Internal Revenue Service, South Carolina District, A/SLMR No. 1172 

 1 FLRA No. 92
                                            JULY 31, 1979
 
 MR. ANTHONY D'AMATO
 DIRECTOR OF PERSONNEL
 INTERNAL REVENUE SERVICE
 WASHINGTON, D.C.  20224
 
                           RE:  INTERNAL REVENUE SERVICE, SOUTH 
                                CAROLINA DISTRICT, A/SLMR No. 1172, 
                                Case No. 0-AS-7
 
 DEAR MR. D'AMATO:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
 REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION, AND THE
 UNION'S OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.
 
    IN THIS CASE, THE NATIONAL TREASURY EMPLOYEES UNION (THE UNION) FILED
 AN UNFAIR LABOR PRACTICE COMPLAINT ALLEGING, IN SUBSTANCE, THAT THE
 INTERNAL REVENUE SERVICE, SOUTH CAROLINA DISTRICT (THE ACTIVITY)
 VIOLATED SECTION 19()(1) AND (6) OF THE ORDER WHEN IT INTERVIEWED A
 BARGAINING UNIT EMPLOYEE, WHO WAS A POTENTIAL WITNESS IN AN UPCOMING
 ARBITRATION HEARING, WITHOUT AFFORDING THE EXCLUSIVE REPRESENTATIVE
 NOTIFICATION OF THE INTERVIEW AND AN OPPORTUNITY TO BE PRESENT.  AS
 FOUND BY THE ASSISTANT SECRETARY, THE ACTIVITY'S ATTORNEY INTERVIEWED
 THE UNIT EMPLOYEE APPROXIMATELY 1 WEEK PRIOR TO THE ARBITRATION HEARING.
  THE INTERVIEW TOOK PLACE IN THE GROUP MANAGER'S OFFICE IN THE PRESENCE
 OF THE ACTIVITY'S CHIEF OF PERSONNEL.  THE ATTORNEY QUESTIONED THE
 EMPLOYEE CONCERNING HIS KNOWLEDGE OF, AND INVOLVEMENT IN, THE EVENTS
 WHICH PRECIPITATED THE GRIEVANCE AT ISSUE IN THE ARBITRATION HEARING.
 
    THE ASSISTANT SECRETARY FOUND THAT THE ACTIVITY VIOLATED SECTION
 19(A)(1) AND (6) OF THE ORDER IN THE CIRCUMSTANCES OF THIS CASE.  IN SO
 FINDING, HE STATED:
 
    IN MY VIEW, WHEN AN EMPLOYEE WHO IS A MEMBER OF THE BARGAINING UNIT
 AT ALL TIMES MATERIAL
 
    TO A PENDING GRIEVANCE IS INTERVIEWED BY MANAGEMENT REPRESENTATIVES
 CONCERNING THE EVENTS
 
    SURROUNDING THE GRIEVANCE, (S)ECTION 10(E) OF THE ORDER GRANTS THE
 EXCLUSIVE REPRESENTATIVE
 
    THE RIGHT TO BE REPRESENTED AT SUCH A FORMAL DISCUSSION.  AS THE
 ASSISTANT SECRETARY STATED IN
 
    THE MCCLELLAN CASE (UNITED STATES AIR FORCE, MCCLELLAN AIR FORCE
 BASE, CALIFORNIA, A/SLMR 830
 
    (APR. 21, 1977), REVIEW DENIED, 5 FLRC 866 (FLRC 77A-56 (AUG.  31,
 1977), REPORT ON. 136)),
 
    . . . AN EXCLUSIVE REPRESENTATIVE HAS A LEGITIMATE INTEREST IN BEING
 REPRESENTED AT THE
 
    INTERVIEWS OF UNIT EMPLOYEES CONDUCTED BY MANAGEMENT IN CONNECTION
 WITH THE PROCESSING OF A
 
    PENDING GRIEVANCE, AND THE REPRESENTATIONAL RESPONSIBILITIES
 CONFERRED BY (S)ECTION 10(E) OF
 
    THE ORDER IN THIS REGARD OUTWEIGH ANY IMPACT ITS PRESENCE MIGHT HAVE
 ON MANAGEMENT'S
 
    PREPARATION OF ITS CASE FOR ARBITRATION.  UNDER THESE CIRCUMSTANCES,
 I CONCLUDE THAT BY
 
    FAILING TO AFFORD THE (UNION) AN OPPORTUNITY TO BE REPRESENTED AT THE
 INTERVIEW OF (THE UNIT)
 
    EMPLOYEE . . ., THE (ACTIVITY) VIOLATED (S)ECTION 19(A)(1) AND (6) OF
 THE ORDER.
 
    IN THE AGENCY'S PETITION FOR REVIEW, IT IS ALLEGED THAT THE ASSISTANT
 SECRETARY'S DECISION PRESENTS THE FOLLOWING MAJOR POLICY ISSUES:  (1)
 "IS THERE A PER SE VIOLATION OF SECTION 19(A)(6) OF THE ORDER . . .
 WHENEVER AN AGENCY ATTORNEY/REPRESENTATIVE INTERVIEWS BARGAINING UNIT
 EMPLOYEES IN PREPARATION FOR AN ARBITRATION HEARING WITHOUT AFFORDING
 THE EXCLUSIVE REPRESENTATIVE AN OPPORTUNITY TO BE PRESENT?" AND (2)
 "UNDER WHAT CIRCUMSTANCES IS AN AGENCY REQUIRED TO PROVIDE AN EXCLUSIVE
 REPRESENTATIVE WITH THE OPPORTUNITY TO BE PRESENT WHEN IT CONDUCTS
 FACT-GATHERING INTERVIEWS WITH BARGAINING UNIT EMPLOYEES?" IT IS ALSO
 CONTENDED THAT THE ASSISTANT SECRETARY'S ADOPTION OF A "PER SE APPROACH"
 IN THE INSTANT CASE IS ARBITRARY AND CAPRICIOUS.  AS TO ALL OF THE
 FOREGOING ALLEGATIONS, IT IS ASSERTED, MORE PARTICULARLY, THAT THE
 ASSISTANT SECRETARY VIOLATED COUNCIL PRECEDENT /1/ AND PRIVATE SECTOR
 PRINCIPLES BY ESTABLISHING A PER SE RULE WITH REGARD TO FACT-GATHERING
 INTERVIEWS.
 
    IN THE AUTHORITY'S OPINION, THE PETITION FOR REVIEW DOES NOT MEET THE
 REQUIREMENTS OF SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES WHICH
 INCORPORATES BY REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES.  THAT
 IS, THE DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS OR PRESENT ANY MAJOR POLICY ISSUES WARRANTING AUTHORITY
 REVIEW.
 
    AS TO THE ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION IS
 ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE ASSISTANT
 SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING HIS
 DECISION.  AS TO THE ALLEGED MAJOR POLICY ISSUE WITH RESPECT TO WHETHER
 THERE IS A "PER SE" VIOLATION OF THE ORDER WHEN UNIT EMPLOYEES ARE
 INTERVIEWED IN PREPARATION FOR AN ARBITRATION HEARING WITHOUT AFFORDING
 THE EXCLUSIVE REPRESENTATIVE AN OPPORTUNITY TO BE PRESENT, IN THE
 AUTHORITY'S VIEW NO MAJOR POLICY ISSUE WARRANTING REVIEW IS PRESENTED IN
 THE CIRCUMSTANCES OF THIS CASE.  THE AUTHORITY NOTES IN THIS REGARD THE
 ASSISTANT SECRETARY'S DETERMINATION OF THE UNION'S OPPORTUNITY TO BE
 PRESENT IN THE CIRCUMSTANCES OF THIS CASE WAS BASED ON A CONCLUSION THAT
 THE DISCUSSIONS IN QUESTION WERE "FORMAL DISCUSSIONS" WITHIN THE MEANING
 OF SECTION 10(E) OF THE ORDER.  YOUR ASSERTIONS TO THE CONTRARY
 CONSTITUTE ESSENTIALLY DISAGREEMENT WITH THE ASSISTANT SECRETARY'S
 CONCLUSION THAT THE DISCUSSIONS WERE "FORMAL" AND THEREFORE PROVIDE NO
 BASIS FOR REVIEW.  SIMILARLY NO MAJOR POLICY ISSUE WARRANTING REVIEW IS
 PRESENTED CONCERNING THE CIRCUMSTANCES UNDER WHICH THE EXCLUSIVE
 REPRESENTATIVE IS ENTITLED TO AN OPPORTUNITY TO BE PRESENT, NOTING IN
 THIS REGARD THAT SECTION 10(E) REQUIRES SUCH OPPORTUNITY "AT FORMAL
 DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
 REPRESENTATIVES
 CONCERNING GRIEVANCES." FURTHER, YOUR APPEAL FAILS TO CONTAIN ANY BASIS
 TO SUPPORT THE CONTENTION THAT THE DECISION IS INCONSISTENT EITHER WITH
 APPLICABLE PRECEDENT OR THE PURPOSES AND POLICIES OF THE ORDER, BUT
 AGAIN CONSTITUTES NO MORE THAN MERE DISAGREEMENT WITH THE ASSISTANT
 SECRETARY'S FINDING THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6)
 OF THE ORDER IN THE CIRCUMSTANCES OF THIS CASE.  /2/
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS OR PRESENT ANY MAJOR POLICY ISSUES, THE APPEAL FAILS TO
 MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.2 OF THE
 AUTHORITY'S TRANSITION RULES OF PROCEDURE WHICH INCORPORATES BY
 REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES.  ACCORDINGLY, THE
 PETITION FOR REVIEW IS HEREBY DENIED.  THE REQUEST FOR A STAY IS ALSO
 DENIED.  /3/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  K. POOLE
 
    NTEU
 
    /1/ THE COUNCIL'S STATEMENT ON MAJOR POLICY ISSUE, 4 FLRC 709 (FLRC
 75P-2 (DEC. 2, 1976), REPORT NO. 116), AND ITS MCCLELLAN DECISION (SUPRA
 P. 2), ARE PRINCIPALLY RELIED UPON IN THIS REGARD.
 
    /2/ IN SO CONCLUDING, THE AUTHORITY DOES NOT CONSTRUE THE ASSISTANT
 SECRETARY'S DECISION AS ESTABLISHING A PER SE RULE HEREIN.  RATHER, AS
 PREVIOUSLY STATED, THE AUTHORITY DECIDES ONLY THAT THE ASSISTANT
 SECRETARY'S FINDING THAT THE AGENCY VIOLATED SECTION 19(A)(1) AND (6) OF
 THE ORDER, IN THE PARTICULAR FACTS AND CIRCUMSTANCES OF THIS CASE,
 NEITHER APPEARS ARBITRARY AND CAPRICIOUS NOR PRESENTS ANY MAJOR POLICY
 ISSUE WARRANTING REVIEW.
 
    /3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.