Internal Revenue Service, Fresno Service Center, A/SLMR No. 1119, FLRC No. 78A-139
[ v01 p225 ]
01:0225(29)CA
The decision of the Authority follows:
1 FLRA No. 29
APRIL 27, 1979
MR. ANTHONY D'AMATO
DIRECTOR OF PERSONNEL
INTERNAL REVENUE SERVICE
1111 CONSTITUTION AVENUE, N.W.
WASHINGTON, D.C. 20224
RE: INTERNAL REVENUE SERVICE, FRESNO
SERVICE CENTER, A/SLMR No. 1119,
FLRC No. 78A-139
DEAR MR. D'AMATO:
THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION, AND THE
UNION'S OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.
IN THIS CASE, THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER
97 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT ALLEGING THAT
THE INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER (THE ACTIVITY)
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY REFUSING TO PERMIT THE
UNION TO EXAMINE AN INVESTIGATORY FILE WHICH ASSERTEDLY PROVIDED THE
BASIS FOR TERMINATING A PROBATIONARY EMPLOYEE.
THE ASSISTANT SECRETARY CONCLUDED THAT THE ACTIVITY'S REFUSAL TO
FURNISH THE PROBATIONARY EMPLOYEE AND HIS UNION REPRESENTATIVE WITH A
COPY OF THE INVESTIGATORY FILE VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER. IN SO CONCLUDING, THE ASSISTANT SECRETARY STATED IN PERTINENT
PART:
SECTION 10(E) OF THE ORDER PROVIDES THAT A LABOR ORGANIZATION
ACCORDED EXCLUSIVE
RECOGNITION HAS THE RESPONSIBILITY TO REPRESENT THE INTERESTS OF ALL
EMPLOYEES IN THE
UNIT. IT HAS PREVIOUSLY BEEN HELD THAT AN EXCLUSIVE REPRESENTATIVE
CANNOT MEET THIS
RESPONSIBILITY IF IT IS PREVENTED FROM OBTAINING RELEVANT AND
NECESSARY INFORMATION RELATING
TO ITS DUTY TO ADMINISTER ITS NEGOTIATED AGREEMENT, AND TO REPRESENT
AND COUNSEL EMPLOYEES
REGARDING THE EXERCISE OF THEIR RIGHTS UNDER THE ORDER AND THE
NEGOTIATED AGREEMENT.
IN THE INSTANT CASE, THE (ACTIVITY) REFUSED TO MAKE AVAILABLE TO THE
(UNION) THE
INVESTIGATORY FILE WHICH FORMED THE BASIS OF ITS DECISION TO
TERMINATE A PROBATIONARY EMPLOYEE
BECAUSE OF "UNDESIRABLE SUITABILITY CHARACTERISTICS". I FIND, IN
AGREEMENT WITH THE
ADMINISTRATIVE LAW JUDGE, THAT THIS AMBIGUOUS LANGUAGE CONTAINED IN
THE (ACTIVITY'S)
TERMINATION LETTER HAD THE EFFECT OF MAKING THE INVESTIGATORY FILE
PRIMA FACIE RELEVANT AND
NECESSARY TO THE EXCLUSIVE REPRESENTATIVE IF IT WERE TO UNDERSTAND
THE REASONS FOR THE
(ACTIVITY'S) ACTION, AND TO FULFILL ITS REASONABLY BE CONSTRUED BY
THE LATTER TO REFLECT AN
INTENTION BY THE RESPONDENT TO DISCOURAGE HIM FROM ENGAGING IN
PROTECTED UNION
ACTIVITY. CONSEQUENTLY, I AGREE WITH THE ADMINISTRATIVE LAW JUDGE'S
CONCLUSION THAT THE
CONDUCT BY THE RESPONDENT'S SUPERVISOR, UNDER THE CIRCUMSTANCES OF
THIS CASE, WAS VIOLATIVE OF
SECTION 19(A)(1) OF THE ORDER.
IN SO CONCLUDING, THE ASSISTANT SECRETARY AFFIRMED A RULING BY THE
ALJ WHO REFUSED TO ALLOW TESTIMONY REGARDING DISCUSSIONS BETWEEN THE
PARTIES WHICH OCCURRED AFTER THE FILING OF THE PRE-COMPLAINT CHARGE AND
WHICH THE ALJ DEEMED RELATED TO SETTLEMENT EFFORTS.
IN THE PETITION FOR REVIEW ON BEHALF OF THE AGENCY, IT IS CONTENDED,
IN EFFECT, THAT THE ASSISTANT SECRETARY'S DECISION APPEARS ARBITRARY AND
CAPRICIOUS OR PRESENTS A MAJOR POLICY ISSUE. IN ESSENCE, THE PETITION
ASSERTS THAT THE ASSISTANT SECRETARY FAILED TO PROPERLY APPLY THE
COUNCIL'S DECISION IN VANDENBERG AIR FORCE BASE, 4392D AEROSPACE SUPPORT
GROUP, VANDENBERG AIR FORCE BASE, CALIFORNIA, A/SLMR 435, 3 FLRC 491
(FLRC 74A-77 (AUG. 8, 1975), REPORT NO. 79), HIS OWN PREVIOUSLY
PUBLISHED DECISIONS, AND PRIVATE SECTOR CASES BY FAILING TO FIND THAT
THE CONDUCT IN ISSUE WAS ISOLATED OR DE MINIMIS IN NATURE. IT IS
FURTHER CONTENDED THAT THE ASSISTANT SECRETARY ERRED IN FAILING TO
CONSIDER AN EXCEPTION TO THE ALJ'S DECISION TO THE EFFECT THAT THE
SUPERVISOR WAS NOT ENGAGED IN ILLEGAL INTERROGATION, BUT RATHER IN A
LEGITIMATE ATTEMPT TO RESOLVE A POTENTIAL GRIEVANCE CONCERNING HER
ALLEGED PREJUDICE AGAINST FIELD EXAMINERS. FINALLY, IT IS CONTENDED
THAT THE ASSISTANT SECRETARY ERRED IN SUSTAINING THE ALJ'S REFUSAL TO
PERMIT THE INTRODUCTION OF TESTIMONY CONCERNING THE SUPERVISOR'S
SUBSEQUENT APOLOGIES AND ASSURANCES TO THE EMPLOYEE AND THE UNION ON THE
GROUND THAT SUCH TESTIMONY INVOLVED SETTLEMENT EFFORTS.
IN THE AUTHORITY'S OPINION, THE PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2400.2 OF
THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE SECTION
2411.12 OF THE COUNCIL'S RULES. THAT IS, IT DOES NOT APPEAR THAT THE
ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS OR PRESENTS
A MAJOR POLICY ISSUE.
SPECIFICALLY, WITH RESPECT TO THE CONTENTION THAT THE ASSISTANT
SECRETARY FAILED TO APPLY THE COUNCIL'S DECISION IN VANDENBERG (SUPRA P.
2), HIS OWN PRIOR DECISIONS AND PRIVATE SECTOR CASES CONCERNING ISOLATED
OR DE MINIMIS CONDUCT, THE APPEAL DOES NOT CONTAIN ANY BASIS TO SUPPORT
AN ASSERTION THAT THE ASSISTANT SECRETARY'S DECISION HEREIN WAS
INCONSISTENT EITHER WITH APPLICABLE PRECEDENT OR WITH THE PURPOSES AND
POLICIES OF THE ORDER. MOREOVER, NO BASIS FOR AUTHORITY REVIEW IS
PRESENTED WITH RESPECT TO THE CONTENTION THAT THE SUPERVISOR WAS MERELY
ATTEMPTING TO RESOLVE A POTENTIAL GRIEVANCE. THUS, IN THE AUTHORITY'S
THAT IS, THE DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR
ARBITRARY AND CAPRICIOUS OR RAISE ANY MAJOR POLICY ISSUES.
THUS, WITH RESPECT TO THE AGENCY'S ALLEGATION THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE BY, IN EFFECT,
REQUIRING MANAGEMENT TO NOTIFY AND BARGAIN WITH AN EXCLUSIVE
REPRESENTATIVE CONCERNING THE IMPACT AND IMPLEMENTATION OF A "TENTATIVE"
RATHER THAN ACTUAL DECISION PROTECTED BY SECTIONS 11(B) AND 12(B) OF THE
ORDER, NO BASIS FOR REVIEW IS THEREBY PRESENTED. RATHER, SUCH
ALLEGATION CONSTITUTES ESSENTIALLY MERE DISAGREEMENT WITH THE ASSISTANT
SECRETARY'S FINDING, BASED UPON THE ENTIRE RECORD IN THE SUBJECT CASE,
THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY
"FAILING TO NOTIFY THE (UNION) AND AFFORD IT THE OPPORTUNITY TO BARGAIN
CONCERNING THE IMPACT AND IMPLEMENTATION OF ITS DECISION . . . TO
SUSPEND THE PROMOTIONS OF EMPLOYEES. . . ." IN THIS REGARD, AS TO THE
CONTENTION THAT THE ACTIVITY WAS NOT OBLIGATED TO NOTIFY OR BARGAIN WITH
THE UNION BECAUSE ITS DETERMINATION WAS NOT FINAL, THE ASSISTANT
SECRETARY NOTED THAT, HOWEVER THE ACTIVITY CHARACTERIZED ITS
DETERMINATION, "IT WAS IMPLEMENTED AND ITS IMPACT ON CERTAIN EMPLOYEES
WAS IMMEDIATE . . . AND REAL."
IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY'S DECISION IS
ARBITRARY AND CAPRICIOUS OR PRESENTS A MAJOR POLICY ISSUE, AS ALLEGED BY
THE UNION, CONCERNING HIS DENIAL OF THE UNION'S REQUEST FOR A STATUS QUO
ANTE REMEDY. IN THIS REGARD, AS THE COUNCIL HAS PREVIOUSLY STATED,
SECTION 6(B) OF THE ORDER CONFERS CONSIDERABLE DISCRETION ON THE
ASSISTANT SECRETARY, WHOSE REMEDIAL DIRECTIVES HAVE NOT BEEN REVIEWED BY
THE COUNCIL UNLESS IT APPEARED THAT THE THE ASSISTANT SECRETARY EXCEEDED
THE SCOPE OF HIS AUTHORITY UNDER SECTION 6(B) OR ACTED ARBITRARILY AND
CAPRICIOUSLY OR IN A MANNER INCONSISTENT WITH THE PURPOSED AND POLICIES
OF THE ORDER. /1/ THE UNION'S APPEAL HEREIN FAILS TO CONTAIN ANY
SUPPORT FOR THE FOREGOING CONTENTIONS, BUT RATHER CONSTITUTES MERE
DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDING (AT N. 6 OF HIS
DECISION) THAT IT WOULD NOT BE APPROPRIATE IN THE CIRCUMSTANCES OF THIS
CASE TO ISSUE A REMEDIAL ORDER WHICH INCLUDED A STATUS QUO ANTE REMEDY.
ACCORDINGLY, NO BASIS FOR REVIEW IS THEREBY PRESENTED.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, THE APPEALS OF BOTH THE
AGENCY AND THE UNION FAIL TO MEET THE REQUIREMENTS FOR REVIEW AS
PROVIDED IN SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES, WHICH
INCORPORATES BY REFERENCE SECTION 2411.12 OF THE COUNCIL RULES.
/1/ SEE, E.G., DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS, MIDWEST REGION, CHICAGO, ILLINOIS, A/SLMR NO. 1070, FLRC
NO. 78A-90 (DEC. 6, 1978), REPORT NO. 161, AND CASES CITED HEREIN.