obtained
 through the monitored telephonic investigation.
                                       (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