Internal Revenue Service, Buffalo District, Buffalo, New York (Respondent) and National Treasury Employees Union, Chapter 58 (Charging Party)
[ v07 p654 ]
07:0654(102)CA
The decision of the Authority follows:
7 FLRA No. 102
INTERNAL REVENUE SERVICE,
BUFFALO DISTRICT
BUFFALO, NEW YORK
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 58
Charging Party
Case No. 1-CA-254
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
AND ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT
HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT
AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED. THEREAFTER, THE
GENERAL COUNSEL, THE CHARGING PARTY AND THE RESPONDENT FILED EXCEPTIONS
TO THE JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE CHARGING PARTY
AND THE RESPONDENT FILED OPPOSITIONS TO SUCH EXCEPTIONS.
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 (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 IN THIS
CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS AND CONCLUSIONS
THAT THE INFORMATION SOUGHT BY THE CHARGING PARTY WAS NOT NECESSARY AND
RELEVANT TO ASSIST THE CHARGING PARTY IN DISCHARGING ITS
RESPONSIBILITIES UNDER THE STATUTE. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-254 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JANUARY 15, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
ELLIOT M. CARLIN, ESQUIRE
FOR THE RESPONDENT
PAUL E. STANZLER, ESQUIRE
FOR THE GENERAL COUNSEL
MARTHA D. FINLATOR, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
CASE NO. 1-CA-254
DECISION
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON MARCH 31,
1980 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
BOSTON, MASSACHUSETTS, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON JULY
8, 1980 AT BUFFALO, N.Y.
THIS IS A PROCEEDING WHICH ARISES UNDER THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (HEREIN CALLED THE ACT). IT IS BASED
ON AN AMENDED CHARGE FILED ON MARCH 28, 1980 BY NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 58 (HEREIN CALLED THE UNION) AGAINST INTERNAL
REVENUE SERVICE, BUFFALO DISTRICT, BUFFALO, NEW YORK (HEREIN CALLED THE
EMPLOYER OR RESPONDENT).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT ON OR ABOUT AUGUST 30, 1979
AND THEREAFTER RESPONDENT REFUSED TO BARGAIN WITH THE UNION BY REFUSING
TO FURNISH A CASE FILE AND ASSORTED HISTORY SHEETS NECESSARY AND
RELEVANT TO PROCESSING A GRIEVANCE ON BEHALF OF REVENUE OFFICER VINCENT
DIMARCO. SUCH REFUSAL AND FAILURE TO FURNISH REQUESTED INFORMATION WAS
ALLEGED TO BE VIOLATIVE OF SECTIONS 7116(A)(1) AND (5) OF THE ACT. /2/
AN ANSWER DATED APRIL 10, 1980 WAS FILED BY RESPONDENT IN WHICH IT
DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICES.
ALL PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER BRIEFS WERE FILED BY THE PARTIES ON
SEPTEMBER 15, 1980 WITH THE UNDERSIGNED AND HAVE BEEN DULY CONSIDERED.
/3/
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN THE COLLECTIVE
BARGAINING REPRESENTATIVE OF RESPONDENT'S PROFESSIONAL AND
NON-PROFESSIONAL EMPLOYEES LOCATED AT BUFFALO, N.Y.
2. BOTH THE UNION AND RESPONDENT WERE, AND STILL ARE, PARTIES TO A
COLLECTIVE BARGAINING AGREEMENT /4/ COVERING THE AFORESAID UNIT, WHICH
BY ITS TERMS BECAME EFFECTIVE FOR A FOUR YEAR PERIOD FROM JANUARY 31,
1977.
3. THE SAID AGREEMENT, WHICH CONTAINED VARIOUS PROVISIONS AND
CONDITIONS OF EMPLOYMENT IN RESPECT TO THE EMPLOYEES IN THE UNIT, ALSO
PROVIDED AS FOLLOWS:
ARTICLE 3
EMPLOYEE RIGHTS
SECTION 1.
A. THE EMPLOYER AND THE UNION WILL RECOGNIZE AND RESPECT THE DIGNITY
OF EMPLOYEES IN THE
FORMULATION AND IMPLEMENTATION OF PERSONNEL POLICIES AND PRACTICES.
B. GRIEVANCES OVER THE INTERPRETATION OR APPLICATION OF "A" ABOVE .
. . MAY BE PROCESSED
IN ACCORDANCE WITH ARTICLE 35, SECTIONS 2 AND 8B OF THIS AGREEMENT.
ARTICLE 37
LABOR-MANAGEMENT RELATIONS COMMITTEE
SECTION 5.
A. THE EMPLOYER AGREES TO INFORM THE UNION OF PROPOSED CHANGES OF
PERSONNEL POLICIES,
PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS AS FAR IN ADVANCE
AS POSSIBLE.
B. UPON REQUEST OF THE UNION, THE EMPLOYER WILL CONVENE THE
LABOR-MANAGEMENT RELATIONS
COMMITTEE TO DISCUSS THE PROPOSED CHANGES WITH THE UNION.
4. AT ALL TIMES MATERIAL HEREIN, VINCENT DIMARCO HAS BEEN, AND STILL
IS, EMPLOYED AS A REVENUE OFFICER WITH RESPONDENT AT BUFFALO, N.Y.
DURING THE SUMMER OF 1979, AND AS PART OF HIS DUTIES, DIMARCO
INVESTIGATED DELINQUENT ACCOUNTS. ONE OF SAID ACCOUNTS INCLUDED A LARGE
CORPORATION (HEREINAFTER REFERRED TO AS THE TAXPAYER).
5. ON OR ABOUT JULY 26, 1979 DIMARCO WAS SUMMONED TO APPEAR AT THE
OFFICE OF ROCCO J. VITALONE, ACTING CHIEF OF RESPONDENT'S FIELD BRANCH.
IN ADDITION TO THESE INDIVIDUALS THERE WERE PRESENT AT THE MEETING
PHILIP CORIGLIANO, CHIEF OF SPECIAL PROCEDURES STAFF AND ROBERT
VALKENBURG, ADVISOR ON SAID STAFF. A DISCUSSION ENSUED RE DIMARCO'S
HANDLING OF A CASE INVOLVING THE TAXPAYER. VITALONE STATED THAT THE
REVENUE OFFICER ACTIVITY ON THE CASE WAS NOT AS AGGRESSIVE AS IT SHOULD
BE. WHEREUPON DIMARCO REPLIED HE HAD BEEN KEEPING MANAGEMENT INFORMED
OF THE PROGRESS OF THE CASE; THAT MONTHLY REPORTS WERE MADE BY HIM
WHICH HIGHER LEVELS OF MANAGEMENT APPROVED; AND THAT VITALONE WAS NOT
FAMILIAR WITH THE CASE. REFERENCE WAS MADE BY VITALONE TO THE FACT THAT
A FEDERAL TAX LIEN /5/ SHOULD BE FILED IN THIS PARTICULAR MATTER, BUT
DIMARCO ARGUED THAT THE TAXPAYER SHOULD BE NOTIFIED BEFOREHAND.
6. IN AND AROUND THIS PERIOD MANAGEMENT HELD BETWEEN 6-8 MEETINGS
WITH DIMARCO RE HIS HANDLING THE AFORESAID CASE. DURING THESE
DISCUSSIONS /6/ DIMARCO WAS TOLD THAT HE IDOLIZED THE TAXPAYER, HAD
BECOME FRIENDLY WITH HIM AND WAS UNABLE TO EXERCISE IMPARTIAL JUDGMENT.
THE ACTING CHIEF STATED IT WAS TIME TO TAKE A NEW LOOK AT THE CASE.
RECORD FACTS ALSO SHOW THAT AT ONE OF THESE MEETINGS DISTRICT DIRECTOR
MARSHALL CAPPELLI SUGGESTED THAT DIMARCO SHOULD GO BACK TO BASIC REVENUE
OFFICER TRAINING AND REDISCOVER WHAT HIS POSITION WAS ALL ABOUT, AND HE
REMARKED THAT THE REVENUE OFFICER HAD PLAYED DISTRICT DIRECTOR ON THIS
CASE. CAPPELLI ALSO ASKED DIMARCO WHY HE PERMITTED THE TAXPAYER TO CALL
HIM "VINCE." IN ADDITION, AT ONE MEETING THE REVENUE OFFICER WAS ASKED
BY CAPPELLI (A) WHETHER HE OBTAINED A FINANCIAL STATEMENT FROM THE
TAXPAYER, (B) WHETHER HE OBRAINED A LIST OF THE TAXPAYER'S PROPERTY, (C)
WHETHER HE READ THE DIRECTOR'S MEMO RE COLLECTION ENFORCEMENT
PHILOSOPHY.
7. SHORTLY AFTER THESE DISCUSSIONS DIMARCO INFORMED JOSEPH VILARDO,
UNION STEWARD, OF THE STATEMENTS MADE BY MANAGEMENT. HE ALSO TOLD THE
STEWARD THAT RESPONDENT WAS DOING THINGS DIFFERENTLY THEN REQUIRED BY
THE MANUAL; THAT MANAGEMENT WAS ASKING DIMARCO TO DEVIATE FROM THE
ESTABLISHED PROCEDURE, AND HE COULD BE HELD FOR DISCIPLINE IF HE FAILED
TO FOLLOW SUCH CHANGES. THE REVENUE OFFICER DID NOT SPELL OUT THE
CHANGES WHICH HE DEEMED WERE IMPROPER.
8. BASED ON HIS CONVERSATION WITH DIMARCO A GRIEVANCE WAS FILED WITH
RESPONDENT BY VILARDO ON AUGUST 21, 1979. THE GRIEVANCE ALLEGED
VIOLATIONS BY MANAGEMENT OF ARTICLE 3, SECTION 1, AND ARTICLE 37,
SECTION 5 OF THE MULTI DISTRICT AGREEMENT AS HERETOFORE MENTIONED. /7/
UNDER SEPARATE COVER, AND ON THE SAME DATE, VILARDO SENT RESPONDENT A
WRITTEN REQUEST FOR THE ENTIRE CASE FILE AND ASSOCIATED HISTORY SHEETS
CURRENTLY BEING MARKED BY DIMARCO. ALTHOUGH SUBSEQUENTLY SANITIZED, AND
NOT IDENTIFIED AT THE HEARING HEREIN, THE REQUEST WAS FOR THE PARTICULAR
CASE FILE OF THE TAXPAYER WHICH HAD BEEN THE SUBJECT OF COMMENT BY
MANAGEMENT AS HERETOFORE RELATED. VILARDO ALSO STATED THAT THE INTENT
OF HIS REQUEST WAS TO REVIEW THE MATERIAL AND THEN DECIDE IF THE
GRIEVANCE SHOULD BE PURSUED. /8/
9. THE CHANGES WHICH DIMARCO INSISTS WERE MADE BY RESPONDENT IN
RESPECT TO THE HANDLING OF ACCOUNTS BY REVENUE OFFICERS WERE: (A)
FILING OF A TAX LIEN WITHOUT NOTICE TO THE TAXPAYER; (B) INITIATION BY
MANAGEMENT OF INSTALLMENT AGREEMENTS WHEREAS IN THE PAST THE REVENUE
OFFICER NEGOTIATED SUCH AGREEMENT AND PRESENTED THEM TO GROUP MANAGERS
FOR APPROVAL; (C) REQUIRING REVENUE OFFICERS TO REPORT TO HIGHER LEVELS
OF DISTRICT MANAGEMENT RATHER THAN TO A GROUP MANAGER UNDER THE
CUSTOMARY PROCEDURE. HOWEVER, NEITHER DIMARCO NOR THE UNION EVER
APPRISED RESPONDENT THAT THESE ALLEGED CHANGES FORMED, IN PART, THE
BASIS FOR THE GRIEVANCE FILED BY DIMARCO.
10. ON AUGUST 22, 1979 JAMES STEPHENSON, GROUP MANAGER, NOTIFIED
VILARDO THAT THE GRIEVANCE WAS NOT SPECIFIC ENOUGH NOR DID MANAGEMENT
UNDERSTAND THE NATURE THEREOF. VILARDO REPLIED THAT WHEN HE OBTAINED
THE REQUESTED FILE AND THEY SAT DOWN AT THE STEP 1 LEVEL, THE SPECIFICS
WOULD BE FURNISHED MANAGEMENT.
11. ON AUGUST 23, 1979 STEPHENSON CALLED VILARDO TO HIS OFFICE AND
GAVE HIM A COPY OF IRS CODE 6103 WHICH REFERS TO 'ADMINISTRATIVE
PROCEEDINGS' AS A PREREQUISITE TO FURNISHING DATA OF THIS NATURE.
VILARDO REMARKED HE FELT THAT A GRIEVANCE WAS AN ADMINISTRATIVE PROCESS.
12. UNDER DATE OF AUGUST 23, 1979 DIMARCO SUBMITTED A LIST OF 29
ITEMS OR DOCUMENTS WHICH, AS PART OF THE SUBJECT CASE FILE, WERE
REQUESTED IN ORDER TO PROCESS THE GRIEVANCE FILED ON HIS BEHALF. THESE
ITEMS ARE CONTAINED IN JOINT EXHIBIT 3 AND ARE ATTACHED HERETO AS
APPENDIX B. /9/
13. (A) CASE HISTORY SHEETS COMPRISE THE RECORD OF ACTIVITY ON A
PARTICULAR CASE, INCLUDING CONVERSATIONS BETWEEN THE REVENUE OFFICER AND
A TAXPAYER, AS WELL AS A RESUME OF MEETINGS INVOLVING MANAGEMENT AND A
TAXPAYER.
(B) TDA'S (TAXPAYER DELINQUENT ACCOUNTS) REFLECT REGULARITY OF
INSTALLMENT PAYMENTS BY A DELINQUENT TAXPAYER.
(C) LARGE DOLLAR REPORTS ARE MADE BY THE REVENUE OFFICER AND
SUBMITTED TO HIGHER ECHELON LEVELS MONTHLY AND QUARTERLY. THEY SHOW THE
ACTIVITY OF THE REVENUE OFFICER ON TAX DELINQUENT ACCOUNTS AND
MANAGEMENT COMMENTS THEREON.
(D) CONTACT MEMORANDAE INVOLVE DISCUSSIONS BETWEEN MANAGEMENT AND THE
REVENUE OFFICER, AS WELL AS CONVERSATIONS HAD BY MANAGERIAL PERSONNEL
WITH OUTSIDERS, DURING CASE HANDLING, AND THE FEASIBILITY OF CERTAIN
METHODS TO COPE WITH A TAXPAYER'S OBLIGATIONS TO THE SERVICE.
(E) THE VARIOUS FORMS REQUESTED CONSIST OF, INTER ALIA, CORPORATE TAX
RETURNS, INSTALLMENT AGREEMENT, POWER OF ATTORNEY, REQUEST FOR
NON-FILING OF A TAX LIEN NOTICE, AND A NOTICE TO POST A PENALTY.
14. BY MEMORANDUM DATED AUGUST 30, 1979 ADDRESSED TO VILARDO, THE
REQUEST FOR THE CASE FILE AND HISTORY SHEETS WAS DENIED BY DISTRICT
DIRECTOR CAPPELLI.
THE DENIAL WAS BASED ON THE CONCLUSION BY MANAGEMENT THAT DISCLOSURE
PROVISIONS IN THE INTERNAL REVENUE CODE (SECTION 6103(A)(4)(A)) PROHIBIT
DISCLOSURE OF RETURNS OR RETURN INFORMATION RE A THIRD PARTY.
RESPONDENT'S DIRECTOR CONCLUDED THAT WHILE UNDER SECTION (20) 61(4) OF
THE DISCLOSURE OFFICIAL INFORMATION HANDBOOK AN EXEMPTION EXISTS WHERE
SUCH INFORMATION IS USED IN AN ADMINISTRATIVE ACTION OR PROCEEDING
AFFECTING THE PERSONNEL RIGHTS OF AN EMPLOYEE, NO SUCH ACTION HAD BEEN
TAKEN TOWARD DIMARCO.
15. ON JULY 1, 1980 THE NATIONAL OFFICE OF IRS ISSUED A MEMORANDUM
NOTIFYING THE DISTRICT DIRECTORS THAT A CONTRACT GRIEVANCE WOULD
CONSTITUTE AN ACTION AFFECTING PERSONNEL RIGHTS UNDER SECTION 6103(1)(4)
OF THE INTERNAL REVENUE CODE. THE MEMO FURTHER STATED THAT WHERE
INFORMATION IS REQUESTED UNDER 6103(1)(4) (A) IN CONNECTION WITH AN
ACTION COVERED BY SUCH SECTION, IT MUST BE DETERMINED BEFORE RELEASING
ANY DATA WHETHER THE LATTER IS RELEVANT AND NECESSARY IN RESPECT TO SUCH
ACTION.
16. THEREAFTER ON JULY 3, 1980 DISTRICT DIRECTOR CAPPELLI WROTE
VILARDO STATING THAT, IN ACCORDANCE WITH THE NOTIFICATION FROM THE
NATIONAL OFFICE, AS AFORESAID, THE REQUEST FOR INFORMATION HAD BEEN
RECONSIDERED. HOWEVER, CAPPELLI ASSERTED THAT HE DID NOT BELIEVE THE
INFORMATION SOUGHT BY THE UNION WAS RELEVANT AND MATERIAL TO THE
GRIEVANCE CONCERNING THE DIGNITY OF AN EMPLOYEE OR THE PROPOSED CHANGES
OF WORKING CONDITIONS OR PRACTICES. ACCORDINGLY, THE REQUEST FOR THE
CASE FILE AND ITS DOCUMENTS AS SPECIFIED WAS DENIED. THE DIRECTOR ALSO
STATED THAT IF THE GRIEVANCE WERE CLARIFIED, THE REQUEST WOULD BE
CONSIDERED ANEW PROVIDED THE DOCUMENTS REQUESTED WERE NEITHER RETURNS
NOR RETURN INFORMATION AND WERE DEEMED RELEVANT AND MATERIAL TO THE
GRIEVANCE.
CONCLUSIONS
IN BOTH THE PRIVATE AND PUBLICS SECTORS THE RULE IS WELL ENTRANCHED
THAT AN EMPLOYER MUST FURNISH REQUESTED INFORMATION TO A UNION UNDER
CERTAIN CIRCUMSTANCES. THUS, WHERE THE DATA SOUGHT IS NEEDED TO ASSIST
THE BARGAINING AGENT IN REPRESENTING UNIT EMPLOYEES, AND IS RELEVANT AND
NECESSARY TO ACCOMPLISH THIS PURPOSE, THE EMPLOYER MUST FURNISH IT. NLRB
V. WHITIN MACHINE WORKS, 217 F.2D 593 (C.A. 4) CERT. DENIED 349 U.S.
505; DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, 3 FLRC 284, FLRC NO.
73-A-59. TO THE SAME EFFECT, WHERE THE UNION SEEKS INFORMATION IN ORDER
TO PROPERLY PROCESS A GRIEVANCE, THE AGENCY MUST SUPPLY IT WHERE
RELEVANCE AND MATERIALITY IS DEMONSTRATED. SEE IRS, JACKSONVILLE
DISTRICT, JACKSONVILLE, FLA. 1 FLRA NO. 44.
RESPONDENT MAKES TWO PRINCIPAL CONTENTIONS HEREIN: (1) NO
JURISDICTION RESTS IN THE AUTHORITY TO REVIEW THE DETERMINATION MADE BY
RESPONDENT AS TO WHETHER THE DATA REQUESTED WAS RELEVANT AND NECESSARY;
(2) IT HAS NOT BEEN SHOWN THAT THE INFORMATION SOUGHT BY THE UNION BORE
ANY RELEVANCE OR MATERIALITY TO THE GRIEVANCE FILED BY DIMARCO.
(1) CONSIDERABLE STRESS IS LAID UPON 25 U.S.C. 6103(1)(4)(A) WHICH
PROVIDES THAT RETURNS AND RETURN INFORMATION MAY BE DISCLOSED TO AN
EMPLOYEE, OR HIS REPRESENTATIVE, WHERE THE INDIVIDUAL IS A PARTY TO AN
ADMINISTRATIVE ACTION OR PROCEEDING AFFECTING HIS PERSONNEL RIGHTS.
FURTHER, IT IS PROVIDED THAT THE SECRETARY SHALL FIRST DETERMINE THAT
THE RETURNS, OR RETURN INFORMATION, ARE RELEVANT OR MATERIAL TO SUCH
ACTION OR PROCEEDING. IT IS ARGUED THAT SINCE DIRECTION HAS BEEN
GRANTED THE IRS UNDER 6103 OF THE IRS CODE TO DETERMINE RELEVANCY, ONLY
A COURT MAY PROPERLY REVIEW THE EXERCISE OF SUCH DIRECTION. IN THIS
RESPECT, RESPONDENT ARGUES THAT CONGRESS PLACED "NO FETTERS" ON ITS
EXERCISE OF DIRECTION, AND THERFORE SUCH DISCRETIONARY DETERMINATION IS
NOT REVIEWABLE.
GENERAL COUNSEL ASSERTS THAT NO INCONSISTENCY EXISTS BETWEEN THE IRS
CODE, AND SECTIONS CITED, AND THE FEDERAL LABOR RELATIONS STATUTE. IT
INSISTS THAT, APART FROM ANY DECISION RE RELEVANCY MADE BY THE EMPLOYER
HEREIN, THE AUTHORITY IS THE SOLE TRIBUNAL TO PASS UPON RELEVANCY AND
MATERIALITY IN THE CONTEXT OF AN UNFAIR LABOR PRACTICE PROCEEDING. I
AGREE. NO CONFLICT EXISTS, IN MY OPINION, WITH RESPECT TO THESE
STATUTES. WHILE THE INTERNAL REVENUE SERVICE MAY BE REQUIRED TO DECIDE
AT THE OUTSET WHETHER TO RELEASE DATA, THE DETERMINATION AS TO WHETHER
INFORMATION IS RELEVANT AND NECESSARY TO ENABLE A UNION TO PROCESS A
GRIEVANCE, OR REPRESENT ITS EMPLOYEES, LIES WITHIN THE AUTHORITY'S
PROVINCE. THUS, THE DETERMINATION MADE BY THE LATTER RELATES SOLELY TO
THE OBLIGATIONS IMPOSED UPON AN EMPLOYER UNDER THE FEDERAL
LABOR-MANAGEMENT RELATIONS ACT. JURISDICTION TO DECIDE WHETHER A
FAILURE TO PROVIDE INFORMATION IS AN UNFAIR LABOR PRACTICE HAS BEEN
VESTED IN THE AUTHORITY BY CONGRESS. TO ALLOW THE IRS, AS GENERAL
COUNSEL CORRECTLY ARGUES, TO ARROGATE UNTO ITSELF THIS DETERMINATION AND
THUS RESIST ANY POSSIBLE UNFAIR LABOR PRACTICE, WOULD BE TO REDUCE THE
ACT TO A NULLITY IN THIS REGARD. NOTHING IN THE IRS CODE, MOREOVER,
PRECLUDES THE FURNISHING OF RETURN INFORMATION, AND THEREFORE I REJECT
THE ARGUMENT THAT JURISDICTION BY THE AUTHORITY HAS BEEN PRE-EMPTED.
(2) IN SUPPORT OF ITS POSITIONS THAT THE MATERIAL SOUGHT IS NOT
RELEVANT OR NECESSARY, RESPONDENT FURTHER CONTENDS THAT THE GRIEVANCE
FILED BY DIMARCO WAS VAGUE, UNCLEAR AND UNSPECIFIC. IT ASSERTS THAT
THUS THE INFORMATION REQUESTED (THE 29 DOCUMENTS) COULD NOT BE DEEMED
RELEVANT TO THE PROCESSING OF THE GRIEVANCE UNDER ANY CIRCUMSTANCES.
GENERAL COUNSEL ARGUES THAT THE EXISTENCE OF A GRIEVANCE IS NOT A
PREREQUISITE TO OBTAINING INFORMATION; THAT IF THE DATA IS NEEDED TO
REPRESENT EMPLOYEES, MANAGEMENT MUST FURNISH SAME PROVIDED IT IS
RELEVANT AND NECESSARY FOR THIS PURPOSE.
RECORD FACTS SHOW THE GRIEVANT'S CHARGES WERE NOT SPECIFIED TO
MANAGEMENT; THAT THE GRIEVANCE LIMITED ITS AVERMENTS TO DECLARING THAT
DIMARCO'S DIGNITY WAS ATTACKED BY RESPONDENT, AND THAT THE LATTER
CHANGED ITS METHODS OF CASE HANDLING INSOFAR AS THE GRIEVANT WAS
CONCERNED. IT IS DIFFICULT TO FAULT AN EMPLOYER FOR REFUSING TO FURNISH
INFORMATION RE A GRIEVANCE WHICH ITSELF IS VAGUE AND ILL DEFINED. ONE
IS AT A LOSS TO UNDERSTAND HOW THE TEST OF RELEVANCY AND NECESSITY CAN
BE APPLIED WHERE THE DATA SOUGHT IS DESIRED TO PURSUE A GRIEVANCE WHICH
IS NEITHER SPECIFIC NOR CLEAR. GENERAL COUNSEL CITED THE CASE OF
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, KANSAS CITY PAYMENT CENTER, A/SLMR NO. 411 IN SUPPORT OF
ITS CONTENTION THAT NO EXISTENT GRIEVANCE IS REQUIRED WHERE INFORMATION
IS REQUESTED FROM MANAGEMENT. WHILE IT IS TRUE THAT IN THE CITED CASE
THE DATA WAS SOUGHT IN RESPECT TO A POTENTIAL GRIEVANCE, THE EMPLOYER
WAS APPRISED TO THE SPECIFIC CHARGES LEVIED BY THE EMPLOYEE. IT WAS
CLEARLY MANIFESTED TO MANAGEMENT THAT THE ADVERSE PROGRESS INTERVIEWS OF
THE EMPLOYEES WERE CHALLENGED BY THE LATTER AND THAT THE MACHINE
UTILIZATION REPORTS, WHICH WERE REQUESTED, FORMED THE BASIS OF THE
EVALUATION OF PAID INDIVIDUALS. IN THE CASE AT BAR NEITHER THE UNION
NOR THE GRIEVANT INFORMED RESPONDENT, DESPITE REQUESTS TO DO SO, OF THE
PARTICULARS RE THE ALLEGED ATTACK UPON DIMARCO'S DIGNITY OR THE CHANGES
IN CASE HANDLING WHICH AFFECTED THE GRIEVANT. IN THE ABSENCE OF
SPECIFIC AND CLEAR CHARGES AGAINST AN EMPLOYER, IT CANNOT BE CONCLUDED
THAT THE PARTICULAR INFORMATION REQUESTED IS RELEVANT AND NECESSARY TO
EITHER GRIEVE OVER SUCH CHANGES OR PURSUE A GRIEVANCE BASED THEREON.
ASSUMING ARGUENDO THAT RESPONDENT HEREIN WAS APPRISED, AT LEAST, OF
THE GENERAL NATURE OF THE GRIEVANCE SO AS TO BE SUFFICIENTLY AWARE OF
THE GRIEVANT'S COMPLAINT, I AM NOT CONVINCED THAT THE MATERIAL REQUESTED
IS MATERIAL AND NECESSARY TO PURSUE OR PROCESS THIS GRIEVANCE. IN
RESPECT TO THE ALLEGED ATTACK UPON THE DIGNITY OF DIMARCO, THE LATTER
TESTIFIED AS TO CERTAIN REMARKS MADE BY MANAGEMENT CONCERNING THE
EMPLOYEE'S FAMILIARITY WITH THE TAXPAYER AND HIS AWARENESS OF THE
TRAINING MANUAL. FURTHER, THE REVENUE OFFICER COMPLAINS THAT DIRECTOR
CAPPELLI ASKED HIM SEVERAL QUESTIONS, SUCH AS WHETHER DIMARCO OBTAINED A
FINANCIAL STATEMENT FROM THE TAXPAYER AS WELL AS THE LIST OF HIS
PROPERTY, AND WHETHER THE EMPLOYEE READ THE DIRECTOR'S MEMO RE
COLLECTIONS. WHILE DIMARCO MAY HAVE FELT HIS DIGNITY WAS IMPUGNED BY
THESE STATEMENTS AND QUESTIONS ADDRESSED TO HIM, I AM NOT PERSUADED THAT
THE TAX FILE DATA WAS NECESSARY TO ENABLE THE UNION TO REPRESENT HIM IN
RESPECT THERETO. CERTAINLY NONE OF THE TAX RETURNS, OR RETURN
INFORMATION, IS CONCERNED WITH THE ALLEGED ASSAULTS ON DIMARCO'S
DIGNITY. MOREOVER, WHILE SOME OF THE MEMOS MAY REFLECT OR BEAR ON THE
DISCUSSIONS BETWEEN THE REVENUE OFFICER AND THE TAXPAYER, NO ISSUE WAS
RAISED BY MANAGEMENT IN REGARD TO THEIR UTTERANCE. THERE WAS NO DENIAL
THAT SUCH COMMENTS WERE MADE, AND I AM CONSTRAINED TO CONCLUDE THAT THE
DATA REQUESTED IS NOT NECESSARY TO PURSUE THIS ASPECT OF DIMARCO'S
GRIEVANCE.
IN RESPECT TO THE ALLEGED CHANGES IN CASE HANDLING IMPOSED BY
RESPONDENT UPON DIMARCO, I AM NOT CONVINCED THAT THE ITEMS REQUESTED
WERE NECESSARY FOR THE UNION TO REPRESENT THE EMPLOYEE IN REGARD
THERETO. NONE OF THE TAX FORMS, RETURNS, MEMOS, DOLLAR REPORTS,
BANKRUPTCY PAPERS, LETTERS, NOTICE OF LEVY, ET AL, RELATE TO WHETHER
MANAGEMENT ALTERED DIMARCO'S PROCESSING OF A TAX CASE. FURTHER, NO
ISSUE WAS RAISED BY RESPONDENT AS TO SUCH MATTER, NOR DID THE EMPLOYER
DISCIPLINE DIMARCO IN REGARD TO HIS HANDLING THE TAXPAYER'S CASE. THUS,
I FAIL TO SEE HOW THE PRODUCTION OF THE INFORMATION COULD AFFECT THE
PROCESSING OF THE GRIEVANCE.
PAST DECISIONS IN THE PUBLIC SECTOR REVEAL THAT WHERE A UNION SEEKS
DATA TO PROCESS A GRIEVANCE, IT MUST SHOW THAT THE MATERIAL IS NECESSARY
TO EFFECTIVELY PROCESS SAID GRIEVANCE. THUS WHERE A STATISTICAL
ANALYSIS WAS SOUGHT TO CHALLENGE A SELECTION PROCESS BY MANAGEMENT, ITS
PRODUCTION WAS NOT REQUIRED WHERE THE EMPLOYER HAD NOT RELIED UPON IT IN
MAKING A SELECTION. INTERNAL REVENUE SERVICE, CHICAGO DISTRICT OFFICE,
A/SLMR NO. 1004. LIKEWISE, IN THE CASE AT BAR, I AM NOT PERSUADED THAT
THE DATA REQUESTED BY THE UNION HAD ANY IMPACT UPON THE SUBJECT OF THE
GRIEVANCE. DIMARCO DID NOT DISPUTE MANAGEMENT'S RIGHT TO MAKE DECISIONS
RE CASE HANDLING, AND, FURTHER, NO PERSONNEL ACTION WAS TAKEN INSOFAR AS
THE EMPLOYEE WAS CONCERNED. NO ADVERSE EVALUATION WAS MADE OF DIMARCO,
WHICH, IF EFFECTED, MIGHT WARRANT THE PRODUCTION OF THE INFORMATION IN
ORDER TO EFFECTIVELY DISPUTE THE EMPLOYER'S ACTION. MOREOVER, EVEN
THOUGH THE CASE HISTORY SHEETS OR MEMOS MAY HAVE CONTAINED SUMMARIES OF
CONVERSATIONS WITH THE TAXPAYER, AS WELL AS MANAGEMENT, DIMARCO
POSSESSED THIS INFORMATION AND IT WAS NOT PECULIARLY WITHIN RESPONDENT'S
KNOWLEDGE.
ACCORDINGLY, I FIND THAT SINCE DIMARCO'S GRIEVANCE WAS NEITHER CLEAR
NOR SPECIFIC IN RESPECT TO THE CHARGES ALLEGED, MANAGEMENT PROPERLY
CONCLUDED THE DATA SOUGHT BY THE UNION WAS NOT RELEVANT AND NECESSARY TO
ITS PROSECUTION; THAT, FURTHER, IN RESPECT TO THE PARTICULARS IN WHICH
IT WAS CONTENDED, AT THE HEARING, THAT MANAGEMENT ATTACKED DIMARCO'S
DIGNITY AND ALTERED THE MANNER IN WHICH HE PERFORMED HIS DUTIES, THE
SAID DATA WAS NOT RELEVANT AND NECESSARY IN ORDER FOR THE UNION TO
GRIEVE THEREON.
IN VIEW OF THE FOREGOING, THE COMPLAINT HEREIN IS DISMISSED.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: OCTOBER 6, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES: ---------------
/1/ IN VIEW OF THIS CONCLUSION, THE AUTHORITY FINDS IT UNNECESSARY TO
REACH AND SPECIFICALLY DOES NOT PASS UPON THE JUDGE'S STATEMENTS AND
RELATED CONCLUSIONS WITH RESPECT TO CONSISTENCY BETWEEN THE STATUTE AND
SECTION 6103 OF THE INTERNAL REVENUE CODE.
/2/ THE GENERAL COUNSEL'S UNOPPOSED MOTION TO AMEND THE COMPLAINT TO
INCLUDE AN ALLEGED VIOLATION OF SECTION 7116(A)(8) OF THE ACT WAS
GRANTED AT THE HEARING.
/3/ RESPONDENT'S MOTION TO CORRECT THE TRANSCRIPT, ATTACHED HERETO AS
APPENDIX A, IS GRANTED AS REQUESTED.
/4/ A MULTI-DISTRICT AGREEMENT BETWEEN INTERNAL REVENUE SERVICE AND
NATIONAL TREASURY EMPLOYEES UNION COVERED VARIOUS DISTRICT OFFICES
INCLUDING THE BUFFALO DISTRICT WHICH IS INVOLVED HEREIN.
/5/ UPON AN ASSESSMENT AGAINST A TAXPAYER THE INTERNAL REVENUE HAS A
STATUTORY NOTICE OF LIEN WHICH IS KNOWN ONLY TO THE AGENCY AND THE
TAXPAYER. WHEN A NOTICE OF TAX LIEN IS FILED IT BECOMES A PUBLIC RECORD
AND IS NOTIFICATION TO OTHER CREDITORS THAT THERE IS A DEBT OWED IRS.
THUS IT PROTECTS THE LATTER TO A CERTAIN EXTENT AGAINST COMPETING
CLAIMS.
/6/ WHILE DIMARCO DOES NOT RECALL WHICH COMMENTS WERE MADE BY
MANAGEMENT AT EACH MEETING, I CREDIT HIS TESTIMONY THAT SUCH REMARKS
WERE MADE TO HIM BY THE RESPONDENT'S OFFICIALS PRIOR TO THE FILING OF A
GRIEVANCE BY THE REVENUE OFFICER.
/7/ ARTICLE 35 OF THE COLLECTIVE BARGAINING AGREEMENT PROVIDES FOR
THE DISPOSITION AND PROCESSING OF GRIEVANCES RE THE INTERPRETATION OR
APPLICATION OF THE TERMS OF THE AGREEMENT. IT CONTAINS VARIOUS STEPS TO
BE FOLLOWED IN THE COURSE OF SUCH PROCESSING, TOGETHER WITH AN ULTIMATE
APPEAL TO ARBITRATION.
/8/ THE GRIEVANCE REQUESTED THAT MANAGEMENT RECOGNIZE DIMARCO'S
DIGNITY, CEASE ITS DISPARAGING REMARKS TO HIM, AND DESIST FROM CHANGING
WORK POLICIES AND PRACTICES RE CASES BEING WORKED ON BY THIS REVENUE
OFFICER.
/9/ THIS EXHIBIT WAS SANITIZED TO AVOID REVEALING THE NAME OF THE
TAXPAYER OR OTHER INDIVIDUALS.