U.S. Department of Treasury, Internal Revenue Service (Respondent) and National Treasury Employees Union and National Treasury Employees and NTEU Chapter 22 (Charging Party)

 8 FLRA No. 72
 
 U.S. DEPARTMENT OF TREASURY
 INTERNAL REVENUE SERVICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 22
 Charging Party
 
                                            Case No. 2-CA-503
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD NOT ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1) AND (8) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
 RECOMMENDING THAT THE COMPLAINT BE DISMISSED.  NO EXCEPTIONS WERE FILED
 BY EITHER PARTY.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO
 PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON
 CONSIDERATION OF THE JUDGE'S DECISION AND THE ENTIRE RECORD IN THE
 SUBJECT CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE
 AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
 RECOMMENDATIONS.  (SEE INTERNAL REVENUE SERVICE, DETROIT, MICHIGAN, 5
 FLRA NO. 53 (1981).)
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 2-CA-503, BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MARCH 26, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    STEPHEN S. ASH, ESQUIRE
    FOR THE RESPONDENT
 
    ALLAN W. STADTMAUER, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    RICHARD M. LANDIS, ESQUIRE
    FOR THE CHARGING PARTY
 
    BEFORE:  RANDOLPH D. MASON
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. SEC. 7101 ET SEQ., AS A
 RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON SEPTEMBER 30,
 1980, BY THE REGIONAL DIRECTOR, REGION II, FEDERAL LABOR RELATIONS
 AUTHORITY, NEW YORK, NEW YORK, AGAINST THE U.S. DEPARTMENT OF TREASURY,
 INTERNAL REVENUE SERVICE ("RESPONDENT").
 
    THE COMPLAINT ALLEGES THAT RESPONDENT CONDUCTED AN INVESTIGATORY
 INTERVIEW WITH A UNIT EMPLOYEE ON FEBRUARY 8, 1980, WITHOUT ALLOWING THE
 CHARGING PARTY AN OPPORTUNITY TO BE PRESENT AS REQUIRED BY SEC.
 7114(A)(2)(B) OF THE STATUTE.  THE GENERAL COUNSEL ALSO CONTENDS THAT
 THE FAILURE TO COMPLY WITH THE LATTER SECTION RESULTED IN A VIOLATION OF
 SEC. 7116(A)(8) AND (1);  THE RESPONDENT DENIES ALL THESE ALLEGATIONS,
 ARGUING PRIMARILY THAT THE INTERVIEW IN QUESTION DID NOT FALL WITHIN THE
 PURVIEW OF SEC. 7114(A)(2)(B) BECAUSE IT WAS MERELY A "COUNSELING
 SESSION."
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT
 PHILADELPHIA, PENNSYLVANIA, ON MARCH 5, 1981.  ALL PARTIES WERE
 REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE
 RELEVANT EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES.  IN
 ACCORDANCE WITH AN EXTENSION OF TIME REQUESTED BY ALL PARTIES, BRIEFS
 WERE FILED BY RESPONDENT AND THE GENERAL COUNSEL ON MAY 6, 1981.  BASED
 ON THE ENTIRE DEMEANOR, THE EXHIBITS, STIPULATIONS, AND OTHER RELEVANT
 EVIDENCE ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS OF LAW, AND RECOMMENDED ORDER:
 
                             FINDINGS OF FACT
 
    AT ALL TIMES MATERIAL HEREIN, THE NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 22 ("THE UNION") HAS BEEN THE EXCLUSIVE REPRESENTATIVE
 OF AN APPROPRIATE UNIT OF EMPLOYEES OF THE RESPONDENT AND HAS BEEN A
 LABOR ORGANIZATION WITHIN THE MEANING OF SEC.  7103(A)(4) OF THE
 STATUTE.
 
    PRIOR TO HIS RETIREMENT IN 1980, MORRIS KOTOFSKY HAD BEEN A REVENUE
 AGENT FOR THE RESPONDENT FOR ABOUT 26 YEARS.  BETWEEN 1975 AND 1980 HE
 WAS ASSIGNED TO A FIELD AUDIT GROUP IN JENKINTOWN, PENNSYLVANIA.
 
    AT ALL TIMES MATERIAL HEREIN, RESPONDENT PERFORMED WORKLOAD REVIEWS
 (SOMETIMES CALLED "CASE REVIEWS") OF ITS REVENUE AGENTS ABOUT ONCE EVERY
 SIX MONTHS.  EACH WORKLOAD REVIEW WAS INITIATED AND CONDUCTED BY THE
 GROUP MANAGER (THE AGENT'S IMMEDIATE SUPERVISOR).  THE LATTER WOULD
 BEGIN BY INDEPENDENTLY REVIEWING THE FILES OF THE CASES IN THE REVENUE
 AGENT'S INVENTORY.  HE WOULD OBSERVE AND DETERMINE FROM THESE FILES SUCH
 THINGS AS THE AGENT'S WORK HABITS, THE STATE OF HIS WORK PAPERS, WHETHER
 APPROPRIATE TAX ISSUES HAD BEEN RAISED, AND WHETHER EXCESSIVE TIME HAD
 BEEN TAKEN ON ANY PARTICULAR ASPECT OF A CASE.  IN ADDITION, HE WOULD
 OBSERVE WHETHER OR NOT THE REVENUE AGENT HAD COMPLIED WITH INTERNAL
 PROCEDURES SUCH AS THE PREPARATION OF AN AUDIT PLAN FOR EACH CASE.
 AFTER REVIEWING THE ABOVE CASE FILES, THE GROUP MANAGER WOULD USUALLY
 REDUCE HIS OBSERVATIONS TO THE FORM OF A WRITTEN MEMORANDUM.  THIS
 MEMORANDUM WOULD HIGHLIGHT THE PERFORMANCE DEFICIENCIES OF THE REVENUE
 AGENT AND INDICATE TO THE LATTER THE STEPS THAT THE AGENT WOULD NEED TO
 TAKE TO MEASURE UP TO THE RESPONDENT'S STANDARDS.  THE WORKLOAD REVIEW
 WOULD BE COMPLETED WHEN THE GROUP MANAGER HAD A MEETING WITH THE
 REVENUE
 AGENT AT WHICH HE PRESENTED THE AGENT WITH THE MEMORANDUM, EXPLAINED IT
 TO HIM, AND COUNSELED HIM ABOUT HOW HE COULD IMPROVE HIS WORK
 PERFORMANCE AND ELIMINATE HIS DEFICIENCIES.
 
    DURING 1979 REVENUE AGENT KOTOFSKY'S IMMEDIATE SUPERVISOR WAS GROUP
 MANAGER JACK FISHER.  DURING THAT YEAR FISHER CONDUCTED AT LEAST THREE
 CASE REVIEWS OF KOTOFSKY'S INVENTORY.  THESE REVIEWS OCCURRED IN JUNE,
 SEPTEMBER, AND NOVEMBER OF THAT YEAR.  IN EACH WORKLOAD REVIEW, FISHER
 CONCLUDED THAT KOTOFSKY HAD ALLOWED MANY CASES TO REMAIN INACTIVE;  THAT
 HE FAILED TO PLAN, SCHEDULE, AND FOLLOW UP HIS WORK;  AND THAT HE
 GENERALLY FAILED TO MAKE EFFECTIVE USE OF HIS TIME.  ALTHOUGH KOTOFSKY
 DID NOT HAVE AN ORAL INTERVIEW ON EACH OCCASION, HE DID RECEIVE AT LEAST
 THREE COUNSELING MEMORANDA DURING 1979.
 
    ON FEBRUARY 7, 1980, FISHER TOLD KOTOFSKY THAT RAYMOND KNIGHT, A
 BRANCH CHIEF FROM THE PHILADELPHIA DISTRICT OFFICE WISHED TO MEET WITH
 HIM ON THE FOLLOWING DAY.  KOTOFSKY HAD NEVER MET KNIGHT AND IT WAS
 UNUSUAL FOR A BRANCH CHIEF TO BE MEETING WITH A REVENUE AGENT UNDER
 THESE CIRCUMSTANCES.  SINCE HE WAS CONCERNED ABOUT THE UPCOMING MEETING
 KOTOFSKY CALLED HIS UNION REPRESENTATIVE, CLIFFORD SACHS, FOR ADVICE.
 SACHS ADVISED HIM TO FIND OUT WHETHER THE MEETING WAS GOING TO BE A
 COUNSELING SESSION OR AN ADVERSE ACTION;  IF IT WAS THE LATTER, SACHS
 TOLD HIM TO SEEK UNION REPRESENTATION AT THE MEETING.
 
    KOTOFSKY MET WITH KNIGHT AND FISHER ON FEBRUARY 8, 1980.  PRIOR TO
 THIS MEETING, FISHER HAD CONDUCTED ANOTHER CASE REVIEW OF KOTOFSKY'S
 INVENTORY AND HAD PREPARED A MEMORANDUM TO KOTOFSKY COUNSELING THE
 LATTER WITH RESPECT TO HIS WORK PERFORMANCE DEFICIENCIES.  FISHER
 COORDINATED THE PROPOSED MEMORANDUM WITH RESPONDENT'S PERSONNEL
 OFFICE,
 AND INFORMED THAT OFFICE THAT HE AND KNIGHT INTENDED TO CONDUCT A
 COUNSELING SESSION BASED UPON THE INFORMATION OBTAINED BY FISHER IN
 REVIEWING KOTOFSKY'S CASE FILES.  PRIOR TO THE MEETING, BOTH FISHER AND
 KNIGHT SPOKE WITH A PERSONNEL OFFICER WHO ADVISED THEM THAT KOTOFSKY
 WOULD NOT HAVE ANY RIGHT TO HAVE A UNION REPRESENTATIVE AT THE MEETING
 SINCE IT WOULD NOT BE AN "INVESTIGATORY" INTERVIEW WHEREIN INFORMATION
 WOULD BE ELICITED FROM THE EMPLOYEE.  THEY WERE INFORMED THAT THE
 PROPOSED MEETING WAS MERELY A "COUNSELING SESSION," AS VIEWED BY THE
 RESPONDENT, SINCE THE SUPERVISORS WERE MERELY PLANNING TO COUNSEL THE
 EMPLOYEE WITH RESPECT TO HIS PERFORMANCE DEFICIENCIES BASED UPON THE
 FACTS ALREADY OBTAINED BY REVIEWING THE CASE FILES.
 
    AT THE OUTSET OF THE FEBRUARY 8 MEETING, KOTOFSKY MADE IT CLEAR TO
 KNIGHT AND FISHER THAT IF THE MEETING COULD BE DETRIMENTAL TO HIS CAREER
 AS A REVENUE AGENT, HE WANTED UNION REPRESENTATION AT THE MEETING.
 KNIGHT ASSURED HIM THAT IT WAS MERELY GOING TO BE A COUNSELING SESSION
 ARISING OUT OF A CASE REVIEW.  THE QUESTION OF UNION REPRESENTATION DID
 NOT ARISE AGAIN DURING THE MEETING.  AT THAT POINT FISHER HANDED
 KOTOFSKY THE MEMORANDUM DATED FEBRUARY 8 WHICH HE HAD PREPARED ON THE
 BASIS OF HIS MOST RECENT REVIEW OF KOTOFSKY'S CASES.
 
    IN FEBRUARY 8 MEMORANDUM, LIKE THE PREVIOUS COUNSELING MEMORANDA,
 EMPHASIZED KOTOFSKY'S ALLEGED CONTINUING FAILURE TO (1) MOVE HIS CASES
 THROUGH THE WORK PROCESS WITHOUT PROMPTING, (2) PLAN AND SCHEDULE WORK
 TO AVOID DELAYS, (3) UTILIZE HIS TIME EFFECTIVELY, AND (4) PREPARE AND
 ORGANIZE WORK PAPERS IN ACCORDANCE WITH INTERNAL PROCEDURES.  WITH
 RESPECT TO THE LAST CATEGORY, THE MEMORANDUM STATED THAT KOTOFSKY HAD
 DISPLAYED SIGNIFICANT IMPROVEMENT SINCE THE JUNE 1979 CASE REVIEW.
 HOWEVER, IT WAS STATED THAT HIS PERFORMANCE CONTINUED TO BE DEFICIENT IN
 THE FIRST THREE CATEGORIES.  THE MEMORANDUM LISTED THE SPECIFIC CASES
 FALLING UNDER EACH OF THE CATEGORIES OF DEFICIENT PERFORMANCE AND
 INDICATED, IN MOST CASES, HOW KOTOFSKY HAD FAILED TO MEASURE UP TO
 EXPECTED STANDARDS.  THE MEMORANDUM CONCLUDED WITH THE FOLLOWING
 PARAGRAPH:
 
    AT THE CONCLUSION OF 60 CALENDAR DAYS, I WILL FINALLY REVIEW YOUR
 WORK TO DETERMINE WHETHER
 
    OR NOT YOU HAVE PROGRESSED TO THE POINT THAT YOU ARE MEETING THE
 PERFORMANCE REQUIREMENTS OF
 
    THE JOB.  IN THE EVENT THAT YOUR PERFORMANCE DOES NOT MEET THE
 REQUIREMENTS OF THE JOB AT THAT
 
    TIME, CONSIDERATIONS WILL THEN BE GIVEN TO REMOVING YOU FROM THE
 POSITION OF INTERNAL REVENUE
 
    AGENT OR TO OTHERWISE DISCIPLINE YOU.
 
    AFTER GIVING KOTOFSKY AN OPPORTUNITY TO READ THE ABOVE MEMORANDUM,
 KNIGHT AND FISHER REITERATED IN GENERAL TERMS THE AREAS IN WHICH IS
 PERFORMANCE WAS DEFICIENT AND TOLD HIM HOW HE WOULD BE ABLE TO IMPROVE
 HIS PERFORMANCE.  THEY FELT THAT THEY HAD A GOOD GENERAL UNDERSTANDING
 OF HIS DEFICIENCIES, AND SIMPLY WANTED TO COUNSEL HIM IN THIS REGARD.
 THEY DID NOT INTEND TO DISCUSS THE DETAILS OF ANY INDIVIDUAL CASES AND
 DID NOT FEEL THAT IT WAS NECESSARY TO ACQUIRE ANY ADDITIONAL INFORMATION
 FROM FROM KOTOFSKY.  THE ALLEGED DEFICIENCIES UNDER DISCUSSION
 CONSTITUTED A WELL-DOCUMENTED PATTERN OF CONDUCT OCCURRING OVER A
 SUBSTANTIAL PERIOD OF TIME.
 
    FISHER AND KNIGHT DID NOT TAKE ANY NOTES DURING THE MEETING;  NOR DID
 THEY ASK KOTOFSKY ANY QUESTIONS OR OTHERWISE ATTEMPT TO ELICIT
 INFORMATION FROM HIM.  ALTHOUGH KOTOFSKY TRIED TO OFFER INFORMATION WITH
 RESPECT TO THE STATUS OF CERTAIN INDIVIDUAL CASES, AND TO DEMONSTRATE
 HOW HE HAD DONE A GOOD JOB IN CERTAIN INSTANCES, THE SUPERVISORS
 INSISTED ON COUNSELING HIM IN GENERAL TERMS.  /1/ THE ATMOSPHERE OF THE
 MEETING WAS STRICTLY REMEDIAL AND AT NO TIME WAS DISCIPLINE DISCUSSED.
 
    DURING THE ENSUING TWO MONTH PERIOD, FISHER WAS TRANSFERRED TO
 ANOTHER OFFICE IN THE PHILADELPHIA DISTRICT, AND WAS REPLACED BY WILLIAM
 BENNETT.  THE LATTER CONDUCTED ADDITIONAL WORKLOAD REVIEWS OF KOTOFSKY'S
 CASES IN MARCH AND APRIL OF 1980.  SUBSEQUENTLY, BY LETTER DATED MAY 16,
 1980, RESPONDENT PROPOSED TO REMOVE KOTOFSKY FROM THE INTERNAL REVENUE
 SERVICE OR OTHERWISE DISCIPLINE HIM AT ANY TIME AFTER 30 DAYS.  THE
 PROPOSED ADVERSE ACTION WAS BASED ON SEVERAL REASONS, BUT ONLY ONE OF
 THESE REASONS (FAILURE TO PROMPTLY COMPLETE WORK) RELATED TO THE
 PERFORMANCE DEFICIENCIES SET FORTH IN THE FEBRUARY 8 MEMORANDUM.  THE
 OTHER REASONS FOR THE PROPOSED ADVERSE ACTION CONCERNED EVENTS THAT
 OCCURRED, OR CAME TO LIGHT, AFTER THE FEBRUARY 8, 1980 MEETING.  AFTER
 RECEIVING THE 30-DAY LETTER, KOTOFSKY RETIRED FROM THE INTERNAL REVENUE
 SERVICE.
 
                            CONCLUSIONS OF LAW
 
    THE PRIMARY QUESTION PRESENTED FOR DECISION IS WHETHER THE MEETING
 BETWEEN REVENUE AGENT KOTOFSKY AND HIS SUPERVISORS ON FEBRUARY 8, 1980,
 WAS AN EXAMINATION IN CONNECTION WITH AN INVESTIGATION WITHIN THE
 MEANING OF SECTION 7114(A)(2)(B) OF THE STATUTE.  THAT SECTION PROVIDES,
 IN PART, AS FOLLOWS:
 
    (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.
 
    THE LEGISLATIVE HISTORY OF THIS SECTION REVEALS THAT ITS PURPOSE WAS
 TO BRING TO FEDERAL SECTOR EMPLOYEES CERTAIN RIGHTS ACCORDED TO PRIVATE
 SECTOR EMPLOYEES BY THE NATIONAL LABOR RELATIONS ACT AND THE DECISION OF
 THE U.S. SUPREME COURT IN NLRB V. WEINGARTEN, INC., 420 U.S. 251, 88
 LRRM 2689 (1975).  /2/ IN WEINGARTEN THE SUPREME COURT HELD THAT AN
 EMPLOYEE HAS A RIGHT TO UNION REPRESENTATION AT AN INVESTIGATORY
 INTERVIEW WHEN THE EMPLOYEE REASONABLY BELIEVES THAT THE INVESTIGATION
 MAY RESULT IN DISCIPLINARY ACTION AND THE EMPLOYEE REQUESTS THAT A UNION
 REPRESENTATIVE BE PRESENT.
 
    THE MEETING IN THE INSTANT CASE IS SIMILAR TO ONE RECENTLY CONSIDERED
 BY THE AUTHORITY IN INTERNAL REVENUE SERVICE, DETROIT, MICHIGAN, 5 FLRA
 NO. 53 (1981).  IN THAT CASE, A REVENUE OFFICER WAS SUBJECTED TO A 100%
 CASE REVIEW BY HIS SUPERVISOR.  /3/ AS IN THE INSTANT CASE, THE REVENUE
 OFFICER'S GROUP MANAGER CALLED FOR ALL OF HIS FILES, REVIEWED THEM, AND
 PREPARED A WRITTEN ANALYSIS.  SUBSEQUENTLY, THE SUPERVISOR MET WITH THE
 EMPLOYEE AND DISCUSSED THE WRITTEN ANALYSIS WITH HIM.  THE PURPOSE OF
 THE MEETING WAS TO "COUNSEL" THE EMPLOYEE REGARDING HIS WORK.  THE
 EMPLOYEE IN THAT CASE REASONABLY AND CORRECTLY ANTICIPATED THAT HIS
 PERFORMANCE WOULD BE CRITICIZED.  HE WAS INFORMED THAT HIS PERFORMANCE
 WAS "UNACCEPTABLE FOR THE CRITICAL ELEMENTS OF (HIS) POSITION" AND THAT
 HE COULD EXPECT A CRITICAL ELEMENTS LETTER IN THE NEAR FUTURE.  THE
 AUTHORITY HELD THAT A COUNSELING SESSION OF THIS TYPE WAS REMEDIAL
 RATHER THAN INVESTIGATORY IN NATURE, AND COULD NOT BE CONSIDERED AN
 "EXAMINATION . . . IN CONNECTION WITH AN INVESTIGATION" WITHIN THE
 MEANING OF SEC. 7114(A)(2)(B).  HAVING REACHED THIS CONCLUSION, IT WAS
 HELD THAT THE AGENCY WAS NOT REQUIRED TO GIVE THE UNION AN OPPORTUNITY
 TO BE REPRESENTED AT THAT MEETING.
 
    THE GENERAL COUNSEL ARGUES THAT THE INSTANT CASE IS FACTUALLY
 DISTINGUISHABLE FROM THE ABOVE-CITED CASE.  HE NOTES THAT THE MEETING IN
 INTERNAL REVENUE SERVICE, DETROIT, MICHIGAN, SUPRA, WAS A REGULAR,
 ANNUAL REVIEW OF THE EMPLOYEE'S CASE FILES, WHEREAS REVENUE AGENCY
 KOTOFSKY HAD BEEN SUBJECTED TO OTHER CASE REVIEWS DURING THE YEAR
 PRECEDING THE FEBRUARY 8, 1980 MEETING.  HE ALSO NOTES THAT KOTOFSKY'S
 MEETING WAS ATTENDED BY BOTH HIS GROUP MANAGER AND HIS BRANCH CHIEF AND
 THAT THE LATTER DID NOT USUALLY ATTEND SUCH MEETINGS.  THERE CAN BE NO
 QUESTION THAT THESE FACTORS TENDED TO HIGHLIGHT THE SERIOUS NATURE OF
 KOTOFSKY'S PROBLEM.  OBVIOUSLY, WHENEVER PERFORMANCE DEFICIENCIES
 CONTINUE TO PERSIST AFTER CONTINUED COUNSELING, THERE IS A CONCOMITANT
 INCREASE IN THE LIKELIHOOD OF DISCIPLINE BEING CONSIDERED.  BUT A RISK
 OF DISCIPLINE ARISING OUT OF AN EMPLOYEE'S INABILITY TO PERFORM IN
 ACCORDANCE WITH STANDARDS, STANDING ALONE, DOES NOT SUPPORT THE
 CHARACTERIZATION OF A PURE COUNSELING SESSION AS AN "EXAMINATION. . . IN
 CONNECTION WITH AN INVESTIGATION" UNDER SEC. 7114(A)(2)(B).  THE LATTER
 MEETINGS REQUIRE THE EXISTENCE OF AN INVESTIGATIVE ELEMENT.  THIS
 INTERPRETATION IS CONSISTENT WITH THE RULE IN THE PRIVATE SECTOR SET
 FORTH BY THE NINTH CIRCUIT IN ALFRED M. LEWIS, INC., V. NLRB, 587 F.2D
 403, 99 LRRM 2841 (9TH CIR.  1978):
 
    . . . IT SHOULD BE ACKNOWLEDGED THAT A SUPERVISORY INTERVIEW IN WHICH
 THE EMPLOYEE IS
 
    QUESTIONED OR INSTRUCTED ABOUT WORK PERFORMANCE INEVITABLY CARRIES
 WITH IT THE THREAT THAT IF
 
    THE EMPLOYEE CANNOT OR WILL NOT COMPLY WITH A DIRECTIVE, DISCHARGE OR
 DISCIPLINE MAY
 
    FOLLOW;  BUT THAT THREAT, WITHOUT MORE, DOES NOT INVOKE THE RIGHT TO
 THE ASSISTANCE OF A UNION
 
    REPRESENTATIVE.  THE RIGHT OF REPRESENTATION ARISES WHEN A
 SIGNIFICANT PURPOSE OF THE
 
    INTERVIEW IS TO OBTAIN FACTS TO SUPPORT DISCIPLINARY ACTION THAT IS
 PROBABLE OR THAT IS BEING
 
    SERIOUSLY CONSIDERED.
 
    ID. AT 410.  THIS RULE WAS QUOTED WITH APPROVAL BY THE EIGHTH CIRCUIT
 IN AAA EQUIPMENT SERVICE CO. V. NLRB, 598 F.2D 1142, 101 LRRM 2381 (8TH
 CIR. 1979).  /4/
 
    IN THE INSTANT CASE, RESPONDENT'S SUPERVISORS DID NOT ASK AKY
 QUESTIONS OR OTHERWISE ATTEMPT TO ELICIT INFORMATION FROM THE EMPLOYEE
 AT THE FEBRUARY 8 MEETING.  THUS IT CANNOT BE SAID THAT THE MEETING WAS
 INVESTIGATIVE IN NATURE.  ON THE CONTRARY, A COMPLETE REVIEW HAD BEEN
 MADE OF THE EMPLOYEE'S CASE FILES AND THE SUPERVISORS WERE SATISFIED
 THAT THEY KNEW ENOUGH FACTS TO UNDERSTAND THE EMPLOYEE'S PROBLEMS PRIOR
 TO THE INTERVIEW.  THEY PRESENTED KOTOFSKY WITH A WRITTEN MEMORANDUM
 INFORMING HIM OF THESE FACTS AT THE OUTSET OF THE MEETING.  THE PURPOSE
 OF THE MEETING WAS TO GENERALLY HIGHLIGHT THESE KNOWN DEFICIENCIES TO
 THE EMPLOYEE AND TELL HIM HOW TO RAISE THE LEVEL OF HIS PERFORMANCE TO
 EXPECTED STANDARDS.  THIS WAS NOTHING MORE THAN A PURE COUNSELING
 SESSION AND WAS REMEDIAL IN NATURE;  WITHOUT THE REQUISITE INVESTIGATORY
 ELEMENT IT DID NOT QUALIFY AS AN "EXAMINATION OF AN EMPLOYEE . . . IN
 CONNECTION WITH AN INVESTIGATION," EVEN THOUGH THE EMPLOYEE ASKED TO BE
 REPRESENTED BY THE UNION.  THE STATUTE DOES NOT PROVIDE A RIGHT TO
 REPRESENTATION UNDER THESE CIRCUMSTANCES.
 
    FOR ALL OF THE FOREGOING REASONS, I HOLD THAT THE MEETING IN QUESTION
 DID NOT FALL WITHIN THE PURVIEW OF SEC. 7114(A)(2)(B) OF THE STATUTE.
 SINCE NO VIOLATION OF SECTIONS 7116(A)(1) AND (8) HAS BEEN FOUND, I
 HEREBY RECOMMEND THAT THE AUTHORITY ADOPT THE FOLLOWING:  /5/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 2-CA-503 BE, AND
 HEREBY IS, DISMISSED.
 
                         RANDOLPH D. MASON
                        ADMINISTRATIVE LAW JUDGE
 
    DATED:  JUNE 26, 1981
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SINCE KOTOFSKY RARELY SPOKE TO FISHER ON ANY OCCASION, HE
 DIRECTED HIS REMARKS AND QUESTIONS TO KNIGHT DURING THIS MEETING.  THE
 LATTER WAS NOT PARTICULARLY FAMILIAR WITH THE DETAILS OF THE CASES.
 
    /2/ SEE, INTERNAL REVENUE SERVICE, WASHINGTON, D.C., AND INTERNAL
 REVENUE SERVICE, HARTFORD DISTRICT OFFICE, 4 FLRA NO. 37 (1980),
 (JUDGE'S DECISION AT 10).
 
    /3/ GENERALLY SPEAKING, A REVENUE OFFICER'S FUNCTION INVOLVES THE
 COLLECTION OF TAX AFTER LIABILITY HAS BEEN ESTABLISHED.  IN CONTRAST, A
 REVENUE AGENT, LIKE KOTOFSKY, AUDITS A TAXPAYER AND ESTABLISHES THE
 AMOUNT OF LIABILITY.
 
    /4/ IN VIEW OF MY FINDING THAT THE MEETING IN QUESTION HAD NO
 INVESTIGATORY PURPOSE, I NEED NOT DECIDE WHETHER THE STATUTE REQUIRES A
 "SIGNIFICANT PURPOSE" STANDARD.  NOR DO I NEED TO DECIDE WHETHER THE
 DISCIPLINARY ACTION MUST BE "PROBABLE," "BEING SERIOUSLY CONSIDERED" OR
 WHETHER THE RISK OF DISCIPLINE NEED BE ONLY "REASONABLY INHERENT" IN THE
 INVESTIGATORY INTERVIEW FOR THE RIGHT TO UNION REPRESENTATION TO ARISE.
 COMPARE, LENNOX IND. V. NLRB, ... F.2D ... (5TH CIR., FEB. 17, 1981).
 
    /5/ IT IS NOTED THAT RESPONDENT ALSO ARGUED THAT SEC.  7114(A)(2)(B)
 APPLIES ONLY TO INVESTIGATIONS CONCERNING "MISCONDUCT" AND DOES NOT
 APPLY TO UNACCEPTABLE PERFORMANCE SITUATIONS;  HOWEVER, THE AUTHORITY
 HELD THAT THE LATTER WERE COVERED BY THAT SECTION IN NATIONAL TREASURY
 EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU OF PUBLIC DEBT, 3
 FLRA NO. 119 AT 11 (1980).