Department of the Treasury, Internal Revenue Service, Chicago District, Chicago, Illinois, A/SLMR No. 1120

 



[ v01 p138 ]
01:0138(14)CA
The decision of the Authority follows:


 1 FLRA No. 14
                                            APRIL 9, 1979
 
 MS. SHARYN DANCH
 ASSISTANT COUNSEL
 NATIONAL TREASURY EMPLOYEES UNION
 1730 K STREET, N.W., SUITE 1101
 WASHINGTON, D.C.  20006
 
                          RE:  DEPARTMENT OF THE TREASURY, INTERNAL 
                               REVENUE SERVICE, CHICAGO DISTRICT, 
                               CHICAGO, ILLINOIS, A/SLMR No. 1120,
                               FLRC No. 78A-145
 
 DEAR MS. DANCH:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
 THE ASSISTANT SECRETARY'S DECISION, AND THE AGENCY'S OPPOSITION THERETO,
 IN THE ABOVE-ENTITLED CASE.
 
    IN THIS CASE, AS FOUND BY THE ASSISTANT SECRETARY INSOFAR AS
 PERTINENT HEREIN, DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
 CHICAGO DISTRICT, CHICAGO, ILLINOIS (THE ACTIVITY) HELD A MEETING WITH
 UNIT EMPLOYEES WHICH DEALT WITH THE GENERAL TOPIC OF "FRAUD AWARENESS"
 AND STRESSED THE NEED FOR EMPLOYEE AWARENESS OF POSSIBLE FRAUDULENT
 CONCEALMENT OF INCOME BY TAXPAYERS.  THE TWO-HOUR SESSION WAS CONDUCTED
 AT THE ACTIVITY'S CHICAGO DISTRICT OFFICE BY THREE OF ITS OFFICIALS.
 ATTENDANCE BY BARGAINING UNIT EMPLOYEES IN THE SPECIAL ENFORCEMENT
 GROUPS WAS COMPULSORY.  IN UNDERSCORING THEIR POSITION THAT "FRAUD
 AWARENESS" WAS THE CHICAGO DISTRICT'S GREATEST PRIORITY, THE ACTIVITY'S
 SPOKESMAN TOLD EMPLOYEES THAT THEIR PROMOTION EVALUATIONS WOULD CONTAIN
 COMMENTS REGARDING THE FRAUD CASES THAT THEY HAD WORKED ON, AND THAT
 PROMOTION RANKING PANELS HAD BEEN INSTRUCTED TO AWARD EXTRA POINTS TO
 AGENTS WORKING ON FRAUD CASES.  THEREAFTER, APPROXIMATELY ONE-HALF HOUR
 WAS DEVOTED TO QUESTIONS AND ANSWERS BETWEEN UNIT EMPLOYEES AND THE
 ACTIVITY'S REPRESENTATIVES.  THE NATIONAL TREASURY EMPLOYEES UNION AND
 NTEU CHAPTER 10 (THE UNION) WAS NOT NOTIFIED IN ADVANCE OF THIS MEETING,
 ALTHOUGH ONE OF THE ATTENDING EMPLOYEES WAS A UNION STEWARD WHO
 CUSTOMARILY REPRESENTED THE UNION AT FORMAL DISCUSSIONS BETWEEN
 MANAGEMENT AND EMPLOYEES.
 
    THE UNION SUBSEQUENTLY FILED AN UNFAIR LABOR PRACTICE COMPLAINT
 ALLEGING, IN PERTINENT PART, THAT THE ACTIVITY VIOLATED SECTION 19(A)(1)
 AND (6) OF THE ORDER BY HOLDING THE "FRAUD AWARENESS" MEETING WITH UNIT
 EMPLOYEES WITHOUT PROVIDING THE UNION AN OPPORTUNITY TO BE REPRESENTED,
 AS REQUIRED BY SECTION 10(E) OF THE ORDER.
 
    THE ASSISTANT SECRETARY FOUND THAT THE CIRCUMSTANCES SURROUNDING THE
 "FRAUD AWARENESS" MEETING DID NOT GIVE RISE TO A VIOLATION OF SECTION
 19(A)(1) AND (6) OF THE ORDER.  IN SO FINDING, THE ASSISTANT SECRETARY
 STATED:
 
    . . . I FIND THAT THIS MEETING WAS A FORMAL DISCUSSION WITHIN THE
 MEANING OF SECTION 10(E)
 
    BECAUSE IN THIS MEETING . . . THE (ACTIVITY) RAISED THE ISSUES OF
 PERSONNEL FILE ENTRIES AND
 
    PROMOTION EVALUATIONS, ITEMS WHICH ARE CLEARLY PERSONNEL POLICIES AND
 PRACTICES AND MATTERS
 
    AFFECTING WORKING CONDITIONS OF UNIT EMPLOYEES.  HOWEVER, UNDER THE
 PARTICULAR CIRCUMSTANCES
 
    HEREIN, I FIND THAT THE (UNION) COMPLAINANTS WERE NOT DEPRIVED OF
 THEIR SECTION 10(E) RIGHT TO
 
    BE REPRESENTED AT A FORMAL DISCUSSION, AS THEY HAD ACTUAL NOTICE OF
 AND WERE REPRESENTED AT
 
    THE MEETING.  THUS, THE EVIDENCE ESTABLISHES THAT THE UNION STEWARD
 WHO CUSTOMARILY ATTENDED
 
    SUCH FORMAL DISCUSSIONS WAS, IN FACT, PRESENT AT THE MEETING AND HAD
 AN OPPORTUNITY TO
 
    REPRESENT THE (UNION) DURING THE DISCUSSION WHICH ENSUED.  /1/ AS A
 RESULT, I FIND THAT THE
 
    (UNION) SUFFERED NO DETRIMENT FROM THE LACK OF FORMAL NOTICE.
 
    ACCORDINGLY, THE ASSISTANT SECRETARY DISMISSED THE UNION'S COMPLAINT.
 
    IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE THAT
 THE ASSISTANT SECRETARY'S DECISION RAISES THE FOLLOWING MAJOR POLICY
 ISSUE:
 
    WHETHER THE PRESENCE OF AN EMPLOYEE, WHO IS ALSO A UNION STEWARD, AT
 A 10(E) MEETING
 
    SATISFIES THE REQUIREMENT OF THE ORDER THAT THE EXCLUSIVE
 REPRESENTATIVE "SHALL BE GIVEN THE
 
    OPPORTUNITY TO BE REPRESENTED," WHERE THE UNION HAS NOT BEEN NOTIFIED
 AND THE EMPLOYEE HAS
 
    BEEN INSTRUCTED TO ATTEND BY HIS MANAGER AS PART OF HIS DUTIES AS AN
 EMPLOYEE.
 
    IN THIS REGARD, YOU CONTEND THAT THE "FORTUITOUS CIRCUMSTANCE THAT AN
 EMPLOYEE WHO IS CALLED TO A MEETING BY MANAGEMENT HAPPENS ALSO TO BE A
 UNION OFFICER OR STEWARD DOES NOT SATISFY THE ORDER'S PROVISION THAT THE
 UNION BE GIVEN AN OPPORTUNITY TO BE REPRESENTED." YOU FURTHER ALLEGE
 THAT THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS IN
 THAT THE DECISION IS CONTRARY TO PREVIOUS DECISIONS, INCLUDING
 DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD, A/SLMR 1003 (MAR. 3,
 1978), IN FACTUALLY INDISTINGUISHABLE CIRCUMSTANCES.
 
    IN THE AUTHORITY'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
 SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2400.2 OF
 THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE SECTION
 2411.12 OF THE COUNCIL'S RULES.  THAT IS, THE DECISION OF THE ASSISTANT
 SECRETARY DOES NOT APPEAR ARBITRARY AND CAPRICIOUS OR PRESENT A MAJOR
 POLICY ISSUE.
 
    WITH REGARD TO YOUR ALLEGATION THAT THE ASSISTANT SECRETARY'S
 DECISION PRESENTS A MAJOR POLICY ISSUE AS TO WHETHER THE PRESENCE OF AN
 EMPLOYEE, WHO IS ALSO A UNION STEWARD, AT A 10(E) MEETING SATISFIES THE
 REQUIREMENT OF THE ORDER, WHERE THE UNION HAS NOT BEEN NOTIFIED AND THE
 EMPLOYEE HAS BEEN INSTRUCTED TO ATTEND BY HIS MANAGER AS PART OF HIS
 DUTIES AS AN EMPLOYEE, THE AUTHORITY IS OF THE OPINION THAT IN THE
 CIRCUMSTANCES OF THIS CASE NO MAJOR POLICY ISSUE WARRANTING REVIEW IS
 PRESENTED.  IN THIS REGARD, THE AUTHORITY NOTES PARTICULARLY THE
 ASSISTANT SECRETARY'S FINDING "UNDER THE PARTICULAR CIRCUMSTANCES
 HEREIN," THAT THE UNION WAS NOT DEPRIVED OF ITS SECTION 10(E) RIGHT TO
 BE REPRESENTED AT A FORMAL DISCUSSION SINCE IT HAD ACTUAL NOTICE OF AND
 WAS IN FACT REPRESENTED AT THE MEETING BY THE UNION STEWARD WHO
 CUSTOMARILY ATTENDED SUCH FORMAL DISCUSSIONS, AND THAT THE UNION
 THEREFORE SUFFERED NO DETRIMENT FROM THE LACK OF FORMAL NOTICE.  THUS,
 YOUR ALLEGED MAJOR POLICY ISSUE CONSTITUTES, IN ESSENCE, NOTHING MORE
 THAN DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDINGS AND, AS SUCH,
 PRESENTS NO BASIS FOR REVIEW.  /2/
 
    AS TO YOUR CONTENTION 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 IN THE CIRCUMSTANCES OF THIS CASE.  THUS, WITH REGARD TO YOUR
 ASSERTION THAT THE DECISION HEREIN IS CONTRARY TO PRIOR DECISIONS OF THE
 ASSISTANT SECRETARY IN FACTUALLY INDISTINGUISHABLE CIRCUMSTANCES, YOUR
 APPEAL FAILS TO ESTABLISH ANY CLEAR, UNEXPLAINED INCONSISTENCY BETWEEN
 THE INSTANT DECISION AND PREVIOUSLY PUBLISHED DECISIONS OF THE ASSISTANT
 SECRETARY.  RATHER, SUCH ASSERTION APPEARS TO CONSTITUTE ESSENTIALLY
 MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDING THAT THE
 INSTANT CASE IS FACTUALLY DISTINGUISHABLE FROM A PREVIOUS DECISION OF
 THE ASSISTANT SECRETARY UPON WHICH YOU PRINCIPALLY RELY, AND THEREFORE
 PRESENTS NO BASIS FOR AUTHORITY REVIEW.
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL FAILS TO
 MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2400.2 OF THE
 AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE SECTION
 2411.12 OF THE COUNCIL'S RULES.  ACCORDINGLY, YOUR PETITION FOR REVIEW
 IS HEREBY DENIED.  /3/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  T. BORDERS
 
    IRS
 
    /1/ SEE ROCKY MOUNTAIN ARSENAL, DENVER, COLORADO, A/SLMR 933(1977).
 COMPARE DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD, A/SLMR
 1003(1978), WHICH WAS CONSIDERED FACTUALLY DISTINGUISHABLE SINCE IN THAT
 CASE THE UNION REPRESENTATIVE WHO NORMALLY ATTENDED FORMAL DISCUSSIONS
 BETWEEN MANAGEMENT AND UNIT EMPLOYEES WAS NOT PRESENT AT THE MEETING
 INVOLVED.
 
    /2/ IN SO CONCLUDING, THE AUTHORITY DOES NOT REACH OR PASS UPON THE
 NATURE OF MANAGEMENT'S OBLIGATION TO AFFORD AN EXCLUSIVE REPRESENTATIVE
 AN OPPORTUNITY TO BE REPRESENTED AT ME