[ v05 p421 ]
05:0421(53)CA
The decision of the Authority follows:
5 FLRA No. 53
INTERNAL REVENUE SERVICE
DETROIT, MICHIGAN
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION CHAPTER 24
Charging Party
Case No. 5-CA-332
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING RECOMMENDING THAT THE UNFAIR
LABOR PRACTICE COMPLAINT BE DISMISSED IN ITS ENTIRETY. THE GENERAL
COUNSEL AND THE CHARGING PARTY FILED EXCEPTIONS TO THE ADMINISTRATIVE
LAW JUDGE'S RECOMMENDED DECISION AND ORDER ACCOMPANIED BY BRIEFS, AND
THE RESPONDENT RESPONDED TO THE EXCEPTIONS FILED BY THE GENERAL COUNSEL
AND THE CHARGING PARTY ACCOMPANIED BY BRIEFS.
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
CASE, INCLUDING THE GENERAL COUNSEL'S AND CHARGING PARTY'S EXCEPTIONS
AND BRIEFS, AND THE RESPONDENT'S RESPONSES AND BRIEFS, THE AUTHORITY
HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-332 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., MARCH 30, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--
ION FOLLOWS ------------------
ON BRIEF: VERNON J. OWENS, ESQUIRE
WILLIAM T. LYONS, ESQUIRE
FOR THE RESPONDENT
AUDREY BROWNE, ESQUIRE
FOR THE CHARGING PARTY
SHEILA REILLY, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: WILLIAM B. DEVANEY
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 UNITED STATES CODE, 5
U.S.C. 7101, ET SEQ. /1/ AND THE FINAL RULES AND REGULATIONS ISSUED
THEREUNDER, 5 C.F.R. CHAPTER XIV, FED. REG., VOL. 45, NO. 12, JANUARY
17, 1980, EFFECTIVE JANUARY 28, 1980 (INTERIM RULES AND REGULATIONS WERE
ISSUED ON JULY 30, 1979, EFFECTIVE JULY 30, 1979, FED. REG., VOL. 44.
NO. 147, JULY 30, 1979; HOWEVER, THE FINAL RULES AND REGULATIONS GOVERN
ALL MATTERS AFTER JANUARY 28, 1980).
THE ISSUE IN THIS CASE IS WHETHER AN EMPLOYEE MUST BE ALLOWED UNION
REPRESENTATION AT AN ANNUAL PERFORMANCE EVALUATION PURSUANT TO SEC.
14(A) (2)(B) OF THE STATUTE WHICH PROVIDES:
"(2) AN EXCLUSIVE REPRESENTATIVE...SHALL BE GIVEN THE OPPORTUNITY TO
BE REPRESENTED AT--
"(B) 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 THAT THE EXAMINATION MAY RESULT
IN DISCIPLINARY
ACTION AGAINST THE EMPLOYEE; AND
"(II) THE EMPLOYEE REQUESTS REPRESENTATION." (5 U.S.C.
7114(A)(2)(B)).
A CHARGE WAS FILED HEREIN ON DECEMBER 27, 1979, ALLEGING VIOLATIONS
OF SECS. 16(A)(1) AND (8) OF THE STATUTE BY VIRTUE OF THE DENIAL OF AN
EMPLOYEE'S REQUEST FOR UNION REPRESENTATION AT A MEETING WITH HIS GROUP
MANAGER (G.C. EXH. 1A); THE COMPLAINT AND NOTICE OF HEARING ISSUED ON
FEBRUARY 26, 1980 (G.C. EXH. 1C); THE COMPLAINT ALLEGED A VIOLATION OF
SECS. 16(A)(1) AND (8) OF THE STATUTE AND THE NOTICE SET THE HEARING
FOR APRIL 2, 1980, AND PURSUANT THERETO, A HEARING WAS DULY HELD BEFORE
THE UNDERSIGNED ON APRIL 2, 1980, IN DETROIT, MICHIGAN.
ALL PARTIES WERE REPRESENTED BY COUNSEL, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
INTRODUCE EVIDENCE BEARING ON THE ISSUE INVOLVED HEREIN. AT THE CLOSE
OF THE HEARING, MAY 2, 1980, WAS FIXED AS THE DATE FOR MAILING
POST-HEARING BRIEFS; HOWEVER, ON APRIL 29, 1980, AT THE REQUEST OF
COUNSEL FOR RESPONDENT, WITH AGREEMENT OF ALL PARTIES, AND FOR GOOD
CAUSE SHOWN, THE TIME FOR MAILING POST-HEARING BRIEFS WAS EXTENDED TO
JUNE 2, 1980. ON MAY 29, 1980, COUNSEL FOR THE GENERAL COUNSEL ORALLY
REQUESTED A FURTHER EXTENSION OF TIME TO JUNE 16, 1980, AND THE WRITTEN
REQUEST WAS RECEIVED ON JUNE 2, 1980, AND WAS DENIED ON JUNE 2, 1980.
/2/ COUNSEL FOR RESPONDENT AND FOR THE GENERAL COUNSEL TIMELY MAILED, ON
OR BEFORE JUNE 2, 1980, VERY HELPFUL BRIEFS WHICH HAVE BEEN CAREFULLY
CONSIDERED. UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
FINDINGS AND CONCLUSIONS:
FINDINGS AND CONCLUSIONS
1. INTRODUCTION. THIS CASE CONCERNS THE PERFORMANCE EVALUATION OF
MR. MYRON V. GOFF, AN INTERNAL REVENUE OFFICER. MR. GOFF IS A GS-11
REVENUE OFFICER AND IN JULY, 1980, WILL HAVE COMPLETED 22 YEARS OF
SERVICE WITH THE INTERNAL REVENUE SERVICE. THE PARTICULAR PERFORMANCE
EVALUATION INVOLVED WAS CONDUCTED IN AUGUST, 1979. RESPONDENT'S
REGULATIONS REQUIRE, AT LEAST ANNUALLY, A 100 PERCENT CASE REVIEW OF
EACH REVENUE OFFICER (AIR MANUAL 5184.3(2), RES. EXH. 1) AND THERE IS NO
DISPUTE THAT THE 100 PERCENT REVIEW AND EVALUATION OF MR. GOFF OF
AUGUST, 1979, WAS A NORMAL REVIEW, PURSUANT TO THE REGULATIONS. INDEED,
MR. GOFF TESTIFIED THAT HE HAD HAD SUCH A REVIEW EACH YEAR. NOR IS
THERE ANY DISPUTE THAT THE PROCEDURE FOR EACH 100 PERCENT REVIEW IS FOR
THE GROUP MANAGER TO CALL FOR ALL THE REVENUE OFFICER'S CASE FILES; THE
GROUP MANAGER THEN REVIEWS EACH CASE FILE AND PREPARES A FORM 5188 A,
REVENUE OFFICER INVENTORY ANALYSIS, AND A FORM 5188, ANALYSIS OF REVENUE
OFFICER CASE ASSIGNMENTS; A COPY OF FORMS 5188 AND 5188 A IS GIVEN TO
THE REVENUE OFFICER AT THE TIME THE GROUP MANAGER REVIEWS THE REVENUE
OFFICER'S PERFORMANCE WITH THE REVENUE OFFICER. MR. GOFF FURTHER
TESTIFIED THAT THE REVIEW CONDUCTED BY THE GROUP MANAGER CONSISTS OF A
DISCUSSION OF THE GROUP MANAGER'S COMMENTS AND THAT, ON ABOUT HALF OF
HIS 100 PERCENT REVIEWS, CHANGES HAD BEEN MADE FOLLOWING THE DISCUSSION
(TR. 232-233).
PRIOR TO THE COMMENCEMENT OF THE AUGUST 14, 1979 REVIEW BY MR.
LAWRENCE EDWIN ZIELINSKI, GROUP MANAGER, ANN ARBOR, MICHIGAN, MR. GOFF
ORALLY REQUESTED UNION REPRESENTATION WHICH WAS DENIED BY MR. ZIELINSKI;
MR. GOFF THEN MADE THE SAME REQUEST IN WRITING (G.C. EXH. 7) WHICH WAS
DENIED BY MR. ZIELINSKI, IN WRITING, FOR THE STATED REASON THAT:
"...THE PURPOSE OF MY PROPOSED MEETING WITH YOU IS TO COUNSEL YOU
REGARDING YOUR WORK
PRODUCTS AND DELIVER TO YOU THE RESULTS OF MY 100% REVIEW OF YOUR
WORK. THIS MEETING IS NOT
AN EXAMINATION WITH REGARDS TO AN INVESTIGATION AND IS THEREFORE NOT
COVERED BY THE ABOVE
STATUTE (5 U.S.C. 7114(A)(2)(B) /3/) ("G.C. EXH. 8).
THUS, THE ISSUE, AS STATED ABOVE, IS, NARROWLY, WHETHER AN EMPLOYEE,
HERE AN INTERNAL REVENUE OFFICER, MUST BE ALLOWED UNION REPRESENTATION
AT AN ANNUAL PERFORMANCE EVALUATION. THE RECORD SHOWS, AS MORE FULLY
SET FORTH HEREINAFTER, THAT MR. GOFF REASONABLY, AND CORRECTLY,
ANTICIPATED THAT HIS PERFORMANCE WOULD BE CRITICIZED. RESPONDENT HAS
SHOWN THAT, ALTHOUGH A "CRITICAL ELEMENTS LETTER" WAS ISSUED TO MR. GOFF
ON AUGUST 27, 1979 (G.C. EXH. 9), NEITHER THE 100 PERCENT REVIEW NOR THE
ENSUING "CRITICAL ELEMENTS LETTER" CONSTITUTED DISCIPLINE, ALTHOUGH IT
IS OBVIOUS, AND READILY CONCEDED BY RESPONDENT, THAT DISCIPLINE MAY
FOLLOW FROM UNSATISFACTORY EVALUATIONS JUST AS REWARDS MAY FOLLOW FROM
EVALUATIONS WHICH ARE SATISFACTORY TO OUTSTANDING.
2. FINDINGS OF FACT
A. MR. ZIELINSKI BECAME GROUP MANAGER AT THE ANN ARBOR POST OF DUTY,
DETROIT DISTRICT OFFICE, ON APRIL 4, 1979, AND ONE OF HIS FIRST DUTIES
WAS TO PREPARE AN ANNUAL RATING FOR MR. GOFF. IN ORDER TO DO SO, MR.
ZIELINSKI REVIEWED ELEVEN OF MR. GOFF'S CASES. ALTHOUGH MR. ZIELINSKI
NOTED NUMEROUS DEFICIENCIES, HE RATED MR. GOFF SATISFACTORY (RES. EXH.
7-A); DISCUSSED THE RESULTS OF HIS REVIEW OF MR. GOFF'S CASES WITH MR.
GOFF ON MAY 7, 1979, WHICH HE CONFIRMED BY LETTER TO MR. GOFF, DATED MAY
7, 1979, IN WHICH HE STATED, IN PART, AS FOLLOWS:
...MY REVIEW OF YOUR WORK ON THESE (ELEVEN) CASES INDICATED SERVICE
PERFORMANCE
PROBLEMS. SPECIFICALLY, I FOUND THAT PROCEDURES INVOLVING TAX LIEU,
HISTORY DOCUMENTATIONS,
TIMELY AND EFFECTIVE TAXPAYER CONTACT AND COMPLIANCE ARE NOT BEING
FOLLOWED...
"SINCE I HAVE BEEN YOUR MANAGER FOR ONLY ONE MONTH AND SINCE
RECORDATION ITEMS FROM YOUR
PRIOR MANAGERS INDICATED, FOR THE MOST PART, GOOD PERFORMANCE, I AM
CHOOSING TO CONCLUDE THAT
THIS LAST REVIEW WAS NOT INDICATIVE OF YOUR PRIOR YEAR'S
PERFORMANCE...
"MYRON, I SHARE YOUR CONFIDENCE THAT YOU CAN QUICKLY RESOLVE YOUR
PERFORMANCE
DEFICIENCIES. HOWEVER, I WOULD LIKE TO PUT YOU ON NOTICE THAT I WILL
NOT HESITATE TO TAKE
APPROPRIATE NEXT ACTION SHOULD YOUR WORK CONTINUE TO DISPLAY SUCH
DISREGARD FOR OUR
PROCEDURES. "...I WILL AGAIN REVIEW YOUR CASE WORK DURING THE FIRST
WEEK OF (SIC) JULY 1979." (RES. EXH. 7-B).
B. THE PRESS OF WORK DELAYED THE 100 PERCENT REVIEW OF MR. GOFF'S
CASE WORK FROM THE EXPECTED FIRST WEEK OF JULY UNTIL AUGUST, 1979. IN
AUGUST, MR. ZIELINSKI CALLED FOR AND REVIEWED MR. GOFF'S CASES, TAKING
DOWN GENERAL IMPRESSIONS, AND RETURNED THE CASES TO MR. GOFF. AFTER
LOOKING AT WHAT HE HAD WRITTEN, MR. ZIELINSKI DECIDED THAT MR. GOFF FELL
INTO THE CATEGORY WHERE A CRITICAL FACTORS LETTER WAS NECESSARY AND,
WANTING TO BE VERY SPECIFIC IN HIS COMMENTS AND INSTRUCTIONS, ASKED FOR
MR. GOFF'S CASES AGAIN AND COMPLETED THE WRITTEN DOCUMENTATION ON AUGUST
13 AND 14, 1979. ON AUGUST 14, MR. ZIELINSKI, HAVING COMPLETED THE
FORMS 5188 AND 5188 A (RES. EXH. 8), WENT TO MR. GOFF'S WORK AREA AND
ASKED HIM TO COME TO HIS OFFICE TO DISCUSS THE RESULTS OF THE REVIEW.
MR. GOFF ASKED MR. ZIELINSKI, "IS IT BAD?" AND MR. ZIELINSKI STATED
THAT, "I SORT OF SHOOK MY HEAD OR SAID, 'YES,' SOMETHING LIKE THAT."
(TR. 168). MR. GOFF THEN SAID "I WANT MY STEWARD THERE WITH ME" AND MR.
ZIELINSKI TOLD HIM "NO." MR. GOFF ASKED TO TALK TO THE STEWARD AND MR.
ZIELINSKI SAID "FINE." (TR. 167). AFTER MEETING WITH THE STEWARD, MR.
GOFF RETURNED WITH A WRITTEN REQUEST FOR UNION REPRESENTATION (G.C. EXH.
7). MR. ZIELINSKI AGAIN TOLD MR. GOFF THAT THIS WAS A WORK REVIEW AND
THAT TO THE BEST OF HIS KNOWLEDGE HE WAS NOT ENTITLED TO UNION
REPRESENTATION BUT THAT HE WOULD GET BACK WITH HIM IN A LITTLE WHILE.
C. MR. ZIELINSKI CALLED THE BRANCH CHIEF, MR. WILLIAM MEEHAN, TO ASK
HIS OPINION AND MR. MEEHAN SAID THAT "UNION REPRESENTATION WAS NOT AN
OPTION AT THIS TIME" BUT TO CHECK WITH LABOR MANAGEMENT RELATIONS.
LABOR MANAGEMENT RELATIONS PERSONNEL CONFIRMED MR. MEEHAN'S OPINION,
I.E., THAT THIS WAS NOT AN INVESTIGATION AND, THEREFORE, THE EMPLOYEE
HAD NO RIGHT TO UNION REPRESENTATION, AND AUTHORIZED MR. ZIELINSKI TO
RESPOND IN WRITING. MR. ZIELINSKI THEN WROTE A STATEMENT DENYING MR.
GOFF'S REQUEST (G.C. EXH. 8).
D) MESSRS. GOFF AND ZIELINSKI THEN MET TO DISCUSS MR. GOFF'S CASE
REVIEW. AT THE OUTSET, MR. ZIELINSKI GAVE MR. GOFF A COPY OF FORMS 5188
AND 5188 A. MR. GOFF READ THE NARRATIVE SECTION (5188) AND ASKED ABOUT
THE LETTER REFERRED TO ON PAGE 2 ("MYRON, I AM INFORMING YOU THAT YOUR
PERFORMANCE HAS BEEN UNACCEPTABLE FOR THE CRITICAL ELEMENTS OF YOUR
POSITION. YOU CAN EXPECT A LETTER NOTIFYING YOU OF THE ACTIONS THAT
WILL RESULT FROM YOUR PERFORMANCE."). MR. ZIELINSKI TOLD MR. GOFF HE
WOULD BE RECEIVING A CRITICAL ELEMENTS LETTER. MR. GOFF STATED THAT
THIS WAS A DISCIPLINARY ACTION AND MR. ZIELINSKI TRIED TO ASSURE HIM
THAT IT WAS NOT A DISCIPLINARY ACTION. MR. GOFF STATED THAT HE WAS TOO
UPSET TO CONTINUE AND REQUESTED, AND WAS GRANTED, SICK LEAVE FOR THE
REMAINDER OF THE DAY. PRIOR TO GOING ON SICK LEAVE, HOWEVER, MR. GOFF
SIGNED OFF ON THE NARRATIVE SECTION.
E) THE REVIEW WAS COMPLETED THE FOLLOWING DAY, AUGUST 15, 1980, BUT
MR. GOFF REFUSED TO SIGN THE FORM 5188-AS. /4/
F) ON AUGUST 27, 1980, MR. ZIELINSKI ISSUED A CRITICAL ELEMENTS
LETTER (G.C. EXH. 9), WHICH STATED IN THE OPENING PARAGRAPH, IN PART, AS
FOLLOWS:
"THIS LETTER CONFIRMS OUR DISCUSSION OF AUGUST 15, 1979, DURING WHICH
I INFORMED YOU THAT
YOUR WORK PERFORMANCE HAS BEEN UNACCEPTABLE FOR THE CRITICAL ELEMENTS
OF YOUR
POSITION... (G.C. EXH. 9) THE PENULTIMATE PARAGRAPH STATED AS
FOLLOWS:
"AS WE DISCUSSED, IT IS NECESSARY FOR YOU TO IMPROVE YOUR PERFORMANCE
TO AN ACCEPTABLE
LEVEL IN THE CRITICAL ELEMENTS IDENTIFIED WITHIN THIRTY (30) DAYS.
AT THE END OF THE THIRTY
DAY PERIOD, BEGINNING ON THE DATE YOU RECEIVE THIS LETTER, I WILL
AGAIN EVALUATE YOUR
PERFORMANCE ON THESE ELEMENTS. I WILL INFORM YOU SOON, THEREAFTER,
WHAT FURTHER ACTIONS WILL
BE TAKEN AS A RESULT OF YOUR PERFORMANCE." (G.C. EXH. 9)
G) ON SEPTEMBER 20 AND OCTOBER 10, 1979, MR. ZIELINSKI MADE FIELD
VISITATIONS WITH MR. GOFF AND HIS COMMENTS INDICATED THAT TRAVEL WAS
WELL PLANNED AND HISTORY NOTATIONS HAD SUBSTANTIALLY IMPROVED (G.C.
EXHS. 4 AND 5).
H) IN JANUARY, 1980, MR. ZIELINSKI MADE ANOTHER 100 PERCENT REVIEW;
AGAIN NUMEROUS DEFICIENCIES WERE FOUND, AND THE WRITTEN ANALYSIS WAS
GIVEN TO MR. GOFF WITHOUT DISCUSSION.
I) FROM THE TESTIMONY OF MESSRS. ZIELINSKI AND MEEHAN (CHIEF OF FIELD
BRANCH), THE REGULATIONS AND FROM THE TESTIMONY OF MR. INGERSOLL, UNION
STEWARD, AND MR. GOFF HIMSELF, IT IS CLEAR THAT NEITHER THE EVALUATION
NOR THE CRITICAL ELEMENTS LETTER CONSTITUTED DISCIPLINE. INDEED, THE
PURPOSE OF A CRITICAL ELEMENTS LETTER IS TO ADVISE THE EMPLOYEE OF
ELEMENTS OF HIS WORK WHICH REQUIRE IMPROVEMENT AND TO AFFORD HIM
OPPORTUNITY TO IMPROVE HIS PERFORMANCE. ON THE OTHER HAND, THERE CAN BE
NO DOUBT THAT DEFICIENT PERFORMANCE CAN, IF NOT CORRECTED, RESULT IN
DISCIPLINE, INCLUDING REMOVAL (SEE, FOR EXAMPLE, RES. EXH. 13) /5/
J) AS OF THE DATE OF THE HEARING, NO DISCIPLINARY ACTION HAD BEEN
TAKEN AGAINST MR. GOFF.
CONCLUSIONS
ALTHOUGH RESPONDENT'S PERFORMANCE EVALUATION OF REVENUE OFFICERS, AND
IN PARTICULAR THE 100 PERCENT CASE REVIEW, IS HIGHLY DETAILED, THERE IS
NO DISPUTE THAT THE AUGUST 14-15 REVIEW OF MR. GOFF'S PERFORMANCE WAS A
PERFORMANCE EVALUATION. CF. NATIONAL LABOR RELATIONS BOARD, REGION 17,
AND NATIONAL LABOR RELATIONS BOARD, A/SLMR NO. 295, 3 A/SLMR 427 (1973);
A/SLMR NO. 664, 6 A/SLMR 287 (1976); A/SLMR NO. 670, 6 A/SLMR 325
(1976); A/SLMR NO. 671, 6 A/SLMR 333, 6 A/SLMR SUPP. 102 (1976). BOTH
GENERAL COUNSEL AND RESPONDENT AGREE THAT THE SOLE ISSUES IN DISPUTE ARE
WHETHER: A) RESPONDENT'S PERFORMANCE EVALUATION OF REVENUE OFFICER GOFF
WAS AN "EXAMINATION...IN CONNECTION WITH AN INVESTIGATION...;" AND B)
WHETHER MR. GOFF REASONABLY BELIEVED "THAT THE EXAMINATION MAY RESULT IN
DISCIPLINARY ACTION..." WITHIN THE MEANING OF SEC. 14(A)(2)(B) OF THE
STATUTE. INDEED, IT IS FAIR TO STATE THAT THE CONTROLLING ISSUE IS
WHETHER A PERFORMANCE EVALUATION IS AN "EXAMINATION...IN CONNECTION WITH
AN INVESTIGATION" WITHIN THE MEANING OF SEC. 14(A)(2)(B). WHILE SEC.
14(A)(2)(B)(I) FURTHER PROVIDES THAT THE EMPLOYEE MUST REASONABLY
BELIEVE "THAT THE EXAMINATION MAY RESULT IN DISCIPLINARY ACTION AGAINST
THE EMPLOYEE," IF A PERFORMANCE EVALUATION IS AN EXAMINATION IN
CONNECTION WITH AN INVESTIGATION IT WOULD BE DIFFICULT TO MAKE A LOGICAL
DISTINCTION BETWEEN THE FEAR OF DISCIPLINARY ACTION AS THE RESULT OF AN
EMPLOYEE'S PERFORMANCE EVALUATION AND THE FEAR OF DISCIPLINARY ACTION AS
THE RESULT OF ANY OTHER INVESTIGATION, NOTWITHSTANDING THAT I HAVE FOUND
THAT NEITHER THE PERFORMANCE EVALUATION NOR THE SUBSEQUENT CRITICAL
ELEMENTS LETTER CONSTITUTED DISCIPLINE, INASMUCH AS THE RECORD SHOWS,
AND RESPONDENT CONCEDES, THAT DISCIPLINE, INCLUDING REMOVAL FROM THE
SERVICE, COULD EVENTUALLY RESULT FROM UNACCEPTABLE PERFORMANCE.
WITH FULL RECOGNITION THAT THIS CASE INVOLVES RESPONDENT'S
PERFORMANCE EVALUATION OF A REVENUE OFFICER, IF UNION REPRESENTATION
WERE REQUIRED AT MR. GOFF'S PERFORMANCE EVALUATION, UNION REPRESENTATION
WOULD BE REQUIRED AT EVERY PERFORMANCE EVALUATION, WHEN REQUESTED, IF
THE EMPLOYEE REASONABLY BELIEVED THAT HIS, OR HER, PERFORMANCE
EVALUATION MIGHT BE UNSATISFACTORY. FOR REASONS MORE FULLY SET FORTH
HEREINAFTER, I CONCLUDE THAT A REGULAR PERFORMANCE EVALUATION IS NOT AN
EXAMINATION IN CONNECTION WITH AN INVESTIGATION WITHIN THE MEANING OF
SEC. 14(A)(2)(B) OF THE STATUTE AND, ACCORDINGLY, THAT RESPONDENT DID
NOT VIOLATE SEC. 16(A)(1) OR (8) OF THE STATUTE BY DENYING MR. GOFF'S
REQUEST FOR REPRESENTATION.
AS THE RESULT OF THE LEGISLATIVE PROCESS, THE LANGUAGE OF SEC. 14
(A)(2), AS ENACTED, DIFFERED FROM INITIAL PROPOSED LANGUAGE.
UNDERSTANDABLY, SOME REFERENCES IN THE LEGISLATIVE HISTORY /6/ RELIED
UPON BY THE PARTIES, BECAUSE THE SPECIFIC COMMENT CONCERNED LANGUAGE
PROPOSED BUT NOT ENACTED PRECISELY IN THE FORM PROPOSED, MUST BE
CONSIDERED IN CONTEXT. THE MIRANDA TYPE PROTECTION, ELEMENTS OF WHICH
WERE ENACTED IN SEC.14(A)(2) AND (3), ORIGINATED IN THE 95TH CONGRESS,
2ND/SESSION, IN H.R. 3793, INTRODUCED BY CONGRESSWOMAN SPELLMAN ON
FEBRUARY 29, 1977 (LEGISLATIVE HISTORY, P. 229). INDEED, AS STATED IN
MINORITY VIEWS, H. REP. 95-920, MARCH 3, 1978, H.R. 3793 WAS "VIRTUALLY
IDENTICAL TO H.R. 6227 OF THE 94TH CONGRESS." (LEGISLATIVE HISTORY; P.
657). THE STATED PURPOSE OF H.R. 3793 WAS "TO AMEND TITLE 5, UNITED
STATES CODE, TO PROVIDE FEDERAL EMPLOYEES UNDER INVESTIGATION FOR
MISCONDUCT THE RIGHT TO REPRESENTATION DURING QUESTIONING REGARDING SUCH
MISCONDUCT." (LEGISLATIVE HISTORY, P. 229). SEC. 7171 OF H.R. 3793
PROVIDED, IN PART, AS FOLLOWS:
"SEC. 7171. RIGHT TO REPRESENTATION DURING QUESTIONING
"(A) ANY EMPLOYEE OF AN EXECUTIVE AGENCY UNDER INVESTIGATION FOR
MISCONDUCT WHICH COULD
LEAD TO SUSPENSION, REMOVAL, OR REDUCTION IN RANK OR PAY OF SUCH
EMPLOYEE SHALL NOT BE
REQUIRED TO ANSWER QUESTIONS RELATING TO THE MISCONDUCT UNDER
INVESTIGATION UNLESS--
"(1) THE EMPLOYEE IS ADVISED IN WRITING OF--
"(A) THE FACT THAT SUCH EMPLOYEE IS UNDER INVESTIGATION FOR
MISCONDUCT,
"(B) THE SPECIFIC NATURE OF SUCH ALLEGED MISCONDUCT, AND
"(C) THE RIGHTS SUCH EMPLOYEE HAS UNDER PARAGRAPH (2) OF THIS
SUBSECTION, AND
"(2) THE EMPLOYEE HAS BEEN PROVIDED REASONABLE TIME, NOT TO EXCEED 5
WORKING DAYS, TO
OBTAIN A REPRESENTATIVE OF HIS CHOICE, AND IS ALLOWED TO HAVE SUCH
REPRESENTATIVE PRESENT
DURING SUCH QUESTIONING, IF HE SO ELECTS.
"(C) ANY STATEMENT MADE OR EVIDENCE OBTAINED DURING QUESTIONING OF AN
EMPLOYEE...MAY NOT BE
USED AS EVIDENCE IN THE COURSE OF ANY ACTION FOR SUSPENSION, REMOVAL,
OR REDUCTION IN RANK OR
PAY SUBSEQUENTLY TAKEN AGAINST THE EMPLOYEE, UNLESS THE REQUIREMENTS
OF PARAGRAPHS (1) AND (2)
OF SUBSECTION (A) OF THIS SECTION WERE COMPLIED WITH DURING SUCH
QUESTIONING." (LEGISLATIVE
HISTORY, PP. 230-231). THE REPORT ON H.R. 3793, NO. 95-920, MARCH 3,
1978 (LEGISLATIVE HISTORY, P. 643 ET SEQ.) STATED, IN PART, THAT
"H.R. 3793 EXTENDS TO FEDERAL EMPLOYEES THE SAME PROTECTION ALREADY
AVAILABLE TO EMPLOYEES
IN THE PRIVATE SECTOR UNDER THE NATIONAL LABOR RELATIONS ACT."
(LEGISLATIVE HISTORY, P. 644),
CITING, NATIONAL LABOR RELATIONS BOARD V. WEINGARTEN, 420 U.S. 251
(1975) /7/
H.R. 9094, 95TH CONG. 1ST SESS., INTRODUCED ON SEPTEMBER 14, 1977, BY
REPRESENTATIVE CLAY, FOR HIMSELF AND FOR REPRESENTATIVE FORD,
CONSTITUTED A PROPOSED "FEDERAL SERVICE LABOR-MANAGEMENT ACT OF 1977."
SECTION 7113 OF H.R. 9094 PROVIDED, IN PART, AS FOLLOWS:
SEC. 7113. REPRESENTATIVES RIGHTS AND DUTIES.
"...THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO BE
REPRESENTED AT DISCUSSIONS
BETWEEN MANAGEMENT AND EMPLOYEES OR REPRESENTATIVES CONCERNING
GRIEVANCES, PERSONNEL POLICIES
AND PRACTICES, DISCUSSIONS BETWEEN AN EMPLOYEE AND A REPRESENTATIVE
OF AN AGENCY WHERE THE
EMPLOYEE REASONABLY BELIEVES HE MAY BE THE SUBJECT OF DISCIPLINARY OR
ADVERSE ACTION, OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS..." (LEGISLATIVE
HISTORY, PP. 260-261).
H.R. 11280, THE ADMINISTRATION'S CIVIL SERVICE REFORM BILL, WAS
INTRODUCED ON MARCH 3, 1978, AND, AS INTRODUCED, DID NOT INCLUDE A TITLE
VII ON LABOR-MANAGEMENT RELATIONS. THE CLAY-FORD-SOLARZ DRAFT OF TITLE
VII (LEGISLATIVE HISTORY, P. 211 ET SEQ.) AND H.R. 11280 AS REPORTED ON
JULY 31, 1978 WITH AMENDMENTS, WHICH INCLUDED INCORPORATION OF TITLE
VII, IN SEC. 7114(A) PROVIDED, IN PART, AS FOLLOWS:
"SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
"(A)...AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN
AGENCY SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
(2) ANY DISCUSSION BETWEEN AN EMPLOYEE IN THE UNIT AND A
REPRESENTATIVE OF THE AGENCY IF
THE EMPLOYEE REASONABLY BELIEVES THAT THE EMPLOYEE MAY BE THE SUBJECT
OF DISCIPLINARY
ACTION." (LEGISLATIVE HISTORY DRAFT OF TITLE VII, P. 336; H.R.
11280 AS REPORTED, P. 402). ON SEPTEMBER 13, 1978, CONGRESSMAN COLLINS
OFFERED AN AMENDMENT WHICH WOULD HAVE SUBSTITUTED A DIFFERENT TITLE VII
(LEGISLATIVE HISTORY P. 894 ET SEQ.) TO WHICH CONGRESSMAN UDALL OFFERED
AN AMENDMENT AS A SUBSTITUTE FOR THE COLLINS AMENDMENT (LEGISLATIVE
HISTORY, P. 907, ET SEQ.). SECTION 7114 OF THE UDALL SUBSTITUTE WAS
ADOPTED AS SECTION 7114 OF H.R. 11280 AS PASSED BY THE HOUSE ON
SEPTEMBER 13, 1978, AND PROVIDED, IN PART, AS FOLLOWS:
"SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
"(A)...
"(2) BEFORE ANY REPRESENTATIVE OF AN AGENCY COMMENCES ANY
INVESTIGATORY INTERVIEW OF AN
EMPLOYEE IN A UNIT CONCERNING MISCONDUCT WHICH COULD REASONABLY LEAD
TO SUSPENSION, REDUCTION
IN GRADE OR PAY, OR REMOVAL, THE EMPLOYEE SHALL BE INFORMED OF THAT
EMPLOYEE'S RIGHT UNDER
PARAGRAPH (3)(B) OF THIS SUBSECTION TO BE REPRESENTED BY AN EXCLUSIVE
REPRESENTATIVE.
"(3) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
"(B) ANY INVESTIGATORY INTERVIEW OF AN EMPLOYEE IN THE UNIT BY A
REPRESENTATIVE OF THE
AGENCY IF--
"(I) THE EMPLOYEE REASONABLY BELIEVES THAT SUCH INTERVIEW MAY RESULT
IN DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEE; AND
"(II) THE EMPLOYEE REQUESTS SUCH REPRESENTATION." (LEGISLATIVE
HISTORY: UDALL SUBSTITUTE,
P. 914; H.R. 11280 AS PASSED, P. 973)
CONGRESSMAN UDALL SUBMITTED A SECTIONAL ANALYSIS OF HIS TITLE VII
SUBSTITUTE (LEGISLATIVE HISTORY, P. 923, ET SEQ.) WHICH, AS PERTAINS TO
SECTION 7114, STATED, IN PART, AS FOLLOWS:
"THE RIGHT OF AN EMPLOYEE TO REQUEST REPRESENTATION BY THE EXCLUSIVE
REPRESENTATIVE AND THE
RIGHT OF AN EXCLUSIVE REPRESENTATIVE TO BE PRESENT AT CERTAIN TYPES
OF MANAGEMENT-EMPLOYEE
MEETINGS ARE SET FORTH IN SUBSECTION (A)(2) AND (A)(3) OF THE
SUBSTITUTE. SUBSECTION (A)(2)
PROVIDES THAT BEFORE ANY REPRESENTATIVE OF AN AGENCY COMMENCES ANY
INVESTIGATORY INTERVIEW OF
AN EMPLOYEE IN A BARGAINING UNIT, WHERE THE INTERVIEW CONCERTS
MISCONDUCT WHICH COULD
REASONABLY LEAD TO SUSPENSION, REDUCTION IN GRADE OR PAY, OR REMOVAL,
THE EMPLOYEE MUST BE
INFORMED OF HIS OR HER RIGHT TO BE REPRESENTED BY THE EXCLUSIVE
REPRESENTATIVE. SUBSECTION
(A)(3) PROVIDES THAT AN EXCLUSIVE REPRESENTATIVE HAS THE RIGHT TO BE
GIVEN THE OPPORTUNITY TO
BE REPRESENTED AT: ...(2) ANY INVESTIGATORY INTERVIEW OF AN EMPLOYEE
IN THE UNIT BY A
REPRESENTATION OF AN AGENCY IF THE EMPLOYEE REASONABLY BELIEVES THAT
SUCH INTERVIEW MAY RESULT
IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE, AND THE EMPLOYEE
REQUESTS SUCH REPRESENTATION.
"THE SUBSTITUTE'S PROVISIONS CONCERNING INVESTIGATORY INTERVIEWS
REFLECT THE U.S. SUPREME
COURT'S HOLDING IN NATIONAL LABOR RELATIONS BOARD V. J. WEINGARTEN,
INC., 420 U.S. 251
(1975)...
"THE WEINGARTEN RIGHT, OF COURSE, IS TIED TO THE NATIONAL LABOR
RELATIONS ACT'S 'GUARANTEE
OF THE RIGHT OF EMPLOYEES TO ACT AS IN CONCERT FOR MUTUAL AID AND
PROTECTION.' OTHER THAN
THIS DIFFERENCE IN DERIVATION, THE SUBSTITUTE'S PROVISIONS DIFFER
FROM WEINGARTEN ONLY IN
PROVIDING THAT THE EMPLOYEE MUST BE INFORMED OF THE RIGHT OF
REPRESENTATION PRIOR TO THE
COMMENCEMENT OF ANY INVESTIGATORY INTERVIEW CONCERNING MISCONDUCT
WHICH COULD REASONABLY LEAD
TO SUSPENSION, REDUCTION IN GRADE OR PAY, OR REMOVAL." (LEGISLATIVE
HISTORY, P. 926). H. REPORT 95-1403, JULY 31, 1978, LEGISLATIVE HISTORY
P. 675 ET SEQ., WITH RESPECT TO SEC. 7114, WHILE REFERRING TO THE
LANGUAGE OF H.R. 11280 AS REPORTED AND NOT SPECIFICALLY TO THE LANGUAGE
OF THE UDALL SUBSTITUTE AS PASSED, NOTED, IN PART, AS FOLLOWS:
"...IT (LABOR ORGANIZATION) HAS THE RIGHT TO BE GIVEN THE OPPORTUNITY
TO BE REPRESENTED
AT: ...(2) ANY DISCUSSION BETWEEN AN EMPLOYEE AND AN AGENCY
REPRESENTATIVE IF THE EMPLOYEE
REASONABLY BELIEVES HE MAY BE THE SUBJECT OF A DISCIPLINARY ACTION
(WHEN AN EMPLOYEE IS
INTERVIEWED BY A SUPERVISOR CONCERNING ALLEGED ABUSE OF LEAVE OR
INTERROGATED BY THE AGENCY'S
INTERNAL SECURITY DIVISION CONCERNING ALLEGED IRREGULARITIES IN A
TRAVEL VOUCHER)
. . . " (LEGISLATIVE HISTORY, P. 694).
S. 2640 CONTAINED NO COMPARABLE PROVISION (SEE, AMENDMENT NO. 2084 TO
S. 2640, SEC. 7169, (LEGISLATIVE HISTORY, PP. 464-465; S. 2640 AS
REPORTED, 7/10/78, SEC. 7215, LEGISLATIVE HISTORY, P. 520; S. 2650, AS
PASSED, 8/24/78, SEC. 7215, LEGISLATIVE HISTORY, P. 577).
IN CONFERENCE, THE FOLLOWING LANGUAGE WAS AGREED TO AND WAS
SUBSEQUENTLY ENACTED AS SEC. 14(A)(2) AND (3) OF THE STATUTE:
SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
"(A)...
(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
"(B) 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 THAT THE EXAMINATION MAY RESULT
IN DISCIPLINARY
ACTION AGAINST THE EMPLOYEE; AND
"(II) THE EMPLOYEE REQUESTS REPRESENTATION.
(3) EACH AGENCY SHALL ANNUALLY INFORM ITS EMPLOYEES OF THEIR RIGHTS
UNDER PARAGRAPH (2)(B)
OF THIS SUBSECTION..."(P.L. 95-454, 92 STAT. 1202, LEGISLATIVE
HISTORY, P. 92; 5
U.S.C. 7114(A)(2) AND (3)). THE CONFERENCE REPORT, NO. 95-1717,
OCTOBER 5, 1978 (LEGISLATIVE HISTORY P. 793, ET SEQ.), WITH RESPECT TO
SECTION 7114(A)(2) AND (3) STATED AS FOLLOWS:
"HOUSE SECTION 7114(A)(2) AND (3) GIVE A LABOR ORGANIZATION...THE
RIGHT TO BE PRESENT AT
THE EMPLOYEE'S REQUEST AT ANY INVESTIGATORY INTERVIEW OF AN EMPLOYEE
BY AN AGENCY IF THE
EMPLOYEE REASONABLY BELIEVES THAT THE INTERVIEW MAY RESULT IN
DISCIPLINARY ACTION AGAINST THE
EMPLOYEE. IN ADDITION, THE HOUSE BILL REQUIRES THE AGENCY TO INFORM
THE EMPLOYEE OF HIS RIGHT
OF REPRESENTATION AT ANY INVESTIGATORY INTERVIEW OF AN EMPLOYEE
CONCERNING 'MISCONDUCT' WHICH
'COULD REASONABLY LEAD' TO SUSPENSION, REDUCTION IN GRADE OR PAY, OR
REMOVAL. THE SENATE BILL
CONTAINS NO COMPARABLE PROVISION.
"THE CONFEREES AGREED TO ADOPT THE WORDING IN THE HOUSE BILL WITH AN
AMENDMENT DELETING THE
HOUSE PROVISION REQUIRING THE AGENCY TO INFORM EMPLOYEES BEFORE
CERTAIN INVESTIGATORY
INTERVIEWS OF THE RIGHT TO REPRESENTATION, AND SUBSTITUTING A
REQUIREMENT THAT EACH AGENCY
INFORM ITS EMPLOYEES ANNUALLY OF THE RIGHT TO REPRESENTATION. THE
CONFEREES FURTHER AMENDED
THE PROVISION SO AS TO GIVE THE LABOR REPRESENTATIVE THE RIGHT TO BE
PRESENT AT ANY
EXAMINATION OF AN EMPLOYEE BY A REPRESENTATIVE OF THE AGENCY IN
CONNECTION WITH AN
INVESTIGATION IF THE EMPLOYEE REASONABLY BELIEVES THAT THE
EXAMINATION MAY RESULT IN
DISCIPLINARY ACTION AGAINST THE EMPLOYEE. THE CONFEREES RECOGNIZE
THAT THE RIGHT TO
REPRESENTATION IN EXAMINATIONS MAY EVOLVE DIFFERENTLY IN THE PRIVATE
AND FEDERAL SECTORS, AND
SPECIFICALLY INTEND THAT FUTURE COURT DECISIONS INTERPRETING THE
RIGHT IN THE PRIVATE SECTOR
WILL NOT NECESSARILY BE DETERMINATIVE FOR THE FEDERAL SECTOR."
(LEGISLATIVE HISTORY, PP. 823-824) THE FOREGOING STATEMENT IN THE
CONFERENCE REPORT CONSTITUTES THE ONLY DISCUSSION OR COMMENT CONCERNING
THE INTENT AND PURPOSE OF THE CHANGES AGREED TO BY THE CONFEREES,
WHEREBY THE WORDING OF THE HOUSE BILL, WITH REGARD TO SECTION 7114(A),
WAS MODIFIED TO THE WORDING OF SECTION 7114(A) AS ENACTED, PRIOR TO
ENACTMENT OF P.L. 95-454, ALTHOUGH CONGRESSMAN FORD ON OCTOBER 14, 1978,
AFTER THE PRESIDENT, ON OCTOBER 13, 1978, HAD SIGNED THE LEGISLATION,
MADE A LENGTHY STATEMENT CONCERNING TITLE VII INCLUDING, IN PARTICULAR,
SECTION 7114. /8/
GENERAL COUNSEL PLACES GREAT EMPHASIS ON THE FACT THAT "THE TERM
'EXAMINATION' WAS USED INSTEAD OF THE WORD 'INVESTIGATORY INTERVIEW'
BECAUSE THE FORMER TERM WAS 'A MUCH BROADER TERM THAN (SIC) WILL
ENCOMPASS MORE SITUATIONS.'" (G.C. BRIEF P. 6). /9/ WHILE IT IS VERY
CORRECT, AS STATED IN THE CONFERENCE REPORT, THAT PARAGRAPH (3) (B) OF
SECTION 7114(A) OF H.R. 11280 WAS AMENDED TO GIVE THE LABOR
REPRESENTATIVE THE RIGHT TO BE PRESENT AT "ANY EXAMINATION" RATHER THAN
AT "ANY INVESTIGATORY INTERVIEW;" AND THAT THE NOTICE "BEFORE..AN AGENCY
COMMENCES ANY INVESTIGATIVE INTERVIEW...CONCERNING MISCONDUCT" OF
PARAGRAPH (2) OF SECTION 7114(A) OF H.R. 11280 WAS DELETED AND THAT THE
CONFEREES SUBSTITUTED THEREFORE "A REQUIREMENT THAT EACH AGENCY INFORM
ITS EMPLOYEES ANNUALLY OF THE RIGHT TO REPRESENTATION" (SEC. (A)(3) OF
THE STATUTE), WHICH MEANS THAT ANNUALLY EACH AGENCY SHALL INFORM THEIR
EMPLOYEES OF THEIR RIGHT TO HAVE A UNION REPRESENTATIVE PRESENT AT "ANY
EXAMINATION...IN CONNECTION WITH AN INVESTIGATION" IF THE EMPLOYEE
REASONABLY BELIEVES THE EXAMINATION MAY RESULT IN DISCIPLINARY ACTION
AGAINST THE EMPLOYEE AND ITS EMPLOYEE REQUESTS REPRESENTATION, SUCH
CHANGES ARE PERIPERAL TO THE ISSUE IN THIS CASE.
THE CONTROLLING, AND LIMITING, THRESHOLD CONSIDERATIONS ARE THAT: A)
THERE BE AN "INVESTIGATION;" AND B) THERE BE AN "EXAMINATION OF ANY
EMPLOYEE..BY...THE AGENCY IN CONNECTION WITH AN INVESTIGATION..." THERE
IS NO QUESTION THAT REPRESENTATION "IN CONNECTION WITH AN INVESTIGATION"
WAS INTENDED TO REFLECT THE RIGHT TO REPRESENTATION AT INVESTIGATIVE
INTERVIEWS UPHELD BY THE SUPREME COURT IN WEINGARTEN. THE WORDS
"INVESTIGATORY," AS USED IN H.R. 11280 AS PASSED (UDALL SUBSTITUTE), AND
"INVESTIGATION," AS ENACTED, ARE MERELY DIFFERENT GRAMMATICAL FORMS, OR
PARTS OF SPEECH, WITH A COMMON MEANING. "INVESTIGATE" IS, OF COURSE A
VERB AND IS THE ACT; "INVESTIGATOR" IS A NOUN AND MEANS ONE WHO
INVESTIGATES; "INVESTIGATION" IS A NOUN AND MEANS THE PROCEDURE OR
PROCESS; AND "INVESTIGATORY" IS AN ADJECTIVE MEANING BY NATURE OF AN
INVESTIGATION, FOR EXAMPLE, AS USED IN THE UDALL SUBSTITUTE,
"INVESTIGATORY INTERVIEW." NOR, OF COURSE, IS THERE ANYTHING CONTAINED
IN THE LEGISLATIVE HISTORY WHICH REFLECTS THE SLIGHTEST INTENTION TO
DIFFERENTIATE BETWEEN THE TERM "INVESTIGATORY" AND "INVESTIGATION."
INDEED, IT PLAINLY APPEARS FROM H. REPORT 95-1403 THAT EVEN IN THE
ABSENCE OF EITHER THE TERM "INVESTIGATORY INTERVIEW" OR THE TERM
"INVESTIGATION," IT WAS INTENDED NEVERTHELESS, THAT PRESENCE OF THE
LABOR ORGANIZATION AT "ANY DISCUSSION...IF THE EMPLOYEE REASONABLY
BELIEVES HE MAY BE THE SUBJECT OF A DISCIPLINARY ACTION," MEANT AN
INVESTIGATION AS THE REPORT STATED BY WAY OF EXAMPLE "(WHEN AN EMPLOYEE
IS INTERVIEWED BY A SUPERVISOR CONCERNING ALLEGED ABUSE OF LEAVE OR
INTERROGATED BY THE AGENCY'S INTERNAL SECURITY DIVISION CONCERNING
ALLEGED IRREGULARITIES IN A TRAVEL VOUCHER)" (H.R. REPORT 95-1403,
SUPRA).
CONGRESSMAN CLAY, DISCUSSING SECTION 7114 OF THE UDALL SUBSTITUTE,
STATED, IN PART, AS FOLLOWS:
"...SECTION 7114(A)(3)(A) /10/ SPECIFICALLY GIVES THE EXCLUSIVE
REPRESENTATIVE THE
OPPORTUNITY TO APPEAR AT 'FORMAL DISCUSSIONS' BETWEEN AGENCY
REPRESENTATIVES AND
EMPLOYEES. IN THE UDALL SUBSTITUTE THE WORD 'FORMAL' WAS INSERTED
BEFORE 'DISCUSSIONS' IN
ORDER TO MAKE CLEAR THE INTENTION THAT THIS SUBSECTION DOES NOT
REQUIRE THAT AN EXCLUSIVE
REPRESENTATIVE BE PRESENT DURING HIGHLY PERSONAL, INFORMAL MEETINGS
SUCH AS COUNSELING
SESSIONS-- UNLESS COVERED BY SUBSECTION 7114(A)(3)(B)..."
(LEGISLATIVE HISTORY, P. 933). SEC. 14(A)(2)(A) OF THE STATUTE RETAINS
THE SAME LANGUAGE, I.E., "ANY FORMAL DISCUSSION," SO THAT, AS
CONGRESSMAN CLAY STATED, AN EXCLUSIVE REPRESENTATIVE WAS NOT INTENDED,
PURSUANT TO PARAGRAPH (2)(A), TO BE PRESENT (UNLESS GREATER RIGHTS WERE
NEGOTIATED) AT "HIGHLY PERSONAL, INFORMAL MEETINGS SUCH AS COUNSELING
SESSIONS," UNLESS COVERED BY PARAGRAPH (2)(B) (IN THE UDALL SUBSTITUTE,
AND H.R. 11280 AS PASSED BY THE HOUSE, PARAGRAPH (3)(B)). OBVIOUSLY,
CONGRESSMAN CLAY'S STATEMENT DOES NOT INDICATE WHEN, OR EVEN IF,
INFORMAL COUNSELING BECOMES AN "INVESTIGATORY INTERVIEW;" BUT IT IS
APPARENT THAT HE RECOGNIZED THAT THERE WAS INFORMAL COUNSELING WHICH WAS
NOT INVESTIGATORY IN NATURE AND, THEREFORE, NOT COVERED BY PARAGRAPH
(3)(B) OF THE UDALL SUBSTITUTE, AS WELL AS INFORMAL MEETINGS WHICH COULD
BE COVERED BY PARAGRAPH (3)(B).
WITH FULL RECOGNITION THAT THE CONFEREES DELETED THE 7114(A)(2)
NOTICE PROVISION OF THE HOUSE PASSED H.R. 11280 WHICH WAS LIMITED TO
"INVESTIGATORY INTERVIEW...CONCERNING MISCONDUCT," THAT SEC. 14(A)(2)
CONTAINS NO COMPARABLE LANGUAGE LIMITING ITS APPLICATION TO
"MISCONDUCT," AND EVEN ACCEPTING CONGRESSMAN FORD'S POST ENACTMENT
STATEMENT THAT THE CONFEREES REJECTED AN ATTEMPT TO LIMIT SEC. 14(A)(3)
TO MISCONDUCT CASES WITH THE INTENTION THAT THE SEC. 14(A)(3) RIGHT
"APPLY IN BOTH MISCONDUCT AND NONPERFORMANCE CASES," IT NEVERTHELESS
SEEMS CLEAR THAT: A) "...THE LANGUAGE ULTIMATELY SELECTED...CLOSELY
TACKS WEINGARTEN." INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND
INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE, 1-CA-77 (ALJ MARCH
13, 1980). THAT IS, THE SUPREME COURT UPHELD THE NATIONAL LABOR
RELATIONS BOARD'S INTERPRETATION THAT UNDER THE NLRA AN EMPLOYEE HAD THE
RIGHT TO UNION REPRESENTATION AT "...AN INVESTIGATIVE INTERVIEW WHICH HE
REASONABLY BELIEVES MAY RESULT IN THE IMPOSITION OF DISCIPLINE..." (95
S. CT. 959, 966) AND SEC. 14(A)(2) PROVIDES THAT "AN EXCLUSIVE
REPRESENTATIVE...SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT--
...(B) ANY EXAMINATION OF AN EMPLOYEE...IN CONNECTION WITH AN
INVESTIGATION IF...THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION
MAY RESULT IN DISCIPLINARY ACTION..."
B) THAT SEC. 14(A)(2)(B) IS LIMITED TO EXAMINATION OF AN EMPLOYEE IN
CONNECTION WITH AN INVESTIGATION.
C) THAT SEC. 14(A)(2)(B) IS FURTHER LIMITED BY THE REQUIREMENT THAT
THE EMPLOYEE REASONABLY BELIEVE THAT THE EXAMINATION MAY RESULT IN
DISCIPLINARY ACTION AGAINST THE EMPLOYEE; AND, FINALLY, THAT THE
EMPLOYEE MUST REQUEST REPRESENTATION.
THERE IS NO DISPUTE THAT MR. GOFF REQUESTED REPRESENTATION; BUT THE
RECORD STRONGLY AND AFFIRMATIVELY SHOWS THAT THE PERFORMANCE EVALUATION
OF AUGUST 14-15, 1979, WAS NOT: 1) AN EXAMINATION; 2) WAS NOT AN
INVESTIGATION; AND 3) THAT THE RISK OF DISCIPLINE DID NOT REASONABLY
INHERE. /11/
REGULAR PERFORMANCE EVALUATIONS, INCLUDING RESPONDENT'S REQUIRED 100%
REVIEW OF REVENUE OFFICERS' WORK, ARE NOT INVESTIGATIONS OF EITHER
"MISCONDUCT" OR "NONPERFORMANCE" CASES. RATHER, A PERFORMANCE
EVALUATION IS INTENDED TO EVALUATE AN EMPLOYEE'S JOB PERFORMANCE IN
RELATION TO ESTABLISHED PERFORMANCE STANDARDS. AS FOUND HEREINABOVE,
FROM THE TESTIMONY OF MESSRS. ZIELINSKI AND MEEHAN, THE REGULATIONS AND
FROM THE TESTIMONY OF MR. INGERSOLL AND MR. GOFF HIMSELF, IT IS CLEAR
THAT THE EVALUATION DID NOT CONSTITUTE DISCIPLINE. NOR, DID MR.
ZIELINSKI'S STATEMENT TO MR. GOFF THAT HE INTENDED TO ISSUE A CRITICAL
ELEMENTS LETTER CONVERT THE EVALUATION INTO A DISCIPLINARY PROCEEDING
SINCE, AS FURTHER FOUND, A CRITICAL ELEMENTS LETTER DOES NOT CONSTITUTE
DISCIPLINE. A CRITICAL ELEMENTS LETTER IDENTIFIES SERIOUS WORK
PERFORMANCE DEFICIENCIES AND DOES ADVISE THE EMPLOYEE WHAT IS EXPECTED
TO IMPROVE PERFORMANCE TO AN ACCEPTABLE LEVEL WITHIN A SPECIFIED PERIOD
OF TIME, AT THE END OF WHICH THERE WILL BE A FURTHER EVALUATION OF THE
EMPLOYEE'S PERFORMANCE ON THESE IDENTIFIED ELEMENTS (SEE, G.C. EXH. 9),
WITHOUT DOUBT, CONTINUED UNACCEPTABLE PERFORMANCE MAY VERY WELL RESULT
IN ADVERSE ACTION (SEE, E.G. RES. EXH 13); BUT THE REGULAR, PERIODIC
EVALUATION OF MR. GOFF ON AUGUST 14-15, 1979, WAS NOT DISCIPLINARY IN
NATURE AND INVOLVED NO ADVERSE ACTION.
NOR WAS THERE "ANY EXAMINATION" OF MR. GOFF BY MR. ZIELINSKI ON
AUGUST 14-15, 1979, WITHIN THE MEANING OF SEC. 14(A)(2)(B). THE WRITTEN
ANALYSIS IS REQUIRED BY RESPONDENT'S REGULATIONS TO BE PREPARED BY THE
GROUP MANAGER (RES. EXHS. 1, 2, 4, 5) AND MR. ZIELINSKI GAVE MR. GOFF A
COPY OF FORMS 5188 AND 5188-A (RES. EXH. 8) AT THE OUTSET OF THE MEETING
ON AUGUST 14, 1979. MR. GOFF TESTIFIED, AS NOTED ABOVE, THAT THE REVIEW
CONDUCTED BY THE GROUP MANAGER CONSISTS OF A DISCUSSION OF THE GROUP
MANAGER'S WRITTEN COMMENTS AND THAT ON ABOUT HALF OF HIS 100 PERCENT
REVIEWS, CHANGES HAD BEEN MADE FOLLOWING THE DISCUSSION. THIS DOES NOT
CONSTITUTE AN "EXAMINATION" OF AN EMPLOYEE WITHIN THE MEANING OF SEC.
14(A)(2)(B) OF THE STATUTE; NOR WAS THERE ANY BASIS FOR A REASONABLE
BELIEF THAT DISCIPLINARY ACTION MIGHT RESULT FROM THE REVIEW CONDUCTED
BY THE GROUP MANAGER. AS RESPONDENT'S MANUAL STATES, THE OBJECTIVES OF
THE ANALYSIS ARE, INTER ALIA, TO ASCERTAIN THAT CURRENT PROCEDURES AND
POLICIES ARE BEING FOLLOWED; TO HELP THE REVENUE OFFICER DEVELOP BETTER
COLLECTION TECHNIQUES; TO PROVIDE GUIDANCE, ASSISTANCE AND
CONSULTATION; AND TO INSURE THAT EACH REVENUE OFFICER IS ASSIGNED WORK
AT THE APPROPRIATE GRADE LEVEL (1 R MANUAL SEC. 5185.1(4), RES. EXH. 1).
THAT EVALUATIONS OF PERFORMANCE ARE NOT DISCIPLINARY OR
INVESTIGATIONS WITHIN THE MEANING OF 214(A)(2)(B) IS BORNE OUT BY THE
PROVISIONS OF ARTICLE 9 OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
(JR. EXH. 2). INDEED, AS MR. INGERSOLL TESTIFIED, ARTICLE 9, SECTION D
2 PROVIDED THAT,
"2. THE EMPLOYEE MAY MAKE WRITTEN COMMENTS CONCERNING ANY
DISAGREEMENT WITH THE
EVALUATION..." (JT. EXH. 2, P. 29) RECOGNIZING, AS CONGRESSMAN CLAY
STATED,
"...NOTHING IN THIS SECTION PROHIBITS AN AGENCY FROM NEGOTIATING
GREATER RIGHTS FOR
EXCLUSIVE REPRESENTATIVES..." (LEGISLATIVE HISTORY, P. 933), THE
AGREEMENT OF THE PARTIES DOES NOT PROVIDE FOR REPRESENTATION OF
EMPLOYEES AT PERFORMANCE EVALUATIONS. SEE, NATIONAL TREASURY EMPLOYEES
UNION, CASE NO. O-NG-56, 3 FLRA NO. 119 (JULY 31, 1980).
THE NARRATIVE STATEMENT, GIVEN TO MR. GOFF ON AUGUST 14, 1979, DID
STATE THAT "...YOUR PERFORMANCE HAS BEEN UNACCEPTABLE FOR THE CRITICAL
ELEMENTS OF YOUR POSITION. YOU CAN EXPECT A LETTER NOTIFYING YOU OF THE
ACTIONS THAT WILL RESULT FROM YOUR PERFORMANCE" AND MR. ZIELINSKI TOLD
MR. GOFF HE WOULD BE RECEIVING A CRITICAL ELEMENTS LETTER WHICH WAS, OF
COURSE, ISSUED ON AUGUST 27, 1979. A CRITICAL ELEMENTS LETTER IS NOT A
DISCIPLINARY ACTION OR AN ADVERSE ACTION AS DEFINED BY ARTICLES 33 AND
34 OF THE PARTIES' AGREEMENT (JT. EXH. 2, ARTICLES 33 AND 34, PP.
79-86). I AM FULLY AWARE THAT EVENTUALLY DISCIPLINE, INCLUDING
SEPARATION, MAY RESULT FROM DEFICIENT WORK PERFORMANCE (SEE, 1 R MANUAL
0751, DISCIPLINE, JT. EXH. 3); NEVERTHELESS, THE EVALUATION OF AUGUST
14-15, 1979, WAS NOT AN EXAMINATION IN CONNECTION WITH AN INVESTIGATION
OF MR. GOFF WITHIN THE MEANING OF SEC. 14(A)(2) (B), NOR DID MR. GOFF
REASONABLY BELIEVE THAT THE REVIEW OF HIS PERFORMANCE EVALUATION MIGHT
RESULT IN DISCIPLINARY ACTION AGAINST HIM.
THERE COULD BE NO DOUBT FROM HOUSE REPORT 95-920 (TO ACCOMPANY H.R.
3793), FROM CONGRESSMAN UDALL'S STATEMENT ON HIS SUBSTITUTE, OR FROM THE
LANGUAGE OF H.R. 11280 AS PASSED BY THE HOUSE, THAT UNION
REPRESENTATION WAS NOT CONTEMPLATED AT REGULAR PERFORMANCE EVALUATIONS.
NOR DO I FIND ANY INTENT ON THE PART OF THE CONFEREES TO SO BROADEN THE
COVERAGE OF SEC. 14(A)(2)(B), NOTWITHSTANDING DELETION OF THE
LIMITATION TO MISCONDUCT CONTAINED IN SECTION 7114(A)(2) OF H.R. 11280
AS PASSED BY THE HOUSE ON SEPTEMBER 13, 1978. /12/ FINALLY, ARTICLE 9,
SECTION E (JT. EXH. 2, P. 29), FOR EXAMPLE, WHILE RECOGNIZING THAT AN
EVALUATION MAY BE INVOLVED IN EITHER A DISCIPLINARY ACTION OR AN ADVERSE
ACTION MAKES A CAREFUL DISTINCTION BETWEEN A PERFORMANCE EVALUATION,
WHICH IS NEITHER DISCIPLINARY NOR ADVERSE ACTION, AND THE USE OF THE
EVALUATION IN A PROCEEDING WHICH IS DISCIPLINARY OR ADVERSE ACTION.
HAVING FOUND THAT SEC. 14(A)(2)(B) OF THE STATUTE DOES NOT REQUIRE
THAN AN EXCLUSIVE REPRESENTATIVE BE REPRESENTED AT A REGULAR, PERIODIC
PERFORMANCE EVALUATION, RESPONDENT'S DENIAL OF MR. GOFF'S REQUEST FOR
REPRESENTATION ON AUGUST 14, 1979, DID NOT VIOLATE SEC. 16(A)(1) OR (8)
OF THE STATUTE AND I RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: AUGUST 8, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE STATUTE ARE
HEREINAFTER, ALSO, REFERRED TO WITHOUT INCLUSION OF THE INITIAL "71"
PORTION OF THE STATUTE REFERENCE. FOR EXAMPLE, SECTION 7116(A)(1)
SIMPLY AS "16(A)(1);" HOWEVER, UNLESS OTHERWISE SPECIFICALLY INDICATED,
ALL SUCH REFERENCES ARE TO CHAPTER 71 OF THE STATUTE.
/2/ SECTION 2423.5 OF THE RULES AND REGULATIONS SPECIFICALLY
PROVIDES, IN PART, THAT "REQUESTS FOR EXTENSION OF TIME SHALL BE
RECEIVED NOT LATER THAN FIVE (5) DAYS BEFORE THE DATE SUCH BRIEFS ARE
DUE." IN THE ABSENCE OF UNUSUAL CIRCUMSTANCES, WHOLLY ABSENT IN THIS
CASE, JUSTIFYING NON-COMPLIANCE WITH SEC. 2423.5, UNTIMELY REQUESTS FOR
EXTENSION OF TIME ARE NOT GIVEN FAVORABLE CONSIDERATION.
/3/ BOTH MR. GOFF'S WRITTEN REQUEST (G.C. EXH. 7) AND MR.
ZIELINSKI'S WRITTEN RESPONSE REFER TO SEC. 14(A)(2)(A); HOWEVER, IT IS
OBVIOUS THAT EACH INTENDED TO REFER TO SEC. 14(A)(2)(B). FOR EXAMPLE,
MR. GOFF REFERRED TO SEC. 14(A)(2)(A) I, WHEREAS "I" APPEARS ONLY UNDER
SUBPARAGRAPH (B).
/4/ ALTHOUGH MR. GOFF WAS NOT ASKED TO EXPLAIN THE REASON FOR HIS
REFUSAL TO SIGN THE 5118-AS, FROM THE TESTIMONY OF MR. WARRNE J.
INGERSOLL, JR., STEWARD, IT PLAINLY APPEARS THAT THE REASON FOR REFUSING
TO SIGN IS TO PROTECT THE EMPLOYEE'S RIGHT TO SUBMIT WRITTEN COMMENTS
CONCERNING ANY DISAGREEMENT WITH AN EVALUATION AS PERMITTED BY ARTICLE
9, SECTION 1, PARAGRAPH D 2, P. 29, OF THE PARTIES' AGREEMENT (JT. EXH.
2). MR. INGERSOLL STATED, "...IF THE REVENUE OFFICER SIGNS IT...IT IS
OVER. IF THE REVENUE OFFICER DOESN'T AGREE...HE TAKES COPIES OF THE
5188AS AND THE 5188 AND RETURNS TO HIS WORK STATION AND REVIEWS THEM.
AND IF HE WISHES, HE HAS A PRIVILEGE, UNDER THE CONTRACT, TO WRITE A
REBUTTAL..." (TR. 88).
/5/ DESPITE SOME ATTEMPT TO CONFUSE THE TERMS, A CRITICAL ELEMENTS
LETTER IS NOT A "THIRTY DAY LETTER," AS THAT TERM, I.E., "30 DAY
LETTER," IS USED TO SIGNIFY A DETERMINATION WHICH THE SERVICE INTENDS TO
EFFECTUATE "AT ANY TIME AFTER THIRTY (30) CALENDAR DAYS." (RES. EXH.
13).
/6/ REFERENCES HEREIN TO THE LEGISLATIVE HISTORY ARE TO: LEGISLATIVE
HISTORY OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, TITLE
VII OF THE CIVIL SERVICE REFORM ACT OF 1978, COMMITTEE PRINT NO. 96-97,
COMMITTEE ON POST OFFICE AND CIVIL SERVICE, HOUSE OF REPRESENTATIVES
96TH CONG., 1ST SESS., NOVEMBER 19, 1979. THIS VOLUME WILL BE REFERRED
TO AS "LEGISLATIVE HISTORY," FOLLOWED BY THE APPROPRIATE PAGE NUMBER.
/7/ THE REPORT REFLECTED A COMMON MISUNDERSTANDING OF THE SUPREME
COURT'S DECISION. AS JUDGE KRAMER VERY CORRECTLY STATED, IN UNITED
STATES AIR FORCE, LACKLAND AIR FORCE BASE, HEADQUARTERS AIR FORCE
MILITARY TRAINING CENTER (ATC), LACKLAND AIR FORCE BASE, TEXAS, A/SLMR
NO. 652, 6 A/SLMR 226, 6 A/SLMR SUPP. 84 (1976), "THE SUPREME COURT HELD
THAT SUCH CONSTRUCTION OF THE PROVISIONS OF SECTION 7 WAS A PERMISSIBLE
CONSTRUCTION AND THAT THE COURTS OF APPEAL 'IMPERMISSIBLY ENCROACHED
UPON THE BOARD'S FUNCTION,' THE '"SPECIAL FUNCTION OF APPLYING THE
GENERAL PROVISIONS OF THE ACT TO THE COMPLEXITIES OF INDUSTRIAL LIFE"'
'IN LIGHT OF CHANGING INDUSTRIAL PRACTICES AND THE BOARD'S CUMULATIVE
EXPERIENCE.'...THE SUPREME COURT HELD...THAT THE BOARD'S 'NEWLY ARRIVED
AT CONSTRUCTION OF SECTION 7 'WAS A PERMISSIBLE CONSTRUCTION, AS HAD
BEEN ITS EARLIER CONTRARY CONSTRUCTION, OVER A PERIOD OF SOME THIRTY
YEARS, ARRIVED AT IN THE LIGHT OF ITS GREATER ACCUMULATION OF EXPERIENCE
IN CHANGING INDUSTRIAL PRACTICES." (6 A/SLMR SUPP. AT 87-88). CF. NLRB
V. COLUMBIA UNIVERSITY, 541 F. 2ND 922, 932, 93 LRRM 2085, 2092
(2ND/CIR. 1976)
/8/ POST ENACTMENT STATEMENTS, NO MATTER HOW COGENT, ARE NOT ACTUALLY
PART OF THE LEGISLATIVE HISTORY AND BECAUSE UNCOMMUNICATED TO THE
LEGISLATIVE BODY PRIOR TO ENACTMENT, PLAYED NO PART IN THE LEGISLATIVE
CONSIDERATIONS. ACCORDINGLY, POST ENACTMENT STATEMENTS ARE ENTITLED TO
LITTLE WEIGHT. REPRESENTATIVE FORD STATED, IN PART, AS FOLLOWS:
"HOUSE SECTION 7114(A)(2), WHICH ONLY APPLIED TO MISCONDUCT CASES,
WAS DROPPED IN THE
CONFERENCE REPORT IN LIEU OF AN ANNUAL NOTIFICATION TO EMPLOYEES OF
THEIR RIGHTS UNDER THIS
SECTION. IN ADOPTING HOUSE SECTION 7114(A)(2), THERE WAS
CONSIDERABLE DISCUSSION BY THE
CONFEREES TO THE EFFECT THAT THE (A)(3) RIGHT SHOULD SIMILARILY BE
LIMITED TO MISCONDUCT
CASES. THE CONFEREES REJECTED THIS APPROACH AND CONTINUED TO APPLY
THIS RIGHT IN BOTH
MISCONDUCT AND NONPERFORMANCE CASES. FURTHERMORE, IN EXCHANGE FOR
DROPPING THE (A)(2) RIGHT,
THE TERM 'INVESTIGATORY INTERVIEW' IN (A)(3) WAS REPLACED BY THE TERM
'EXAMINATION,' A MUCH
BROADER TERM THAT WILL ENCOMPASS MORE SITUATIONS..." (LEGISLATIVE
HISTORY, P. 995).
/9/ THE LAST QUOTATION BY GENERAL COUNSEL IS NOT, AS REPRESENTED,
FROM THE CONFERENCE REPORT. RATHER, IT IS FROM CONGRESSMAN FORD'S POST
ENACTMENT STATEMENT, SUPRA, LEGISLATIVE HISTORY, P. 995.
/10/ "(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVE OF
THE AGENCY AND ONE OR MORE EMPLOYEES IN THE UNIT OR THEIR
REPRESENTATIVES CONCERNING ANY GRIEVANCE OR ANY PERSONNEL POLICY OR
PRACTICE OR OTHER GENERAL CONDITION OF EMPLOYMENT; OR" (LEGISLATIVE
HISTORY, P. 914).
/11/ THE WELL REASONED DECISION OF JUDGE ARRIGO, IN INTERNAL REVENUE
SERVICE, WASHINGTON, D.C. AND INTERNAL REVENUE SERVICE, HARTFORD
DISTRICT OFFICE, SUPRA, HAS BEEN CAREFULLY CONSIDERED AND APPLYING ALL
OBJECTIVE CONSIDERATIONS, I CONCLUDE THAT AN EMPLOYEE COULD NOT
REASONABLY BELIEVE THAT THE DISCUSSION OF A PERFORMANCE EVALUATION "MAY
RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE" WITHIN THE MEANING
OF SEC. 14(A)(2)(B)(I) OF THE STATUTE.
/12/ THIS CONCLUSION IS BASED ON THE FACT THAT THE CONFEREES VERY
CAREFULLY RETAINED THE LIMITATION: "EXAMINATION . . . IN CONNECTION
WITH AN INVESTIGATION" AND THE WHOLE OF THE LEGISLATIVE HISTORY
DISCLAIMS ANY INTENT WHATEVER TO INCLUDE A REGULAR PERFORMANCE
EVALUATION WITHIN THE MEANING OF "INVESTIGATION" OR DISCUSSION OF SUCH
EVALUATION WITHIN THE MEANING OF "EXAMINATION." THE PERFORMANCE
EVALUATION OF MR. GOFF OF AUGUST 14-15, 1979, WAS A REGULAR EVALUATION
REQUIRED BY RESPONDENT'S REGULATIONS. OBVIOUSLY, APPLYING THE TERM
"PERFORMANCE EVALUATION" DOES NOT PRECLUDE, UNDER ALL CIRCUMSTANCES,
ENTITLEMENT TO REPRESENTATION, C.F., INTERNAL REVENUE SERVICE,
CINCINNATI DISTRICT, CINCINNATI, OHIO, A/SLMR NO. 705, 6 A/SLMR 479, 6
A/SLMR SUPP. 179 (1976) (WHERE A PERFORMANCE EVALUATION HAD BECOME AN
INTEGRAL PART OF THE GRIEVANCE PROCEDURE).