Internal Revenue Service, Fresno Service Center, A/SLMR No. 1119, FLRC No. 78A-139

 



[ v01 p225 ]
01:0225(29)CA
The decision of the Authority follows:


 1 FLRA No. 29
                                            APRIL 27, 1979
 
 MR. ANTHONY D'AMATO
 DIRECTOR OF PERSONNEL
 INTERNAL REVENUE SERVICE
 1111 CONSTITUTION AVENUE, N.W.
 WASHINGTON, D.C.  20224
 
                              RE:  INTERNAL REVENUE SERVICE, FRESNO 
                                   SERVICE CENTER, A/SLMR No. 1119, 
                                   FLRC No. 78A-139
 
 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 AND NTEU CHAPTER
 97 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT ALLEGING THAT
 THE INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER (THE ACTIVITY)
 VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY REFUSING TO PERMIT THE
 UNION TO EXAMINE AN INVESTIGATORY FILE WHICH ASSERTEDLY PROVIDED THE
 BASIS FOR TERMINATING A PROBATIONARY EMPLOYEE.
 
    THE ASSISTANT SECRETARY CONCLUDED THAT THE ACTIVITY'S REFUSAL TO
 FURNISH THE PROBATIONARY EMPLOYEE AND HIS UNION REPRESENTATIVE WITH A
 COPY OF THE INVESTIGATORY FILE VIOLATED SECTION 19(A)(1) AND (6) OF THE
 ORDER.  IN SO CONCLUDING, THE ASSISTANT SECRETARY STATED IN PERTINENT
 PART:
 
    SECTION 10(E) OF THE ORDER PROVIDES THAT A LABOR ORGANIZATION
 ACCORDED EXCLUSIVE
 
    RECOGNITION HAS THE RESPONSIBILITY TO REPRESENT THE INTERESTS OF ALL
 EMPLOYEES IN THE
 
    UNIT.  IT HAS PREVIOUSLY BEEN HELD THAT AN EXCLUSIVE REPRESENTATIVE
 CANNOT MEET THIS
 
    RESPONSIBILITY IF IT IS PREVENTED FROM OBTAINING RELEVANT AND
 NECESSARY INFORMATION RELATING
 
    TO ITS DUTY TO ADMINISTER ITS NEGOTIATED AGREEMENT, AND TO REPRESENT
 AND COUNSEL EMPLOYEES
 
    REGARDING THE EXERCISE OF THEIR RIGHTS UNDER THE ORDER AND THE
 NEGOTIATED AGREEMENT.
 
    IN THE INSTANT CASE, THE (ACTIVITY) REFUSED TO MAKE AVAILABLE TO THE
 (UNION) THE
 
    INVESTIGATORY FILE WHICH FORMED THE BASIS OF ITS DECISION TO
 TERMINATE A PROBATIONARY EMPLOYEE
 
    BECAUSE OF "UNDESIRABLE SUITABILITY CHARACTERISTICS".  I FIND, IN
 AGREEMENT WITH THE
 
    ADMINISTRATIVE LAW JUDGE, THAT THIS AMBIGUOUS LANGUAGE CONTAINED IN
 THE (ACTIVITY'S)
 
    TERMINATION LETTER HAD THE EFFECT OF MAKING THE INVESTIGATORY FILE
 PRIMA FACIE RELEVANT AND
 
    NECESSARY TO THE EXCLUSIVE REPRESENTATIVE IF IT WERE TO UNDERSTAND
 THE REASONS FOR THE
 
    (ACTIVITY'S) ACTION, AND TO FULFILL ITS REASONABLY BE CONSTRUED BY
 THE LATTER TO REFLECT AN
 
    INTENTION BY THE RESPONDENT TO DISCOURAGE HIM FROM ENGAGING IN
 PROTECTED UNION
 
    ACTIVITY.  CONSEQUENTLY, I AGREE WITH THE ADMINISTRATIVE LAW JUDGE'S
 CONCLUSION THAT THE
 
    CONDUCT BY THE RESPONDENT'S SUPERVISOR, UNDER THE CIRCUMSTANCES OF
 THIS CASE, WAS VIOLATIVE OF
 
    SECTION 19(A)(1) OF THE ORDER.
 
    IN SO CONCLUDING, THE ASSISTANT SECRETARY AFFIRMED A RULING BY THE
 ALJ WHO REFUSED TO ALLOW TESTIMONY REGARDING DISCUSSIONS BETWEEN THE
 PARTIES WHICH OCCURRED AFTER THE FILING OF THE PRE-COMPLAINT CHARGE AND
 WHICH THE ALJ DEEMED RELATED TO SETTLEMENT EFFORTS.
 
    IN THE PETITION FOR REVIEW ON BEHALF OF THE AGENCY, IT IS CONTENDED,
 IN EFFECT, THAT THE ASSISTANT SECRETARY'S DECISION APPEARS ARBITRARY AND
 CAPRICIOUS OR PRESENTS A MAJOR POLICY ISSUE.  IN ESSENCE, THE PETITION
 ASSERTS THAT THE ASSISTANT SECRETARY FAILED TO PROPERLY APPLY THE
 COUNCIL'S DECISION IN VANDENBERG AIR FORCE BASE, 4392D AEROSPACE SUPPORT
 GROUP, VANDENBERG AIR FORCE BASE, CALIFORNIA, A/SLMR 435, 3 FLRC 491
 (FLRC 74A-77 (AUG. 8, 1975), REPORT NO. 79), HIS OWN PREVIOUSLY
 PUBLISHED DECISIONS, AND PRIVATE SECTOR CASES BY FAILING TO FIND THAT
 THE CONDUCT IN ISSUE WAS ISOLATED OR DE MINIMIS IN NATURE.  IT IS
 FURTHER CONTENDED THAT THE ASSISTANT SECRETARY ERRED IN FAILING TO
 CONSIDER AN EXCEPTION TO THE ALJ'S DECISION TO THE EFFECT THAT THE
 SUPERVISOR WAS NOT ENGAGED IN ILLEGAL INTERROGATION, BUT RATHER IN A
 LEGITIMATE ATTEMPT TO RESOLVE A POTENTIAL GRIEVANCE CONCERNING HER
 ALLEGED PREJUDICE AGAINST FIELD EXAMINERS.  FINALLY, IT IS CONTENDED
 THAT THE ASSISTANT SECRETARY ERRED IN SUSTAINING THE ALJ'S REFUSAL TO
 PERMIT THE INTRODUCTION OF TESTIMONY CONCERNING THE SUPERVISOR'S
 SUBSEQUENT APOLOGIES AND ASSURANCES TO THE EMPLOYEE AND THE UNION ON THE
 GROUND THAT SUCH TESTIMONY INVOLVED SETTLEMENT EFFORTS.
 
    IN THE AUTHORITY'S OPINION, THE 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, IT DOES NOT APPEAR THAT THE
 ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS OR PRESENTS
 A MAJOR POLICY ISSUE.
 
    SPECIFICALLY, WITH RESPECT TO THE CONTENTION THAT THE ASSISTANT
 SECRETARY FAILED TO APPLY THE COUNCIL'S DECISION IN VANDENBERG (SUPRA P.
 2), HIS OWN PRIOR DECISIONS AND PRIVATE SECTOR CASES CONCERNING ISOLATED
 OR DE MINIMIS CONDUCT, THE APPEAL DOES NOT CONTAIN ANY BASIS TO SUPPORT
 AN ASSERTION THAT THE ASSISTANT SECRETARY'S DECISION HEREIN WAS
 INCONSISTENT EITHER WITH APPLICABLE PRECEDENT OR WITH THE PURPOSES AND
 POLICIES OF THE ORDER.  MOREOVER, NO BASIS FOR AUTHORITY REVIEW IS
 PRESENTED WITH RESPECT TO THE CONTENTION THAT THE SUPERVISOR WAS MERELY
 ATTEMPTING TO RESOLVE A POTENTIAL GRIEVANCE.  THUS, IN THE AUTHORITY'S
 THAT IS, THE DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR
 ARBITRARY AND CAPRICIOUS OR RAISE ANY MAJOR POLICY ISSUES.
 
    THUS, WITH RESPECT TO THE AGENCY'S ALLEGATION THAT THE ASSISTANT
 SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE BY, IN EFFECT,
 REQUIRING MANAGEMENT TO NOTIFY AND BARGAIN WITH AN EXCLUSIVE
 REPRESENTATIVE CONCERNING THE IMPACT AND IMPLEMENTATION OF A "TENTATIVE"
 RATHER THAN ACTUAL DECISION PROTECTED BY SECTIONS 11(B) AND 12(B) OF THE
 ORDER, NO BASIS FOR REVIEW IS THEREBY PRESENTED.  RATHER, SUCH
 ALLEGATION CONSTITUTES ESSENTIALLY MERE DISAGREEMENT WITH THE ASSISTANT
 SECRETARY'S FINDING, BASED UPON THE ENTIRE RECORD IN THE SUBJECT CASE,
 THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY
 "FAILING TO NOTIFY THE (UNION) AND AFFORD IT THE OPPORTUNITY TO BARGAIN
 CONCERNING THE IMPACT AND IMPLEMENTATION OF ITS DECISION . . . TO
 SUSPEND THE PROMOTIONS OF EMPLOYEES. . . ." IN THIS REGARD, AS TO THE
 CONTENTION THAT THE ACTIVITY WAS NOT OBLIGATED TO NOTIFY OR BARGAIN WITH
 THE UNION BECAUSE ITS DETERMINATION WAS NOT FINAL, THE ASSISTANT
 SECRETARY NOTED THAT, HOWEVER THE ACTIVITY CHARACTERIZED ITS
 DETERMINATION, "IT WAS IMPLEMENTED AND ITS IMPACT ON CERTAIN EMPLOYEES
 WAS IMMEDIATE . . . AND REAL."
 
    IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY'S DECISION IS
 ARBITRARY AND CAPRICIOUS OR PRESENTS A MAJOR POLICY ISSUE, AS ALLEGED BY
 THE UNION, CONCERNING HIS DENIAL OF THE UNION'S REQUEST FOR A STATUS QUO
 ANTE REMEDY.  IN THIS REGARD, AS THE COUNCIL HAS PREVIOUSLY STATED,
 SECTION 6(B) OF THE ORDER CONFERS CONSIDERABLE DISCRETION ON THE
 ASSISTANT SECRETARY, WHOSE REMEDIAL DIRECTIVES HAVE NOT BEEN REVIEWED BY
 THE COUNCIL UNLESS IT APPEARED THAT THE THE ASSISTANT SECRETARY EXCEEDED
 THE SCOPE OF HIS AUTHORITY UNDER SECTION 6(B) OR ACTED ARBITRARILY AND
 CAPRICIOUSLY OR IN A MANNE