Internal Revenue Service, Washington, DC and Internal Revenue Service, Hartford District Office (Respondents) and National Treasury Employees Union (Labor Organization)
[ v04 p237 ]
04:0237(37)CA
The decision of the Authority follows:
4 FLRA No. 37
INTERNAL REVENUE SERVICE,
WASHINGTON, D.C., AND
INTERNAL REVENUE SERVICE,
HARTFORD DISTRICT OFFICE
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION
Labor Organization
Case No. 1-CA-77
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
ENGAGED IN THE UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. THE RESPONDENT FILED EXCEPTIONS
TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29), AND SECTION 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THE
SUBJECT CASE INCLUDING THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY
ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS, WITHOUT FINDING IT NECESSARY TO PASS UPON HIS DICTA
REGARDING WHAT HE TERMED "THE PROBLEM OF IDENTIFYING THE PROPER
RESPONDENT."
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE, WASHINGTON,
D.C., AND THE INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE SHALL:
1. CEASE AND DESIST FROM:
(A) REQUIRING ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION,
INTERVIEW OR MEETING IN CONNECTION WITH AN INVESTIGATION WITHOUT UNION
REPRESENTATION BY THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES'
EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION
HAS BEEN REQUESTED BY THE EMPLOYEE AND IF THE EMPLOYEE REASONABLY
BELIEVES THAT THE EXAMINATION, INTERVIEW OR MEETING MAY RESULT IN
DISCIPLINARY ACTION AGAINST THE EMPLOYEE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
POLICIES OF THE STATUTE:
(A) POST AT ITS HARTFORD DISTRICT OFFICE, HARTFORD, CONNECTICUT,
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 AN AUTHORIZED REPRESENTATIVE, AND THEY SHALL BE
POSTED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES,
INCLUDING ALL 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.
(B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR FOR REGION 1, 441 STUART
STREET, 8TH FLOOR, BOSTON, MA 02116, IN WRITING, WITHIN 30 DAYS FROM THE
DATE OF THIS ORDER, AS TO WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., SEPTEMBER 26, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REQUIRE ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION,
INTERVIEW OR MEETING IN CONNECTION WITH AN INVESTIGATION WITHOUT
REPRESENTATION BY THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES'
EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION
HAS BEEN REQUESTED BY THE EMPLOYEE AND IF THE EMPLOYEE REASONABLY
BELIEVES THAT THE EXAMINATION, INTERVIEW OR MEETING MAY RESULT IN
DISCIPLINARY ACTION AGAINST THE EMPLOYEE.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
(AGENCY OR ACTIVITY)
DATED: . . . BY:
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
441 STUART STREET, 8TH FLOOR, BOSTON, MA 02116, AND WHOSE TELEPHONE
NUMBER IS: (617) 223-0920.
---------------
LOWS -----
OFFICE OF THE REGIONAL COUNSEL, IRS
26 FEDERAL PLAZA, ROOM 1214
NEW YORK, NY 10007
AND
ROGER KAPLAN, ESQ.
OFFICE OF THE CHIEF COUNSEL, IRS
1111 CONSTITUTION AVENUE
WASHINGTON, D.C.
FOR THE RESPONDENTS
PAUL E. STANZLER, ESQ. AND
RICHARD D. ZAIGER, ESQ.
FEDERAL LABOR RELATIONS AUTHORITY, REGION 1
441 STUART STREET
BOSTON, MASSACHUSETTS 02116
FOR THE GENERAL COUNSEL
AUDREY BROWNE
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
WASHINGTON, D.C. 20006
FOR THE CHARGING PARTY
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
PRELIMINARY STATEMENT
THIS CASE AROSE UNDER THE PROVISIONS OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ.
(HEREIN REFERRED TO AS THE STATUTE) AND THE INTERIM RULES AND
REGULATIONS ISSUED THEREUNDER, FED. REG. VOL. 44, NO. 147, 5
C.F.R.CHAPTER XIV, PART 2411, ET SEQ. (HEREIN REFERRED TO AS THE
REGULATIONS). ESSENTIALLY, THE COMPLAINT ALLEGES THAT THE STATUTE WAS
VIOLATED WHEN THE RESPONDENTS /1/ REFUSED TO GRANT AN INTERNAL REVENUE
SERVICE (IRS) EMPLOYEE'S REQUEST FOR UNION REPRESENTATION DURING AN
INVESTIGATIVE INTERVIEW.
ON JUNE 15, 1979, THE NATIONAL TREASURY EMPLOYEES UNION FILED THE
ORIGINAL UNFAIR LABOR PRACTICE CHARGE IN THIS MATTER NAMING "U.S.
INTERNAL REVENUE SERVICE, AND IRS HARTFORD DISTRICT OFFICE" AS THE
RESPONDENT ACTIVITY AND/OR AGENCY AND ALLEGING VIOLATIONS OF SECTIONS
7116(A)(1)(5) AND (8) OF THE STATUTE. THE CHARGE WAS AMENDED ON
NOVEMBER 5, 1979, AT WHICH TIME THE NAME OF THE RESPONDENT REMAINED THE
SAME BUT THE SECTION 7116(A)(5) ALLEGATION WAS DELETED. THE COMPLAINT,
WHICH ISSUED ON NOVEMBER 8, 1979, SET OUT AS THE RESPONDENT, "INTERNAL
REVENUE SERVICE HARTFORD DISTRICT OFFICE" AND NAMED INSPECTORS CHARLES
NAGY AND ROGER ROOK AND (GROUP MANAGER) CHARLES MCQUEENEY AS
SUPERVISORS
OR AGENTS OF RESPONDENT.
RESPONDENT'S ANSWER TO THE COMPLAINT, DATED NOVEMBER 20, 1979, INTER
ALIA, DENIED THAT INSPECTORS NAGY AND ROOK WERE OR ARE ". . . AGENTS OR
SUPERVISORS OF RESPONDENT AS NAMED IN SAID COMPLAINT." THE ANSWER
FURTHER ASSERTED THAT NAGY AND ROOK WERE ". . . ASSOCIATED WITH THE
OFFICE OF REGIONAL INSPECTOR, MID-ATLANTIC REGION, INTERNAL REVENUE
SERVICE, AND THAT, ACCORDINGLY, THE ABOVE-NAMED RESPONDENT IS NOT A
PROPER PARTY TO THESE PROCEEDINGS."
ON DECEMBER 10, 1979, COUNSEL FOR THE GENERAL COUNSEL NOTIFIED
RESPONDENT THAT IT INTENDED TO AMEND THE COMPLAINT AT THE HEARING, AS
FOLLOWS:
INTERNAL REVENUE SERVICE, WASHINGTON, D.C. IS A CO-RESPONDENT ALONG
WITH INTERNAL REVENUE
SERVICE, HARTFORD DISTRICT OFFICE IN THE ABOVE-CAPTIONED CASE.
ROGER ROOK AND CHARLES NAGY ARE AGENTS OF INTERNAL REVENUE SERVICE,
WASHINGTON, D.C., AS
WELL AS BEING AGENTS OF THE HARTFORD DISTRICT OFFICE.
BY MOTION DATED DECEMBER 11, 1979, COUNSEL FOR RESPONDENT OPPOSED AS
UNTIMELY ANY AMENDMENT TO THE COMPLAINT AT THE HEARING AND
ALTERNATIVELY, MOVED THAT THE SCHEDULED HEARING BE POSTPONED UNTIL AFTER
RESPONDENT HAD BEEN SERVED WITH AN AMENDED COMPLAINT AND AFFORDED THE
ANSWER TIME PROVIDED BY SECTION 2423.12 OF THE REGULATIONS. /2/
RESPONDENT FURTHER RELIED ON SECTION 7118(A)(6) OF THE STATUTE AND
SECTION 2423.11(A)(3) OF THE REGULATIONS IN SUPPORT OF ITS MOTION. /3/
AT THE DECEMBER 18, 1979, HEARING, COUNSEL FOR THE GENERAL COUNSEL
MOVED TO AMEND THE COMPLAINT CONSISTENT WITH ITS PRIOR NOTICE OF
INTENTION TO AMEND. RESPONDENT OPPOSED AND BOTH PARTIES GAVE ARGUMENT
ON THE MATTER. THEREAFTER, I PERMITTED THE AMENDMENT TO THE COMPLAINT
AND DENIED RESPONDENT'S MOTION TO POSTPONE.
THROUGHOUT THE HEARING ALL PARTIES WERE REPRESENTED AND AFFORDED FULL
OPPORTUNITY TO ADDUCE EVIDENCE AND CALL, EXAMINE AND CROSS-EXAMINE
WITNESSES AND ARGUE ORALLY. BRIEFS WERE FILED BY THE GENERAL COUNSEL,
RESPONDENT /4/ AND THE CHARGING PARTY.
UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
MAKE THE FOLLOWING:
FINDINGS OF FACT
SOMETIME DURING FEBRUARY 1979, ROBERT DALEY, AN IRS REVENUE OFFICER
EMPLOYED AT THE HARTFORD, CONNECTICUT DISTRICT OFFICE, WHILE ENGAGED IN
A TELEPHONE CONVERSATION WITH A TAXPAYER ABOUT HIS TAX ACCOUNT, RECEIVED
A COMPLAINT AGAINST THE IRS. THE TAXPAYER ALLEGED THAT AN IRS REGIONAL
INTERNAL AUDITOR MADE CERTAIN PUBLIC DISCLOSURES RELATIVE TO THE
TAXPAYER'S TAX LIABILITIES AND ACTIONS WHICH THE IRS PROPOSED TO TAKE
AGAINST HIM. DALEY THEREUPON RELAYED THIS INFORMATION TO HIS
SUPERVISOR, CHARLES MCQUEENEY, GROUP MANAGER OF THE COLLECTION DIVISION,
IRS HARTFORD DISTRICT.
ON MARCH 15, 1979, MCQUEENEY NOTIFIED DALEY THAT DALEY WAS TO BE
INTERVIEWED ON THE FOLLOWING DAY BY IRS INSPECTION PERSONNEL FROM NEW
JERSEY. DALEY WAS NOT TOLD THE PURPOSE OF THE MEETING BUT ASSUMED IT
HAD TO DO WITH THE DISCLOSURE COMPLAINT HE PREVIOUSLY FORWARDED TO
MCQUEENEY. THEREUPON, DALEY, A MEMBER OF THE COLLECTIVE BARGAINING UNIT
OF IRS EMPLOYEES FOR WHICH THE UNION HOLDS EXCLUSIVE RECOGNITION, AND AN
EX-UNION OFFICER, CONTACTED THE UNION'S ATTORNEY, PETER CONROY, AND
ASKED HIM TO BE PRESENT DURING THE INTERVIEW. DALEY INFORMED MCQUEENEY
THAT HE HAD ASKED CONROY TO ACCOMPANY HIM TO THE INTERVIEW AND LATER
THAT DAY MCQUEENEY TOLD DALEY THAT THE UNION ATTORNEY WOULD NOT BE
PERMITTED TO ACCOMPANY HIM SINCE THIS WOULD BE A "THIRD PARTY" INTERVIEW
WHEREIN DALEY WAS NOT THE SUBJECT OF THE INVESTIGATION.
ON MARCH 16, 1979, DALEY, ACCOMPANIED BY CONROY, ARRIVED AT THE
APPOINTED TIME IN THE OFFICE OF THE REGIONAL INSPECTOR, IRS, HARTFORD.
THERE, DALEY AND CONROY MET WITH A LOCAL INSPECTOR AND TWO INSPECTORS
FROM THE NEW JERSEY OFFICE OF THE IRS INSPECTION SERVICE, INTERNAL
SECURITY DIVISION. /5/ DALEY EXPLAINED THAT CONROY WAS THE UNION
ATTORNEY AND WAS INFORMED BY THE INTERNAL SECURITY INSPECTORS THAT SINCE
IT WAS A "THIRD-PARTY" INTERVIEW AND DALEY WAS NOT THE SUBJECT OF THE
INVESTIGATION, HE WOULD NOT BE ALLOWED TO HAVE A REPRESENTATIVE WITH
HIM. CONROY OBJECTED BUT NEVERTHELESS TOLD DALEY TO PROCEED TO THE
INTERVIEW ROOM AND HE WOULD REMAIN OUTSIDE.
AFTER DALEY ENTERED THE INTERVIEW ROOM WITH THE TWO INSPECTORS FROM
INTERNAL SECURITY HE WAS AGAIN ADVISED THAT HE WAS NOT ALLOWED TO HAVE
AN ATTORNEY WITH HIM BECAUSE DALEY WAS NOT THE SUBJECT OF THE
INVESTIGATION. DALEY WAS PLACED UNDER OATH AND ONE INSPECTOR ASKED
QUESTIONS WHILE THE OTHER TOOK NOTES. AS DALEY ASSUMED, THE SUBJECT
MATTER OF THE INVESTIGATION WAS THE COMPLAINT HE RECEIVED REGARDING THE
PURPORTED DISCLOSURE BY THE INTERNAL AUDITOR. /6/ DALEY WAS ASKED TO
REPEAT THE TELEPHONE CONVERSATION HE HAD WITH THE COMPLAINING TAXPAYER
AND THE DETAILS OF HIS TRANSMITTING THE INFORMATION TO MCQUEENEY.
DALEY WAS ALSO QUESTIONED ON WHETHER HE SAW THE INTERNAL AUDITOR IN
HIS (DALEY'S) WORK AREA AND IF IT WAS POSSIBLE THAT DALEY HAD THE
TAXPAYER'S RECORDS ON HIS DESK AND SOMEONE IN THE AREA, OR WALKING BY,
COULD HAVE OBSERVED OR OBTAINED INFORMATION RELATIVE TO THE TAXPAYER.
DALEY'S RESPONSES WERE ALL IN THE NEGATIVE.
INSPECTOR NAGY'S REPORT OF HIS INTERVIEW WITH DALEY STATES, INTER
ALIA:
"HE HAS HAD NO CONTACT WITH (THE INTERNAL AUDITOR) ON OR OFF DUTY
EXCEPT POSSIBLY FOR AN
INTRODUCTION DURING A COFFEE BREAK. (THE INTERNAL AUDITOR) NEVER
EXPRESSED AN INTEREST IN
(THE TAXPAYER) OR (HIS) BUSINESS, AND HE HAS NEVER MENTIONED (THE
TAXPAYER'S) TAX PROBLEMS TO
(THE INTERNAL AUDITOR).
"THE TAXES OWED BY (THE TAXPAYER'S) BUSINESS IS ASSIGNED TO REVENUE
OFFICER JACOB SCHULTZ
AND HIS DALEY'S) ONLY CONCERN WITH (THE TAXPAYER) IS SOLELY IN
CONNECTION WITH HIS
. . . PERSONAL TAXES THAT ARE DUE.
"THAT ALTHOUGH HE HAD CONTEMPLATED SEIZURE ACTION AGAINST (THE
TAXPAYER) HE HAD NEVER
DISCUSSED THAT POSSIBILITY WITH SCHULTZ NOR HAD EVER MADE ANY
NOTATIONS IN THE CASE FILE
RELATIVE TO POSSIBLE SEIZURE ACTION. HE DOES NOT KNOW ANYTHING ABOUT
SCHULTZ'S COLLECTION
ACTIVITY INVOLVING (THE TAXPAYER'S) BUSINESS.
"HE DID NOT KNOW HOW (THE INTERNAL AUDITOR) WOULD HAVE BEEN AWARE OF
(THE TAXPAYER'S) TAX
PROBLEMS OR OF ANY CONTEMPLATED SEIZURE ACTION BECAUSE THE CASE FILE
DOES NOT CONTAIN ANY
REFERENCE TO SEIZURE ACTION AND HE NEVER DISCUSSED THE MATTER WITH
(THE INTERNAL AUDITOR)."
AT THE CONCLUSION OF THE INTERVIEW THE INSPECTORS THANKED DALEY AND
INSTRUCTED HIM NOT TO DISCLOSE TO ANYONE THE IDENTITY OF THE TAXPAYER OR
THE IRS INTERNAL AUDITOR UNDER INVESTIGATION. THE MEETING LASTED LESS
THAN A HALF AN HOUR AND WAS DESCRIBED BY DALEY AS "CORDIAL." DALEY HAD
NO FURTHER INVOLVEMENT WITH THIS MATTER.
AT THE HEARING DALEY TESTIFIED THAT HE WAS AWARE THAT THE RULES OF
CONDUCT FOR IRS EMPLOYEES REFER TO DISCLOSURE OF TAXPAYER OR
CONFIDENTIAL INFORMATION AND SUCH UNNECESSARY DISCLOSURE, EVEN TO
ANOTHER EMPLOYEE, IS AN OFFENSE SUBJECT TO DISCIPLINE. ACCORDINGLY,
WHILE AT WORK BUT AWAY FROM HIS DESK DALEY FOLLOWED THE PRACTICE OF
COVERING OR PUTTING AWAY TAX INFORMATION OF A PROPRIETARY NATURE. DALEY
ALSO TESTIFIED THAT HE KNEW THAT THE IRS OFFICE OF REGIONAL INSPECTION
INVESTIGATED ALL VIOLATIONS OF THE RULES OF CONDUCT " . . . AND THAT
WHEN THEY GET INVOLVED, IT WAS A VERY SERIOUS MATTER AND COULD LEAD TO
DISCIPLINARY ACTION." HOWEVER, DALEY ALSO TESTIFIED THAT HE HAD NO
REASON TO BELIEVE, DURING OR AFTER THE INTERVIEW, THAT HE WAS THE
SUBJECT OF THE INVESTIGATION.
TESTIMONY REVEALS THAT NORMALLY AN INVESTIGATION INVOLVING A HARTFORD
DISTRICT OFFICE EMPLOYEE WOULD BE PERFORMED BY INVESTIGATORS FROM THE
IRS OFFICE OF REGIONAL INSPECTOR, NORTH-ATLANTIC REGIONAL OFFICE, OF
WHICH THE HARTFORD DISTRICT OFFICE IS ORGANIZATIONALLY A PART. HOWEVER,
INVESTIGATIONS OF AN INSPECTION EMPLOYEE, SUCH AS THE NORTH-ATLANTIC
REGIONAL INTERNAL AUDITOR WHOSE CONDUCT WAS BEING INVESTIGATED, WOULD
USUALLY BE CONDUCTED BY THE IRS INVESTIGATION BRANCH IN WASHINGTON, D.C.
ACCORDINGLY, SINCE THE PRIMARY PARTY UNDER INVESTIGATION WAS AN
INSPECTION EMPLOYEE FROM THE NORTH-ATLANTIC REGION, IT WAS DEEMED
INAPPROPRIATE TO HAVE HIM INVESTIGATED BY PERSONNEL FROM THE SAME REGION
AND INVESTIGATORS FROM A SEPARATE AND INDEPENDENT REGION, THE
MID-ATLANTIC REGION, WERE SELECTED.
THE PRIMARY FUNCTION OF A REGIONAL INSPECTOR CONDUCTING AN
INVESTIGATION IS TO OBTAIN THE FACTS RELEVANT TO A PARTICULAR SITUATION.
INSPECTORS HAVE NO AUTHORITY TO DISCIPLINE OR RECOMMEND DISCIPLINE WITH
REGARD TO THE MATTER UNDER INVESTIGATION. IN THE CASE HEREIN, THE
REPORT OF INVESTIGATION WAS FORWARDED WITHOUT RECOMMENDATION TO THE
INSPECTORS' BRANCH CHIEF IN THE MID-ATLANTIC REGION WHO FORWARDED THE
ORIGINAL REPORT TO THE REGIONAL INSPECTOR, NORTH-ATLANTIC REGION AND A
COPY TO THE OFFICE OF THE ASSISTANT COMMISSIONER FOR INSPECTION IN
WASHINGTON, D.C. THE NORTH-ATLANTIC REGIONAL INSPECTOR WAS THE
ADJUDICATORY OFFICIAL WITH AUTHORITY TO MAKE A DETERMINATION AS TO WHAT
ACTION, IF ANY, SHOULD BE TAKEN RELATIVE TO THE AUDITOR UNDER
INVESTIGATION. THE INTERNAL AUDITOR WAS ULTIMATELY FOUND TO BE INNOCENT
OF ANY WRONGDOING.
IT DOES NOT APPEAR THAT THE REPORT WAS EVER FORWARDED TO ANY
OFFICIALS IN THE HARTFORD DISTRICT OFFICE. HOWEVER, IF A HARTFORD
DISTRICT OFFICE EMPLOYEE WAS FOUND TO BE INVOLVED IN THE SITUATION IT
WOULD BE THE DISTRICT DIRECTOR OF THE HARTFORD DISTRICT WHO WOULD HAVE
AUTHORITY TO DECIDE ON WHETHER TO ISSUE ANY DISCIPLINARY OR ADVERSE
ACTION AGAINST THAT EMPLOYEE.
THE STANDARD PROCEDURE FOR IRS INSPECTORS WHILE INTERVIEWING
WITNESSES IS TO NOTIFY THE INDIVIDUAL OF THE RIGHT TO COUNSEL, TO REMAIN
SILENT, ETC. /7/ IF THAT PERSON APPEARS TO BE INVOLVED IN MATTERS OF A
CRIMINAL NATURE. IF THE PARTY REQUESTED COUNSEL, THE INTERVIEW WOULD
NOT BE CONTINUED UNTIL SUCH TIME AS COUNSEL WAS PRESENT. THIS RIGHT
WOULD ALSO EXTEND TO MATTERS OF IMPROPER DISCLOSURE OF INFORMATION IF
SUCH BECAME APPARENT DURING AN INQUIRY INTO ANOTHER MATTER, WHETHER THE
WITNESS WAS THE PRIMARY SUBJECT OF THE INVESTIGATION OR MERELY A PARTY
WHO WAS BEING QUESTIONED TO ASCERTAIN WHETHER HE HAD RELEVANT
INFORMATION. HOWEVER, EVEN IF THE INTERVIEW WAS SUSPENDED AT THAT
POINT, THE INVESTIGATOR WOULD REPORT TO SUPERIORS THE INFORMATION THUS
FAR OBTAINED. IF A WITNESS, NOT UNDER INVESTIGATION, WAS BEING
INTERVIEWED AND DISCLOSED HAVING ENGAGED IN A NON-CRIMINAL VIOLATION OF
THE IRS RULES OF CONDUCT, THE INSPECTOR WOULD CONTINUE THE INTERVIEW AND
ATTEMPT TO AVOID THAT PARTICULAR AREA. IF THE WITNESS AT THIS POINT
ASKED FOR COUNSEL OR A REPRESENTATIVE, FURTHER QUESTIONING WOULD NOT
CONTINUE OUTSIDE THE PRESENCE OF COUNSEL. IN ANY EVENT, AT THE CLOSE OF
THE INTERVIEW, ALL INFORMATION OBTAINED WOULD BE FORWARDED TO THE
APPROPRIATE OFFICIAL TO DETERMINE WHAT, IF ANY, ACTION WAS WARRANTED.
DISCUSSION AND CONCLUSIONS
PROCEDURAL MATTERS
RESPONDENT CONTENDS IN ITS BRIEF THAT THE GENERAL COUNSEL SHOULD NOT
HAVE BEEN PERMITTED TO AMEND THE COMPLAINT AT THE HEARING TO INCLUDE IRS
WASHINGTON, D.C. AS A RESPONDENT AND INSPECTORS NAGY AND ROOK AS AGENTS
OF IRS WASHINGTON. REASONING THEREFROM, RESPONDENT ARGUES THAT HARTFORD
DISTRICT OFFICE IS THE ONLY RESPONDENT IN THIS CASE; NAGY AND ROOK ARE
NOT AGENTS OF THE HARTFORD DISTRICT OFFICE; AND THEREFORE, EVEN IF THE
DALEY INTERVIEW WAS IN VIOLATION OF THE STATUTE, NO UNFAIR LABOR
PRACTICE CAN BE ESTABLISHED AGAINST THE RESPONDENT OF RECORD.
I REJECT RESPONDENT'S CONTENTIONS. SECTION 2423.11(D) OF THE
APPLICABLE REGULATIONS PROVIDES INTER ALIA, THAT "(A) COMPLAINT MAY BE
AMENDED, UPON SUCH TERMS AS MAY BE DEEMED JUST, . . . AT THE HEARING . .
. UPON MOTION BY THE ADMINISTRATIVE LAW JUDGE DESIGNATED TO CONDUCT THE
HEARING . . . " RESPONDENT RECEIVED NOTIFICATION OF COUNSEL FOR THE
GENERAL COUNSEL'S INTENTION TO AMEND EIGHT DAYS BEFORE THE HEARING,
WHICH I FIND ADEQUATE NOTICE IN THESE CIRCUMSTANCES. THE SUBSTANTIVE
NATURE OF THE ALLEGATIONS WAS LEFT UNCHANGED AND THE AMENDMENT
ESSENTIALLY REFLECTED MERELY THAT TWO EMPLOYEES ACCUSED OF PARTAKING IN
THE ALLEGED VIOLATION WERE NOT ONLY AGENTS OF THE HARTFORD DISTRICT
OFFICE BUT ALSO AGENTS OF THE AGENCY-INTERNAL REVENUE SERVICE,
WASHINGTON, D.C. FURTHER, RESPONDENT MADE NO PERSUASIVE SHOWING THAT IT
WAS IMPAIRED OR PREJUDICED IN PRESENTING A DEFENSE IN THIS CASE OR THAT
DUE PROCESS OF LAW WAS SOMEHOW VIOLATED BY PERMITTING THE AMENDMENT.
ACCORDINGLY, I REAFFIRM MY RULINGS RELATIVE TO PERMITTING THE AMENDMENTS
TO THE COMPLAINT.
I FURTHER CONCLUDE THAT BOTH THE IRS HARTFORD DISTRICT OFFICE AND THE
IRS AS AN AGENCY ARE PROPER RESPONDENTS IN THIS MATTER AND NAGY AND ROOK
ARE AGENTS OF BOTH RESPONDENTS. INDEED, IN MY VIEW THE HARTFORD
DISTRICT OFFICE AND THE IRS, WASHINGTON, D.C., THE NATIONAL OFFICE, ARE
AGENTS FOR ONE ANOTHER IN CARRYING OUT AGENCY POLICY AS A JOINT
ENTERPRISE IN DEALING WITH HARTFORD DISTRICT OFFICE EMPLOYEES. THE
REALITY HEREIN IS THAT THE IRS AS AN AGENCY IS THE EMPLOYING ENTITY.
ORGANIZATIONALLY, THE AGENCY CONDUCTS ITS BUSINESS THROUGH VARIOUS
LEVELS OF ADMINISTRATIVE BODIES, INCLUDING THE HARTFORD DISTRICT OFFICE.
THE HARTFORD OFFICE IS MERELY AN OPERATIONAL ADDRESS OF THIS AGENCY AND
AN INTERDEPENDENCE EXISTS BETWEEN THE DISTRICT OFFICE AND THE NATIONAL
OFFICE IN DEALING WITH EMPLOYEE-MANAGEMENT MATTERS. /8/ STAFF
ASSISTANCE IS PROVIDED TO THE DISTRICT OFFICE BY THE NATIONAL OFFICE AND
DIRECTION IS GIVEN BY WAY OF ENACTING AND ENFORCING REGULATIONS
CONCERNING EMPLOYEE CONDUCT AND ACTIVITIES. THE COLLECTIVE BARGAINING
AGREEMENT WAS NEGOTIATED FOR THE DISTRICT OFFICES BY, INTER ALIA, IRS
LABOR RELATIONS BRANCH EMPLOYEES, AND AN INDIVIDUAL FOR THE OFFICE OF
THE CHIEF COUNSEL. THE AGREEMENT WAS APPROVED BY THE PERSONNEL DIVISION
DIRECTOR FOR THE AGENCY.
WHEN THE SITUATION INVOLVING THE ALLEGED IMPROPER CONDUCT OF THE
INTERNAL AUDITOR AROSE IN THIS CASE, A DECISION WAS MADE SOMEWHERE IN
THE RECESSES OF THE AGENCY, THAT INSPECTORS FROM A PARTICULAR REGIONAL
OFFICE WOULD PERFORM THE INVESTIGATION. THE INVESTIGATION HAPPENED TO
INVOLVE A HARTFORD DISTRICT OFFICE EMPLOYEE AND ACCORDINGLY, THE
COMPLAINT NAMED THE INSPECTORS AS AGENTS OF THE IMMEDIATE EMPLOYER OF
THAT EMPLOYEE. AFTER RESPONDENT (THE HARTFORD DISTRICT OFFICE) DENIED
AN AGENCY RELATIONSHIP WITH THE INSPECTORS THE AUTHORITY'S COUNSEL FOR
THE GENERAL COUNSEL SOUGHT TO AMEND THE COMPLAINT.
IN THE CASE HEREIN, I DO NOT FIND THE GEOGRAPHIC AND ORGANIZATIONAL
LOCATION OF THE AGENTS IN QUESTION TO BE PARTICULARLY SIGNIFICANT. /9/
WHAT IS SIGNIFICANT, HOWEVER, IS THAT NAGY AND ROOK ARE ACKNOWLEDGED
AGENTS OF AGENCY MANAGEMENT WITH REGARD TO THEIR CONDUCT HEREIN AND THAT
THE AGENCY IS RESPONSIBLE FOR THEIR ACTIONS. BOTH AGENTS, AND MCQUEENEY
AS WELL, ACTED UNDER MANAGEMENT INSTRUCTION AND/OR IN FURTHERANCE OF
AGENCY POLICY. FURTHER, THERE IS AN IDENTITY OF PURPOSE BETWEEN THE
HARTFORD DISTRICT OFFICE AND THE NATIONAL OFFICE IN CARRYING OUT
LABOR-MANAGEMENT RELATIONS AND DEALING WITH AGENCY EMPLOYEES, AND
SPECIFICALLY, THE NATIONAL OFFICE AND DISTRICT OFFICE WERE JOINTLY
ENGAGED IN FULFILLING THE AGENCY'S INVESTIGATION OF THE ALLEGED
MISCONDUCT. ACCORDINGLY, IN THESE CIRCUMSTANCES I CONCLUDE THAT IRS,
WASHINGTON, D.C. IS A PROPER RESPONDENT AND NAGY AND ROOK ARE AGENTS FOR
BOTH RESPONDENTS HEREIN.
THE PROBLEM OF IDENTIFYING THE PROPER RESPONDENT HAS, IN THE PAST,
NEEDLESSLY LED TO SUBSTANTIAL APPREHENSION AND CONFUSION IN THE FEDERAL
SECTOR. THUS, FOR EXAMPLE UNDER EXECUTIVE ORDER 11491, THE ASSISTANT
SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS HELD, INTER ALIA, IN
NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA AND SECRETARY OF THE NAVY,
DEPARTMENT OF THE NAVY, WASHINGTON, D.C., 6 A/SLMR 68, A/SLMR NO. 608,
THAT THE DEPARTMENT OF THE NAVY VIOLATED SECTION 19(A)(1) OF THE ORDER
/10/ BY DIRECTING ITS SUBORDINATE ACTIVITY TO TAKE AN IMPROPER ACTION
AND THAT THE ACTIVITY THEREIN VIOLATED SECTIONS 19(A)(1) AND (6) OF THE
ORDER /11/ BY CARRYING OUT THE ACTION. THE FEDERAL LABOR RELATIONS
COUNCIL SUBSEQUENTLY REVERSED THE ASSISTANT SECRETARY AND HELD THAT WHEN
AN ACT CONSTITUTES AN UNFAIR LABOR PRACTICE AND THE INDIVIDUAL WHO
COMMITTED THE ACT IS AGENCY MANAGEMENT, THERE IS NO BASIS IN THE ORDER
TO DRAW "ARTIFICIAL DISTINCTIONS" BETWEEN ORGANIZATIONAL LEVELS OF SUCH
MANAGEMENT SO AS TO RELIEVE THEM OF THE RESPONSIBILITY FOR THEIR ACTS
WHICH WOULD OTHERWISE BE VIOLATIVE OF THE ORDER. /12/ THE COUNCIL
CONCLUDED THAT WHERE AGENCY MANAGEMENT ABOVE THE LEVEL OF EXCLUSIVE
RECOGNITION INITIATES A BREACH OF THE OBLIGATION TO NEGOTIATE, A
19(A)(6) VIOLATION OCCURS BY THAT AGENCY MANAGEMENT REGARDLESS OF WHERE
IT IS LOCATED IN THE AGENCY'S CHAIN OF COMMAND. HOWEVER, THE COUNCIL
ALSO CONCLUDED THAT SINCE MANAGEMENT AT THE LOWER ACTIVITY LEVEL HAD NO
CHOICE BUT TO COMPLY WITH THE DIRECTION OF HIGHER AGENCY MANAGEMENT, A
SEPARATE VIOLATION WOULD NOT LIE " . . . SOLELY ON THE BASIS OF ITS
MINISTERIAL ACTIONS IN IMPLEMENTING THE DIRECTION FROM HIGHER AGENCY
AUTHORITY." THUS, THE COUNCIL MADE ITS OWN DISTINCTION BETWEEN OPERATING
LEVELS OF THE SAME ORGANIZATION THEREBY CONTINUING THE RISK A
COMPLAINANT TOOK IN MAKING UNFAIR LABOR PRACTICE ALLEGATIONS AGAINST AN
ORGANIZATION WHICH IS COMPOSED OF VARIOUS LEVELS OF AUTHORITY.
ESSENTIALLY, IN THAT CASE THE END RESULT DID NOT CHANGE THE ACT WAS
FOUND TO HAVE BEEN A VIOLATION OF THE ORDER AND THE ORGANIZATION WAS
ORDERED TO REMEDY THE VIOLATION.
IT WOULD APPEAR THAT IF THE UNION IN NAVAL AIR REWORK FACILITY, OR A
SIMILAR CASE, FILED ITS COMPLAINT AGAINST THE ACTIVITY AND NOT AGAINST
THE AGENCY BECAUSE THE ACTIVITY WAS THE PARTY WITH WHOM IT WAS REGULARLY
DEALING, UNDER THE TEACHING OF THE COUNCIL'S DECISION NO REFUSAL TO
BARGAIN WOULD LIE AGAINST THE ACTIVITY AND THE COMPLAINT WOULD HAVE TO
BE DISMISSED IN THIS REGARD. IN MY VIEW THE FICTIONAL DISTINCTION
BETWEEN OPERATING LEVELS OF A GOVERNMENTAL AGENCY SHOULD NOT GIVE RISE
TO THE POSSIBILITY OF SUCH AN UNDESIRABLE RESULT AND SHOULD NOT BE
EXTENDED UNDER THE STATUTE. THE PARENT ORGANIZATION IS, IN REALITY, THE
REPOSITORY OF ULTIMATE AUTHORITY AND CONTROL OVER ITS SUBORDINATES AND
THEREFORE, WHETHER OR NOT SPECIFICALLY NAMED AS A RESPONDENT, SHOULD BE
HELD LIABLE FOR THE UNFAIR LABOR PRACTICE CONDUCT OF ITS SUBORDINATES.
CONVERSELY, THE SUBORDINATE BODY, CHARGED WITH DAY TO DAY DEALINGS WITH
THE EXCLUSIVE REPRESENTATIVE AND UNIT EMPLOYEES, MUST BE ASSUMED TO BE
FULLY AUTHORIZED AND RESPONSIBLE FOR ITS ACTIONS IN ORDER TO EFFECTUATE
THE ORDERLY CONDUCT OF LABOR-MANAGEMENT RELATIONS. ONE ORGANIZATIONAL
LEVEL CONTINUALLY ACTS AS THE AGENT FOR THE OTHER. THUS, I WOULD FIND
BOTH PARENT AND SUBORDINATE VIABLE RESPONDENTS, IN EQUAL MEASURE, FOR AN
UNFAIR LABOR PRACTICE ALLEGATION AS HEREIN. ACCORDINGLY, EITHER PARTY
WOULD BE A RESPONSIBLE RESPONDENT OBLIGATED TO REMEDY WHATEVER UNFAIR
LABOR PRACTICE WAS FOUND TO HAVE OCCURRED AND THE UNNECESSARY RISK OF
CHOOSING WHICH LEVEL OF AN ORGANIZATION TO FILE A COMPLAINT AGAINST
WOULD BE ELIMINATED.
THE INVESTIGATIVE INTERVIEW
THE SUBSTANTIVE ISSUE HEREIN IS WHETHER RESPONDENT VIOLATED CHAPTER
71, SECTIONS 7116(A)(1) AND (8) OF THE STATUTE WHEN IT REFUSED TO PERMIT
DALEY TO BE ACCOMPANIED BY CONROY, HIS DESIGNATED UNION REPRESENTATIVE,
DURING THE INTERVIEW. /13/
SECTION 7114(A)(2)(B) OF THE STATUTE PROVIDES:
"AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT SHALL BE GIVEN
THE OPPORTUNITY TO BE
REPRESENTED AT . . . ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A
REPRESENTATIVE OF THE
AGENCY IN CONNECTION WITH AN INVESTIGATION IF (I) THE EMPLOYEE
REASONABLY BELIEVES THE
EXAMINATION MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE,
AND (II) THE EMPLOYEE
REQUESTS REPRESENTATION."
CONTRARY TO THE CONTENTION OF THE CHARGING PARTY AND THE GENERAL
COUNSEL, THE RESPONDENT CONTENDS THAT UNDER THE CIRCUMSTANCES HEREIN
DALEY COULD HAVE HAD NO REASONABLE BELIEF THAT HIS INTERVIEW MIGHT
RESULT IN DISCIPLINARY ACTION AGAINST HIM.
PRIOR TO THE ENACTMENT OF THE STATUTE THERE EXISTED NO COMPARABLE
RIGHT UNDER THE PREDECESSOR EXECUTIVE ORDER 11491, TO REPRESENTATION
DURING AN INVESTIGATIVE INTERVIEW. INDEED, AFTER THE SUPREME COURT
ADDRESSED THE QUESTION OF EMPLOYEES' RIGHTS DURING INVESTIGATIVE
INTERVIEWS UNDER THE NATIONAL LABOR RELATIONS ACT IN THE WEINGARTEN
CASE, /14/ THE FEDERAL LABOR RELATIONS COUNCIL SPECIFICALLY NOTED THAT,
WEINGARTEN NOTWITHSTANDING, UNDER THE EXECUTIVE ORDER AN EMPLOYEE DID
NOT HAVE THE RIGHT TO UNION REPRESENTATION AT A NONFORMAL INVESTIGATIVE
MEETING WITH MANAGEMENT. /15/
WEINGARTEN HELD, INTER ALIA, THAT UNDER THE NLRA AN EMPLOYEE HAD THE
RIGHT TO THE PRESENCE OF A UNION REPRESENTATIVE AT " . . . AN
INVESTIGATIVE INTERVIEW WHICH HE REASONABLY BELIEVES MAY RESULT IN THE
IMPOSITION OF DISCIPLINE . . . /16/ THE LEGISLATIVE HISTORY OF THE
STATUTE CLEARLY REVEALS THAT ALTHOUGH VARIOUS APPROACHES WERE
CONSIDERED
BY THE CONGRESS DURING THE DELIBERATIVE PROCESS ON THIS MATTER, THE
LEGISLATORS ENVISIONED EXTENDING WEINGARTEN TYPE PROTECTION TO EMPLOYEES
IN THE FEDERAL SECTOR. /17/ INDEED, THE LANGUAGE ULTIMATELY SELECTED
(SECTION 7114(A)(2)(B)) CLOSELY TRACKS WEINGARTEN. HOWEVER, IT WAS
RECOGNIZED " . . . THAT THE RIGHT TO REPRESENTATION IN EXAMINATIONS MAY
EVOLVE DIFFERENTLY IN THE PRIVATE AND FEDERAL SECTORS, AND (THE
CONFERENCE COMMITTEE) SPECIFICALLY INTEND THAT FUTURE COURT DECISIONS
INTERPRETING THE RIGHT IN THE PRIVATE SECTOR WILL NOT NECESSARILY BE
DETERMINATIVE FOR THE FEDERAL SECTOR." /18/
IN WEINGARTEN THE COURT CONSIDERED THE QUESTION OF DEFINING THE TERM
"REASONABLE BELIEVES" AS APPLIED BY THE NLRB. THE COURT EXPRESSED ITS
VIEW AS FOLLOWS:
"THE BOARD STATED IN QUALITY: "'REASONABLE GROUND' WILL OF COURSE BE
MEASURED, AS HERE, BY
OBJECTIVE STANDARDS UNDER ALL THE CIRCUMSTANCES OF THE CASE." 195
N.L.R.B. 197, 198 N. 3. IN
NLRB V. GISSEL PACKING CO., 395 U.S. 575, 608, 89 S.CT. 1918, 1937,
23 L.ED.2D 517(1969), THE
COURT ANNOUNCED THAT IT WOULD "REJECT ANY RULE THAT REQUIRES A PROBE
OF AN EMPLOYEE'S
SUBJECTIVE MOTIVATIONS AS INVOLVING AN ENDLESS AND UNRELIABLE
INQUIRE," AND WE REAFFIRM THAT
VIEW TODAY AS APPLICABLE ALSO IN THE CONTEXT OF THIS CASE.
REASONABLENESS, AS A STANDARD, IS
PRESCRIBED IN SEVERAL PLACES IN THE ACT ITSELF. FOR EXAMPLE, AN
EMPLOYER IS NOT RELIEVED OF
RESPONSIBILITY FOR DISCRIMINATION AGAINST AN EMPLOYEE "IF HE HAS
REASONABLE GROUNDS FOR
BELIEVING" THAT CERTAIN FACTS EXIST, SECS. 8(A)(3)(A), (B), 29 U.S.C.
158(A)(3)(A), (B): ALSO,
PRELIMINARY INJUNCTIVE RELIEF AGAINST CERTAIN CONDUCT MUST BE SOUGHT
IF "THE OFFICER OR
REGIONAL ATTORNEY TO WHOM THE MATTER MAY BE REFERRED HAS REASONABLE
CAUSE TO BELIEVE" SUCH
CHARGE IS TRUE, SEC. 10(1), 29 U.S.C. 160(1). SEE ALSO CONGOLEUM
INDUSTRIES, INC., 197
N.L.R.B. 534(1972); CUMBERLAND SHOE CORP., 144 N.L.R.B. 1268(1963),
ENFORCED, 351 F.2D 917
(CA6 1965)." /19/
MOREOVER, THE COURT, AFTER EXAMINING WHAT IT PERCEIVED TO BE THE "KEY
OBJECTIVE FACT" RELATIVE TO THIS INTERVIEW OF THE EMPLOYEE INVOLVED,
CONCLUDED " . . . (T)HAT SHE MIGHT REASONABLY BELIEVE THAT THE INTERVIEW
MIGHT RESULT IN DISCIPLINARY ACTION IS THUS CLEAR." /20/
THUS, THE COURT IN WEINGARTEN REJECTED CONSIDERING AN EMPLOYEE'S
SUBJECTIVE FEELINGS AND OPTED INSTEAD FOR AN APPROACH WHEREBY OBJECTIVE
STANDARDS, UNDER ALL THE CIRCUMSTANCES OF THE CASE, ARE CONSIDERED IN
ASSESSING WHETHER AN EMPLOYEE REASONABLY BELIEVED THAT DISCIPLINE MIGHT
RESULT FROM AN INTERVIEW.
IN THE CASE HEREIN, DALEY WAS TOLD REPEATEDLY THAT HE WAS NOT UNDER
INVESTIGATION BUT BEING INTERVIEWED ONLY AS A "THIRD PARTY." HOWEVER,
THE SUBJECT MATTER OF THE INTERVIEW WAS A SERIOUS AFFAIR AS DALEY WAS
WELL AWARE. DALEY, WHILE HAVING ENGAGED IN NO IMPROPER CONDUCT, /21/
WAS THE CUSTODIAN OF THE TAXPAYER'S FILES CHARGED WITH THEIR SAFEKEEPING
AND CONFIDENTIALITY AND HIS STEWARDSHIP OF THE TAX FILES AND INFORMATION
WITHIN THEM WERE MATTERS COVERED BY THE INTERVIEW. DALEY RECEIVED NO
PRIOR ASSURANCE THAT NOTHING HE SAID IN THE INTERVIEW COULD POSSIBLY
LEAD TO DISCIPLINE AGAINST HIM.
WHILE DALEY MIGHT NOT HAVE BEEN THE PERSON THE INSPECTORS CONSIDERED
AS THE SUBJECT OF THE INVESTIGATION AT THE TIME OF HIS INTERVIEW, HIS
CONTROL OF THE TAXPAYER'S FILES PLACED HIM IN A CRITICAL POSITION
WHEREBY HIS CONDUCT, IF IMPROPER, COULD HAVE RENDERED HIM LIABLE TO
DISCIPLINARY ACTION. TRUE, IF DALEY'S IMPROPER CONDUCT WAS FOUND TO
HAVE BEEN THE SOURCE OF DISCLOSURE TO THE PRIMARY PERSON UNDER
INVESTIGATION, FURTHER INTERROGATION OF DALEY WOULD NOT HAVE PROCEEDED
WITHOUT GIVING HIM AN OPPORTUNITY TO BE REPRESENTED. BUT, AT THAT
POINT, DALEY'S ACTIONS WOULD HAVE ALREADY BEEN PART OF THE INSPECTORS'
STORE OF INFORMATION WHICH WOULD HAVE BEEN USED IN FURTHERANCE OF ANY
INVESTIGATION SPECIFICALLY INVOLVING DALEY. INDEED, IF ANY INFORMATION
ADVERSE TO DALEY WAS SOMEHOW UNCOVERED DURING THE INTERVIEW, IT WOULD BE
FORWARDED TO AGENCY AUTHORITIES EVEN IF THE MATTER WAS NOT PURSUED
FURTHER OR DIRECTLY INVOLVED IN THE INVESTIGATION.
THIS WAS NO "RUN-OF-THE-MILL SHOP FLOOR CONVERSATION." /22/ RATHER,
THE INTERVIEW WAS CONDUCTED AWAY FROM DALEY'S WORK PLACE. DALEY WAS
UNDER OATH AT THE TIME. THE INTERVIEWERS WERE TRAINED AND PRESUMABLY
SKILLED CRIMINAL INVESTIGATORS. DALEY WAS AWARE IT WAS SERIOUS BUSINESS
WHEN PERSONNEL FROM REGIONAL INSPECTION WERE INVOLVED IN A SITUATION.
ACCORDINGLY, HAVING CONSIDERED THE VARIOUS FACTS AND CIRCUMSTANCES
RELATIVE TO THE INTERVIEW AND EMPLOYEE DALEY'S REQUEST THAT UNION
ATTORNEY CONROY ACCOMPANY HIM TO THE INTERVIEW, I FIND AND CONCLUDE THAT
RESPONDENT, WHEN GROUP MANAGER MCQUEENEY AND INSPECTORS NAGY AND ROOK
REFUSED DALEY'S REQUEST FOR REPRESENTATION, FAILED TO COMPLY WITH THE
PROVISIONS OF SECTION 7114(A)(2)(B) OF THE STATUTE AND THEREBY VIOLATED
SECTIONS 7116(A)(1) AND (8) OF THE STATUTE.
AT THE HEARING RESPONDENT ATTEMPTED TO CROSS-EXAMINE DALEY FROM AN
AFFIDAVIT TAKEN FROM DALEY BY AN AGENT OF THE AUTHORITY DURING THE
COURSE OF THE REGIONAL DIRECTOR'S INVESTIGATION OF THE CHARGE.
RESPONDENT SOUGHT TO HAVE THE TESTIMONY AND AFFIDAVIT RECEIVED TO SHOW
THAT DALEY DID NOT BELIEVE, IN HIS OWN MIND, THAT HE COULD BE SUBJECT TO
DISCIPLINE AT THE TIME HE WAS INTERVIEWED BY THE INSPECTORS. I REFUSED
TO PERMIT CROSS-EXAMINATION OF DALEY ON HIS STATE OF MIND AND REJECTED
THE PROFFER OF THE AFFIDAVIT FOR THIS PURPOSE. /23/
RESPONDENT STRONGLY URGES THAT, IN EFFECT, SECTION 7114(A)(2)(B) MUST
BE APPLIED LITERALLY. THUS, RESPONDENT ARGUES, IN INTERPRETING THIS
SECTION A THRESHOLD QUESTION TO THAT OF "REASONABLE BELIEF" OF
DISCIPLINARY ACTION IS WHETHER ANY "BELIEF" OF DISCIPLINARY ACTION
EXISTED. RESPONDENT MAINTAINS THEREFORE, THAT IT WAS PROPER TO EXPLORE
AND PRESENT EVIDENCE ON WHETHER DALEY PERSONALLY BELIEVED, REASONABLY OR
OTHERWISE, THAT HE COULD HAVE BEEN SUBJECT TO DISCIPLINE AS A RESULT OF
HIS EXAMINATION.
I HEREBY REAFFIRM MY RULINGS MADE AT THE HEARING TO EXCLUDE THE
AFFIDAVIT AND NOT PERMIT CROSS-EXAMINATION IN THIS AREA OF INQUIRY.
RESPONDENT'S ARGUMENTS, IF FOLLOWED, WOULD LEAD PRECISELY INTO THE
"ENDLESS AND UNRELIABLE" INQUIRY WHICH THE NLRB AND THE SUPREME COURT
HAVE WISELY REJECTED. /24/ IF SUBJECTIVE STATE OF MIND WAS OPEN TO
INQUIRY, A HEARING MAY WELL BECOME INTERMINABLE WITH EXAMINATION AND
CROSS-EXAMINATION OF THE INTERVIEWED INDIVIDUAL, AND PERHAPS OTHER
WITNESSES, AS TO THE INDIVIDUAL'S INTELLIGENCE, CONVICTIONS, THOUGHTS,
FEARS, CHARACTER STRENGTH'S AND WEAKNESSES AND PERHAPS PSYCHIATRIC
MAKE-UP AS WELL. FAR MORE EXPEDITIOUS AND RELIABLE IS AN ASSESSMENT OF
EXTERNAL EVIDENCE, INCLUDING CONDUCT WHICH FLOWS FROM "STATE OF MIND,"
IN ORDER TO ASCERTAIN WHETHER THE INDIVIDUAL, AS A REASONABLE PERSON,
COULD CONCLUDE THAT DISCIPLINARY ACTION MIGHT RESULT FROM THE INTERVIEW.
IT IS ALSO NOTED THAT IN SIMILAR SITUATIONS OTHER FORUMS HAVE REJECTED,
AS IRRELEVANT OR UNPROFITABLE, EVIDENCE BEARING ON STATE OF MIND AND
COMPARABLE SUBJECTIVE CONSIDERATIONS. /25/
MOREOVER, THE COURT IN WEINGARTEN ACKNOWLEDGED THAT THE REASONABLE
BELIEF CRITERION UNDER DISCUSSION IN THAT CASE WAS NOT TO BE APPLIED
LITERALLY. THUS, THE COURT, AT 966, STATED:
"REQUIRING A LONE EMPLOYEE TO ATTEND AN INVESTIGATORY INTERVIEW WHICH
HE REASONABLY
BELIEVES MAY RESULT IN THE IMPOSITION OF DISCIPLINE PERPETUATES THE
INEQUALITY THE ACT WAS
DESIGNED TO ELIMINATE, AND BARS RECOURSE TO THE SAFEGUARDS THE ACT
PROVIDED "TO REDRESS THE
PERCEIVED IMBALANCE OF ECONOMIC POWER BETWEEN LABOR AND MANAGEMENT."
(CITED CASES
OMITTED). VIEWED IN THIS LIGHT, THE BOARD'S RECOGNITION THAT SEC. 7
GUARANTEES AN EMPLOYEE'S
RIGHT TO THE PRESENCE OF A UNION REPRESENTATIVE AT AN INVESTIGATORY
INTERVIEW IN WHICH THE
RISK OF DISCIPLINE REASONABLY INHERES IS WITHIN THE PROTECTIVE AMBIT
OF THE SECTION . . . "
IT THEREFORE APPEARS THAT IN THE VIEW OF THE SUPREME COURT,
"REASONABLY BELIEVES," IN THE CONTEXT OF THAT CASE, WAS INTERCHANGEABLE
WITH, AND TO BE VIEWED FROM THE PERSPECTIVE OF, "AN INVESTIGATORY
INTERVIEW IN WHICH THE RISK OF DISCIPLINE REASONABLY INHERES." THIS
APPROACH, WHICH FOCUSES ON THE INTERVIEW AND ITS SURROUNDING
CIRCUMSTANCES, CLEARLY REMOVES FROM INQUIRY THE INDIVIDUAL'S SUBJECTIVE
BELIEF AND PLACES IT ON RELIABLE, OBJECTIVE CONSIDERATIONS.
ORDER
PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
RULES AND REGULATIONS, 45 FED.REG. 3482, 3510(1980), IT IS HEREBY
ORDERED THAT INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND INTERNAL
REVENUE SERVICE, HARTFORD DISTRICT OFFICE SHALL:
1. CEASE AND DESIST FROM:
(A) REQUIRING ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION,
INTERVIEW OR MEETING WITHOUT UNION REPRESENTATION BY THE NATIONAL
TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING
REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE
EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION,
INTERVIEW OR MEETING MAY RESULT IN DISCIPLINARY ACTION AGAINST THE
EMPLOYEE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED AND FOUND
NECESSARY TO EFFECTUATE THE POLICIES OF THE STATUTE:
(A) POST AT ITS HARTFORD DISTRICT OFFICE, HARTFORD, CONNECTICUT,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX." COPIES OF SAID NOTICE,
TO BE FURNISHED BY THE REGIONAL DIRECTOR FOR REGION 1, AFTER BEING
SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL BE POSTED BY IT
IMMEDIATELY UPON RECEIPT THEREOF, AND BE MAINTAINED BY IT FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL 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.
(B) NOTIFY THE REGIONAL DIRECTOR FOR REGION 1, IN WRITING, WITHIN 30
DAYS FROM THE DATE OF THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY
HEREWITH.
SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 13, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REQUIRE ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION,
INTERVIEW OR MEETING WITHOUT REPRESENTATION BY NATIONAL TREASURY
EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING
REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE
EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION,
INTERVIEW OR MEETING MAY RESULT IN DISCIPLINARY ACTION AGAINST THE
EMPLOYEE.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
(AGENCY OR ACTIVITY)
DATED: . . . BY:
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
441 STUART STREET, 8TH FLOOR, BOSTON, MA 02116, AND WHOSE TELEPHONE
NUMBER IS: (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1/ INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND INTERNAL REVENUE
SERVICE, HARTFORD DISTRICT OFFICE ARE JOINTLY REFERRED TO HEREIN AS
RESPONDENT. SEE DISCUSSION, INFRA.
/2/ SECTION 2423.12 OF THE REGULATIONS PROVIDES, IN RELEVANT PART,
THAT "(E)XCEPT IN EXTRAORDINARY CIRCUMSTANCES AS DETERMINED BY THE
REGIONAL DIRECTOR, WITHIN TEN (10) DAYS AFTER THE COMPLAINT IS SERVED
UPON THE RESPONDENT, THE RESPONDENT SHALL FILE THE . . . ANSWER THERETO
. . . "
/3/ THE CITED SECTIONS OF THE STATUTE AND REGULATIONS PROVIDE THAT A
HEARING SHALL NOT BE CONDUCTED EARLIER THAN FIVE DAYS FROM THE SERVICE
OF THE COMPLAINT.
/4/ RESPONDENT'S UNOPPOSED MOTION TO CORRECT THE TRANSCRIPT IS HEREBY
GRANTED.
/5/ THE CLASSIFICATION TITLE FOR THIS POSITION CONTAINED IN THE
APPROPRIATE IRS STANDARD POSITION DESCRIPTION IS "CRIMINAL
INVESTIGATOR."
/6/ AT THIS TIME THE INSPECTORS HAD NOT DETERMINED WHETHER OR NOT THE
INTERNAL AUDITOR HAD ACQUIRED THE TAXPAYER INFORMATION FROM ANYONE IN
IRS. THEY WERE SEEKING TO ASCERTAIN "(I)F HE GOT THE INFORMATION, HOW
DID HE GET IT."
/7/ COMMONLY REFERRED TO AS THE "MIRANDA WARNING."
/8/ SEE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE AND IRS
MILWAUKEE DISTRICT, 8 A/SLMR 1125, (A/SLMR NO. 1133) AND JOINT EXHIBIT
NO. 2, HANDBOOK OF EMPLOYEE RESPONSIBILITIES AND CONDUCT ISSUED BY THE
NATIONAL OFFICE FOR EXAMPLES OF RELATIONSHIPS BETWEEN THE NATIONAL
OFFICE AND A SUBORDINATE OFFICE.
/9/ CURIOUSLY, RESPONDENT DOES NOT DENY THAT NAGY AND ROOK ARE AGENTS
OF IRS, WASHINGTON, EVEN THOUGH THEY ARE NOT EMPLOYED IN WASHINGTON
D.C., BUT EMPLOYED BY THE IRS MID-ATLANTIC REGION, NEWARK, NEW JERSEY.
/10/ SECTION 19(A)(1) PROVIDED: "AGENCY MANAGEMENT SHALL NOT . . .
INTERFERE, RESTRAIN OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS
ASSURED BY THIS ORDER."
/11/ SECTION 19(A)(6) PROVIDED: "AGENCY MANAGEMENT SHALL NOT . . .
REFUSE TO CONSULT, CONFER OR NEGOTIATE WITH A LABOR ORGANIZATION AS
REQUIRED BY THIS ORDER."
/12/ 5 FLRC 305 (FLRC NO. 76A-37 (MAY 4, 1977) REPORT NO. 125).
/13/ SECTION 7116(A)(1) OF THE STATUTE STATES " . . . IT SHALL BE AN
UNFAIR LABOR PRACTICE FOR AN AGENCY . . . TO INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
UNDER THIS CHAPTER." UNDER SECTION 7116(A)(8) IT IS AN UNFAIR LABOR
PRACTICE " . . . FOR AN AGENCY TO OTHERWISE FAIL OR REFUSE TO COMPLY
WITH ANY PROVISION OF THIS CHAPTER."
/14/ N.L.R.B. V. J. WEINGARTEN, INC., 95 S.CT. 959(1975).
/15/ STATEMENT ON MAJOR POLICY ISSUE, 4 FLRC 710 (FLRC NO. 75P-2
(DEC. 2, 1976) REPORT NO. 116).
/16/ WEINGARTEN, AT 966.
/17/ LEGISLATIVE HISTORY OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, TITLE VII OF THE CIVIL SERVICE REFORM ACT OF 1978,
96TH CONGRESS, 1ST SESSION, COMMITTEE PRINT NO. 96-7, (NOVEMBER 19,
1979) PP. 644, 651, 652, 824 AND 926.
/18/ ID., AT 824.
/19/ WEINGARTEN, FN. 5, AT 964.
/20/ ID.
/21/ OBVIOUSLY, ONE IS NOT REQUIRED TO CONFESS GUILT IN ORDER TO
PROVE THAT REASONABLE BELIEF OF DISCIPLINE IS PRESENT.
/22/ SEE WEINGARTEN, AT 964.
/23/ DALEY DID NOT TESTIFY ON DIRECT EXAMINATION WITH REGARD TO HIS
STATE OF MIND AT THE TIME OF HIS INTERVIEW BY THE INSPECTORS.
/24/ WEINGARTEN, FN. 5, AT 964.
/25/ SEE N.L.R.B. V. LINK-BELT CO., 61 S.CT. 358, 361 (1941);
ENVIRONMENTAL PROTECTION AGENCY, PERRINE PRIMATE LABORATORY, 2 A/SLMR 88
(A/SLMR NO. 136); BON-R REPRODUCTIONS, INC., ENF'D AS MODIFIED, 309
F.2D 898 (2D CIR. 1962); THE REIN COMPANY, 114 NLRB 694; N.L.R.B. V.
HUNTVILLE MANUFACTURING COMPANY, 514 F.2D 723 (5TH CIR. 1975).