Internal Revenue Service, Washington, DC and Internal Revenue Service, Hartford District Office (Respondents) and National Treasury Employees Union (Labor Organization)
[ v04 p237 ]
04:0237(37)CA
The decision of the Authority follows:
4 FLRA No. 37 INTERNAL REVENUE SERVICE, WASHINGTON, D.C., AND INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE Respondents and NATIONAL TREASURY EMPLOYEES UNION Labor Organization Case No. 1-CA-77 DECISION AND ORDER THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER. THE RESPONDENT FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER. 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 SUBJECT CASE INCLUDING THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, WITHOUT FINDING IT NECESSARY TO PASS UPON HIS DICTA REGARDING WHAT HE TERMED "THE PROBLEM OF IDENTIFYING THE PROPER RESPONDENT." ORDER PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE, WASHINGTON, D.C., AND THE INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE SHALL: 1. CEASE AND DESIST FROM: (A) REQUIRING ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION, INTERVIEW OR MEETING IN CONNECTION WITH AN INVESTIGATION WITHOUT UNION REPRESENTATION BY THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION, INTERVIEW OR MEETING MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE. (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE POLICIES OF THE STATUTE: (A) POST AT ITS HARTFORD DISTRICT OFFICE, HARTFORD, CONNECTICUT, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY AN AUTHORIZED REPRESENTATIVE, AND THEY SHALL BE POSTED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND REGULATIONS, NOTIFY THE REGIONAL DIRECTOR FOR REGION 1, 441 STUART STREET, 8TH FLOOR, BOSTON, MA 02116, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH. ISSUED, WASHINGTON, D.C., SEPTEMBER 26, 1980 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT REQUIRE ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION, INTERVIEW OR MEETING IN CONNECTION WITH AN INVESTIGATION WITHOUT REPRESENTATION BY THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION, INTERVIEW OR MEETING MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE. WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. (AGENCY OR ACTIVITY) DATED: . . . BY: (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 441 STUART STREET, 8TH FLOOR, BOSTON, MA 02116, AND WHOSE TELEPHONE NUMBER IS: (617) 223-0920. --------------- LOWS ----- OFFICE OF THE REGIONAL COUNSEL, IRS 26 FEDERAL PLAZA, ROOM 1214 NEW YORK, NY 10007 AND ROGER KAPLAN, ESQ. OFFICE OF THE CHIEF COUNSEL, IRS 1111 CONSTITUTION AVENUE WASHINGTON, D.C. FOR THE RESPONDENTS PAUL E. STANZLER, ESQ. AND RICHARD D. ZAIGER, ESQ. FEDERAL LABOR RELATIONS AUTHORITY, REGION 1 441 STUART STREET BOSTON, MASSACHUSETTS 02116 FOR THE GENERAL COUNSEL AUDREY BROWNE NATIONAL TREASURY EMPLOYEES UNION 1730 K STREET, N.W. WASHINGTON, D.C. 20006 FOR THE CHARGING PARTY BEFORE: SALVATORE J. ARRIGO ADMINISTRATIVE LAW JUDGE DECISION AND ORDER PRELIMINARY STATEMENT THIS CASE AROSE UNDER THE PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. (HEREIN REFERRED TO AS THE STATUTE) AND THE INTERIM RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG. VOL. 44, NO. 147, 5 C.F.R.CHAPTER XIV, PART 2411, ET SEQ. (HEREIN REFERRED TO AS THE REGULATIONS). ESSENTIALLY, THE COMPLAINT ALLEGES THAT THE STATUTE WAS VIOLATED WHEN THE RESPONDENTS /1/ REFUSED TO GRANT AN INTERNAL REVENUE SERVICE (IRS) EMPLOYEE'S REQUEST FOR UNION REPRESENTATION DURING AN INVESTIGATIVE INTERVIEW. ON JUNE 15, 1979, THE NATIONAL TREASURY EMPLOYEES UNION FILED THE ORIGINAL UNFAIR LABOR PRACTICE CHARGE IN THIS MATTER NAMING "U.S. INTERNAL REVENUE SERVICE, AND IRS HARTFORD DISTRICT OFFICE" AS THE RESPONDENT ACTIVITY AND/OR AGENCY AND ALLEGING VIOLATIONS OF SECTIONS 7116(A)(1)(5) AND (8) OF THE STATUTE. THE CHARGE WAS AMENDED ON NOVEMBER 5, 1979, AT WHICH TIME THE NAME OF THE RESPONDENT REMAINED THE SAME BUT THE SECTION 7116(A)(5) ALLEGATION WAS DELETED. THE COMPLAINT, WHICH ISSUED ON NOVEMBER 8, 1979, SET OUT AS THE RESPONDENT, "INTERNAL REVENUE SERVICE HARTFORD DISTRICT OFFICE" AND NAMED INSPECTORS CHARLES NAGY AND ROGER ROOK AND (GROUP MANAGER) CHARLES MCQUEENEY AS SUPERVISORS OR AGENTS OF RESPONDENT. RESPONDENT'S ANSWER TO THE COMPLAINT, DATED NOVEMBER 20, 1979, INTER ALIA, DENIED THAT INSPECTORS NAGY AND ROOK WERE OR ARE ". . . AGENTS OR SUPERVISORS OF RESPONDENT AS NAMED IN SAID COMPLAINT." THE ANSWER FURTHER ASSERTED THAT NAGY AND ROOK WERE ". . . ASSOCIATED WITH THE OFFICE OF REGIONAL INSPECTOR, MID-ATLANTIC REGION, INTERNAL REVENUE SERVICE, AND THAT, ACCORDINGLY, THE ABOVE-NAMED RESPONDENT IS NOT A PROPER PARTY TO THESE PROCEEDINGS." ON DECEMBER 10, 1979, COUNSEL FOR THE GENERAL COUNSEL NOTIFIED RESPONDENT THAT IT INTENDED TO AMEND THE COMPLAINT AT THE HEARING, AS FOLLOWS: INTERNAL REVENUE SERVICE, WASHINGTON, D.C. IS A CO-RESPONDENT ALONG WITH INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE IN THE ABOVE-CAPTIONED CASE. ROGER ROOK AND CHARLES NAGY ARE AGENTS OF INTERNAL REVENUE SERVICE, WASHINGTON, D.C., AS WELL AS BEING AGENTS OF THE HARTFORD DISTRICT OFFICE. BY MOTION DATED DECEMBER 11, 1979, COUNSEL FOR RESPONDENT OPPOSED AS UNTIMELY ANY AMENDMENT TO THE COMPLAINT AT THE HEARING AND ALTERNATIVELY, MOVED THAT THE SCHEDULED HEARING BE POSTPONED UNTIL AFTER RESPONDENT HAD BEEN SERVED WITH AN AMENDED COMPLAINT AND AFFORDED THE ANSWER TIME PROVIDED BY SECTION 2423.12 OF THE REGULATIONS. /2/ RESPONDENT FURTHER RELIED ON SECTION 7118(A)(6) OF THE STATUTE AND SECTION 2423.11(A)(3) OF THE REGULATIONS IN SUPPORT OF ITS MOTION. /3/ AT THE DECEMBER 18, 1979, HEARING, COUNSEL FOR THE GENERAL COUNSEL MOVED TO AMEND THE COMPLAINT CONSISTENT WITH ITS PRIOR NOTICE OF INTENTION TO AMEND. RESPONDENT OPPOSED AND BOTH PARTIES GAVE ARGUMENT ON THE MATTER. THEREAFTER, I PERMITTED THE AMENDMENT TO THE COMPLAINT AND DENIED RESPONDENT'S MOTION TO POSTPONE. THROUGHOUT THE HEARING ALL PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE AND CALL, EXAMINE AND CROSS-EXAMINE WITNESSES AND ARGUE ORALLY. BRIEFS WERE FILED BY THE GENERAL COUNSEL, RESPONDENT /4/ AND THE CHARGING PARTY. UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I MAKE THE FOLLOWING: FINDINGS OF FACT SOMETIME DURING FEBRUARY 1979, ROBERT DALEY, AN IRS REVENUE OFFICER EMPLOYED AT THE HARTFORD, CONNECTICUT DISTRICT OFFICE, WHILE ENGAGED IN A TELEPHONE CONVERSATION WITH A TAXPAYER ABOUT HIS TAX ACCOUNT, RECEIVED A COMPLAINT AGAINST THE IRS. THE TAXPAYER ALLEGED THAT AN IRS REGIONAL INTERNAL AUDITOR MADE CERTAIN PUBLIC DISCLOSURES RELATIVE TO THE TAXPAYER'S TAX LIABILITIES AND ACTIONS WHICH THE IRS PROPOSED TO TAKE AGAINST HIM. DALEY THEREUPON RELAYED THIS INFORMATION TO HIS SUPERVISOR, CHARLES MCQUEENEY, GROUP MANAGER OF THE COLLECTION DIVISION, IRS HARTFORD DISTRICT. ON MARCH 15, 1979, MCQUEENEY NOTIFIED DALEY THAT DALEY WAS TO BE INTERVIEWED ON THE FOLLOWING DAY BY IRS INSPECTION PERSONNEL FROM NEW JERSEY. DALEY WAS NOT TOLD THE PURPOSE OF THE MEETING BUT ASSUMED IT HAD TO DO WITH THE DISCLOSURE COMPLAINT HE PREVIOUSLY FORWARDED TO MCQUEENEY. THEREUPON, DALEY, A MEMBER OF THE COLLECTIVE BARGAINING UNIT OF IRS EMPLOYEES FOR WHICH THE UNION HOLDS EXCLUSIVE RECOGNITION, AND AN EX-UNION OFFICER, CONTACTED THE UNION'S ATTORNEY, PETER CONROY, AND ASKED HIM TO BE PRESENT DURING THE INTERVIEW. DALEY INFORMED MCQUEENEY THAT HE HAD ASKED CONROY TO ACCOMPANY HIM TO THE INTERVIEW AND LATER THAT DAY MCQUEENEY TOLD DALEY THAT THE UNION ATTORNEY WOULD NOT BE PERMITTED TO ACCOMPANY HIM SINCE THIS WOULD BE A "THIRD PARTY" INTERVIEW WHEREIN DALEY WAS NOT THE SUBJECT OF THE INVESTIGATION. ON MARCH 16, 1979, DALEY, ACCOMPANIED BY CONROY, ARRIVED AT THE APPOINTED TIME IN THE OFFICE OF THE REGIONAL INSPECTOR, IRS, HARTFORD. THERE, DALEY AND CONROY MET WITH A LOCAL INSPECTOR AND TWO INSPECTORS FROM THE NEW JERSEY OFFICE OF THE IRS INSPECTION SERVICE, INTERNAL SECURITY DIVISION. /5/ DALEY EXPLAINED THAT CONROY WAS THE UNION ATTORNEY AND WAS INFORMED BY THE INTERNAL SECURITY INSPECTORS THAT SINCE IT WAS A "THIRD-PARTY" INTERVIEW AND DALEY WAS NOT THE SUBJECT OF THE INVESTIGATION, HE WOULD NOT BE ALLOWED TO HAVE A REPRESENTATIVE WITH HIM. CONROY OBJECTED BUT NEVERTHELESS TOLD DALEY TO PROCEED TO THE INTERVIEW ROOM AND HE WOULD REMAIN OUTSIDE. AFTER DALEY ENTERED THE INTERVIEW ROOM WITH THE TWO INSPECTORS FROM INTERNAL SECURITY HE WAS AGAIN ADVISED THAT HE WAS NOT ALLOWED TO HAVE AN ATTORNEY WITH HIM BECAUSE DALEY WAS NOT THE SUBJECT OF THE INVESTIGATION. DALEY WAS PLACED UNDER OATH AND ONE INSPECTOR ASKED QUESTIONS WHILE THE OTHER TOOK NOTES. AS DALEY ASSUMED, THE SUBJECT MATTER OF THE INVESTIGATION WAS THE COMPLAINT HE RECEIVED REGARDING THE PURPORTED DISCLOSURE BY THE INTERNAL AUDITOR. /6/ DALEY WAS ASKED TO REPEAT THE TELEPHONE CONVERSATION HE HAD WITH THE COMPLAINING TAXPAYER AND THE DETAILS OF HIS TRANSMITTING THE INFORMATION TO MCQUEENEY. DALEY WAS ALSO QUESTIONED ON WHETHER HE SAW THE INTERNAL AUDITOR IN HIS (DALEY'S) WORK AREA AND IF IT WAS POSSIBLE THAT DALEY HAD THE TAXPAYER'S RECORDS ON HIS DESK AND SOMEONE IN THE AREA, OR WALKING BY, COULD HAVE OBSERVED OR OBTAINED INFORMATION RELATIVE TO THE TAXPAYER. DALEY'S RESPONSES WERE ALL IN THE NEGATIVE. INSPECTOR NAGY'S REPORT OF HIS INTERVIEW WITH DALEY STATES, INTER ALIA: "HE HAS HAD NO CONTACT WITH (THE INTERNAL AUDITOR) ON OR OFF DUTY EXCEPT POSSIBLY FOR AN INTRODUCTION DURING A COFFEE BREAK. (THE INTERNAL AUDITOR) NEVER EXPRESSED AN INTEREST IN (THE TAXPAYER) OR (HIS) BUSINESS, AND HE HAS NEVER MENTIONED (THE TAXPAYER'S) TAX PROBLEMS TO (THE INTERNAL AUDITOR). "THE TAXES OWED BY (THE TAXPAYER'S) BUSINESS IS ASSIGNED TO REVENUE OFFICER JACOB SCHULTZ AND HIS DALEY'S) ONLY CONCERN WITH (THE TAXPAYER) IS SOLELY IN CONNECTION WITH HIS . . . PERSONAL TAXES THAT ARE DUE. "THAT ALTHOUGH HE HAD CONTEMPLATED SEIZURE ACTION AGAINST (THE TAXPAYER) HE HAD NEVER DISCUSSED THAT POSSIBILITY WITH SCHULTZ NOR HAD EVER MADE ANY NOTATIONS IN THE CASE FILE RELATIVE TO POSSIBLE SEIZURE ACTION. HE DOES NOT KNOW ANYTHING ABOUT SCHULTZ'S COLLECTION ACTIVITY INVOLVING (THE TAXPAYER'S) BUSINESS. "HE DID NOT KNOW HOW (THE INTERNAL AUDITOR) WOULD HAVE BEEN AWARE OF (THE TAXPAYER'S) TAX PROBLEMS OR OF ANY CONTEMPLATED SEIZURE ACTION BECAUSE THE CASE FILE DOES NOT CONTAIN ANY REFERENCE TO SEIZURE ACTION AND HE NEVER DISCUSSED THE MATTER WITH (THE INTERNAL AUDITOR)." AT THE CONCLUSION OF THE INTERVIEW THE INSPECTORS THANKED DALEY AND INSTRUCTED HIM NOT TO DISCLOSE TO ANYONE THE IDENTITY OF THE TAXPAYER OR THE IRS INTERNAL AUDITOR UNDER INVESTIGATION. THE MEETING LASTED LESS THAN A HALF AN HOUR AND WAS DESCRIBED BY DALEY AS "CORDIAL." DALEY HAD NO FURTHER INVOLVEMENT WITH THIS MATTER. AT THE HEARING DALEY TESTIFIED THAT HE WAS AWARE THAT THE RULES OF CONDUCT FOR IRS EMPLOYEES REFER TO DISCLOSURE OF TAXPAYER OR CONFIDENTIAL INFORMATION AND SUCH UNNECESSARY DISCLOSURE, EVEN TO ANOTHER EMPLOYEE, IS AN OFFENSE SUBJECT TO DISCIPLINE. ACCORDINGLY, WHILE AT WORK BUT AWAY FROM HIS DESK DALEY FOLLOWED THE PRACTICE OF COVERING OR PUTTING AWAY TAX INFORMATION OF A PROPRIETARY NATURE. DALEY ALSO TESTIFIED THAT HE KNEW THAT THE IRS OFFICE OF REGIONAL INSPECTION INVESTIGATED ALL VIOLATIONS OF THE RULES OF CONDUCT " . . . AND THAT WHEN THEY GET INVOLVED, IT WAS A VERY SERIOUS MATTER AND COULD LEAD TO DISCIPLINARY ACTION." HOWEVER, DALEY ALSO TESTIFIED THAT HE HAD NO REASON TO BELIEVE, DURING OR AFTER THE INTERVIEW, THAT HE WAS THE SUBJECT OF THE INVESTIGATION. TESTIMONY REVEALS THAT NORMALLY AN INVESTIGATION INVOLVING A HARTFORD DISTRICT OFFICE EMPLOYEE WOULD BE PERFORMED BY INVESTIGATORS FROM THE IRS OFFICE OF REGIONAL INSPECTOR, NORTH-ATLANTIC REGIONAL OFFICE, OF WHICH THE HARTFORD DISTRICT OFFICE IS ORGANIZATIONALLY A PART. HOWEVER, INVESTIGATIONS OF AN INSPECTION EMPLOYEE, SUCH AS THE NORTH-ATLANTIC REGIONAL INTERNAL AUDITOR WHOSE CONDUCT WAS BEING INVESTIGATED, WOULD USUALLY BE CONDUCTED BY THE IRS INVESTIGATION BRANCH IN WASHINGTON, D.C. ACCORDINGLY, SINCE THE PRIMARY PARTY UNDER INVESTIGATION WAS AN INSPECTION EMPLOYEE FROM THE NORTH-ATLANTIC REGION, IT WAS DEEMED INAPPROPRIATE TO HAVE HIM INVESTIGATED BY PERSONNEL FROM THE SAME REGION AND INVESTIGATORS FROM A SEPARATE AND INDEPENDENT REGION, THE MID-ATLANTIC REGION, WERE SELECTED. THE PRIMARY FUNCTION OF A REGIONAL INSPECTOR CONDUCTING AN INVESTIGATION IS TO OBTAIN THE FACTS RELEVANT TO A PARTICULAR SITUATION. INSPECTORS HAVE NO AUTHORITY TO DISCIPLINE OR RECOMMEND DISCIPLINE WITH REGARD TO THE MATTER UNDER INVESTIGATION. IN THE CASE HEREIN, THE REPORT OF INVESTIGATION WAS FORWARDED WITHOUT RECOMMENDATION TO THE INSPECTORS' BRANCH CHIEF IN THE MID-ATLANTIC REGION WHO FORWARDED THE ORIGINAL REPORT TO THE REGIONAL INSPECTOR, NORTH-ATLANTIC REGION AND A COPY TO THE OFFICE OF THE ASSISTANT COMMISSIONER FOR INSPECTION IN WASHINGTON, D.C. THE NORTH-ATLANTIC REGIONAL INSPECTOR WAS THE ADJUDICATORY OFFICIAL WITH AUTHORITY TO MAKE A DETERMINATION AS TO WHAT ACTION, IF ANY, SHOULD BE TAKEN RELATIVE TO THE AUDITOR UNDER INVESTIGATION. THE INTERNAL AUDITOR WAS ULTIMATELY FOUND TO BE INNOCENT OF ANY WRONGDOING. IT DOES NOT APPEAR THAT THE REPORT WAS EVER FORWARDED TO ANY OFFICIALS IN THE HARTFORD DISTRICT OFFICE. HOWEVER, IF A HARTFORD DISTRICT OFFICE EMPLOYEE WAS FOUND TO BE INVOLVED IN THE SITUATION IT WOULD BE THE DISTRICT DIRECTOR OF THE HARTFORD DISTRICT WHO WOULD HAVE AUTHORITY TO DECIDE ON WHETHER TO ISSUE ANY DISCIPLINARY OR ADVERSE ACTION AGAINST THAT EMPLOYEE. THE STANDARD PROCEDURE FOR IRS INSPECTORS WHILE INTERVIEWING WITNESSES IS TO NOTIFY THE INDIVIDUAL OF THE RIGHT TO COUNSEL, TO REMAIN SILENT, ETC. /7/ IF THAT PERSON APPEARS TO BE INVOLVED IN MATTERS OF A CRIMINAL NATURE. IF THE PARTY REQUESTED COUNSEL, THE INTERVIEW WOULD NOT BE CONTINUED UNTIL SUCH TIME AS COUNSEL WAS PRESENT. THIS RIGHT WOULD ALSO EXTEND TO MATTERS OF IMPROPER DISCLOSURE OF INFORMATION IF SUCH BECAME APPARENT DURING AN INQUIRY INTO ANOTHER MATTER, WHETHER THE WITNESS WAS THE PRIMARY SUBJECT OF THE INVESTIGATION OR MERELY A PARTY WHO WAS BEING QUESTIONED TO ASCERTAIN WHETHER HE HAD RELEVANT INFORMATION. HOWEVER, EVEN IF THE INTERVIEW WAS SUSPENDED AT THAT POINT, THE INVESTIGATOR WOULD REPORT TO SUPERIORS THE INFORMATION THUS FAR OBTAINED. IF A WITNESS, NOT UNDER INVESTIGATION, WAS BEING INTERVIEWED AND DISCLOSED HAVING ENGAGED IN A NON-CRIMINAL VIOLATION OF THE IRS RULES OF CONDUCT, THE INSPECTOR WOULD CONTINUE THE INTERVIEW AND ATTEMPT TO AVOID THAT PARTICULAR AREA. IF THE WITNESS AT THIS POINT ASKED FOR COUNSEL OR A REPRESENTATIVE, FURTHER QUESTIONING WOULD NOT CONTINUE OUTSIDE THE PRESENCE OF COUNSEL. IN ANY EVENT, AT THE CLOSE OF THE INTERVIEW, ALL INFORMATION OBTAINED WOULD BE FORWARDED TO THE APPROPRIATE OFFICIAL TO DETERMINE WHAT, IF ANY, ACTION WAS WARRANTED. DISCUSSION AND CONCLUSIONS PROCEDURAL MATTERS RESPONDENT CONTENDS IN ITS BRIEF THAT THE GENERAL COUNSEL SHOULD NOT HAVE BEEN PERMITTED TO AMEND THE COMPLAINT AT THE HEARING TO INCLUDE IRS WASHINGTON, D.C. AS A RESPONDENT AND INSPECTORS NAGY AND ROOK AS AGENTS OF IRS WASHINGTON. REASONING THEREFROM, RESPONDENT ARGUES THAT HARTFORD DISTRICT OFFICE IS THE ONLY RESPONDENT IN THIS CASE; NAGY AND ROOK ARE NOT AGENTS OF THE HARTFORD DISTRICT OFFICE; AND THEREFORE, EVEN IF THE DALEY INTERVIEW WAS IN VIOLATION OF THE STATUTE, NO UNFAIR LABOR PRACTICE CAN BE ESTABLISHED AGAINST THE RESPONDENT OF RECORD. I REJECT RESPONDENT'S CONTENTIONS. SECTION 2423.11(D) OF THE APPLICABLE REGULATIONS PROVIDES INTER ALIA, THAT "(A) COMPLAINT MAY BE AMENDED, UPON SUCH TERMS AS MAY BE DEEMED JUST, . . . AT THE HEARING . . . UPON MOTION BY THE ADMINISTRATIVE LAW JUDGE DESIGNATED TO CONDUCT THE HEARING . . . " RESPONDENT RECEIVED NOTIFICATION OF COUNSEL FOR THE GENERAL COUNSEL'S INTENTION TO AMEND EIGHT DAYS BEFORE THE HEARING, WHICH I FIND ADEQUATE NOTICE IN THESE CIRCUMSTANCES. THE SUBSTANTIVE NATURE OF THE ALLEGATIONS WAS LEFT UNCHANGED AND THE AMENDMENT ESSENTIALLY REFLECTED MERELY THAT TWO EMPLOYEES ACCUSED OF PARTAKING IN THE ALLEGED VIOLATION WERE NOT ONLY AGENTS OF THE HARTFORD DISTRICT OFFICE BUT ALSO AGENTS OF THE AGENCY-INTERNAL REVENUE SERVICE, WASHINGTON, D.C. FURTHER, RESPONDENT MADE NO PERSUASIVE SHOWING THAT IT WAS IMPAIRED OR PREJUDICED IN PRESENTING A DEFENSE IN THIS CASE OR THAT DUE PROCESS OF LAW WAS SOMEHOW VIOLATED BY PERMITTING THE AMENDMENT. ACCORDINGLY, I REAFFIRM MY RULINGS RELATIVE TO PERMITTING THE AMENDMENTS TO THE COMPLAINT. I FURTHER CONCLUDE THAT BOTH THE IRS HARTFORD DISTRICT OFFICE AND THE IRS AS AN AGENCY ARE PROPER RESPONDENTS IN THIS MATTER AND NAGY AND ROOK ARE AGENTS OF BOTH RESPONDENTS. INDEED, IN MY VIEW THE HARTFORD DISTRICT OFFICE AND THE IRS, WASHINGTON, D.C., THE NATIONAL OFFICE, ARE AGENTS FOR ONE ANOTHER IN CARRYING OUT AGENCY POLICY AS A JOINT ENTERPRISE IN DEALING WITH HARTFORD DISTRICT OFFICE EMPLOYEES. THE REALITY HEREIN IS THAT THE IRS AS AN AGENCY IS THE EMPLOYING ENTITY. ORGANIZATIONALLY, THE AGENCY CONDUCTS ITS BUSINESS THROUGH VARIOUS LEVELS OF ADMINISTRATIVE BODIES, INCLUDING THE HARTFORD DISTRICT OFFICE. THE HARTFORD OFFICE IS MERELY AN OPERATIONAL ADDRESS OF THIS AGENCY AND AN INTERDEPENDENCE EXISTS BETWEEN THE DISTRICT OFFICE AND THE NATIONAL OFFICE IN DEALING WITH EMPLOYEE-MANAGEMENT MATTERS. /8/ STAFF ASSISTANCE IS PROVIDED TO THE DISTRICT OFFICE BY THE NATIONAL OFFICE AND DIRECTION IS GIVEN BY WAY OF ENACTING AND ENFORCING REGULATIONS CONCERNING EMPLOYEE CONDUCT AND ACTIVITIES. THE COLLECTIVE BARGAINING AGREEMENT WAS NEGOTIATED FOR THE DISTRICT OFFICES BY, INTER ALIA, IRS LABOR RELATIONS BRANCH EMPLOYEES, AND AN INDIVIDUAL FOR THE OFFICE OF THE CHIEF COUNSEL. THE AGREEMENT WAS APPROVED BY THE PERSONNEL DIVISION DIRECTOR FOR THE AGENCY. WHEN THE SITUATION INVOLVING THE ALLEGED IMPROPER CONDUCT OF THE INTERNAL AUDITOR AROSE IN THIS CASE, A DECISION WAS MADE SOMEWHERE IN THE RECESSES OF THE AGENCY, THAT INSPECTORS FROM A PARTICULAR REGIONAL OFFICE WOULD PERFORM THE INVESTIGATION. THE INVESTIGATION HAPPENED TO INVOLVE A HARTFORD DISTRICT OFFICE EMPLOYEE AND ACCORDINGLY, THE COMPLAINT NAMED THE INSPECTORS AS AGENTS OF THE IMMEDIATE EMPLOYER OF THAT EMPLOYEE. AFTER RESPONDENT (THE HARTFORD DISTRICT OFFICE) DENIED AN AGENCY RELATIONSHIP WITH THE INSPECTORS THE AUTHORITY'S COUNSEL FOR THE GENERAL COUNSEL SOUGHT TO AMEND THE COMPLAINT. IN THE CASE HEREIN, I DO NOT FIND THE GEOGRAPHIC AND ORGANIZATIONAL LOCATION OF THE AGENTS IN QUESTION TO BE PARTICULARLY SIGNIFICANT. /9/ WHAT IS SIGNIFICANT, HOWEVER, IS THAT NAGY AND ROOK ARE ACKNOWLEDGED AGENTS OF AGENCY MANAGEMENT WITH REGARD TO THEIR CONDUCT HEREIN AND THAT THE AGENCY IS RESPONSIBLE FOR THEIR ACTIONS. BOTH AGENTS, AND MCQUEENEY AS WELL, ACTED UNDER MANAGEMENT INSTRUCTION AND/OR IN FURTHERANCE OF AGENCY POLICY. FURTHER, THERE IS AN IDENTITY OF PURPOSE BETWEEN THE HARTFORD DISTRICT OFFICE AND THE NATIONAL OFFICE IN CARRYING OUT LABOR-MANAGEMENT RELATIONS AND DEALING WITH AGENCY EMPLOYEES, AND SPECIFICALLY, THE NATIONAL OFFICE AND DISTRICT OFFICE WERE JOINTLY ENGAGED IN FULFILLING THE AGENCY'S INVESTIGATION OF THE ALLEGED MISCONDUCT. ACCORDINGLY, IN THESE CIRCUMSTANCES I CONCLUDE THAT IRS, WASHINGTON, D.C. IS A PROPER RESPONDENT AND NAGY AND ROOK ARE AGENTS FOR BOTH RESPONDENTS HEREIN. THE PROBLEM OF IDENTIFYING THE PROPER RESPONDENT HAS, IN THE PAST, NEEDLESSLY LED TO SUBSTANTIAL APPREHENSION AND CONFUSION IN THE FEDERAL SECTOR. THUS, FOR EXAMPLE UNDER EXECUTIVE ORDER 11491, THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS HELD, INTER ALIA, IN NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA AND SECRETARY OF THE NAVY, DEPARTMENT OF THE NAVY, WASHINGTON, D.C., 6 A/SLMR 68, A/SLMR NO. 608, THAT THE DEPARTMENT OF THE NAVY VIOLATED SECTION 19(A)(1) OF THE ORDER /10/ BY DIRECTING ITS SUBORDINATE ACTIVITY TO TAKE AN IMPROPER ACTION AND THAT THE ACTIVITY THEREIN VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER /11/ BY CARRYING OUT THE ACTION. THE FEDERAL LABOR RELATIONS COUNCIL SUBSEQUENTLY REVERSED THE ASSISTANT SECRETARY AND HELD THAT WHEN AN ACT CONSTITUTES AN UNFAIR LABOR PRACTICE AND THE INDIVIDUAL WHO COMMITTED THE ACT IS AGENCY MANAGEMENT, THERE IS NO BASIS IN THE ORDER TO DRAW "ARTIFICIAL DISTINCTIONS" BETWEEN ORGANIZATIONAL LEVELS OF SUCH MANAGEMENT SO AS TO RELIEVE THEM OF THE RESPONSIBILITY FOR THEIR ACTS WHICH WOULD OTHERWISE BE VIOLATIVE OF THE ORDER. /12/ THE COUNCIL CONCLUDED THAT WHERE AGENCY MANAGEMENT ABOVE THE LEVEL OF EXCLUSIVE RECOGNITION INITIATES A BREACH OF THE OBLIGATION TO NEGOTIATE, A 19(A)(6) VIOLATION OCCURS BY THAT AGENCY MANAGEMENT REGARDLESS OF WHERE IT IS LOCATED IN THE AGENCY'S CHAIN OF COMMAND. HOWEVER, THE COUNCIL ALSO CONCLUDED THAT SINCE MANAGEMENT AT THE LOWER ACTIVITY LEVEL HAD NO CHOICE BUT TO COMPLY WITH THE DIRECTION OF HIGHER AGENCY MANAGEMENT, A SEPARATE VIOLATION WOULD NOT LIE " . . . SOLELY ON THE BASIS OF ITS MINISTERIAL ACTIONS IN IMPLEMENTING THE DIRECTION FROM HIGHER AGENCY AUTHORITY." THUS, THE COUNCIL MADE ITS OWN DISTINCTION BETWEEN OPERATING LEVELS OF THE SAME ORGANIZATION THEREBY CONTINUING THE RISK A COMPLAINANT TOOK IN MAKING UNFAIR LABOR PRACTICE ALLEGATIONS AGAINST AN ORGANIZATION WHICH IS COMPOSED OF VARIOUS LEVELS OF AUTHORITY. ESSENTIALLY, IN THAT CASE THE END RESULT DID NOT CHANGE THE ACT WAS FOUND TO HAVE BEEN A VIOLATION OF THE ORDER AND THE ORGANIZATION WAS ORDERED TO REMEDY THE VIOLATION. IT WOULD APPEAR THAT IF THE UNION IN NAVAL AIR REWORK FACILITY, OR A SIMILAR CASE, FILED ITS COMPLAINT AGAINST THE ACTIVITY AND NOT AGAINST THE AGENCY BECAUSE THE ACTIVITY WAS THE PARTY WITH WHOM IT WAS REGULARLY DEALING, UNDER THE TEACHING OF THE COUNCIL'S DECISION NO REFUSAL TO BARGAIN WOULD LIE AGAINST THE ACTIVITY AND THE COMPLAINT WOULD HAVE TO BE DISMISSED IN THIS REGARD. IN MY VIEW THE FICTIONAL DISTINCTION BETWEEN OPERATING LEVELS OF A GOVERNMENTAL AGENCY SHOULD NOT GIVE RISE TO THE POSSIBILITY OF SUCH AN UNDESIRABLE RESULT AND SHOULD NOT BE EXTENDED UNDER THE STATUTE. THE PARENT ORGANIZATION IS, IN REALITY, THE REPOSITORY OF ULTIMATE AUTHORITY AND CONTROL OVER ITS SUBORDINATES AND THEREFORE, WHETHER OR NOT SPECIFICALLY NAMED AS A RESPONDENT, SHOULD BE HELD LIABLE FOR THE UNFAIR LABOR PRACTICE CONDUCT OF ITS SUBORDINATES. CONVERSELY, THE SUBORDINATE BODY, CHARGED WITH DAY TO DAY DEALINGS WITH THE EXCLUSIVE REPRESENTATIVE AND UNIT EMPLOYEES, MUST BE ASSUMED TO BE FULLY AUTHORIZED AND RESPONSIBLE FOR ITS ACTIONS IN ORDER TO EFFECTUATE THE ORDERLY CONDUCT OF LABOR-MANAGEMENT RELATIONS. ONE ORGANIZATIONAL LEVEL CONTINUALLY ACTS AS THE AGENT FOR THE OTHER. THUS, I WOULD FIND BOTH PARENT AND SUBORDINATE VIABLE RESPONDENTS, IN EQUAL MEASURE, FOR AN UNFAIR LABOR PRACTICE ALLEGATION AS HEREIN. ACCORDINGLY, EITHER PARTY WOULD BE A RESPONSIBLE RESPONDENT OBLIGATED TO REMEDY WHATEVER UNFAIR LABOR PRACTICE WAS FOUND TO HAVE OCCURRED AND THE UNNECESSARY RISK OF CHOOSING WHICH LEVEL OF AN ORGANIZATION TO FILE A COMPLAINT AGAINST WOULD BE ELIMINATED. THE INVESTIGATIVE INTERVIEW THE SUBSTANTIVE ISSUE HEREIN IS WHETHER RESPONDENT VIOLATED CHAPTER 71, SECTIONS 7116(A)(1) AND (8) OF THE STATUTE WHEN IT REFUSED TO PERMIT DALEY TO BE ACCOMPANIED BY CONROY, HIS DESIGNATED UNION REPRESENTATIVE, DURING THE INTERVIEW. /13/ SECTION 7114(A)(2)(B) OF THE STATUTE PROVIDES: "AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT . . . 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 THE EXAMINATION MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE, AND (II) THE EMPLOYEE REQUESTS REPRESENTATION." CONTRARY TO THE CONTENTION OF THE CHARGING PARTY AND THE GENERAL COUNSEL, THE RESPONDENT CONTENDS THAT UNDER THE CIRCUMSTANCES HEREIN DALEY COULD HAVE HAD NO REASONABLE BELIEF THAT HIS INTERVIEW MIGHT RESULT IN DISCIPLINARY ACTION AGAINST HIM. PRIOR TO THE ENACTMENT OF THE STATUTE THERE EXISTED NO COMPARABLE RIGHT UNDER THE PREDECESSOR EXECUTIVE ORDER 11491, TO REPRESENTATION DURING AN INVESTIGATIVE INTERVIEW. INDEED, AFTER THE SUPREME COURT ADDRESSED THE QUESTION OF EMPLOYEES' RIGHTS DURING INVESTIGATIVE INTERVIEWS UNDER THE NATIONAL LABOR RELATIONS ACT IN THE WEINGARTEN CASE, /14/ THE FEDERAL LABOR RELATIONS COUNCIL SPECIFICALLY NOTED THAT, WEINGARTEN NOTWITHSTANDING, UNDER THE EXECUTIVE ORDER AN EMPLOYEE DID NOT HAVE THE RIGHT TO UNION REPRESENTATION AT A NONFORMAL INVESTIGATIVE MEETING WITH MANAGEMENT. /15/ WEINGARTEN HELD, INTER ALIA, THAT UNDER THE NLRA AN EMPLOYEE HAD THE RIGHT TO THE PRESENCE OF A UNION REPRESENTATIVE AT " . . . AN INVESTIGATIVE INTERVIEW WHICH HE REASONABLY BELIEVES MAY RESULT IN THE IMPOSITION OF DISCIPLINE . . . /16/ THE LEGISLATIVE HISTORY OF THE STATUTE CLEARLY REVEALS THAT ALTHOUGH VARIOUS APPROACHES WERE CONSIDERED BY THE CONGRESS DURING THE DELIBERATIVE PROCESS ON THIS MATTER, THE LEGISLATORS ENVISIONED EXTENDING WEINGARTEN TYPE PROTECTION TO EMPLOYEES IN THE FEDERAL SECTOR. /17/ INDEED, THE LANGUAGE ULTIMATELY SELECTED (SECTION 7114(A)(2)(B)) CLOSELY TRACKS WEINGARTEN. HOWEVER, IT WAS RECOGNIZED " . . . THAT THE RIGHT TO REPRESENTATION IN EXAMINATIONS MAY EVOLVE DIFFERENTLY IN THE PRIVATE AND FEDERAL SECTORS, AND (THE CONFERENCE COMMITTEE) SPECIFICALLY INTEND THAT FUTURE COURT DECISIONS INTERPRETING THE RIGHT IN THE PRIVATE SECTOR WILL NOT NECESSARILY BE DETERMINATIVE FOR THE FEDERAL SECTOR." /18/ IN WEINGARTEN THE COURT CONSIDERED THE QUESTION OF DEFINING THE TERM "REASONABLE BELIEVES" AS APPLIED BY THE NLRB. THE COURT EXPRESSED ITS VIEW AS FOLLOWS: "THE BOARD STATED IN QUALITY: "'REASONABLE GROUND' WILL OF COURSE BE MEASURED, AS HERE, BY OBJECTIVE STANDARDS UNDER ALL THE CIRCUMSTANCES OF THE CASE." 195 N.L.R.B. 197, 198 N. 3. IN NLRB V. GISSEL PACKING CO., 395 U.S. 575, 608, 89 S.CT. 1918, 1937, 23 L.ED.2D 517(1969), THE COURT ANNOUNCED THAT IT WOULD "REJECT ANY RULE THAT REQUIRES A PROBE OF AN EMPLOYEE'S SUBJECTIVE MOTIVATIONS AS INVOLVING AN ENDLESS AND UNRELIABLE INQUIRE," AND WE REAFFIRM THAT VIEW TODAY AS APPLICABLE ALSO IN THE CONTEXT OF THIS CASE. REASONABLENESS, AS A STANDARD, IS PRESCRIBED IN SEVERAL PLACES IN THE ACT ITSELF. FOR EXAMPLE, AN EMPLOYER IS NOT RELIEVED OF RESPONSIBILITY FOR DISCRIMINATION AGAINST AN EMPLOYEE "IF HE HAS REASONABLE GROUNDS FOR BELIEVING" THAT CERTAIN FACTS EXIST, SECS. 8(A)(3)(A), (B), 29 U.S.C. 158(A)(3)(A), (B): ALSO, PRELIMINARY INJUNCTIVE RELIEF AGAINST CERTAIN CONDUCT MUST BE SOUGHT IF "THE OFFICER OR REGIONAL ATTORNEY TO WHOM THE MATTER MAY BE REFERRED HAS REASONABLE CAUSE TO BELIEVE" SUCH CHARGE IS TRUE, SEC. 10(1), 29 U.S.C. 160(1). SEE ALSO CONGOLEUM INDUSTRIES, INC., 197 N.L.R.B. 534(1972); CUMBERLAND SHOE CORP., 144 N.L.R.B. 1268(1963), ENFORCED, 351 F.2D 917 (CA6 1965)." /19/ MOREOVER, THE COURT, AFTER EXAMINING WHAT IT PERCEIVED TO BE THE "KEY OBJECTIVE FACT" RELATIVE TO THIS INTERVIEW OF THE EMPLOYEE INVOLVED, CONCLUDED " . . . (T)HAT SHE MIGHT REASONABLY BELIEVE THAT THE INTERVIEW MIGHT RESULT IN DISCIPLINARY ACTION IS THUS CLEAR." /20/ THUS, THE COURT IN WEINGARTEN REJECTED CONSIDERING AN EMPLOYEE'S SUBJECTIVE FEELINGS AND OPTED INSTEAD FOR AN APPROACH WHEREBY OBJECTIVE STANDARDS, UNDER ALL THE CIRCUMSTANCES OF THE CASE, ARE CONSIDERED IN ASSESSING WHETHER AN EMPLOYEE REASONABLY BELIEVED THAT DISCIPLINE MIGHT RESULT FROM AN INTERVIEW. IN THE CASE HEREIN, DALEY WAS TOLD REPEATEDLY THAT HE WAS NOT UNDER INVESTIGATION BUT BEING INTERVIEWED ONLY AS A "THIRD PARTY." HOWEVER, THE SUBJECT MATTER OF THE INTERVIEW WAS A SERIOUS AFFAIR AS DALEY WAS WELL AWARE. DALEY, WHILE HAVING ENGAGED IN NO IMPROPER CONDUCT, /21/ WAS THE CUSTODIAN OF THE TAXPAYER'S FILES CHARGED WITH THEIR SAFEKEEPING AND CONFIDENTIALITY AND HIS STEWARDSHIP OF THE TAX FILES AND INFORMATION WITHIN THEM WERE MATTERS COVERED BY THE INTERVIEW. DALEY RECEIVED NO PRIOR ASSURANCE THAT NOTHING HE SAID IN THE INTERVIEW COULD POSSIBLY LEAD TO DISCIPLINE AGAINST HIM. WHILE DALEY MIGHT NOT HAVE BEEN THE PERSON THE INSPECTORS CONSIDERED AS THE SUBJECT OF THE INVESTIGATION AT THE TIME OF HIS INTERVIEW, HIS CONTROL OF THE TAXPAYER'S FILES PLACED HIM IN A CRITICAL POSITION WHEREBY HIS CONDUCT, IF IMPROPER, COULD HAVE RENDERED HIM LIABLE TO DISCIPLINARY ACTION. TRUE, IF DALEY'S IMPROPER CONDUCT WAS FOUND TO HAVE BEEN THE SOURCE OF DISCLOSURE TO THE PRIMARY PERSON UNDER INVESTIGATION, FURTHER INTERROGATION OF DALEY WOULD NOT HAVE PROCEEDED WITHOUT GIVING HIM AN OPPORTUNITY TO BE REPRESENTED. BUT, AT THAT POINT, DALEY'S ACTIONS WOULD HAVE ALREADY BEEN PART OF THE INSPECTORS' STORE OF INFORMATION WHICH WOULD HAVE BEEN USED IN FURTHERANCE OF ANY INVESTIGATION SPECIFICALLY INVOLVING DALEY. INDEED, IF ANY INFORMATION ADVERSE TO DALEY WAS SOMEHOW UNCOVERED DURING THE INTERVIEW, IT WOULD BE FORWARDED TO AGENCY AUTHORITIES EVEN IF THE MATTER WAS NOT PURSUED FURTHER OR DIRECTLY INVOLVED IN THE INVESTIGATION. THIS WAS NO "RUN-OF-THE-MILL SHOP FLOOR CONVERSATION." /22/ RATHER, THE INTERVIEW WAS CONDUCTED AWAY FROM DALEY'S WORK PLACE. DALEY WAS UNDER OATH AT THE TIME. THE INTERVIEWERS WERE TRAINED AND PRESUMABLY SKILLED CRIMINAL INVESTIGATORS. DALEY WAS AWARE IT WAS SERIOUS BUSINESS WHEN PERSONNEL FROM REGIONAL INSPECTION WERE INVOLVED IN A SITUATION. ACCORDINGLY, HAVING CONSIDERED THE VARIOUS FACTS AND CIRCUMSTANCES RELATIVE TO THE INTERVIEW AND EMPLOYEE DALEY'S REQUEST THAT UNION ATTORNEY CONROY ACCOMPANY HIM TO THE INTERVIEW, I FIND AND CONCLUDE THAT RESPONDENT, WHEN GROUP MANAGER MCQUEENEY AND INSPECTORS NAGY AND ROOK REFUSED DALEY'S REQUEST FOR REPRESENTATION, FAILED TO COMPLY WITH THE PROVISIONS OF SECTION 7114(A)(2)(B) OF THE STATUTE AND THEREBY VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE STATUTE. AT THE HEARING RESPONDENT ATTEMPTED TO CROSS-EXAMINE DALEY FROM AN AFFIDAVIT TAKEN FROM DALEY BY AN AGENT OF THE AUTHORITY DURING THE COURSE OF THE REGIONAL DIRECTOR'S INVESTIGATION OF THE CHARGE. RESPONDENT SOUGHT TO HAVE THE TESTIMONY AND AFFIDAVIT RECEIVED TO SHOW THAT DALEY DID NOT BELIEVE, IN HIS OWN MIND, THAT HE COULD BE SUBJECT TO DISCIPLINE AT THE TIME HE WAS INTERVIEWED BY THE INSPECTORS. I REFUSED TO PERMIT CROSS-EXAMINATION OF DALEY ON HIS STATE OF MIND AND REJECTED THE PROFFER OF THE AFFIDAVIT FOR THIS PURPOSE. /23/ RESPONDENT STRONGLY URGES THAT, IN EFFECT, SECTION 7114(A)(2)(B) MUST BE APPLIED LITERALLY. THUS, RESPONDENT ARGUES, IN INTERPRETING THIS SECTION A THRESHOLD QUESTION TO THAT OF "REASONABLE BELIEF" OF DISCIPLINARY ACTION IS WHETHER ANY "BELIEF" OF DISCIPLINARY ACTION EXISTED. RESPONDENT MAINTAINS THEREFORE, THAT IT WAS PROPER TO EXPLORE AND PRESENT EVIDENCE ON WHETHER DALEY PERSONALLY BELIEVED, REASONABLY OR OTHERWISE, THAT HE COULD HAVE BEEN SUBJECT TO DISCIPLINE AS A RESULT OF HIS EXAMINATION. I HEREBY REAFFIRM MY RULINGS MADE AT THE HEARING TO EXCLUDE THE AFFIDAVIT AND NOT PERMIT CROSS-EXAMINATION IN THIS AREA OF INQUIRY. RESPONDENT'S ARGUMENTS, IF FOLLOWED, WOULD LEAD PRECISELY INTO THE "ENDLESS AND UNRELIABLE" INQUIRY WHICH THE NLRB AND THE SUPREME COURT HAVE WISELY REJECTED. /24/ IF SUBJECTIVE STATE OF MIND WAS OPEN TO INQUIRY, A HEARING MAY WELL BECOME INTERMINABLE WITH EXAMINATION AND CROSS-EXAMINATION OF THE INTERVIEWED INDIVIDUAL, AND PERHAPS OTHER WITNESSES, AS TO THE INDIVIDUAL'S INTELLIGENCE, CONVICTIONS, THOUGHTS, FEARS, CHARACTER STRENGTH'S AND WEAKNESSES AND PERHAPS PSYCHIATRIC MAKE-UP AS WELL. FAR MORE EXPEDITIOUS AND RELIABLE IS AN ASSESSMENT OF EXTERNAL EVIDENCE, INCLUDING CONDUCT WHICH FLOWS FROM "STATE OF MIND," IN ORDER TO ASCERTAIN WHETHER THE INDIVIDUAL, AS A REASONABLE PERSON, COULD CONCLUDE THAT DISCIPLINARY ACTION MIGHT RESULT FROM THE INTERVIEW. IT IS ALSO NOTED THAT IN SIMILAR SITUATIONS OTHER FORUMS HAVE REJECTED, AS IRRELEVANT OR UNPROFITABLE, EVIDENCE BEARING ON STATE OF MIND AND COMPARABLE SUBJECTIVE CONSIDERATIONS. /25/ MOREOVER, THE COURT IN WEINGARTEN ACKNOWLEDGED THAT THE REASONABLE BELIEF CRITERION UNDER DISCUSSION IN THAT CASE WAS NOT TO BE APPLIED LITERALLY. THUS, THE COURT, AT 966, STATED: "REQUIRING A LONE EMPLOYEE TO ATTEND AN INVESTIGATORY INTERVIEW WHICH HE REASONABLY BELIEVES MAY RESULT IN THE IMPOSITION OF DISCIPLINE PERPETUATES THE INEQUALITY THE ACT WAS DESIGNED TO ELIMINATE, AND BARS RECOURSE TO THE SAFEGUARDS THE ACT PROVIDED "TO REDRESS THE PERCEIVED IMBALANCE OF ECONOMIC POWER BETWEEN LABOR AND MANAGEMENT." (CITED CASES OMITTED). VIEWED IN THIS LIGHT, THE BOARD'S RECOGNITION THAT SEC. 7 GUARANTEES AN EMPLOYEE'S RIGHT TO THE PRESENCE OF A UNION REPRESENTATIVE AT AN INVESTIGATORY INTERVIEW IN WHICH THE RISK OF DISCIPLINE REASONABLY INHERES IS WITHIN THE PROTECTIVE AMBIT OF THE SECTION . . . " IT THEREFORE APPEARS THAT IN THE VIEW OF THE SUPREME COURT, "REASONABLY BELIEVES," IN THE CONTEXT OF THAT CASE, WAS INTERCHANGEABLE WITH, AND TO BE VIEWED FROM THE PERSPECTIVE OF, "AN INVESTIGATORY INTERVIEW IN WHICH THE RISK OF DISCIPLINE REASONABLY INHERES." THIS APPROACH, WHICH FOCUSES ON THE INTERVIEW AND ITS SURROUNDING CIRCUMSTANCES, CLEARLY REMOVES FROM INQUIRY THE INDIVIDUAL'S SUBJECTIVE BELIEF AND PLACES IT ON RELIABLE, OBJECTIVE CONSIDERATIONS. ORDER PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL RULES AND REGULATIONS, 45 FED.REG. 3482, 3510(1980), IT IS HEREBY ORDERED THAT INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE SHALL: 1. CEASE AND DESIST FROM: (A) REQUIRING ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION, INTERVIEW OR MEETING WITHOUT UNION REPRESENTATION BY THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION, INTERVIEW OR MEETING MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE. (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR COERCING OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED AND FOUND NECESSARY TO EFFECTUATE THE POLICIES OF THE STATUTE: (A) POST AT ITS HARTFORD DISTRICT OFFICE, HARTFORD, CONNECTICUT, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX." COPIES OF SAID NOTICE, TO BE FURNISHED BY THE REGIONAL DIRECTOR FOR REGION 1, AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL BE POSTED BY IT IMMEDIATELY UPON RECEIPT THEREOF, AND BE MAINTAINED BY IT FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (B) NOTIFY THE REGIONAL DIRECTOR FOR REGION 1, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH. SALVATORE J. ARRIGO ADMINISTRATIVE LAW JUDGE DATED: MARCH 13, 1980 WASHINGTON, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT REQUIRE ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION, INTERVIEW OR MEETING WITHOUT REPRESENTATION BY NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION, INTERVIEW OR MEETING MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE. WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. (AGENCY OR ACTIVITY) DATED: . . . BY: (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 441 STUART STREET, 8TH FLOOR, BOSTON, MA 02116, AND WHOSE TELEPHONE NUMBER IS: (617) 223-0920. --------------- FOOTNOTES$ --------------- /1/ INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE ARE JOINTLY REFERRED TO HEREIN AS RESPONDENT. SEE DISCUSSION, INFRA. /2/ SECTION 2423.12 OF THE REGULATIONS PROVIDES, IN RELEVANT PART, THAT "(E)XCEPT IN EXTRAORDINARY CIRCUMSTANCES AS DETERMINED BY THE REGIONAL DIRECTOR, WITHIN TEN (10) DAYS AFTER THE COMPLAINT IS SERVED UPON THE RESPONDENT, THE RESPONDENT SHALL FILE THE . . . ANSWER THERETO . . . " /3/ THE CITED SECTIONS OF THE STATUTE AND REGULATIONS PROVIDE THAT A HEARING SHALL NOT BE CONDUCTED EARLIER THAN FIVE DAYS FROM THE SERVICE OF THE COMPLAINT. /4/ RESPONDENT'S UNOPPOSED MOTION TO CORRECT THE TRANSCRIPT IS HEREBY GRANTED. /5/ THE CLASSIFICATION TITLE FOR THIS POSITION CONTAINED IN THE APPROPRIATE IRS STANDARD POSITION DESCRIPTION IS "CRIMINAL INVESTIGATOR." /6/ AT THIS TIME THE INSPECTORS HAD NOT DETERMINED WHETHER OR NOT THE INTERNAL AUDITOR HAD ACQUIRED THE TAXPAYER INFORMATION FROM ANYONE IN IRS. THEY WERE SEEKING TO ASCERTAIN "(I)F HE GOT THE INFORMATION, HOW DID HE GET IT." /7/ COMMONLY REFERRED TO AS THE "MIRANDA WARNING." /8/ SEE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE AND IRS MILWAUKEE DISTRICT, 8 A/SLMR 1125, (A/SLMR NO. 1133) AND JOINT EXHIBIT NO. 2, HANDBOOK OF EMPLOYEE RESPONSIBILITIES AND CONDUCT ISSUED BY THE NATIONAL OFFICE FOR EXAMPLES OF RELATIONSHIPS BETWEEN THE NATIONAL OFFICE AND A SUBORDINATE OFFICE. /9/ CURIOUSLY, RESPONDENT DOES NOT DENY THAT NAGY AND ROOK ARE AGENTS OF IRS, WASHINGTON, EVEN THOUGH THEY ARE NOT EMPLOYED IN WASHINGTON D.C., BUT EMPLOYED BY THE IRS MID-ATLANTIC REGION, NEWARK, NEW JERSEY. /10/ SECTION 19(A)(1) PROVIDED: "AGENCY MANAGEMENT SHALL NOT . . . INTERFERE, RESTRAIN OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY THIS ORDER." /11/ SECTION 19(A)(6) PROVIDED: "AGENCY MANAGEMENT SHALL NOT . . . REFUSE TO CONSULT, CONFER OR NEGOTIATE WITH A LABOR ORGANIZATION AS REQUIRED BY THIS ORDER." /12/ 5 FLRC 305 (FLRC NO. 76A-37 (MAY 4, 1977) REPORT NO. 125). /13/ SECTION 7116(A)(1) OF THE STATUTE STATES " . . . IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY . . . TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THIS CHAPTER." UNDER SECTION 7116(A)(8) IT IS AN UNFAIR LABOR PRACTICE " . . . FOR AN AGENCY TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS CHAPTER." /14/ N.L.R.B. V. J. WEINGARTEN, INC., 95 S.CT. 959(1975). /15/ STATEMENT ON MAJOR POLICY ISSUE, 4 FLRC 710 (FLRC NO. 75P-2 (DEC. 2, 1976) REPORT NO. 116). /16/ WEINGARTEN, AT 966. /17/ LEGISLATIVE HISTORY OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, TITLE VII OF THE CIVIL SERVICE REFORM ACT OF 1978, 96TH CONGRESS, 1ST SESSION, COMMITTEE PRINT NO. 96-7, (NOVEMBER 19, 1979) PP. 644, 651, 652, 824 AND 926. /18/ ID., AT 824. /19/ WEINGARTEN, FN. 5, AT 964. /20/ ID. /21/ OBVIOUSLY, ONE IS NOT REQUIRED TO CONFESS GUILT IN ORDER TO PROVE THAT REASONABLE BELIEF OF DISCIPLINE IS PRESENT. /22/ SEE WEINGARTEN, AT 964. /23/ DALEY DID NOT TESTIFY ON DIRECT EXAMINATION WITH REGARD TO HIS STATE OF MIND AT THE TIME OF HIS INTERVIEW BY THE INSPECTORS. /24/ WEINGARTEN, FN. 5, AT 964. /25/ SEE N.L.R.B. V. LINK-BELT CO., 61 S.CT. 358, 361 (1941); ENVIRONMENTAL PROTECTION AGENCY, PERRINE PRIMATE LABORATORY, 2 A/SLMR 88 (A/SLMR NO. 136); BON-R REPRODUCTIONS, INC., ENF'D AS MODIFIED, 309 F.2D 898 (2D CIR. 1962); THE REIN COMPANY, 114 NLRB 694; N.L.R.B. V. HUNTVILLE MANUFACTURING COMPANY, 514 F.2D 723 (5TH CIR. 1975).