Internal Revenue Service and Brooklyn District Office (Respondent) and National Treasury Employees Union (Charging Party)
[ v06 p642 ]
06:0642(111)CA
The decision of the Authority follows:
6 FLRA No. 111
INTERNAL REVENUE SERVICE
AND BROOKLYN DISTRICT OFFICE
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 2-CA-72
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 19(A)(1) AND (2)
OF EXECUTIVE ORDER 11491, AS AMENDED, AND RECOMMENDING THAT IT CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS. NO EXCEPTIONS
WERE FILED BY EITHER PARTY.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.1). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7135(B) 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 RECOMMENDED DECISION AND ORDER AND THE
ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
CONCLUSIONS, AND RECOMMENDATIONS. /1/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7125(B) OF THE STATUTE,
THE AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE, BROOKLYN
DISTRICT OFFICE, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH OR DISCOURAGING, BY IMPLIED THREATS OR
OTHERWISE, WILLIAM R. MOULDER OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
(B) REVIEWING, ADVERSELY RATING OR CRITICIZING THE WORK PERFORMANCE
OF WILLIAM R. MOULDER OR ANY OTHER EMPLOYEE, BECAUSE ANY SUCH EMPLOYEE
HAS FILED A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSE AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
(A) REMOVE THE ANALYSIS OF REVIEW OF CASE ASSIGNMENTS OF WILLIAM R.
MOULDER, DATED NOVEMBER 6, 1978 (FORMS 5188 AND 5188-A) AND THE ENSUING
60-DAY LETTER, DATED NOVEMBER 9, 1978, AND ALL REFERENCES THERETO, FROM
ITS RECORDS.
(B) POST AT ALL OFFICES OF THE BROOKLYN DISTRICT OF THE INTERNAL
REVENUE SERVICE COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED
BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY
THE DISTRICT DIRECTOR, BROOKLYN DISTRICT, AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED, INCLUDING, BUT NOT LIMITED TO, THE
MINEOLA, SMITHTOWN AND RIVERHEAD BRANCH OFFICES. THE DISTRICT DIRECTOR
SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID NOTICES ARE NOT ALTERED,
DEFACED OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION II, FEDERAL LABOR
RELATIONS AUTHORITY IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., SEPTEMBER 21, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 INTERFERE WITH OR DISCOURAGE, BY IMPLIED THREATS OR
OTHERWISE, WILLIAM R. MOULDER OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
WE WILL NOT REVIEW, ADVERSELY RATE OF CRITICIZE THE WORK PERFORMANCE
OF WILLIAM R. MOULDER OR ANY OTHER EMPLOYEE, BECAUSE ANY SUCH EMPLOYEE
HAD FILED A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITE, RESTRAIN OR
COERCE EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE EXECUTIVE ORDER
11491, AS AMENDED.
WE WILL REMOVE THE ANALYSIS OF REVIEW OF CASE ASSIGNMENTS OF WILLIAM
R. MOULDER, DATED NOVEMBER 6, 1978 (FORMS 5188 AND 5188-A) AND THE
ENSUING 60-DAY LETTER, DATED NOVEMBER 9, 1978, AND ALL REFERENCES
THERETO, FROM ALL RECORDS OF THE INTERNAL REVENUE SERVICE.
(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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, REGION II, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS
IS: ROOM 241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10278, AND WHOSE
TELEPHONE NUMBER IS: (212) 264-4934.
-------------------- ALJ DECISION FOLLOWS --------------------
ALAN HORN, ESQUIRE
(THEODORE E. DAVIS, ESQUIRE
ROBERT F. HERMANN, ESQUIRE
ON BRIEF)
FOR THE RESPONDENT
RONI SCHNITZER, ESQUIRE
ROBERT WARNER, ESQUIRE
JAMES E. PETRUCCI, ESQUIRE
FOR THE GENERAL COUNSEL
MR. DAVID H. LIPTON
MR. GEORGE BRAVERMAN
FOR THE CHARGING PARTY
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS PROCEEDING, UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREINAFTER
ALSO REFERRED TO AS THE "ORDER"), WAS INITIATED BY A CHARGE UNDER THE
ORDER FILED WITH RESPONDENT ON, OR ABOUT, FEBRUARY 1, 1979 (G.C. EXH.
A(A)) (ALSO REFERRED TO AS A PRE-COMPLAINT CHARGE, FILED PURSUANT TO 29
C.F.R. 203.2(A)(1) OF THE RULES AND REGULATIONS OF THE ASSISTANT
SECRETARY FOR LABOR-MANAGEMENT RELATIONS, AS DISTINGUISHED FROM A CHARGE
UNDER THE STATUTE, PURSUANT TO 5 C.F.R. 2423.6(A)) ALLEGING AN UNFAIR
LABOR PRACTICE ON AND AFTER OCTOBER 24, 1978. RESPONDENT'S FINAL
DECISION ON THE PRE-COMPLAINT CHARGE WAS ISSUED ON APRIL 25, 1979 (G.C.
EXH. 1(B)), AND CHARGING PARTY FILED A CHARGE WITH THE REGIONAL DIRECTOR
ON JUNE 11, 1979 (G.C. EXH. 1(C)), A FIRST AMENDED CHARGE ON JULY 23,
1979 (G.C. EXH. 1(E)), A SECOND AMENDED CHARGE ON JULY 27, 1979 (G.C.
EXH. 1(G)), AND A THIRD AMENDED CHARGE ON DECEMBER 18, 1979 (G.C. EXH.
1(I)). ON APRIL 30, 1980, THE COMPLAINT AND NOTICE OF HEARING ISSUED
(G.C. EXH. 1(K)).
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT ON OR ABOUT OCTOBER 24,
1978, RESPONDENT INTERROGATED UNIT EMPLOYEE WILLIAM MOULDER CONCERNING
HIS HAVING SIGNED A GRIEVANCE; MADE DISPARAGING REMARKS TO HIM BECAUSE
HE HAD SIGNED A GRIEVANCE; THREATENED HIM WITH AN IN-DEPTH REVIEW OF
HIS WORK PERFORMANCE BECAUSE HE HAD SIGNED THE GRIEVANCE; BETWEEN
OCTOBER 24, 1978, AND NOVEMBER 9, 1978, RESPONDENT CONDUCTED AN IN-DEPTH
REVIEW OF EMPLOYEE MOULDER'S WORK PERFORMANCE BECAUSE HE HAD SIGNED THE
GRIEVANCE; AND ON OR ABOUT NOVEMBER 9, 1979, RESPONDENT ISSUED A 60 DAY
LETTER OF INEFFICIENCY TO EMPLOYEE MOULDER IN RETALIATION FOR HIS HAVING
SIGNED THE GRIEVANCE, WHICH CONDUCT VIOLATED SECTIONS 19(A)(1) AND (2)
OF THE ORDER. THE COMPLAINT WAS NOT AMENDED NOR WAS ANY MOTION TO AMEND
THE COMPLAINT MADE AT THE HEARING. ACCORDINGLY, IN AGREEMENT WITH
RESPONDENT (RESPONDENT'S BRIEF, P. 14), ONLY THE UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT WILL BE CONSIDERED. /2/
TRANSITION RULES AND REGULATIONS WERE ISSUED BY THE AUTHORITY ON
DECEMBER 26, 1978, AND PUBLISHED IN THE FEDERAL REGISTER ON JANUARY 2,
1979 (FED. REG., VOL. 44, NO. 1, 5 C.F.R. 2400.21) WHICH PROVIDED IN
RELEVANT PART THAT " . . . ALL UNFAIR LABOR PRACTICE CASES FILED WITH
THE AUTHORITY ON OR AFTER JANUARY 11, 1979, BASED ON OCCURRENCES PRIOR
TO JANUARY 22, 1979, SHALL BE PROCESSED BY THE AUTHORITY IN ACCORDANCE
WITH THE RULES AND REGULATIONS OF THE OFFICE OF THE ASSISTANT SECRETARY
FOR LABOR-MANAGEMENT RELATIONS, TITLE 29, CODE OF FEDERAL REGULATIONS,
PART 201, ET SEQ. . . . " ON JULY 30, 1979, THE AUTHORITY PUBLISHED
INTERIM RULES AND REGULATIONS, FED. REG., VOL. 44, NO. 147, EFFECTIVE
JULY 30, 1979, WHICH AMENDED SEC. 2400.2 OF THE TRANSITION RULES AND
REGULATIONS TO DELETE PROVISIONS FOR THE PROCESSING OF ALL UNFAIR LABOR
PRACTICE CASES FILED WITH THE AUTHORITY ON OR AFTER JANUARY 11, 1979,
BASED ON OCCURRENCES PRIOR TO JANUARY 11, 1979, THE PORTION UNDERSCORED
ABOVE. AS A RESULT, UNFAIR LABOR PRACTICES FILED WITH THE AUTHORITY
AFTER JANUARY 11, 1979, BASED ON OCCURRENCES PRIOR TO JANUARY 11, 1979,
WERE MADE SUBJECT TO PART 2423 OF THE INTERIM RULES AND REGULATIONS
RATHER THAN BEING PROCESSED UNDER THE RULES AND REGULATIONS OF THE
ASSISTANT SECRETARY. /3/ ACCORDINGLY, ON APRIL 30, 1980, THE REGIONAL
DIRECTOR ISSUED A COMPLAINT AND NOTICE OF HEARING (G.C. EXH. 1(K)),
PURSUANT TO WHICH A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED IN NEW
YORK CITY ON JULY 16 AND 17, 1980.
ALL PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN AND WERE
AFFORDED THE OPPORTUNITY TO PRESENT ORAL ARGUMENT. AT THE CONCLUSION OF
THE HEARING, AUGUST 18, 1980, WAS FIXED AS THE DATE FOR MAILING
POST-HEARING BRIEFS, WHICH TIME WAS SUBSEQUENTLY EXTENDED TO SEPTEMBER
19, 1980. COUNSEL FOR THE GENERAL COUNSEL AND FOR RESPONDENT TIMELY
FILED VERY HELPFUL BRIEFS WHICH HAVE BEEN CAREFULLY CONSIDERED. UPON
THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS
AND RECOMMENDED ORDER:
PRELIMINARY MATTERS
1. RESPONDENT'S MOTION FOR A PROTECTIVE ORDER.
ON AUGUST 15, 1980, RESPONDENT FILED A MOTION FOR A PROTECTIVE ORDER,
DATED AUGUST 12, 1980, WHICH REQUESTED THAT, " . . . TAXPAYER NAMES . .
. NOT BE PUBLISHED IN THE RECOMMENDED DECISION AND ORDER OF THE
ADMINISTRATIVE LAW JUDGE OR IN ANY ULTIMATE DECISION OR ORDER." NO
OPPOSITION WAS FILED.
RESPONDENT'S MOTION IS HEREBY GRANTED /4/ AND NO TAXPAYER NAMES WILL
BE DISCLOSED HEREIN.
2. RESPONDENT'S MOTION TO DISMISS COMPLAINT AS UNTIMELY AND/OR
BARRED BY THE DOCTRINE OF LACHES.
A) TIMELINESS OF COMPLAINT
SECTION 7118(A)(4)(A) OF THE STATUTE, 5 U.S.C. 7118(A)(4)(A),
PROVIDES THAT NO COMPLAINT SHALL BE ISSUED BASED ON ANY ALLEGED UNFAIR
LABOR PRACTICE WHICH OCCURRED MORE THAN SIX MONTHS BEFORE THE FILING OF
THE CHARGE WITH THE AUTHORITY. HERE, THE INITIAL CHARGE WAS FILED WITH
THE AUTHORITY ON JUNE 11, 1979, NEARLY EIGHT MONTHS AFTER THE ALLEGED
UNFAIR LABOR PRACTICE OF OCTOBER 24, 1978, AND SEVEN MONTHS AFTER THE
ALLEGED UNFAIR LABOR PRACTICE OF NOVEMBER 9, 1918. IT IS ALSO TRUE THAT
THE AUTHORITY IN ITS NOTICE OF MARCH 7, 1979, REFERRED TO IN FOOTNOTE 2,
SUPRA, HAD FURTHER STATED, IN PART, AS FOLLOWS:
"(2) WITH REFERENCE TO THE PRACTICE OF FILING CHARGES DIRECTLY WITH
THE PARTY OR PARTIES
AGAINST WHOM THE CHARGES ARE DIRECTED, BEFORE THE FILING OF CHARGES
WITH THE AUTHORITY,
SECTION 7118(A)(1) OF THE STATUTE (91 STAT. 1207) . . . PROVIDES
SIMPLY FOR THE FILING OF A
CHARGE WITH THE AUTHORITY BEFORE THE ISSUANCE OF A COMPLAINT BY THE
GENERAL COUNSEL. THERE IS
NO REQUIREMENT FOR A 'PRE-CHARGE' CHARGE AND THE CURRENT PRACTICE OF
REQUIRING SUCH A CHARGE
WILL NO LONGER BE FOLLOWED . . . "
FOR REASONS FULLY STATED IN ITS BRIEF (RESPONDENT'S BRIEF, PP.
8-12), RESPONDENT ASSERTS THAT,
" . . . THE SUBJECT COMPLAINT SHOULD BE DISMISSED ON THE BASIS OF 5
U.S.C. 7118(A)(4) AND
7135(B). SECTION 7118(A)(4)(A) CLEARLY ESTABLISHED A SIX MONTH
LIMITATION PERIOD FOR CHARGES
FILED WITH THE AUTHORITY. NTEU DID NOT FILE A CHARGE WITH THE
AUTHORITY UNTIL JUNE 11, 1979,
MORE THAN SIX MONTHS AFTER THE LAST ACT, ON NOVEMBER 9, 1978,
ALLEGEDLY CONSTITUTING AN UNFAIR
LABOR PRACTICE." (RESPONDENT'S BRIEF, PP. 10-11).
I DO NOT AGREE. WHILE RESPONDENT IS ENTIRELY CORRECT THAT
7118(A)(4)(A) OF THE STATUTE PROVIDES THAT NO COMPLAINT SHALL BE ISSUED
BASED ON ANY ALLEGED UNFAIR LABOR PRACTICE WHICH OCCURRED MORE THAN SIX
MONTHS BEFORE THE FILING OF THE CHARGE WITH THE AUTHORITY, 7135(B) OF
THE STATUTE SPECIFICALLY PROVIDED THAT, "POLICIES, REGULATIONS, AND
PROCEDURES ESTABLISHED UNDER . . . EXECUTIVE ORDERS 11491 . . . AS IN
EFFECT ON THE EFFECTIVE DATE OF THIS CHAPTER, SHALL REMAIN IN FULL FORCE
AND EFFECT UNTIL REVISED OR REVOKED BY THE PRESIDENT, OR UNLESS
SUPERSEDED BY SPECIFIC PROVISIONS OF THIS CHAPTER OR BY REGULATIONS . .
. ISSUED PURSUANT TO THIS CHAPTER." BY ITS TRANSITION RULES AND
REGULATIONS, THE AUTHORITY PROVIDED THAT "UNFAIR LABOR PRACTICE CASES
FILED WITH THE AUTHORITY ON OR AFTER JANUARY 11, 1979, BASED ON
OCCURRENCES PRIOR TO JANUARY 11, 1979, SHALL BE PROCESSED BY THE
AUTHORITY IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE OFFICE OF
THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS, TITLE 29 CODE OF
FEDERAL REGULATIONS, PART 201 ET SEQ. . . . " THIS PROCEEDING WAS
INITIATED BY THE CHARGE OF FEBRUARY 1, 1979, FILED, AS REQUIRED BY THE
THEN APPLICABLE RULES AND REGULATIONS OF THE ASSISTANT SECRETARY, WITH
RESPONDENT. HAVING BEEN INITIATED UNDER THE RULES AND REGULATIONS OF
THE ASSISTANT SECRETARY SPECIFICALLY MADE APPLICABLE BY THE AUTHORITY'S
TRANSITION RULES AND REGULATIONS, THE CHARGE WAS PROPERLY AND TIMELY
FILED WITH RESPONDENT ON FEBRUARY 1, 1979, AND WAS TIMELY FILED WITE THE
AUTHORITY ON JUNE 11, 1979, FOLLOWING RESPONDENT'S FINAL DECISION OF
APRIL 25, 1979, I.E., WITHIN 60 DAYS FROM THE DATE OF SERVICE OF THE
FINAL DECISION AND WITHIN NINE MONTHS OF THE OCCURRENCE OF THE ALLEGED
UNFAIR LABOR PRACTICE AS PROVIDED IN 202.2(B)(2) AND (3) OF THE RULES
AND REGULATIONS OF THE ASSISTANT SECRETARY, PURSUANT TO WHICH THIS
MATTER HAD BEEN TIMELY INITIATED ON FEBRUARY 1, 1979. I FIND NOTHING IN
THE AUTHORITY'S NOTICE OF MARCH 7, 1979 THAT PURPORTS TO AFFECT
"PRE-CHARGE" CHARGES FILED PRIOR TO MARCH 7, 1979 (OR MARCH 13, 1979,
THE DATE PUBLISHED IN THE FEDERAL REGISTER). TO THE CONTRARY, THE
AUTHORITY'S NOTICE SIMPLY STATED, " . . . THE CURRENT PRACTICE OF
REQUIRING SUCH A CHARGE WILL NO LONGER BE FOLLOWED . . . " INDEED, IT
WAS NOT UNTIL THE INTERIM RULES AND REGULATIONS WERE ISSUED ON JULY 30,
1979, THAT THE AUTHORITY DELETED THE PORTION OF THE TRANSITION RULES AND
REGULATIONS WHICH HAD MADE APPLICABLE THE RULES AND REGULATIONS OF THE
ASSISTANT SECRETARY AND, OF COURSE, ON JUNE 11, 1979, PRIOR TO THE
ISSUANCE OF THE INTERIM RULES AND REGULATIONS, THE INITIAL CHARGE HAD
BEEN FILED WITH THE AUTHORITY.
ACCORDINGLY, IN FULL AGREEMENT WITH THE DECISION OF JUDGE STERNBURG,
IN NATIONAL LABOR RELATIONS BOARD, REGION 1, BOSTON, MASSACHUSETTS AND
RONALD LASKY, 1-CA-28 (ALJ, MAY 14, 1980), I FIND THAT THE CHARGE HEREIN
WAS TIMELY FILED.
B) DEFENSE OF LACHES
THE DEFENSE OF LACHES IS NOT AVAILABLE AGAINST THE AUTHORITY IN
ACTIONS BY IT TO ENFORCE A PUBLIC INTEREST UNDER THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE. CF. W.C. NABORS COMPANY, 134 NLRB
1078(1961); BURNS AND GILLESPIE, 113 NLRB 443, 437(1955); HIGHLAND
PARK MANUFACTURING COMPANY, 84 NLRB 744, 746(1949); STANDARD OIL
COMPANY OF CALIFORNIA, 61 NLRB 1251, 1255 (1945). HOWEVER, EVEN IF THE
DEFENSE OF LACHES WERE AVAILABLE, RESPONDENT HAS NOT SHOWN GROUNDS
ESSENTIAL TO INVOCATION OF THE DEFENSE, INTER ALIA, THAT A CHANGE IN
CONDITION HAS OCCURRED WHICH WOULD RENDER IT INEQUITABLE TO ENFORCE THE
CLAIM. C.J.S. EQUITY 112. IT IS TRUE, OF COURSE, THAT THE INITIAL
CHARGE WAS FILED WITH THE AUTHORITY ON JUNE 11, 1979, AND THAT THE
COMPLAINT WAS NOT ISSUED UNTIL APRIL 30, 1980. THERE WERE NEITHER
UNEXPLAINED TIME LAPSES NOR CIRCUMSTANCES PERMITTING UTMOST DILIGENCE.
THE STATUTE WHICH CREATED THE AUTHORITY, ENACTED OCTOBER 13, 1978,
BECAME EFFECTIVE JANUARY 11, 1979; BUT CONSIDERABLE TIME WAS TO PASS
BEFORE THERE WAS A GENERAL COUNSEL, BEFORE THERE WERE INTERIM
REGULATIONS, AND OF COURSE, BEFORE A STAFF, ESSENTIAL TO PERFORMANCE OF
THE DUTIES UNDER THE STATUTE AND THE REGULATIONS, WAS IN PLACE TO
CONDUCT INVESTIGATIONS AND TO ISSUE COMPLAINTS. MORE IMPORTANT, NO
CHANGE IN CONDITION OCCURRED. THE CHARGE FILED ON FEBRUARY 1, 1979,
WITH RESPONDENT AND ON JUNE 11, 1979, WITH THE AUTHORITY HAD FULLY
ADVISED RESPONDENT OF THE UNFAIR LABOR PRACTICE ASSERTED AND THERE IS
NOTHING IN THE RECORD WHICH INDICATES, OR EVEN SUGGESTS, THAT RESPONDENT
WAS PREJUDICED IN ANY MANNER IN THE PRESENTATION OF ITS DEFENSE. /5/
AMENDED CHARGES WERE FILED ON JULY 23, 27 AND DECEMBER 18, 1979; BUT
THE SUBSTANCE OF THE ALLEGATIONS, FIRST MADE IN THE CHARGE OF FEBRUARY
1, 1979, REMAINED CONSISTENT.
ACCORDINGLY, RESPONDENT'S DEFENSE OF LACHES IS REJECTED.
FINDINGS AND CONCLUSIONS
A. BACKGROUND
THIS CASE CONCERNS THE MINEOLA OFFICE OF THE INTERNAL REVENUE
SERVICE'S BROOKLYN DISTRICT. THE CHARGING PARTY, NATIONAL TREASURY
EMPLOYEES UNION, (HEREINAFTER ALSO REFERRED TO AS "NTEU") AND RESPONDENT
(HEREINAFTER ALSO REFERRED TO AS "IRS") HAVE A HISTORY OF COLLECTIVE
BARGAINING AND, AT ALL TIMES MATERIAL, WERE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT COVERING A UNIT OF EMPLOYEES INCLUDING THE
EMPLOYEES OF THE BROOKLYN DISTRICT.
IN AUGUST, 1978, A CONSIDERABLE AMOUNT OF COLLECTION WORK WAS
TRANSFERRED TO THE MINEOLA OFFICE FROM QUEENS, NEW YORK (SOMETIMES
REFERRED TO AS THE "DUMP JOB") WHICH INVOLVED SOME 21 OR 22 ZIP CODES IN
QUEENS COUNTY. AT APPROXIMATELY THE SAME TIME, SOME WORK WAS
TRANSFERRED FROM THE MINEOLA OFFICE TO THE SMITHTOWN OFFICE; /6/
HOWEVER, THE OVERALL RESULT OF THE TRANSFER OF COLLECTION WORK TO
MINEOLA WAS THAT THE CASE LOAD OF EACH REVENUE OFFICER IN THE MINEOLA
OFFICE WAS ROUGHLY DOUBLED.
MR. RUPPERT GILL IS, AND HAS BEEN SINCE DECEMBER, 1977, FIELD BRANCH
CHIEF IN THE MINEOLA OFFICE. MR. GILL'S BRANCH INCLUDES THE MINEOLA
OFFICE, THE SMITHTOWN OFFICE AND THE RIVERHEAD OFFICE. HIS BRANCH
CONSISTS OF SEVEN GROUPS OF WHICH M-1, M-2, AND M-3 WERE AT MINEOLA AND
EACH GROUP HAD APPROXIMATELY 13 REVENUE OFFICERS. MR. DANIEL E. GRIFFIN
WAS, AND IS, A GROUP MANAGER IN THE MINEOLA OFFICE, HAVING BEEN GROUP
MANAGER OF GROUP M-3 FOR ABOUT 2 1/2 YEARS, AND BOTH BEFORE AND AFTER
THIS PERIOD WAS GROUP MANAGER OF GROUP M-2.
MR. WILLIAM R. MOULDER IS A GS-11 REVENUE OFFICER WHO HAS BEEN
EMPLOYED BY IRS NEARLY 20 YEARS. MR. MOULDER WAS IN GROUP M-3 AT ALL
TIMES MATERIAL AND WAS UNDER THE SUPERVISION OF MR. GRIFFIN FOR THE
PERIOD, ABOUT 2 1/2 YEARS, THAT MR. GRIFFIN WAS GROUP MANAGER OF GROUP
M-3.
MR. MOULDER TESTIFIED THAT MR. GILL WROTE A LETTER TO MR. DAWSON, THE
COLLECTION CHIEF, COMPLAINING ABOUT THE SO CALLED DUMP JOB AND BOTH MR.
MOULDER AND MR. JAMES HUSSEY, A FORMER REVENUE OFFICER IN GROUP M-3 NOW
RETIRED AS THE RESULT OF A HEART ATTACK, EACH CREDIBLY TESTIFIED THAT
MR. GRIFFIN HAD SUGGESTED TO MEMBERS OF GROUP M-3 THAT THEY SHOULD FILE
A GRIEVANCE OVER THE MATTER (MOULDER, TR. 19; HUSSEY TR. 211-212). MR.
GRIFFIN DID NOT DENY THE STATEMENT ATTRIBUTED TO HIM. ON OCTOBER 23,
1918, A MASS GRIEVANCE WAS FILED BY THE REVENUE OFFICERS OF GROUP M-3
(JT. EXH. 1) AND OF GROUP M-2 (RES. EXH. 11). NOTWITHSTANDING HIS PRIOR
ENCOURAGEMENT OF JUST SUCH ACTION, WHEN THE MASS GRIEVANCE WAS FILED BY
THE REVENUE OFFICERS OF HIS GROUP, M-3, MR. GRIFFIN, OBVIOUSLY ANGERED,
REACTED HARSHLY, AS SET FORTH HEREINAFTER.
B. INTERROGATION OF WILLIAM R. MOULDER
MR. MOULDER TESTIFIED THAT ON OCTOBER 24, 1978, THE DAY AFTER HE HAD
SIGNED THE MASS GRIEVANCE, MR. GRIFFIN CALLED HIM TO HIS OFFICE, SHOWED
HIM A COPY OF THE GRIEVANCE; THAT MR. GRIFFIN ASKED HIM, "DID YOU READ
THIS THING BEFORE SIGNING?" (TR. 20); THAT HE RESPONDED, "YES, SIR. IT
APPEARS TO BE WELL-WRITTEN" (TR. 10); AND THAT MR. GRIFFIN THEN SAID,
"YOU DON'T NEED TO SIGN SOMETHING LIKE THAT. YOU DON'T HAVE TO LIE
DOWN WITH THESE
SHIT-HEADS AND WHORES. YOU DON'T NEED THE UNION, YOUR WORK IS GOOD.
YOUR WORK IS VERY GOOD.
. . . .
" . . . "WELL, I HOPE YOU GUYS KNOW WHAT YOU'RE DOING. NOW, I'LL
HAVE TO GIVE YOU AN
IN-DEPTH REVIEW." (TR. 20-21). (SEE, ALSO TR. 183).
MR. GRIFFIN DENIED THAT HE CALLED MR. MOULDER TO HIS OFFICE AND/OR
THAT HE MADE ANY PRIVATE REMARKS TO MR. MOULDER REGARDING THE FILING OF
THE MASS GRIEVANCE. (TR. 303-304, 458). MR. SPERLING, ALSO A REVENUE
OFFICER IN GROUP M-3, TESTIFIED THAT HE WAS CALLED TO MR. GRIFFIN'S
OFFICE AND WAS ASKED WHETHER HE HAD SIGNED THE GRIEVANCE, WHETHER HE HAD
READ IT CAREFULLY AND WHETHER HE KNEW WHAT HE WAS SIGNING; THAT HE HAD
STATED, " . . . IT'S NOTHING PERSONNEL . . . I JUST SIGNED IT BECAUSE I
FELT WE (SIC) UNMANAGEABLE CASE LOADS . . . " (TR. 220); THAT MR.
GRIFFIN READ AN EXCERPT AND ASKED, "'IS THIS REALLY AFFECTING YOUR
HEALTH?'" (TR. 220). MR. PAUL PETERSON, ANOTHER REVENUE OFFICER IN
GROUP M-3, TESTIFIED THAT HE HAD A "COUNSELLING MEETING" WITH MR.
GRIFFIN IN MR. GRIFFIN'S OFFICE AT WHICH MR. GRIFFIN ASKED, " . . . HAD
I READ THIS GRIEVANCE? DID I KNOW WHAT WAS IN IT. WAS THE JOB MAKING
ME SICK?", TO WHICH HE HAD REPLIED "'YES'" (TR. 235). WITHOUT FURTHER
BELABORING THE POINT /7/, I CREDIT MR. MOULDER'S TESTIMONY THAT MR.
GRIFFIN DID CALL HIM TO HIS OFFICE ON OCTOBER 24, 1978; THAT MR.
GRIFFIN DID QUESTION HIM ABOUT THE GRIEVANCE; THAT MR. GRIFFIN DID
COMMENT TO THE EFFECT "I HOPE YOU KNOW WHAT YOU'RE DOING"; AND THAT MR.
GRIFFIN THEN STATED THAT HE WOULD HAVE TO GIVE MR. MOULDER AN IN-DEPTH
REVIEW, BY WHICH HE CLEARLY AND DIRECTLY IMPLIED, IF HE DID NOT STATE,
BECAUSE HE HAD JOINED IN THE GRIEVANCE. I CREDIT MR. MOULDER'S
TESTIMONY, IN PART, BECAUSE IT IS CONSISTENT WITH AND SUPPORTED BY THE
TESTIMONY OF MESSRS. SPERLING AND PETERSON WHICH MR. GRIFFIN DID NOT
DENY BUT BY INFERENCE ADMITTED (TR. 458), AND, IN PART, BECAUSE, AS MORE
FULLY SHOWN HEREINAFTER, MR. GRIFFIN, IF HE DID NOT THREATEN TO CONDUCT
AN IN-DEPTH REVIEW OF MR. MOULDER ON OCTOBER 24 BECAUSE HE HAD FILED A
GRIEVANCE, HE ADMITTED THAT HE DID SO THE FOLLOWING DAY, OCTOBER 25, AND
AGAIN ON OCTOBER 30, 1978. /8/
C. THREAT TO CONDUCT AN IN-DEPTH REVIEW OF WILLIAM R. MOULDER
THERE IS NO DISPUTE THAT MR. GRIFFIN CALLED ALL REVENUE OFFICERS IN
GROUP M-3 TO HIS OFFICE FOR A MEETING ON OCTOBER 25, 1978; THAT HE WAS
VERY AGITATED; AND THAT, AS MR. GRIFFIN ADMITTED, HE TOLD THEM, " . . .
I WAS UPSET ABOUT THE NATURE OF THEIR FILING A GRIEVANCE . . . I HAD
RESENTED THE FACT THAT THEY DIDN'T COME TO ME AND TALK TO ME PRIOR TO
FILING THE GRIEVANCE." (TR. 304). MR. MOULDER TESTIFIED THAT MR.
GRIFFIN STATED, "WHAT'S THE MATTER WITH YOU PEOPLE? DID YOU ALL SIGN
THIS GRIEVANCE WITHOUT LOOKING AT IT?" (TR. 23-24); THAT MR. EDWARD
SIMOWITZ SAID, "DAN, THIS ISN'T AGAINST YOU. THIS IS A MASS GRIEVANCE.
IT'S NOT AGAINST YOU, PERSONALLY" AND MR. GRIFFIN TOLD HIM TO "SHUT UP
AND SIT DOWN AND KEEP QUIET." (TR. 24). MR. MOULDER TESTIFIED THAT HE
SAID, "WAIT A MINUTE, DAN. WE'RE ENTITLED TO AN OPINION" BUT MR.
GRIFFIN TOLD HIM TO SHUT UP AND SIT DOWN (TR. 24). MR. MOULDER STATED
THAT HE THEN ASKED MR. GRIFFIN ABOUT THE STATEMENT MR. GRIFFIN HAD MADE
TO HIM (TR. 24). MR. GRIFFIN ADMITTED THAT HE TOLD MR. MOULDER TO
"KEEP QUIET. DON'T INTERRUPT MY MEETING UNTIL I'M FINISHED." (TR. 305).
MR. MOULDER FURTHER STATED THAT MR. GRIFFIN THEN TOLD THE GROUP, "FROM
NOW ON, THERE'S GOING TO BE A DIFFERENT STORY. I'M GOING TO USE THE
DROP FILE AND I'M GOING TO MAKE IN-DEPTH REVIEWS." (TR. 24). MR.
MOULDER'S TESTIMONY WAS FULLY CORROBORATED BY THE TESTIMONY OF REVENUE
OFFICERS HUSSEY, SPERLING, AMARI, PETERSON AND GIBBIA (TR. 211-212,
221-223, 228-230, 235, 248-249) AND IS FULLY CREDITED.
MR. GRIFFIN CALLED ANOTHER MEETING ON OCTOBER 30, 1978, AT WHICH TIME
HE APOLOGIZED "FOR ANYTHING HOSTILE OR REMARKS THAT I MIGHT HAVE MADE
THAT I MIGHT HAVE OFFENDED ANY OF THESE PARTICULAR PEOPLE" (TR. 307);
HOWEVER, MR. GRIFFIN TOLD THE REVENUE OFFICERS ASSEMBLED THAT HE WAS,
INDEED, GOING TO CONDUCT IN-DEPTH REVIEWS OF THEIR WORK AND INTENDED TO
START WITH MR. MOULDER. MR. GRIFFIN TESTIFIED THAT HE " . . . ANNOUNCED
THAT I HAD TO MAKE A COMPLETE ANALYSIS OF EACH AND EVERY INDIVIDUAL
REVENUE OFFICER'S WORK LOAD, AND I WAS GOING TO START WITH MR. MOULDER."
(TR. 308). ON CROSS EXAMINATION, MR. GRIFFIN WAS ASKED
"Q. (BY MR. PETRUCCI RESUMING) YOU WERE PRESENT YESTERDAY WHEN
VARIOUS EMPLOYEES TESTIFIED
THAT, IN FACT, IN OCTOBER OF 1978, YOU DID INDEED TELL THEM, THAT YOU
WOULD NOW, AS A RESULT
OF THE MASS GRIEVANCE, HAVE TO DO IN-DEPTH REVIEWS. IS IT YOUR
TESTIMONY THAT THEIR TESTIMONY
IS UNTRUE.
"A. THE TESTIMONY THAT THEY GAVE YESTERDAY WAS CORRECT. YOU ASKED
ME IF IT IS UNTRUE--
NO, IT IS NOT UNTRUE." (TR. 457-457).
ACCORDINGLY, AS THE RECORD SHOWS, AND AS MR. GRIFFIN ADMITTED, I FIND
THAT MR. GRIFFIN ON OCTOBER 25 AND 30, 1978, THREATENED TO CONDUCT
IN-DEPTH REVIEWS OF THE WORK OF EACH REVENUE OFFICER BECAUSE THEY HAD
FILED A GRIEVANCE AND THAT HE HAD STATED HE WAS GOING TO START WITH MR.
MOULDER.
IT IS BOTH ELEMENTAL AND FIRMLY SETTLED THAT PROTECTED ACTIVITY
FLOWING FROM EXCLUSIVE REPRESENTATION BY A LABOR ORGANIZATION INCLUDES
THE PROCESSING OF GRIEVANCES AND THAT ANY INTERFERENCE WITH THE RIGHT TO
FILE GRIEVANCES CONSTITUTES AN UNFAIR LABOR PRACTICE IN VIOLATION OF
19(A)(1) OF THE ORDER AND/OR IN VIOLATION OF 7116(A)(1) OF THE STATUTE.
UNITED STATES DEPARTMENT OF TREASURY, BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, CHICAGO, ILLINOIS, 3 FLRA NO. 116(1980); DEPARTMENT OF
DEFENSE, ARKANSAS NATIONAL GUARD, A/SLMR NO. 53, 1 A/SLMR 274(1971);
UNITED STATES ARMY SCHOOL/TRAINING CENTER, FORT MCCLELLAN, ALABAMA,
A/SLMR NO. 42, 1 A/SLMR 225(1971); NATIONAL LABOR RELATIONS BOARD,
REGION 17, AND NATIONAL LABOR RELATIONS BOARD, A/SLMR 295, 3 A/SLMR
427(1973); DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD,
BREMERTON, WASHINGTON, A/SLMR NO. 582, 5 A/SLMR 699(1975); DEPARTMENT
OF TRANSPORTATION, AIRWAY FACILITIES SECTOR, TAMPA, FLORIDA, A/SLMR NO.
725, 6 A/SLMR 521(1976); FEDERAL AVIATION ADMINISTRATION, AIR TRAFFIC
CONTROL TOWER, GREATER PITTSBURGH AIRPORT, PITTSBURGH, PENNSYLVANIA,
A/SLMR NO. 920, 7 A/SLMR 907(1977); UNITED STATES DEPARTMENT OF THE
ARMY, FORT POLK, LOUISIANA, A/SLMR NO. 1100, 8 A/SLMR 860(1978).
MR. GRIFFIN'S QUESTIONING OF MR. MOULDER ON OCTOBER 24 AS TO WHY HE
HAD SIGNED THE MASS GRIEVANCE, HIS CRITICAL COMMENTS ABOUT THE GRIEVANCE
AND THOSE WHO SIGNED IT, AND HIS THREAT TO SUBJECT MR. MOULDER TO AN
IN-DEPTH REVIEW BECAUSE HE HAD SIGNED THE GRIEVANCE WAS INHERENTLY
DESTRUCTIVE OF THE RIGHT ASSURED BY SECTION 1(A) OF THE ORDER, /9/
"FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND
ASSIST A LABOR ORGANIZATION . . . " AND VIOLATED 19(A)(1) OF THE ORDER.
AS NOTED ABOVE, I HAVE CREDITED MR. MOULDER'S TESTIMONY AND HAVE FOUND
THAT MR. GRIFFIN DID HAVE A PERSONAL DISCUSSION WITH MR. MOULDER ON
OCTOBER 24, BUT EVEN IF, AS RESPONDENT ASSERTS, MR. GRIFFIN HAD NOT HAD
A PERSONAL MEETING WITH MR. MOULDER ON OCTOBER 24, MR. GRIFFIN ADMITTED
THAT ON OCTOBER 25, 1978, AT A MEETING HE CALLED WITH ALL REVENUE
OFFICERS IN HIS GROUP, M-3, HE TOLD THEM HE WAS "UPSET ABOUT THE NATURE
OF THEM FILING A GRIEVANCE," ADMITTED THAT WHEN EMPLOYEES SOUGHT TO
COMMENT HE TOLD THEM TO SHUT UP, AND ADMITTED THAT HE TOLD THEM THAT AS
A RESULT OF THE MASS GRIEVANCE HE WOULD HAVE TO DO IN-DEPTH REVIEWS. I
FURTHER CREDIT MR. MOULDER'S TESTIMONY, FULLY CORROBORATED BY THE
TESTIMONY OF THE OTHER REVENUE OFFICERS PRESENT AT THE MEETING OF
OCTOBER 25 WHO TESTIFIED, AND FURTHER FIND THAT MR. GRIFFIN STATED TO
THE GROUP THAT BECAUSE THEY HAD FILED A GRIEVANCE "FROM NOW ONE (SIC),
THERE'S GOING TO BE A DIFFERENT STORY. I'M GOING TO USE THE DROP FILE
AND I'M GOING TO MAKE IN-DEPTH REVIEWS." I AM AWARE THAT MR. GRIFFIN
TESTIFIED THAT HE TOLD THE ASSEMBLED REVENUE OFFICERS ON OCTOBER 25 THAT
"I HAD RESENTED THE FACT THAT THEY DIDN'T COME TO ME AND TALK TO ME
PRIOR TO FILING THE GRIEVANCE." IF MR. GRIFFIN HAD DONE NO MORE THAN
EXPRESS DISAPPOINTMENT THAT THE EMPLOYEES HAD NOT "FOLLOWED THE CHAIN OF
COMMAND" BY COMING TO HIM BEFORE FILING THE MASS GRIEVANCE IT MIGHT BE
ARGUABLE THAT HIS COMMENT DID NOT VIOLATE THE ORDER, CF. VETERANS
ADMINISTRATION MEDICAL AND REGIONAL OFFICE CENTER, WHITE RIVER JUNCTION,
VERMONT, CASE NO. 1-CA-147 (ALJ, SEPTEMBER 19, 1980); BUT, OF COURSE,
MR. GRIFFIN WENT MUCH FURTHER. HE TOLD THE REVENUE OFFICERS THAT
BECAUSE OF THEIR GRIEVANCE, "FROM NOW ON (SIC) THERE'S GOING TO BE A
DIFFERENT STORY. I'M GOING TO USE THE DROP FILE AND I'M GOING TO MAKE
IN-DEPTH REVIEWS." THUS, MR. GRIFFIN TOLD THE REVENUE OFFICERS THAT
BECAUSE THEY HAD FILED A GRIEVANCE HE WAS GOING TO RETALIATE BY USING
THE DROP FILE /10/ AND BY MAKING IN-DEPTH REVIEWS. OBVIOUSLY, MR.
GRIFFIN'S THREAT, OR PROMISE, OF ACTION IN RETALIATION FOR THEIR HAVING
FILED A GRIEVANCE INTERFERED WITH THE RIGHT OF EACH EMPLOYEE, INCLUDING
MR. MOULDER, TO FILE AND PROCESS GRIEVANCES AND VIOLATED 19(A)(1) OF THE
ORDER. NOR WAS MR. GRIFFIN'S STATEMENT ANY LESS VIOLATIVE OF THE ORDER
BECAUSE HE THREATENED THE USE OF EXISTING MANAGEMENT TECHNIQUES. THAT
IS, EVEN IF IN-DEPTH REVIEWS, FOR EXAMPLE, WERE REGULARLY REQUIRED, /11/
THE THREAT TO CONDUCT AN IN-DEPTH REVIEW BECAUSE AN EMPLOYEE, OR
EMPLOYEES, HAD FILED A GRIEVANCE INTERFERED WITH THE RIGHT OF AN
EMPLOYEE, OR EMPLOYEES, TO FILE AND PROCESS GRIEVANCES FREELY AND
WITHOUT FEAR OF PENALTY OR REPRISAL. ALTHOUGH THE FILING OF A GRIEVANCE
DOES NOT, AND CAN NOT, INSULATE THE EMPLOYEE'S CASE HANDLING FROM FAIR
COMMENT AND CRITICISM IN AN OTHERWISE APPROPRIATE APPRAISAL, CF.
NATIONAL LABOR RELATIONS BOARD, REGION 17, AND NATIONAL LABOR RELATIONS
BOARD, A/SLMR NO. 670, 6 A/SLMR 325, 331(1976); NATIONAL LABOR
RELATIONS BOARD, REGION 17, AND NATIONAL LABOR RELATIONS BOARD, A/SLMR
NO. 671, 6 A/SLMR 333, 334, 6 A/SLMR SUPP. 102, 106(1976), AN APPRAISAL
THREATENED BECAUSE AN EMPLOYEE FILED A GRIEVANCE OR ADVERSE CRITICISM IN
AN APPRAISAL BECAUSE AN EMPLOYEE HAS FILED A GRIEVANCE DOES VIOLATE
19(A)(1) OF THE ORDER.
ON OCTOBER 30, 1978, MR. GRIFFIN APOLOGIZED FOR HIS HOSTILE REMARKS
OF OCTOBER 25; BUT HE AGAIN INFORMED THE ASSEMBLED REVENUE OFFICERS
THAT HE WAS GOING TO CONDUCT IN-DEPTH REVIEWS OF THEIR WORK BECAUSE THEY
HAD FILE THE GRIEVANCE AND HE WAS GOING TO BEGIN WITH MR. MOULDER. MR.
GRIFFIN'S STATEMENT ON OCTOBER 30, 1978, WAS, AS MATERIAL, A REITERATION
OF HIS OCTOBER 25, 1978, STATEMENT EXCEPT THAT ON OCTOBER 30 HE ADMITTED
THAT HE ANNOUNCED THAT HE WOULD BEGIN THE IN-DEPTH REVIEWS WITH MR.
MOULDER. FOR REASONS SET FORTH ABOVE, MR. GRIFFIN'S STATEMENT OF
OCTOBER 30, 1978, VIOLATED 19(A)(1) OF THE ORDER.
D. IN-DEPTH REVIEW OF WILLIAM P. MOULDER
ON NOVEMBER 6., 1978, MR. GRIFFIN, AS HE HAD INFORMED THE ASSEMBLED
REVENUE OFFICERS ON OCTOBER 30, 1978, HE WAS GOING TO DO, ISSUED AN
IN-DEPTH REVIEW OF MR. MOULDER'S ENTIRE CASE INVENTORY. CARRYING OUT
OF THE THREAT TO MAKE AN IN-DEPTH REVIEW OF MR. MOULDER'S WORK BECAUSE
HE HAD SIGNED THE GRIEVANCE FURTHER VIOLATED 19(A)(1) OF THE ORDER.
UNDER THE CIRCUMSTANCES, IT IS NO DEFENSE, IN MY OPINION, EITHER THAT:
A) RECORDS WARRANTED A REVIEW OF MR. MOULDER'S WORK PERFORMANCE; OR B)
THE REVIEW WAS CONDUCTED IN ACCORDANCE WITH RESPONDENT'S REGULATIONS,
INASMUCH AS MR. GRIFFIN HAD TOLD MR. MOULDER ON OCTOBER 24 AND THE
ASSEMBLED REVENUE OFFICERS OF GROUP M-3 ON OCTOBER 25 AND 30 THAT HE WAS
GOING TO CONDUCT IN-DEPTH REVIEWS BECAUSE THEY HAD FILED THE GRIEVANCE
AND ON OCTOBER 30 MR. GRIFFIN HAD ANNOUNCED THAT HE WOULD BEGIN THE
IN-DEPTH REVIEWS WITH MR. MOULDER. STATED OTHERWISE, I FIND THAT AN
IN-DEPTH REVIEW OF MR. MOULDER'S WORK BECAUSE HE SIGNED THE MASS
GRIEVANCE VIOLATED 19(A)(1) OF THE ORDER. AS THIS CONCLUSION
NECESSARILY FLOWS FROM THE THREAT OF PENALTY OR REPRISAL BECAUSE AN
EMPLOYEE HAD EXERCISED A PROTECTED RIGHT TO FILE A GRIEVANCE UNDER A
NEGOTIATED GRIEVANCE PROCEDURE, IT IS NOT NECESSARY TO EXAMINE IN DETAIL
THE REVIEW CONDUCTED TO ESTABLISH A VIOLATION OF 19(A)(1). THE
VIOLATION OF 19(A)(1) IN THIS REGARD IS NOT BOTTOMED ON THE THEORY THAT
THE REVIEW WAS CONDUCTED WITH A DISCRIMINATORY DESIGN OR WAS PRETEXTUAL
IN NATURE.
SECTION 19(A)(2) OF THE ORDER, WHICH IS SUBSTANTIALLY IDENTICAL TO
7116(A)(2) OF THE STATUTE, PROVIDED
"SEC. 19. UNFAIR LABOR PRACTICES. A) AGENCY MANAGEMENT SHALL NOT--
(2) ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD
TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT;"
IN OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO, ILLINOIS,
A/SLMR NO. 334, 3 A/SLMR 668(1973), THE ASSISTANT SECRETARY, IN A CASE
WHICH INVOLVED ALLEGED UNFAIR LABOR PRACTICES WITH RESPECT TO
GRIEVANCES, STATED AS FOLLOWS WITH REGARD TO THE PROOF REQUIRED TO
ESTABLISH A VIOLATION OF 19(A)(2):
" . . . I FIND THAT THE RESPONDENT'S FAILURE TO PROCESS THE
COMPLAINANTS' GRIEVANCES UNDER
THE FORMER'S GRIEVANCE PROCEDURE DID NOT CONSTITUTE A VIOLATION OF
SECTION 19(A)(1) OF THE
ORDER. AND, IN THE ABSENCE OF EVIDENCE OF DISCRIMINATORY MOTIVATION
OR DISPARITY OF TREATMENT
BASED ON UNION MEMBERSHIP CONSIDERATIONS, I FIND, IN AGREEMENT WITH
THE ADMINISTRATIVE LAW
JUDGE, THAT THE RESPONDENT'S CONDUCT HEREIN WAS NOT VIOLATIVE OF
SECTION 19(A)(2) OF THE ORDER
. . . " (3 A/SLMR AT 671)
I AM AWARE THAT THE ASSISTANT SECRETARY, IN NATIONAL LABOR RELATIONS
BOARD, REGION 17, AND NATIONAL LABOR RELATIONS BOARD, A/SLMR NO. 670, 6
A/SLMR 325, 326(1976) STATED, IN PART, AS FOLLOWS:
" . . . IN MY VIEW, INTERFERENCE WITH THE FILING OR PROCESSING OF
GRIEVANCES IS NOT
VIOLATIVE OF SECTION 19(A)(4) . . . , BUT MAY BE VIOLATIVE OF SECTION
19(A)(1) AND (6) OF THE
ORDER . . . " (6 A/SLMR AT 326.
THE ASSISTANT SECRETARY'S STATEMENT THAT INTERFERENCE WITH THE FILING
OR PROCESSING OF GRIEVANCES MAY VIOLATE 19(A)(1) AND (6) DOES NOT MEAN,
OF COURSE, THAT A VIOLATION OF 19(A)(2) MAY NOT, ALSO, BE FOUND IF THERE
IS EVIDENCE OF DISCRIMINATORY MOTIVATION OR DISPARITY OF TREATMENT BASED
ON UNION MEMBERSHIP CONSIDERATIONS.
THAT RESPONDENT'S CONDUCT ALSO VIOLATED 19(A)(2) IS SHOWN, INTER
ALIA, BY THE FOLLOWING:
FIRST, MR. MOULDER TESTIFIED THAT MR. GRIFFIN ON OCTOBER 24, 1978,
STATED, INTER ALIA,
"YOU DON'T NEED TO SIGN SOMETHING LIKE THAT . . . YOU DON'T NEED THE
UNION, YOUR WORK IS
GOOD . . . " (TR. 20).
I HAVE CREDITED MR. MOULDER'S TESTIMONY AND FIND THAT MR. GRIFFIN DID
MAKE THE FOREGOING STATEMENT. IN ADDITION TO INTERROGATING MR. MOULDER
ABOUT THE GRIEVANCE, MR. GRIFFIN ON OCTOBER 24 ALSO INTERROGATED REVENUE
OFFICERS SPERLING AND PETERSON.
SECOND, THE GRIEVANCE WAS, AS NOTED ABOVE, A MASS GRIEVANCE WHICH HAD
BEEN SIGNED BY ALL REVENUE OFFICERS IN MR. GRIFFIN'S GROUP AND, AT THE
MEETING OF THE REVENUE OFFICERS CALLED BY MR. GRIFFIN ON OCTOBER 25 IN
HIS OFFICE, MR. GRIFFIN, AS MR. HUSSEY, TESTIFIED, " . . . GAVE US ALL
KIND OF HELL FOR SIGNING THE PETITION" (TR. 212) AND MR. GRIFFIN
ADMITTED HE TOLD THE ASSEMBLED REVENUE OFFICERS THAT HE " . . . RESENTED
THE FACT THAT THEY DIDN'T COME TO ME AND TALK TO ME PRIOR TO FILING THE
GRIEVANCE." (TR. 304).
THIRD, MR. GRIFFIN ON OCTOBER 25 TOLD THE ASSEMBLED REVENUE OFFICERS
THAT BECAUSE THEY HAD FILED THE GRIEVANCE, "FROM NOW ONE (SIC), THERE'S
GOING TO BE A DIFFERENT STORY. I'M GOING TO USE THE DROP FILE AND I'M
GOING TO MAKE IN-DEPTH REVIEWS" (TR. 24).
FOURTH, ON OCTOBER 30, 1978, MR. GRIFFIN AGAIN TOLD THE ASSEMBLED
REVENUE OFFICERS THAT BECAUSE THEY HAD FILED THE GRIEVANCE HE WAS GOING
TO CONDUCT IN-DEPTH REVIEWS AND THAT HE WOULD BEGIN WITH MR. MOULDER.
WHILE THE COMPLAINT ALLEGES A VIOLATION OF SECS. 19(A)(1) AND (2)
ONLY AS TO MR. MOULDER AND, ALTHOUGH THE ASSISTANT SECRETARY STATED IN
OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO, ILLINOIS, SUPRA, THAT
INTERFERENCE WITH THE FILING AND PROCESSING OF GRIEVANCES VIOLATES SEC.
19(A)(2) ONLY WHEN THERE IS EVIDENCE OF DISCRIMINATORY MOTIVATION OR
DISPARITY OF TREATMENT BASED ON UNION MEMBERSHIP CONSIDERATIONS, I
CONCLUDE THAT MR. GRIFFIN'S CONDUCT WAS SUCH AS INHERENTLY TENDED TO
DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION AND/OR EVINCES
DISCRIMINATORY MOTIVATION BASED ON UNION MEMBERSHIP CONSIDERATIONS.
THAT SUCH ACTION DID NOT CAUSE ACTUAL DISCOURAGEMENT OF UNION MEMBERSHIP
IS IMMATERIAL, ENVIRONMENTAL PROTECTION AGENCY, PERRINE PRIMATA
LABORATORY, A/SLMR NO. 136, 2 A/SLMR 87(1972), AND INDEED, PROOF OF
CONDUCT WHICH IS INHERENTLY DESTRUCTIVE OF A BASIC RIGHT GUARANTEED
UNDER THE ORDER, HERE THE RIGHT, INTER ALIA, TO FILE AND PROCESS
GRIEVANCES, IS SUFFICIENT TO SUPPORT A VIOLATION OF SEC. 19(A)(2) EVEN
IN THE ABSENCE OF PROOF OF SPECIFIC KNOWLEDGE OF THE UNION ACTIVITY.
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MILWAUKEE AREA OFFICE,
MILWAUKEE, WISCONSIN, A/SLMR NO. 925, 7 A/SLMR 948(1977). OF COURSE,
HERE, MR. GRIFFIN WAS WELL AWARE THAT THE REVENUE OFFICERS CONSTITUTING
HIS GROUP HAD FILED A MASS GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE AND HIS CONDUCT, FROM INTERROGATION OF INDIVIDUAL REVENUE
OFFICERS, HIS BELABORING OF THE ASSEMBLED REVENUE OFFICERS FOR FILING
THE GRIEVANCES, TO HIS ANNOUNCEMENT TO THE ASSEMBLED REVENUE OFFICERS OF
HIS INTENT TO USE THE DROP FILE AND TO CONDUCT IN-DEPTH REVIEWS OF THEIR
WORK BECAUSE THEY HAD FILED THE GRIEVANCE, OBVIOUSLY WAS DESTRUCTIVE OF
THE BASIC RIGHT ASSURED UNDER THE ORDER, NAMELY, "THE RIGHT, FREELY AND
WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR
ORGANIZATION" BY INTERFERENCE WITH THEIR RIGHT TO FILE GRIEVANCES UNDER
THE NEGOTIATED GRIEVANCE PROCEDURE. MR. GRIFFIN'S ANNOUNCEMENT ON
OCTOBER 30, 1978, THAT HE INTENDED TO BEGIN THE IN-DEPTH REVIEWS WITH
MR. MOULDER WAS A FURTHER NOTICE TO ASSEMBLED REVENUE OFFICERS THAT HE
WAS PROCEEDING WITH HIS ANNOUNCED INTENT TO CONDUCT IN-DEPTH REVIEWS
BECAUSE THEY HAD FILED THE GRIEVANCE AND, AT THE SAME TIME, SELECTION OF
MR. MOULDER AS THE FIRST TO BE REVIEWED VIOLATED SEC. 19(A)(2).
FIFTH, THE IN-DEPTH REVIEW OF MR. MOULDER BECAUSE HE HAD SIGNED THE
GRIEVANCE VIOLATED SEC. 19(A)(2). INTERFERENCE WITH HIS RIGHT TO FILE A
GRIEVANCE UNDER THE NEGOTIATED AGREEMENT DID TEND TO DISCOURAGE
MEMBERSHIP IN A LABOR ORGANIZATION. INDEED, THE SPECIFIC RELATIONSHIP
TO UNION MEMBERSHIP HAD BEEN SHOWN BY MR. GRIFFIN'S STATEMENT TO MR.
MOULDER ON OCTOBER 24, INTER ALIA, THAT "YOU DON'T NEED THE UNION." IN
VIEW OF THE UNLAWFUL MOTIVE FOR MAKING THE REVIEW, RESPONDENT VIOLATED
SECS. 19(A)(1) AND (2) BY CONDUCTING THE REVIEW, OR AS STATED BY COUNSEL
FOR THE GENERAL COUNSEL IN HIS BRIEF,
" . . . INSOFAR AS THE IN-DEPTH REVIEW WAS MOTIVATED BY UNLAWFUL
CONSIDERATIONS ANYTHING
WHICH FLAWS (SIC) FROM IT IS EQUALLY UNLAWFUL IN RESULT." (GENERAL
COUNSEL BRIEF, P. 15).
ACCORDINGLY, IT IS NOT NECESSARY TO REVIEW THE DETAILS OF THE REVIEWS
CONDUCTED AND I EXPRESSLY DECLINE TO DO SO. /12/ NOTWITHSTANDING THAT,
IF IT WERE NECESSARY, I WOULD FIND THAT THE IN-DEPTH REVIEW ITSELF
EVINCED DISCRIMINATION AS TO MR. MOULDER "IN REGARD TO HIRING, TENURE,
PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT."
REMEDY
ON NOVEMBER 9, 1978, RESPONDENT ISSUED MR. MOULDER A 60 DAY LETTER
(JT. EXH. 3). ON FEBRUARY 2, 1979, MR. GRIFFIN ISSUED TO MR. MOULDER A
MEMORANDUM THE SUBJECT OF WHICH WAS, "FOLLOW-UP OF REVIEW OF 11-9-78"
WHICH STATED, IN PART, "THIS FOLLOW-UP REVEALED A MARKED DIFFERENCE IN
YOUR WORK . . . THIS TYPE OF PERFORMANCE IS THE SATISFACTORY MANNER
WHICH YOU ARE CAPABLE . . ." (G.C. EXH. 6). NEVERTHELESS, BECAUSE THE
IN-DEPTH REVIEW OF NOVEMBER 6, 1978, AND THE ENSUING 60 DAY LETTER OF
NOVEMBER 9, 1978, VIOLATED SECS. 19(A)(1) AND (2) OF THE ORDER, I SHALL
RECOMMEND AS PART OF THE REMEDY THAT THE ANALYSIS OF REVENUE CASE
ASSIGNMENTS OF MR. MOULDER, DATED NOVEMBER 6, 1978 (JOINT EXH. 2) AND
THE 60 DAY LETTER OF NOVEMBER 9, 1978 (JOINT EXH. 3), AND ALL REFERENCES
THERETO, BE REMOVED FROM RESPONDENT'S RECORDS. ONLY BY SUCH ACTION CAN
THE UNLAWFUL AND DISCRIMINATORY ACTION OF RESPONDENT AS TO MR. MOULDER
BE ADEQUATELY OR FULLY REMEDIED INASMUCH AS, UNLESS REMOVED FROM
RESPONDENT'S RECORDS, SUCH PRIOR ACTION MAY, IN THE FUTURE, ADVERSELY
IMPACT ON MR. MOULDER.
RECOMMENDATION
HAVING FOUND THAT RESPONDENT ENGAGED IN CONDUCT WHICH WAS IN
VIOLATION OF SECTIONS 19(A)(1) AND (2) OF EXECUTIVE ORDER 11491, AS
AMENDED, IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING:
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS THEREUNDER, 29 C.F.R. 203.26 (B);
AND SECTION 2400.2 OF THE FINAL RULES AND REGULATIONS OF THE AUTHORITY,
5 C.F.R.CHAPTER XIV, SUBCHAPTER A, FED.REG., VOL. 45, NO. 12, JANUARY
17, 1980, THE AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE
AND ITS BROOKLYN DISTRICT OFFICE SHALL:
1. CEASE AND DESIST FROM:
A) INTERFERING WITE, OR DISCOURAGING, BY IMPLIED THREATS, OR
OTHERWISE, WILLIAM R. MOULDER, OR ANY OTHER EMPLOYEE, FROM EXERCISING
THE RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
B) REVIEWING, ADVERSELY RATING OR CRITICIZING THE WORK PERFORMANCE OF
WILLIAM R. MOULDER, OR ANY OTHER EMPLOYEE, BECAUSE ANY SUCH EMPLOYEE HAS
FILED A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.
C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
EXECUTIVE ORDER OR BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE OR ENCOURAGING OR DISCOURAGING MEMBERSHIP IN A LABOR
ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
OR OTHER CONDITIONS OF EMPLOYMENT BY INTERFERING WITH THE EXERCISE OF
ANY RIGHT PROTECTED BY THE EXECUTIVE ORDER OR BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSE AND POLICIES OF THE ORDER AND THE STATUTE:
A) REMOVE THE ANALYSIS OF REVIEW OF CASE ASSIGNMENTS OF WILLIAM R.
MOULDER, DATED NOVEMBER 6, 1978 (FORMS 5188 AND 5188-A) AND THE ENSUING
60 DAY LETTER, DATED NOVEMBER 9, 1978, AND ALL REFERENCES THERETO, FROM
ITS RECORDS.
B) POST IN ALL OFFICES OF THE BROOKLYN DISTRICT OF THE INTERNAL
REVENUE SERVICE, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS,
THEY SHALL BE SIGNED BY THE DISTRICT DIRECTOR, BROOKLYN DISTRICT, AND
SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER
IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED, INCLUDING, BUT NOT
LIMITED TO, THE MINEOLA, SMITHTOWN AND RIVERHEAD BRANCH OFFICES. THE
DISTRICT DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION 2, ROOM 241, 26
FEDERAL PLAZA, NEW YORK, NEW YORK, IN WRITING WITHIN 30 DAYS FROM THE
DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 12, 1981
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 INTERFERE WITH, OR DISCOURAGE, BY IMPLIED THREATS, OR
OTHERWISE, WILLIAM R. MOULDER, OR ANY OTHER EMPLOYEE, FROM EXERCISING
THE RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
WE WILL NOT REVIEW, ADVERSELY RATE, OR CRITICIZE THE WORK PERFORMANCE
OF WILLIAM R. MOULDER, OR ANY OTHER EMPLOYEE, BECAUSE ANY SUCH EMPLOYEE
HAD FILED A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED, OR BY THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, OR ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR
ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
OR OTHER CONDITIONS OF EMPLOYMENT BY INTERFERING WITH THE EXERCISE OF
ANY RIGHT PROTECTED BY THE EXECUTIVE ORDER OR BY THE STATUTE.
WE WILL REMOVE THE ANALYSIS OF REVIEW OF CASE ASSIGNMENTS OF WILLIAM
R. MOULDER, DATED NOVEMBER 6, 1978 (FORMS 5188 AND 5188-A) AND THE
ENSUING 60 DAY LETTER, DATED NOVEMBER 9, 1978, AND ALL REFERENCES
THERETO, FROM ALL RECORDS OF THE INTERNAL REVENUE SERVICE.
(AGENCY OF 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 ANY EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE, OR
COMPLIANCE WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION 2,
WHOSE ADDRESS IS: ROOM 241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10278,
AND WHOSE TELEPHONE NUMBER IS: (212) 264-4934.
--------------- FOOTNOTES: ---------------
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED ON THE BASIS OF
EXECUTIVE ORDER 11491, AS AMENDED, AND AS IF THE NEW STATUTE HAD NOT
BEEN ENACTED. THE DECISION AND ORDER 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 EXECUTIVE ORDER.
/2/ THE CHARGES ALSO ASSERTED AS UNFAIR LABOR PRACTICES CONDUCT AT
GROUP MEETINGS; NEVERTHELESS, THE COMPLAINT DID NOT ENCOMPASS SUCH
ALLEGATIONS AND, EVEN THOUGH TESTIMONY WAS PRESENTED AT THE HEARING
CONCERNING GROUP MEETINGS, FACTS PERTAINING THERETO MAY NOT CONSTITUTE
THE BASIS FOR A FINDING OF AN UNFAIR LABOR PRACTICE NOT ALLEGED IN THE
COMPLAINT. THIS DOES NOT MEAN, OF COURSE, THAT SUCH TESTIMONY WILL NOT
BE CONSIDERED IN RELATION TO THE UNFAIR LABOR PRACTICES ALLEGED IN THE
COMPLAINT.
/3/ ON MARCH 7, 1979, THE AUTHORITY ISSUED A NOTICE "TO HEADS OF
AGENCIES, PRESIDENTS OF LABOR ORGANIZATIONS AND OTHER INTERESTED
PERSONS," PUBLISHED IN THE FEDERAL REGISTER ON MARCH 13, 1979, VOL. 44
P. 14634, WHICH PROVIDED, IN PART, THAT,
" . . . CHARGES FILED UNDER THE STATUTE, WHETHER BASED ON OCCURRENCES
BEFORE OR ON OR AFTER
JANUARY 11, 1979, WILL BE INVESTIGATED AND COMPLAINTS PROSECUTED BY
THE GENERAL COUNSEL."
/4/ OBVIOUSLY, MY AUTHORITY IS LIMITED TO MY RECOMMENDED DECISION AND
ORDER. I CAN NOT ASSERT, NOT DO I PURPORT TO ASSERT, AUTHORITY AS TO
"ANY ULTIMATE DECISION OR ORDER," ALTHOUGH I AM CONFIDENT THAT DUE
CONSIDERATION WILL BE GIVEN BY THE AUTHORITY TO RESPONDENT'S MERITORIOUS
AND CONTINUING REQUEST TO INSURE CONFIDENTIALITY OF TAXPAYER NAMES OR
OTHER RETURN INFORMATION.
/5/ EXCEPT FOR CERTAIN ORAL STATEMENTS WHICH, AS MATERIAL, WERE
LARGELY CONCEDED, THIS CASE CONCERNS AN EMPLOYEE'S WORK PERFORMANCE
REVIEW. ALTHOUGH RESPONDENT RELIED UPON ORAL TESTIMONY IN MANY
RESPECTS, IT WAS APPARENT FROM THE TESTIMONY THAT RECORDS MAINTAINED BY
RESPONDENT, WHICH RESPONDENT NEITHER SHOWED NOR CONTENDED WERE NOT
READILY AVAILABLE, WERE NOT OFFERED. THIS, RESPONDENT WAS FULLY
ENTITLED TO DO; BUT, CERTAINLY, IT MAY NOT ASSERT PREJUDICE AS A RESULT
OF MEMORY DIMMED BY TIME WHEN RECORDS, WHICH WOULD HAVE REFRESHED
RECOLLECTION ON PRECISELY THE MATTERS ON WHICH RECOLLECTION WAS NOT
WHOLLY COMPLETE, WERE NOT OFFERED OR SHOWN NOT TO HAVE BEEN RETAINED.
/6/ IN FEBRUARY, 1980, THIS WAS ALL REVERSED, I.E., THE WORK
TRANSFERRED FROM QUEENS WAS RETURNED TO QUEENS AND THE MINEOLA WORK
TRANSFERRED TO SMITHTOWN WAS RETURNED TO MINEOLA. (TR. 255).
/7/ SEE, FOR EXAMPLE, GENERAL COUNSEL'S BRIEF P. 12, TR. 458.
/8/ WHILE I DO NOT FIND IT NECESSARY TO DECIDE WHETHER MR. GRIFFIN
USED THE VULGAR LANGUAGE ATTRIBUTED TO HIM BY MR. MOULDER, THE RECORD
SHOWS BEYOND QUESTION THAT MR. MOULDER ASSERTED THE STATEMENT AS HAVING
BEEN MADE TO HIM DURING THE MEETING ON OCTOBER 25 AND MR. GRIFFIN,
BEYOND TELLING MR. MOULDER TO SHUT UP DID NOT, ON OCTOBER 25, DENY
HAVING MADE THE STATEMENT. (TR. 305).
/9/ SECTION 2 OF THE STATUTE, SEC. 7102 IS SUBSTANTIALLY THE SAME
AND, CERTAINLY, ASSURES THE SAME RIGHT, "FREELY AND WITHOUT FEAR OF
PENALTY OR REPRISAL" TO "FORM, JOIN, OR ASSIST ANY LABOR ORGANIZATION"
AND THAT "EACH EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH
RIGHT."
/10/ A FILE KEPT BY A SUPERVISOR IN WHICH BOTH GOOD AND BAD COMMENTS
MAY BE PLACED ABOUT A REVENUE OFFICER (TR. 26, 236).
/11/ I AM AWARE THAT THE RECORD SHOWS THAT THE TERM "IN-DEPTH REVIEW"
IS NOT AN IRS MANUAL TERM. MR. GRIFFIN ADMITTED HE USED THE TERM BUT,
WHILE IT MIGHT WELL BE PROPER TO DRAW AN INFERENCE THAT HE THREATENED A
TYPE OF REVIEW WHICH WAS NEITHER REGULARLY REQUIRED NOR EVEN PROVIDED
FOR BY RESPONDENT'S MANUAL, THE DISTINCTION DOES NOT SEEM SIGNIFICANT.
/12/ AS NOTED EARLIER, THE FILING OF A GRIEVANCE DOES NOT, AND CAN
NOT, INSULATE AN EMPLOYEE'S CASE HANDLING FROM FAIR COMMENT AND
CRITICISM IN AN OTHERWISE APPROPRIATE APPRAISAL, ALTHOUGH AN APPRAISAL
THREATENED BECAUSE AN EMPLOYEE HAD FILED A GRIEVANCE OR ADVERSE
CRITICISM IN AN APPRAISAL BECAUSE AN EMPLOYEE HAD FILED A GRIEVANCE
CONSTITUTES AN UNFAIR LABOR PRACTICE. THE TIMING OF THE REVIEW OF MR.
MOULDER'S WORK, THE NATURE OF COMMENTS MADE, ETC., WHICH WOULD SHOW
DISCRIMINATION IN VIEW OF THE UNLAWFUL MOTIVATION WHICH LED TO THE
REVIEW, IN OTHER CIRCUMSTANCES, WHERE THERE WAS NO UNLAWFUL MOTIVATION,
MIGHT BE WHOLLY PROPER.