Internal Revenue Service, South Carolina District (Authority decision, July 31, 1979)

Final FLRA decision under Executive Order 11491. This final order denies review of an Assistant Secretary decision under the Authority's transition rules, 5 C.F.R. §§ 2400.2 and 2411.12 (1978). The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

An IRS South Carolina District attorney interviewed a bargaining-unit employee about a pending grievance without giving NTEU an opportunity to attend. The Assistant Secretary found that the interview was a formal discussion concerning a grievance and that excluding the union violated the Executive Order. The IRS sought Authority review and a stay, arguing that the decision imposed an improper general rule on witness interviews. The Authority found no arbitrary decision or major policy issue on these facts and expressly declined to treat the ruling as a rule for every interview. It denied review and a stay.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); 5 C.F.R. § 2411.12 (1978); Executive Order 11491, § 10(e).
• Outcome: Review and stay denied; Assistant Secretary's violation finding left in place.
• Key point: The union's right to attend turned on this interview being a formal discussion about a grievance.

Full text (FLRA public release)

[ v01 p817 ]

01:0817(92)AS

The decision of the Authority follows:

1 FLRA No. 92
JULY 31, 1979

MR. ANTHONY D'AMATO
DIRECTOR OF PERSONNEL
INTERNAL REVENUE SERVICE
WASHINGTON, D.C. 20224

RE: INTERNAL REVENUE SERVICE, SOUTH
CAROLINA DISTRICT, A/SLMR No. 1172,
Case No. 0-AS-7

DEAR MR. D'AMATO:

THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION, AND THE
UNION'S OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.

IN THIS CASE, THE NATIONAL TREASURY EMPLOYEES UNION (THE UNION) FILED
AN UNFAIR LABOR PRACTICE COMPLAINT ALLEGING, IN SUBSTANCE, THAT THE
INTERNAL REVENUE SERVICE, SOUTH CAROLINA DISTRICT (THE ACTIVITY)
VIOLATED SECTION 19()(1) AND (6) OF THE ORDER WHEN IT INTERVIEWED A
BARGAINING UNIT EMPLOYEE, WHO WAS A POTENTIAL WITNESS IN AN UPCOMING
ARBITRATION HEARING, WITHOUT AFFORDING THE EXCLUSIVE REPRESENTATIVE
NOTIFICATION OF THE INTERVIEW AND AN OPPORTUNITY TO BE PRESENT. AS
FOUND BY THE ASSISTANT SECRETARY, THE ACTIVITY'S ATTORNEY INTERVIEWED
THE UNIT EMPLOYEE APPROXIMATELY 1 WEEK PRIOR TO THE ARBITRATION HEARING.
THE INTERVIEW TOOK PLACE IN THE GROUP MANAGER'S OFFICE IN THE PRESENCE
OF THE ACTIVITY'S CHIEF OF PERSONNEL. THE ATTORNEY QUESTIONED THE
EMPLOYEE CONCERNING HIS KNOWLEDGE OF, AND INVOLVEMENT IN, THE EVENTS
WHICH PRECIPITATED THE GRIEVANCE AT ISSUE IN THE ARBITRATION HEARING.

THE ASSISTANT SECRETARY FOUND THAT THE ACTIVITY VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER IN THE CIRCUMSTANCES OF THIS CASE. IN SO
FINDING, HE STATED:

IN MY VIEW, WHEN AN EMPLOYEE WHO IS A MEMBER OF THE BARGAINING UNIT
AT ALL TIMES MATERIAL

TO A PENDING GRIEVANCE IS INTERVIEWED BY MANAGEMENT REPRESENTATIVES
CONCERNING THE EVENTS

SURROUNDING THE GRIEVANCE, (S)ECTION 10(E) OF THE ORDER GRANTS THE
EXCLUSIVE REPRESENTATIVE

THE RIGHT TO BE REPRESENTED AT SUCH A FORMAL DISCUSSION. AS THE
ASSISTANT SECRETARY STATED IN

THE MCCLELLAN CASE (UNITED STATES AIR FORCE, MCCLELLAN AIR FORCE
BASE, CALIFORNIA, A/SLMR 830

(APR. 21, 1977), REVIEW DENIED, 5 FLRC 866 (FLRC 77A-56 (AUG. 31,
1977), REPORT ON. 136)),

. . . AN EXCLUSIVE REPRESENTATIVE HAS A LEGITIMATE INTEREST IN BEING
REPRESENTED AT THE

INTERVIEWS OF UNIT EMPLOYEES CONDUCTED BY MANAGEMENT IN CONNECTION
WITH THE PROCESSING OF A

PENDING GRIEVANCE, AND THE REPRESENTATIONAL RESPONSIBILITIES
CONFERRED BY (S)ECTION 10(E) OF

THE ORDER IN THIS REGARD OUTWEIGH ANY IMPACT ITS PRESENCE MIGHT HAVE
ON MANAGEMENT'S

PREPARATION OF ITS CASE FOR ARBITRATION. UNDER THESE CIRCUMSTANCES,
I CONCLUDE THAT BY

FAILING TO AFFORD THE (UNION) AN OPPORTUNITY TO BE REPRESENTED AT THE
INTERVIEW OF (THE UNIT)

EMPLOYEE . . ., THE (ACTIVITY) VIOLATED (S)ECTION 19(A)(1) AND (6) OF
THE ORDER.

IN THE AGENCY'S PETITION FOR REVIEW, IT IS ALLEGED THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS THE FOLLOWING MAJOR POLICY ISSUES: (1)
"IS THERE A PER SE VIOLATION OF SECTION 19(A)(6) OF THE ORDER . . .
WHENEVER AN AGENCY ATTORNEY/REPRESENTATIVE INTERVIEWS BARGAINING UNIT
EMPLOYEES IN PREPARATION FOR AN ARBITRATION HEARING WITHOUT AFFORDING
THE EXCLUSIVE REPRESENTATIVE AN OPPORTUNITY TO BE PRESENT?" AND (2)
"UNDER WHAT CIRCUMSTANCES IS AN AGENCY REQUIRED TO PROVIDE AN EXCLUSIVE
REPRESENTATIVE WITH THE OPPORTUNITY TO BE PRESENT WHEN IT CONDUCTS
FACT-GATHERING INTERVIEWS WITH BARGAINING UNIT EMPLOYEES?" IT IS ALSO
CONTENDED THAT THE ASSISTANT SECRETARY'S ADOPTION OF A "PER SE APPROACH"
IN THE INSTANT CASE IS ARBITRARY AND CAPRICIOUS. AS TO ALL OF THE
FOREGOING ALLEGATIONS, IT IS ASSERTED, MORE PARTICULARLY, THAT THE
ASSISTANT SECRETARY VIOLATED COUNCIL PRECEDENT /1/ AND PRIVATE SECTOR
PRINCIPLES BY ESTABLISHING A PER SE RULE WITH REGARD TO FACT-GATHERING
INTERVIEWS.

IN THE AUTHORITY'S OPINION, THE PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES WHICH
INCORPORATES BY REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES. THAT
IS, THE DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR PRESENT ANY MAJOR POLICY ISSUES WARRANTING AUTHORITY
REVIEW.

AS TO THE ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION IS
ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE ASSISTANT
SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING HIS
DECISION. AS TO THE ALLEGED MAJOR POLICY ISSUE WITH RESPECT TO WHETHER
THERE IS A "PER SE" VIOLATION OF THE ORDER WHEN UNIT EMPLOYEES ARE
INTERVIEWED IN PREPARATION FOR AN ARBITRATION HEARING WITHOUT AFFORDING
THE EXCLUSIVE REPRESENTATIVE AN OPPORTUNITY TO BE PRESENT, IN THE
AUTHORITY'S VIEW NO MAJOR POLICY ISSUE WARRANTING REVIEW IS PRESENTED IN
THE CIRCUMSTANCES OF THIS CASE. THE AUTHORITY NOTES IN THIS REGARD THE
ASSISTANT SECRETARY'S DETERMINATION OF THE UNION'S OPPORTUNITY TO BE
PRESENT IN THE CIRCUMSTANCES OF THIS CASE WAS BASED ON A CONCLUSION THAT
THE DISCUSSIONS IN QUESTION WERE "FORMAL DISCUSSIONS" WITHIN THE MEANING
OF SECTION 10(E) OF THE ORDER. YOUR ASSERTIONS TO THE CONTRARY
CONSTITUTE ESSENTIALLY DISAGREEMENT WITH THE ASSISTANT SECRETARY'S
CONCLUSION THAT THE DISCUSSIONS WERE "FORMAL" AND THEREFORE PROVIDE NO
BASIS FOR REVIEW. SIMILARLY NO MAJOR POLICY ISSUE WARRANTING REVIEW IS
PRESENTED CONCERNING THE CIRCUMSTANCES UNDER WHICH THE EXCLUSIVE
REPRESENTATIVE IS ENTITLED TO AN OPPORTUNITY TO BE PRESENT, NOTING IN
THIS REGARD THAT SECTION 10(E) REQUIRES SUCH OPPORTUNITY "AT FORMAL
DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
REPRESENTATIVES
CONCERNING GRIEVANCES." FURTHER, YOUR APPEAL FAILS TO CONTAIN ANY BASIS
TO SUPPORT THE CONTENTION THAT THE DECISION IS INCONSISTENT EITHER WITH
APPLICABLE PRECEDENT OR THE PURPOSES AND POLICIES OF THE ORDER, BUT
AGAIN CONSTITUTES NO MORE THAN MERE DISAGREEMENT WITH THE ASSISTANT
SECRETARY'S FINDING THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6)
OF THE ORDER IN THE CIRCUMSTANCES OF THIS CASE. /2/

SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR PRESENT ANY MAJOR POLICY ISSUES, THE APPEAL FAILS TO
MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.2 OF THE
AUTHORITY'S TRANSITION RULES OF PROCEDURE WHICH INCORPORATES BY
REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES. ACCORDINGLY, THE
PETITION FOR REVIEW IS HEREBY DENIED. THE REQUEST FOR A STAY IS ALSO
DENIED. /3/

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

CC: K. POOLE

NTEU

/1/ THE COUNCIL'S STATEMENT ON MAJOR POLICY ISSUE, 4 FLRC 709 (FLRC
75P-2 (DEC. 2, 1976), REPORT NO. 116), AND ITS MCCLELLAN DECISION (SUPRA
P. 2), ARE PRINCIPALLY RELIED UPON IN THIS REGARD.

/2/ IN SO CONCLUDING, THE AUTHORITY DOES NOT CONSTRUE THE ASSISTANT
SECRETARY'S DECISION AS ESTABLISHING A PER SE RULE HEREIN. RATHER, AS
PREVIOUSLY STATED, THE AUTHORITY DECIDES ONLY THAT THE ASSISTANT
SECRETARY'S FINDING THAT THE AGENCY VIOLATED SECTION 19(A)(1) AND (6) OF
THE ORDER, IN THE PARTICULAR FACTS AND CIRCUMSTANCES OF THIS CASE,
NEITHER APPEARS ARBITRARY AND CAPRICIOUS NOR PRESENTS ANY MAJOR POLICY
ISSUE WARRANTING REVIEW.

/3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.