[ v17 p485 ]
17:0485(75)CA
The decision of the Authority follows:
17 FLRA No. 75
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WICHITA DISTRICT, WICHITA, KANSAS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 7-CA-30514
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision 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 and the
Charging Party filed exceptions and briefs, and the Respondent filed an
opposition thereto.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
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 Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and Recommended Order.
ORDER
IT IS ORDERED that the complaint in Case No. 7-CA-30514 be, and it
hereby is, dismissed.
Issued, Washington, D.C., April 15, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 7-CA-30514
James E. Dumerer, Esquire
On Brief: Gary A. Anderson, Esquire
For the Respondent
M. Kathryn Durham, Esquire
On brief: William Harness, Esquire
For the Charging Party
James J. Gonzales, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY, Administrative Law Judge
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /1/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., concerns whether discipline, oral admonishment,
for disclosure of taxpayer information to a non-employee union attorney
in the course of a grievance procedure violated Secs. 16(a)(2) or (1) of
the Statute, i.e., whether such discipline was imposed as the result of
the employees' participation in protected activity. This proceeding was
initiated by a charge filed on July 28, 1983 (G.C. Exh. 1(a)) which
alleged violations of Secs. 16(a)(1), (2), (4) and (5) of the Statute;
by a First Amended Charge, filed on November 7, 1983 (G.C. Exh. 1(b)),
which alleged violations of Secs. 16(a)(1) and (2) of the Statute; and
set the hearing for January 10, 1984. By Order dated December 7, 1983
(G.C. Exh. 1(f)), the hearing was rescheduled for January 19, 1984,
pursuant to which a hearing was duly held on January 19 and 20, 1984, in
Kansas City, Missouri, before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity, to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues, and were afforded the
opportunity to present oral argument which each party waived. At the
close of the hearing, February 21, 1984, was fixed as the date for
mailing post hearing briefs which time was subsequently extended,
initially, upon motion of the Charging Party, National Treasury
Employees Union (hereinafter, also, referred to as "NTEU"), with which
Respondent and General Counsel joined, to March 8, 1984, and later, upon
motion of Respondent, to March 12, 1984. Respondent, NTEU and the
General Counsel each timely mailed an excellent brief, received on or
before March 14, 1984, which have been carefully considered. Attached
to the brief of the General Counsel was a motion to Correct The
Transcript of Proceedings, to which no opposition was filed. General
Counsel's motion to correct the transcript is granted, except as
follows: the correction requested on p. 151, line 18, is actually on
line 17, and is granted; the correction requested on p. 215, line 17,
is denied (statement by Mr. Gonzales as it appears in the transcript may
not be wholly accurate but the requested correction does not achieve any
clarification); the correction requested on p. 346, line 23, is denied
(Transcript appears wholly correct); the correction requested on p.
409, line 16, is denied (in context, it appears that "September", not
"November", was the month stated in Mr. Gonzales' question as the
transcript shows). In addition, on my own motion, I make the following
corrections: page 61, line 5, "at" is corrected to read "to"; and the
name of William K. Kasper, which appears in the Index (p. 308), and at
page 384, line 22, page 385, lines 15, 19, 25, page 386, line 12, page
387, lines 17 and 20, page 456, lines 15 and 21 and page 460, line 10,
as "William K. Casper", is corrected to read "Kasper." The transcript is
hereby corrected as fully set forth in the Appendix hereto.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings and
conclusions:
Findings
1. At all times material, NTEU has been certified as the exclusive
representative of a consolidated unit of all professional and
nonprofessional employees of the Internal Revenue Service, with certain
exceptions more fully described in Paragraph 4(a) of the Complaint,
which unit includes the Wichita District (hereinafter, also referred to
as "IRS" or "Respondent"). The Kansas City, Kansas, office is a
post-of-duty within the Wichita District. At all times material, a
collective bargaining agreement (G.C. Exh. 2) was in effect covering the
Wichita District.
2. Messrs. Robert B. Bates and Robert E. Moore are senior GS-12
Revenue Officers (RO) and at all times material were under the immediate
supervision of Mr. Glenn Schreiber, Collection Group Manager (Tr. 41,
245, 279-280). On, or about, October 3, 1983, Mr. Bates transferred to
the Lenexa, Kansas, post-of-duty (Tr. 41, 280) and ceased to be under
the supervision of Mr. Schreiber. At the time of the hearing, Mr. Bates
had been a RO for 18 1/2 years, a Group Manager from 1974-1977, when his
Group was eliminated in a reorganization, and a senior RO for 12 1/2
years (Tr. 41). Mr. Moore has been a RO for over 16 years and a senior
RO for 11 years (Tr. 245). Mr. Bates has served as President of Chapter
51 since 1979 (Tr. 44). Mr. Moore has been Kansas City steward for NTEU
since about 1981 (Tr. 247). Mr. Schreiber's immediate supervisor is Mr.
Kenneth N. Portz, Chief, Collection Division, Wichita, Kansas. Mr.
Clarence M. King, Jr. is District Director and is also located in
Wichita. Mr. King is Mr. Portz' immediate supervisor.
3. On November 4, 1982, Mr. Schreiber placed three of Mr. Bates'
files in Bates' in box with instructions to initial the cases and return
them to Mr. Schreiber. Mr. Bates quite correctly interpreted this as
notice of documentation of his work performance for inclusion in his
drop file. Mr. Bates testified that he had never before received
negative drop file documentation and, after initialing the files, went
to Mr. Schreiber's office with a copy of the files on November 8, 1982,
and asked why he had been asked to initial these cases. Mr. Schreiber
told Mr. Bates that these were examples of unsatisfactory work
performance and he had an in-grade coming up three or four months down
the line and it would be taken into consideration. Mr. Bates requested
that union steward Moore come in and try to resolve this problem, to
which Mr. Schreiber agreed, and Mr. Bates left Mr. Schreiber's office.
Later that day, Messrs. Moore and Bates met with Mr. Schreiber. Mr.
Bates began by stating that he had reached a point with his inventory of
cases that he was unable to complete his work within the time periods
that Mr. Schreiber desired; that his inventory was full of overage
cases, large dollar cases and high priority other investigations. Mr.
Bates stated that since Mr. Schreiber had begun documenting his cases
and placing them in his drop file, he wanted to come to terms on what
could be done to prevent this and asked for a list of priorities. Mr.
Schreiber stated that if Mr. Bates cut out the horseplay around the
office, using the telephone to talk about tennis, watering his plants,
and, in general, used his time more effectively his inventory problem
would not exist. He further stated that he had recently reduced the
number of zip codes assigned to Mr. Bates and, as a result, he would be
receiving fewer assignments. Mr. Bates further stated that he needed
relief from the number of cases he had in order to carry out his union
duties. Mr. Moore's memorandum of the meeting (G.C. Exh. 5-B), made
within an hour after the meeting, and Mr. Moore's testimony (Tr. 272),
indicates that Mr. Schreiber stated that he ". . . couldn't make
allowances for that . . . ." (Mr. Bates' activity as Union President /2/
); however, the parties all agreed that for the next 60 days Mr. Bates
would receive no short deadline assignments; that Mr. Schreiber would
indicate to Mr. Bates the priority he wanted cases worked; and that
during this 60 day period Mr. Schreiber would cease further negative
documentation of Mr. Bates' work (G.C. Exh. 5-B). Mr. Schreiber also
pointed out that a number of cases in Mr. Bates' inventory contained
payment agreements ". . . that he was just merely holding it and
artificially inflating his inventory . . . that if he would transfer
these in, it would reduce his inventory so it could be monitored by
IDRS." (Integrated Data Retrieval System, i.e., that payment agreements
would be monitored by computer, rather than manually) (Tr. 392). Mr.
Schreiber stated that Mr. Bates agreed to do this within the next 30 to
60 days. Mr. Schreiber wrote out an inventory priority, had it typed
and gave Mr. Bates a copy on November 8, 1982 (G.C. Exh. 4). Mr.
Schreiber's "Inventory Priorities" memorandum of November 8, 1982,
stated, in part, as follows:
" . . . You agreed to take most of the taxpayers you had on
payment agreements and transfer them into Office Branch as your
first priority. Your second priority would be giving appropriate
attention to the large dollar cases . . . the third priority
should be Other Investigations that had a definite deadline, such
as a statute, discharge or subordination date. The fourth
priority would be potential business seizures.
"You asked for relief in the area of your inventory, and I
agreed to divert any OI's that have short deadlines for the next
60 days . . . and during this period, I will abstain from
documenting any other cases for placing in your drop file. You
felt that at the end of this period you could have your inventory
under reasonable control. . . ." (G.C. Exh. 4).
4. Being dissatisfied about the "negative documentation", on
November 10, 1982, Mr. Bates submitted a written request to Mr. Moore to
represent him " . . . regarding a potential grievance. . . ." and
authorized Mr. Moore, ". . . obtain any information you may deem
necessary. . . ." (G.C. Exh. 6). On November 10, 1982, Mr. Moore
prepared a memorandum to Mr. Schreiber entitled, "In Contemplation of a
Grievance Under the Agreement" in which he requested the following
information:
"All Form 5450 Collection Daily Time Utilization Reports
submitted by the GS-12 Revenue Officers in Group III beginning
with the time reporting period which began in May 1982.
"All Form 795 Daily Report of Collection Activity submitted by
the GS-12 Revenue Officer in Group III beginning with the time
reporting period which began in May 1982.
"Since this information is located in the Kansas City office,
please provide it to me by Monday, November 15, 1982." (G.C. Exh.
7-A).
Mr. Moore gave Mr. Schreiber his memorandum requesting data in Mr.
Schreiber's office and a discussion ensued. Mr. Moore stated that Mr.
Schreiber went over it, " . . . to review exactly what it was that I
wanted. He made the statement . . . 'Well, you're wanting all of the
Grade 12 dailies? Do you want Neil Gregarson's daily?'" (Tr. 276-277).
Mr. Moore said, " . . . no, we didn't need Neil Gregarson's dailies"
(Mr. Gregarson was on extended sick leave and retired in 1982), and Mr.
Moore stated that Mr. Schreiber then said,
"' . . . so really all you're needing is four revenue officers'
dailies? You and Bates have your own, right?' I said, 'Yeah,
we've got our own.'
"He says, 'Really, the only thing you need from me would be Jim
Gaunce and Ken Kelley's dailies.' I said that would be fine.
"Q. And did he say when the other two revenue officers'
dailies would be furnished to you?
"A. He wouldn't give me an answer. He said the group clerks
were very busy." (Tr. 277).
Mr. Moore stated that it was group clerks', " . . . responsibility to
pull those files and make copies of them." (Tr. 278). Mr. Moore further
stated that,
" . . . I walked away from there thinking, 'Well, I am going to
use my dailies and Bob Bates' dailies, and the only thing that I
am going to get from this information request is the dailies from
Ken Kelley and Jim Gaunce, the other other (sic) two Grade 12's.'"
(Tr. 279).
Mr. Moore stated that he told Mr. Bates, "'We're just going to use our
own', something of that nature. We weren't getting the dailies that we
had requested." (Tr. 280).
Mr. Schreiber did not recall the particulars of his discussion with
Mr. Moore on November 10, but testified that, after making a xerox copy
for his file, he sent the original to Mr. Merle Simpson, Labor Relations
Specialist, and a copy to Mr. Portz. Mr. Schreiber stated that all
information requests must be forwarded to the data management
specialist, Mr. Simpson; that he was not "authorized to release
information directly to the union." (Tr. 392); and that Mr. Moore" . .
. knew that I could not release that." (Tr. 441). The data requested by
Mr. Moore was, in fact, supplied /3/ on November 24, 1982 (Form 5450,
Collection Daily Time Utilization Reports and Form 795, Daily Report of
Collection Activity, for GS-12 RO in Group III, as requested by Mr.
Moore, were supplied," . . . void of any tax information or revenue
officer identification. They have been numerically coded to identify
the revenue officer if this becomes necessary." (G.C. Exh. 16A,
memorandum of Portz to Simpson).
5. At some point, Mr. W. William Harness, NTEU National Counsel,
decided that he and Ms. Durham, the NTEU staff attorney assigned
responsibility for the Wichita District, should come to Kansas City on
Monday, November 15, on the Bates matter. Ms. Durham notified Mr. Moore,
apparently on Friday, November 12 (Thursday, November 11, having been a
holiday), that they would be in Kansas City on Monday. Mr. Moore made
it clear that when he had his discussion with Mr. Schreiber on November
10 they (Bates and Moore) did not know that the NTEU attorneys would
become involved on the scene (Tr. 326). Also, apparently, on November
12, Mr. Moore made arrangements with Mr. Schreiber to use the Conference
Room on November 15; but he stated he didn't " . . . recall any big
conversation in regard to the Conference Room" (Tr. 280) and Mr.
Schreiber was not asked about it. Mr. Moore stated that he couldn't
recall whether he mentioned to Mr. Schreiber that the NTEU attorneys
were coming but thought perhaps Bates had (Tr. 279); Mr. Bates said he
did not tell Mr. Schreiber but thought Mr. Moore had told Mr. Schreiber
(Tr. 111); and Mr. Moore stated he didn't recall, discussing this
upcoming meeting with the attorneys being present with Mr. Schreiber any
time prior to November 15 (Tr. 325). Mr. Schreiber testified that he
did not know that Harness or Durham would be in Kansas City on November
15 prior to November 15 (Tr. 385) nor did he have any discussion as to
any meeting with NTEU attorneys prior to November 15 (Tr. 384). Having
considered the testimony carefully, I fully credit Mr. Schreiber's
testimony that he had not been advised of any meeting with NTEU
attorneys prior to November 15 and that he did not know that either Mr.
Harness or Ms. Durham was to be in Kansas City on November 15 until Mr.
Bates introduced Mr. Harness and Ms. Durham to him on the morning of
November 15 at which time Mr. Harness and Ms. Durham asked to meet with
him later in the day.
6. Mr. Harness and Ms. Durham arrived in Kansas City on Sunday
afternoon or evening November 14, 1982, and Mr. Bates met with them in
Mr. Harness' hotel room (Tr. 118). Mr. Bates had his 795s with him and,
at the request of Mr. Harness and Ms. Durham, gave them his 795s and
left the 795s with the attorneys (Tr. 239-240). On the following day,
Monday, November 15, 1982, after introducing Mr. Harness and Ms. Durham
to Mr. Schreiber, Messrs. Bates, Moore and Harness and Ms. Durham went
to the Conference Room and there Mr. Moore, at Mr. Harness' request,
gave Mr. Harness his 795s to examine (Tr. 150, 282, 347). The RO Daily
Reports contained taxpayer identification and it is conceded that no
effort was made by the ROs to sanitize their reports or to mask in any
manner the taxpayer identification; however, Mr. Harness asserts that
he had no interest in taxpayer identification and that he looked only at
the statistical information at the bottom of each report to get an idea
of how Bates' inventory, productivity, and case assignments compared
with Moore's. Using the 795s, Mr. Harness did make comparative
statistical analyses.
7. At about 10:30 a.m. on November 15, 1982, pursuant to their
request earlier that day, the parties met in the Conference Room.
Present for Respondent were Mr. Schreiber and Mr. William K. Kasper,
Examination Group Manager (Tr. 456). Mr. Bates was present with his
representatives: Mr. Harness, Mr. Moore and Ms. Durham. Mr. Harness
opened the meeting with strongly worded critical statements concerning
Mr. Schreiber, including profanity (Tr. 435, 457-458), and a threat that
" . . . we'll get you for this, Glenn" (Tr. 458) or " . . . Schreiber,
we're going to get you . . . ." (Tr. 434), together with agitated finger
pointing and fist shaking (Tr. 434-435). Mr. Harness' conduct resulted
in Mr. Schreiber's getting up to leave the meeting; but Mr. Kasper told
Mr. Harness that he " . . . thought he could conduct the meeting without
that type of language or carrying on, and Glenn stayed in the meeting."
(Tr. 458; see, also, Tr. 355). Mr. Bates' grievance (G.C. Exh. 9) was
submitted during the meeting by Mr. Harness together with a request for
information, dated November 12, 1982, and signed by Ms. Durham (G.C.
Exh. 8), which requested some of the same information previously
requested by Mr. Moore on November 10 (G.C. Exh. 7-A) but in the main
sought additional data. /4/ Mr. Harness' critical statements of Mr.
Schreiber evoked the response from Mr. Schreiber that, "'You,' pointing
to Harness, 'you and the union are going on the offensive' . . . 'I am
rejecting the 60-day memo (G.C. Exh. 4) that I issued and I am going to
start documenting Bates' lunch hours, his coffee breaks and everything
in general.'" /5/ (Tr. 284, 356; G.C. Exhs. 11 and 12). Subsequently,
Mr. Harness quoted case inventory statistics, including numbers of cases
assigned, cases closed, and number of taxpayers. When Mr. Harness began
quoting those statistics, Mr. Schreiber asked Mr. Harness where he had
got that information and Mr. Moore replied, "From the Dailies" (Tr.
285). Mr. Schreiber then asked Mr. Moore, "Did you give him the
dailies?" and Mr. Moore responded that he had. (Tr. 285). Mr.
Schreiber then asked Mr. Moore, "Did you sanitize the dailies?" and Mr.
Moore said "no." (Tr. 285). Mr. Moore stated that Mr. Schreiber " . . .
pulled out his pencil and made a note of it and proceeded with the
meeting." (Tr. 285).
8. Mr. Schreiber testified that, "Mr. Kasper had observed the same
scene, and he knew that there had been an illegal disclosure made . . .
because the NTEU attorneys are not members of IRS. So at the end of the
meeting at 12:15 I went to my room . . . and called the Inspection
Service . . . And I talked with Mr. Dave Lewis, and I told him what had
happened. Mr. Lewis indicated . . . that it was a disclosure and that
he was going to talk to his supervisor about it and decide how to
proceed. And an hour or two later . . . he called back and said he had
discussed the situation with the supervisor and they were in agreement
that an illegal disclosure had been made, because the NTEU attorneys
were not members of Internal Revenue Service, and said he was going to
run it by the United States Attorney's Office." /6/ (Tr. 388).
9. On November 16, 1982, Mr. Schreiber called Mr. Moore to his
office /7/ and Mr. Moore stated that Mr. Schreiber asked,"' . . . Did
you give your dailies to the attorneys? I said yes. He said, 'Did you
sanitize them?' I said no. . . ." (Tr. 286). On November 19, 1982, Mr.
Schreiber wrote a memorandum to Mr. Portz, Chief, Collection Division,
Wichita District about the disclosure made by Revenue Officer Moore
(G.C. Exh. 25-B) and on November 30, 1982, after his interview of Mr.
Bates, wrote a memorandum to "Personnel-- Attention: Merle Simpson"
concerning the disclosure by Revenue Officer Bates (G.C. Exh. 25-C).
Following Mr. Schreiber's memorandum to Mr. Portz and/or Mr. Schreiber's
memorandum to Personnel, both Personnel and Mr. Portz sought the advice
of the disclosure officer, Mr. James Manuszak who advised that the ROs
were without authority to release the dailies to the NTEU attorneys,
that " . . . the Code . . . clearly puts the determination of to and how
much in the hands of management" (Tr. 493) and " . . . that information
was not released according to the statute." (Tr. 494).
10. On December 3, 1983, Mr. Portz issued notices of proposed
disciplinary suspension of three working days to Mr. Bates and to Mr.
Moore for the unauthorized disclosure of official and confidential tax
information to NTEU attorneys on November 15, 1982 (G.C. Exhs. 17 and
18).
11. On December 7, 1982, Mr. Bates contacted Mr. Portz and scheduled
an oral reply hearing for himself and for Mr. Moore on January 5, 1983
(Res. Exh. 6).
12. On December 21, 1982, NTEU attorney Durham called Mr. Portz to
discuss the pending actions against Messrs. Bates and Moore and
expressed her desire to settle the matter and to avoid suspension of the
employees. Mr. Portz agreed to consider her arguments and stated that
he would call her the following day. Mr. Portz made a file memorandum
of his conversation with Ms. Durham (Res. Exh. 7). Mr. Portz called Ms.
Durham on December 22, reviewed his memorandum of their conversation of
the preceding day and Ms. Durham agreed that it correctly stated the
essence of their conversation (Res. Exh. 8). Mr. Portz testified that
he told Ms. Durham,
" . . . that I had considered all the points that were made and
that in view of the fact that there was a reply by telephone that
I would consider this to be an oral reply or in lieu of an oral
reply, and that I would reduce the proposed suspension of three
days down to oral admonishment, which is the least disciplinary
action given.
"And that I would issue a letter to that effect. And there
were two requests made, as I recall. One was I not issue a letter
prior to December 27th, and the other was that a sentence be
included in the letter, and that was that a copy of that letter
would not be placed in the personnel file, official personnel
file, or any other official file." (Tr. 464; Res. Exh. 8).
13. On December 27, 1982, Mr. Portz issued a letter to Mr. Bates
(G.C. Exh. 26) and to Mr. Moore (G.C. Exh. 27) in which he notified each
of them that the proposed three day suspension was reduced to an oral
admonishment and that " . . . A copy of this letter will not be placed
in your Official Personnel Folder or your Supervisory drop file. . . ."
(G.C. Exhs. 26 and 27).
14. On January 4, 1983, Ms. Durham called Mr. Portz and complained
that the letters did not, in her opinion, conform to the agreement she
had reached with Mr. Portz on December 22. NTEU now alleged that the
agreement was that the matter be dropped altogether rather than
settlement by oral admonishment. There were repeated exchanges both
written and by telephone between Mr. Portz, the employees, and Ms.
Durham over the next two months and, finally, on March 23, 1983, Mr.
Portz sent the employees, Messrs. Bates and Moore, a letter in which, to
settle the dispute, he offered to reinstate the letters of proposed
suspension and afford the employees the opportunity for an oral reply
hearing which they had been demanding (G.C. Exh. 33). The employees
agreed; on April 5, 1983, Mr. Portz again issued letters of proposed
suspension (G.C. Exhs. 34 and 35); and an oral reply hearing was held
by Mr. Portz on April 29, 1983, at which the employees were represented
by Mr. Harness. On May 26, 1983, Mr. Portz issued his decision. Again,
he decided that the employees would each receive an oral admonishment
(G.C. Exhs. 38 and 39).
Conclusions
There is no dispute that the disclosure of taxpayer information to
NTEU attorneys by RO Bates and Moore occurred in the course of
preparation for a grievance proceeding. From this, General Counsel
asserts, in part, that:
"In this case, the very conduct which Portz cites for
disciplinary purposes itself ("You made an unauthorized disclosure
of official and confidential tax information. . . . On or about
November 15, 1982, you provided unsanitized copies of your revenue
officer dailies (Form 795) to NTEU Attorneys. . . ." G.C. Exhs. 17
and 18) is protected activity under the Statute. To be sure,
Portz charged that there was an unauthorized disclosure " . . . to
NTEU attorneys who were visiting the Kansas City, Kansas Office."
(footnote omitted) However, the evidence is uncontroverted that
these 2 NTEU attorneys and Moore, at all material times, were
agents of the exclusive bargaining representative, were preparing
a grievance on behalf of a unit employee, and therefore were
engaged in activity protected under the Statute. . . . Their
(NTEU attorneys') examination of Bates' and Moore's Dailies was an
integral component of the Union's representational function. . .
." (General Counsel Brief, pp. 28-29)
Similarly, NTEU asserts, in part, that:
" . . . Bates and Moore were Union officials at all times
relevant to this proceeding, that they were engaged in
representational activity when they showed their Dailies to Union
attorneys Harness and Durham, and that the discipline was
motivated by the disclosure of the Dailies to Union
representatives. . . ." (NTEU Brief, p. 13).
I fully agree, of course, that protected activity flowing from
exclusive representation by a labor organization includes the right to
file and process grievances, United States Department of Treasury,
Bureau of Alcohol, Tobacco and Firearms, Chicago, Illinois, 3 FLRA No.
116, 3 FLRA 724 (1980); but the fact that the right to file and process
a grievance is a protected right under the Statute begs the question.
Engagement in the protected right of filing and processing a grievance
neither obviates nor alters the confidentiality of taxpayer information
mandated by the Internal Revenue Code, 26 U.S.C. 6103, and if the
disclosure of taxpayer information to NTEU attorneys by Revenue Officers
Bates and Moore was in violation of the Internal Revenue Code and
applicable Regulations, it was no less violative of the Code and
Regulations because it occurred in the process of a grievance procedure.
Stated otherwise, the umbrella of protected activity is not so broad as
to encompass every aspect of conduct ancillary to that protected
activity. /8/
NTEU was entitled to data necessary and relevant to carry out its
representational obligation in the processing of Mr. Bates' grievance,
Veterans Administration Regional Office, Denver, Colorado, 7 FLRA No.
100, 7 FLRA 629, 637 (1982); Bureau of Alcohol, Tobacco and Firearms,
National Office and Western Region, San Francisco, California, 8 FLRA
No. 108, 8 FLRA 547 (1982), and the record plainly shows that, inter
alia, the Dailies (Form 795), requested by Mr. Moore on November 10,
1982 (G.C. Exh. 7-A), were both necessary and relevant to the processing
of Mr. Bates' grievance. Indeed, the information requested by Mr. Moore
on November 10, including the Dailies, and by Ms. Durham on November 15,
1982 (G.C. Exh. 8-- dated November 12 but not submitted until November
15, 1982), was furnished by Respondent on November 24, 1982 (G.C. Exh.
16-A). This case does not involve a request for data, pursuant to Sec.
14(b)(4) of the Statute, which was denied. To the contrary, both the
Internal Revenue Code, 26 U.S.C. 6103(a)(4), and Respondent's
Regulations, 26 C.F.R. 301.9000-1 (see, also, Federal Register, Vol. 46
No. 48, Thursday, March 12, 1981), provide the manner for disclosure of
data involving taxpayer information; requests for such information were
made; and Respondent supplied the requested information, so there is no
issue concerning relevancy or necessity of the information requested.
Rather, the issue is whether the disclosure of taxpayer information
by Revenue Officers Bates and Moore to NTEU attorneys Harness and Durham
on, or before, November 15, 1982, constituted an unlawful disclosure.
There is no dispute whatever that Messrs. Bates and Moore, at the
request of the attorneys, did give Mr. Harness and Ms. Durham their
Dailies (Forms 795). Indeed, Mr. Bates supplied his Dailies on November
14 and left them overnight with Mr. Harness in his hotel room and Mr.
Moore supplied his Dailies to the attorneys on November 15, 1982. Nor
is there any dispute that the Dailies contained taxpayer identification
or that the Revenue Officer's copies of Form 795 are subject to the same
degree of security as other taxpayer information in the possession of
the Internal Revenue Service (Tr. 240-243, 266-267, 327-328, 336-337).
Respondent asserts that,
" . . . the exclusive procedure through which the forms 795 . .
. /9/ could be shown to the union attorneys is that provided by
Sec. 6103(a)(4) (26 U.S.C. 6103(1)(4)):
"The Secretary may disclose returns and return information--
"(A) Upon written request--
"(i) to an employee or former employee of the Department of the
Treasury, or to the duly authorized legal representative of such
employee or former employee, who is or may be a party to any
administrative action or proceeding affecting the personnel rights
of such employee; or
. . . .
"solely for use in the action or proceeding, or in preparation
for the action or proceeding, but only to the extent that the
Secretary determines that such returns or return information is or
may be relevant and material to the action or proceeding; or
"(B) to officers and employees of the Department of the
Treasury for use in any action or proceeding described in
subparagraph (A), or in preparation for such action or proceeding,
to the extent necessary to advance or protect the interests of the
United States.
"It is manifest and admitted that Bates and Moore both failed
to comply with this statutory requirement before releasing the
forms. They thus violated the Statute:
"Returns and return information shall be confidential, and
except as authorized by this title--
"(1) no officer or employee of the United States,
. . . .
"shall disclose any return or return information obtained by
him in any manner in connection with his services as such an
officer or an employee or otherwise or under the provisions of
this section." (26 U.S.C. 6103(a)) (Res. Brief, pp. 12-13)
(Emphasis in original).
General Counsel and NTEU urge several grounds as to why the
disclosure of return information by RO Bates and Moore to the NTEU
attorneys was not in violation of the Statute, 26 U.S.C. 6103, or of the
Regulations, 26 C.F.R. 301, 9000-1 (G.C. Exh. 41), Internal Revenue
Manual (IRM) 0735.1, Handbook of Employee Responsibilities and Conduct,
Sec. 229.1 (G.C. Exh. 45), in substance as follows:
First, because the disclosure occurred in the course of preparation
for a grievance proceeding the disclosure was part of protected activity
and, therefore, was not an unauthorized disclosure. For reasons set
forth above, I reject this assertion.
Second, use by grievant Bates and by steward Moore of their Dailies
to prepare for and determine the merits of a grievance constituted
protected activity; management can not dictate who will represent the
grievant or the Union; and management can not lawfully withhold from
one Union representative data which is available to another for the
purpose of documenting a grievance (General Counsel's Brief p. 29); or,
as stated in essence by NTEU, Mr. Schreiber told Moore that Moore and
Bates had copies of their own Dailies and they should use them; Union
attorneys representing Bates in a personnel matter are entitled to the
return information; and Respondent's attempt to create a distinction
between disclosure to Union representatives who happen to be IRS
employees and disclosure to Union attorneys who are not employees of IRS
is without merit (NTEU's Brief, pp. 14-17).
The short answer is that the Internal Revenue Code does, indeed, make
a distinction concerning disclosure of taxpayer information to
employees. Thus, subsection (h) provides as follows:
"(h) Disclosure to Federal offices and employees for purposes
of tax administration, etc.--
"(1) Department of the Treasury-- Returns and return
information shall, without written request, be open to inspection
by or disclosure to officers and employees of the Department of
the Treasury whose official duties require such inspection or
disclosure for tax administration purposes." (26 U.S.C.A.
6103(h)(1)).
Tax Administration is defined as follows:
"Tax administration-- The term 'tax administration'--
"(A) means--
"(i) the administration, management, conduct, direction, and
supervision of the execution and application of the internal
revenue laws or related statutes (or equivalent laws and statutes
of a State) and tax conventions to which the United States is a
party, and
(ii) the development and formulation of Federal tax policy
relating to existing or proposed internal revenue laws, related
statutes, and tax conventions, and
"(B) includes assessment, collection, enforcement, litigation,
publication, and statistical gathering functions under such laws,
statutes, or conventions." (26 U.S.C.A. 6103(b)(4))
See, United States v. Mangan, 575 F.2d 32, 39-40 (2d Cir. 1978), where
Judge Friendly held, in part, that,
" . . . the definition of 'tax administration' in Sec.
6103(b)(4) is so sweeping as to compel rejection of a restrictive
interpretation. Clearly this case (fraud by an IRS Agent)
involved 'the administration, management, (and) conduct . . . of
the execution and application of the internal revenue laws' and
'assessment, collection, enforcement (and) litigation . . .
functions under such laws'" (575 F.2d at 40).
The distinction is further apparent in 26 C.F.R. 301.9000-1(c) which
specifically states, in part, that,
" . . . The disclosure, including the production of internal
revenue records or information to any person outside the Treasury
Department . . . shall be made only with the prior approval of the
Commissioner. . . . ." (26 C.F.R. 301.9000-1(c)).
The use of the Dailies by Messrs. Moore and Bates was not questioned;
Respondent concedes that " . . . IRS employee stewards had been allowed
to utilize tax return information to process grievances within the
Service. . . ." (Respondent's Brief, p. 8); and this case does not
involve any allegation of unlawful disclosure of taxpayer information as
the result of the utilization or access to taxpayer information by IRS
employees. Consequently, except to note that the Internal Revenue Code
does make a distinction between employees of the Department of the
Treasury and non-employees, it is unnecessary to decide, and would
wholly inappropriate to decide as an issue that was neither raised nor
developed on the record, the parameters of disclosure of taxpayer
information among employees to process grievances within the Service.
Steward Moore was free to use his Dailies and Mr. Bates' Dailies and he
could have taken the "management information" (Tr. 503-504) from the
Dailies, i.e. as distinguished from confidential taxpayer information,
and supplied such "management information" to the NTEU attorneys, or
Messrs. Moore and Bates could have sanitized their Dailies by blocking
out confidential taxpayer information before delivering their Dailies to
the NTEU attorneys without disclosing confidential taxpayer information;
but neither was free to disclose confidential taxpayer information to
the NTEU attorneys. Rather, disclosure of returns and return
information may be made to non-employees of the Department of the
Treasury only by the Secretary, or his designee, pursuant to Sec.
6103(1)(4) of the Internal Revenue Code. /140/
Third, that Mr. Schreiber authorized the utilization of the Dailies
by the NTEU attorneys because he " . . . approved the use of those
Dailies for representational purposes" (NTEU's Brief, p. 16); that " .
. . Schreiber was aware prior to the November 15 grievance meeting that
Harness and Durham would be reviewing the Dailies. . . ."; and that, "
. . . Schreiber placed no restrictions on the use Bates and Moore could
make of their Dailies" (NTEU's Brief, pp. 17-18); or as General Counsel
asserts, " . . . Schreiber had assented to steward Moore's
representational use of his and Bates' Dailies without restrictions. . .
." (General Counsel's Brief, p. 29).
The record shows, as Mr. Moore testified and as I have found, that on
November 10, 1982, Mr. Schreiber did state to Mr. Moore that "You and
Bates have your own (dailies), right?"; that Mr. Moore said "Yeah,
we've got our own" and that Mr. Schreiber then said, "Really, the only
thing you need from me would be Jim Gaunce and Ken Kelley's dailies" to
which Mr. Moore responded " . . . that would be fine" (Tr. 277). The
record is clear that Mr. Moore understood that he was going to use his
dailies and Mr. Bates' dailies (Tr. 279); but Mr. Schreiber's comments
concerned only Mr. Moore's use of his and Mr. Bates' dailies as an
employee. Indeed, Mr. Moore stated that when he had his discussion with
Mr. Schreiber on November 10, that neither he nor Mr. Bates knew that
the NTEU attorneys would become involved on the scene (Tr. 326).
Further, as I have found, Mr. Schreiber did not know prior to November
15, 1982, when Mr. Bates introduced him to Mr. Harness and to Ms.
Durham, that either Harness or Durham was coming to Kansas City. While
it is true that sometime after his meeting with Mr. Schreiber on
November 10, apparently on November 12, as November 11 was a holiday,
Mr. Moore made arrangements with Mr. Schreiber to use the conference
room on November 15; but the record does not show that Mr. Moore
mentioned to Mr. Schreiber that NTEU attorneys would be present. To the
contrary, Mr. Moore testified that he didn't " . . . recall any big
conversation in regard to the Conference Room" (Tr. 280) and further
stated that he didn't recall discussing the upcoming meeting with the
attorneys being present with Mr. Schreiber any time prior to November 15
(Tr. 325). In view of Mr. Moore's November 10 memorandum, Mr. Moore's
subsequent request to use the Conference Room on November 15 would have
appeared wholly consistent with Mr. Moore's handling of the contemplated
grievance. Even if, contrary to my finding, Mr. Schreiber had been
informed in advance that NTEU attorneys were coming to Kansas City,
there is nothing in the record that shows, or even suggests, that use of
RO dailies by anyone other than IRS employees, and specifically Messrs.
Moore and Bates, was ever discussed or considered by Mr. Schreiber or by
Mr. Moore in their discussion on November 10, 1982, and the record shows
no subsequent discussion about the matter prior to November 15 except,
possibly, that, as Mr. Moore testified, he " . . . did follow up several
times on when we could expect the other two RO dailies" and that Mr.
Schreiber said " . . . they would get to it as soon as they could" (Tr.
280-281) and it is conceivable that Mr. Moore could have made such a
"follow up" on November 12; but if there were any "follow up" on
November 12, the "discussion" was only as Mr.Moore indicated.
Consequently, I reject the assertion of NTEU and the General Counsel
that Mr. Schreiber's assent to steward Moore's representational use of
his and Bates' dailies either directly or by implication authorized or
permitted the use of the dailies for representational purposes by any
person other than Mr. Moore, and certainly neither authorized nor
condoned the use of the dailies by anyone outside the Department of the
Treasury. Moreover, Mr. Schreiber testified that all information
requests must be forwarded to the data management specialists; that he
(Schreiber) was not authorized to release information directly to the
union (Tr. 392); and that Mr. Moore knew that he (Schreiber) could not
release the data Mr. Moore had requested (Tr. 441). As the procedures
are spelled out in the Internal Revenue Regulations, the knowledge of
Mr. Moore of the procedures, attributed to Mr. Moore by Mr. Schreiber,
which was not denied by Mr. Moore, is both reasonable and unavoidable.
Mr. Bates' knowledge of the Regulations must also be inferred not only
because of his long service and general familiarity with IRS Regulations
but because of his service as a supervisor and as an instructor (Tr.
42-43, 236).
Fourth, " . . . the Agency should be precluded from imposing
discipline on Bates and Moore because the Agency . . . disclosed to
Durham and Harness unsanitized, confidential tax return information.
The information disclosed was significantly more confidential than the
Dailies Moore and Bates showed Harness." (NTEU's Brief, p. 20) (See,
also, General Counsel's Brief, pp. 17-18). While the dailies requested
by Mr. Moore on November 10, 1982, were supplied on November 24, 1982, "
. . . void of any tax information or revenue officer identification. . .
." (G.C. Exh. 16A, memorandum of Portz to Simpson), it is true that in
response to Ms. Durham's request (G.C. Exh. 8), Respondent did supply
various material in unsanitized form, /11/ including an unsanitized
Delinquency Investigation Inventory Profile, unsanitized copies of the
three case files entered into Mr. Bates' drop file, etc. Nevertheless,
this argument begs the question. The fact that Respondent could, and
did, disclose taxpayer information, pursuant to written request, it
deemed necessary to resolve the issues involved in Mr. Bates' grievance,
does not mean that ROs Moore and Bates could disclose taxpayer
information to non-Treasury Department employees, namely, NTEU attorneys
Harness and Durham. In my opinion they could not.
Fifth, "This disclosure code of conduct training, which Bates himself
also conducted as a supervisor and senior RO, did not identify any
procedures or policies to be followed which might limit access to a
Daily by an NTEU representative, regardless of whether that
representative was an IRS employee or not" (G.C.'s Brief, p. 25); "The
two Union officials testified that they were aware of no training course
material or Service policy memorandum prohibiting them from showing
their Dailies to a non-employee Union representative." (NTEU's Brief, p.
21). It is plain that nothing in the Internal Revenue Code or
Regulations permits access to a Daily by a non-IRS employee. It is not
disputed that a RO's Dailies containing taxpayer identification is
subject to the same rules as to confidentiality as other return
information and, while Sec. 6103(h) of the Internal Revenue Code permits
disclosure to employees of the Treasury Department for tax
administration purposes, Sec. 6103(1)(4) is both clear and unambiguous
that only the Secretary, or his designee, may disclose returns and
return information for purposes other than tax administration, upon
written request-- "to an employee . . . or to the duly authorized legal
representative of such employee. . . ." (26 U.S.C.A. 6103(1)(4)(A)(i)).
Moreover, in a 1976 arbitration decision involving the Des Moines
District and NTEU, where documents containing confidential taxpayer
information had been sent to Mr. Robert M. Tobias, then Chief Counsel of
NTEU, the arbitrator specifically stated, /12/
"The arbitrator finds little in the Union's argument to justify
the revelation of confidential information concerning a taxpayer
except when the taxpayer in question is himself the employee
facing discharge or other disciplinary action. The means for
sharing with NTEU the pertinent information concerning other
taxpayers by deleting confidential data should put the
grievant-employee or his/her attorney at no disadvantage.
"Accordingly, the arbitrator does not believe IRS employees
have a right to violate disclosure rules and regulations on
grounds of attorney-client privileges." (In the matter of
Arbitration between: Internal Revenue Service, Des Moines
District and National Treasury Employees Union, Chapter 4, at p. 8
(December 15, 1976) (A. Lee Belcher, Arbitrator). (G.C. Exh. 46).
Whether either Mr. Bates or Mr. Moore was aware of this arbitration
decision, Mr. Harness certainly was (Tr. 371-372), and when he requested
that RO Bates and Moore give him their dailies he did so with knowledge
that IRS considered release of confidential taxpayer information by
employees to NTEU attorneys constituted an unlawful disclosure and that
arbitrator Belcher had concluded that such disclosure was not protected
on the grounds of attorney-client privilege.
Similarly, in a 1980 arbitration decision involving the Austin
District and NTEU, where the employee had disclosed confidential tax
information to Congressmen and to the United States Civil Service
Commission, the arbitrator upheld the three-day suspension and denied
the grievance. The arbitrator considered, distinguished and rejected
the applicability of the Des Moines decision, supra, for the reason
that:
" . . . the Arbitrator there (Belcher, Des Moines District,
supra) specifically held that release of the information involved
was not improper . . . because 'all such revealed information had
lost its confidential nature' due to extensive media coverage and
court records. That being the case, he held that Management's
objective of reminding the grievants and other employees in the
District of the rules concerning confidential information could
have been effectively achieved through individual discussions,
conferences, etc. Here, on the other hand, a clear-cut violation
of the Rule has been established." (In the Matter of Arbitration
between: Internal Revenue Service, Austin District and National
Treasury Employees Union, Chapter 52, at p. 12) (May 12, 1980)
(Raymond Goetz, Arbitrator) (Res. Exh. 4).
As this arbitration decision issued during Mr. Bates' incumbency as
President of Chapter 51, there is a greater probability that he would
have received notice from NTEU of this decision; but whether he, or Mr.
Moore, had such notice, again, certainly, the knowledge of attorneys
Harness and Durham of this decision can be inferred.
Accordingly, as the Internal Code and Regulations issued thereunder
are quite specific concerning confidentiality of taxpayer information
and make no provision for disclosure of confidential information to
non-employees except in the manner set forth in 26 U.S.C.A. 6106(1)(4),
and the record not only fails to show any basis for a belief that such
disclosure to NTEU attorneys was permissible, but, to the contrary,
affirmatively shows that two arbitrators had held that disclosure of
confidential taxpayer information by employees to non-employees was
improper, I find no merit in the assertion of General Counsel and of
NTEU. The proscription of the Code to employees is "Thou shalt not
disclose confidential taxpayer information" and the Regulations provide,
inter alia, that,
"Any . . . employee who receives a request for internal revenue
records or information, the disposition of which is not covered by
a procedure established by the Commissioner, shall promptly
communicate the contents of the request to the Commissioner
through the appropriate supervisor. . . . Such . . . employee
shall await instructions from the Commissioner concerning the
response to the request. . . ." (26 C.F.R. 301.9000-1(d)(2), G.C.
Exh. 41).
It is not asserted that the request of the NTEU attorneys for Bates'
and/or Moore's dailies was covered by any procedure established by the
Commissioner other than that provided by Sec. 6103(1)(4) of the Internal
Revenue Code and implemented by Regulation, see 26 C.F.R. 301.9000-1(c)
(G.C. Exh. 41), Regional Commissioner Memorandum 12-80, Rev. 1, Par. E
(G.C. Exh. 42), and, while the record does not disclose that
Respondent's training addressed nondisclosure to non-employee
representatives, it is abundantly clear that its training fully
addressed nondisclosure to any person, except as provided by the
Internal Revenue Code. See, IR Manual 229.1, G.C. Exh. 45. Nothing in
the Internal Revenue Code or the Regulations permits an employee to
disclose confidential taxpayer to a non-employee representative and,
while a record may be disclosed to unions recognized as exclusive
bargaining representatives, Federal Register, Vol. 46, No. 48, Thursday,
March 12, 1981, at p. 1665, such disclosure is governed by 26 U.S.C.A.
6103(1)(4). Indeed, "legal representative" is specifically addressed by
Sec. 6103(1)(4) and having prohibited disclosure in the broadest of
terms (6103(a)) and having provided for disclosure to a "duly authorized
legal representative", in the broadest of terms, only pursuant to Sec.
6103(1)(4)(A), Respondent had made it clear that its proscription on
disclosure of confidential tax information by employees applied without
limitation to persons, including "legal representatives", except as
provided by the Internal Revenue Code and the Internal Revenue Code
makes no exception whatever for union representatives; but, to the
contrary, refers to representative only in the broad connotation of
"duly authorized legal representative" to whom disclosure may be made
solely pursuant to Sec. 6103(1)(4)(A). Although I am aware that Mr.
Harness testified that he had previously used taxpayer information, he
made it clear that, "The files . . . were furnished by the Internal
Revenue Service" (Tr. 354) and while he stated that there were forms
that had also been prepared by an employee and " . . . we used during
the course of the hearing. . . ." (Tr. 354) and management was aware of
this (Tr. 354), the record does not show whether such forms contained
taxpayer information nor the circumstances involved in their use;
however, as noted above, the two arbitration decisions referred to left
no doubt that employee disclosure of confidential taxpayer information
to a non-employee was proscribed. Nor, of course, did the arbitration
decisions admit to any doubt as to the position of IRS concerning such
disclosure of tax information by employees not in accordance with the
Internal Revenue Code.
Sixth, that attorneys Harness and Durham " . . . did not see the
taxpayer information . . . " because Harness was not " . . . interested
in that information" (NTEU's Brief, p. 19). NTEU's assertion that
"Bates provided the documents to Harness who reviewed them for the first
time on Monday morning November 15 . . . ." (NTEU's Brief, p. 19) is
simply not true. Mr. Bates testified that he gave Harness and Durham
his dailies, at their request, at the hotel on Sunday, November 14, and
left them with the attorneys (Tr. 239-240) and Mr. Moore testified that
he gave the attorneys his dailies, at their request, on the morning of
November 15. In each instance, the complete forms 795s were furnished
to the attorney and Mr. Moore testified that he told Mr. Schreiber that
he had not sanitized the dailies (Tr. 285). As previously noted, if the
795s had been sanitized or if Messrs. Bates or Moore had furnished only
the "management" information, I would have no hesitation in finding that
there was no improper disclosure of taxpayer information; but that is
not the case. The dailies, Forms 795s, were furnished complete; they
had not been sanitized; and whether attorneys Harness or Durham
utilized, or were interested in, the taxpayer identification contained
thereon, there is no possible doubt that the confidential taxpayer
information contained was, indeed, given to the attorneys and that this
constituted a disclosure of confidential taxpayer information.
For all of the foregoing reasons, I conclude that Messrs. Bates and
Moore made an unlawful disclosure of confidential taxpayer information
by furnishing their Form 795s (dailies) to NTEU attorneys. I agree
fully with Respondent that "It is manifest and admitted that Bates and
Moore both failed to comply with this statutory requirement (6103(1)(4))
before releasing the forms. They thus violated the Statute. . . . "
(Respondent's Brief, p. 13).
General Counsel (G.C.'s Brief, p. 34) and NTEU (NTEU's Brief, p. 22)
further assert that union animus was, in any event, the reason for Mr.
Schreiber lodging the charge of unlawful disclosure against Messrs.
Bates and Moore. Thus, General Counsel asserts that, "This matter would
never have reached Manuszak, Simpson, or Portz were it not for the
discriminatory animus of Schreiber" (G.C.'s Brief, p. 34). I do not
agree.
Although the record shows that Mr. Harness opened the meeting of
November 15 on an acrimonious note with strong criticism of Mr.
Schreiber laced with profanity, threats, finger pointing and fist
shaking which did evoke Mr. Schreiber's response that, as the Union was
going on the offensive, he was rejecting the 60 day memo that he had
issued and that he was going to start documenting Bates' lunch hours,
his coffee breaks and everything in general, the record shows that the
sole motivation for Mr. Schreiber's inquiry was Mr. Harness' use of
statistics which appeared to have come from IRS documents and Mr. Moore
responded that it had come from the dailies; that he had given them to
Mr. Harness; and that he (Moore) had not sanitized them. At that
point, Mr. Moore stated that Mr. Schreiber made a note of it and
proceeded with the meeting. Having learned of what appeared to him to
have been an unlawful disclosure of confidential taxpayer information,
Mr. Schreiber was obligated to report it (See, for example, IR Manual
217.21, G.C. Exh. 45), and immediately after the meeting he did so by
calling the Inspection Service. The Inspection Service agreed that
there had been an illegal disclosure. All that followed flowed
inescapably from the discovery of alleged disclosure of taxpayer
information. No action, by Mr. Schreiber or by Mr. Portz, was brought
about or motivated in any manner by union animus. Quite to the
contrary, Mr. Portz, rather than harboring animosity, reduced the
proposed three-day suspension to an oral admonishment.
While I find the lodging of charges of unlawful disclosure was not
motivated in any manner by union animus, nor was discipline invoked
because of protected activity, if, contrary to my finding, union animus
were a factor, the record is clear and unequivocal that the position of
IRS is, and consistently has been, that disclosure of confidential
taxpayer information by employees to anyone outside the Treasury
Department is unlawful except in strict compliance with Sec. 6103, and
once the disclosure by Messrs. Bates and Moore was discovered Respondent
would have taken disciplinary action in the absence of protected
activity. Internal Revenue Service, Washington, D.C., 6 FLRA No. 23, 6
FLRA 96 (1981); United States Department of Interior, Office of the
Secretary, U.S. Government Comptroller for the Virgin Islands, 11 FLRA
No. 91, 11 FLRA 521 (1983); Veterans Administration Medical Center,
Buffalo, New York, 13 FLRA No. 46, 13 FLRA 283 (1983). Respondent's
consistent position is well illustrated by the two arbitration decisions
referred to above. In addition, of course, there is the mandate of the
Internal Revenue Code, and Regulations, including, inter alia, Regional
Commissioner memorandum 12-80, Rev. 1 (G.C. Exh. 42).
Because the imposition of discipline was lawful, i.e., was motivated
wholly by discovery of an unlawful disclosure of confidential taxpayer
information to non-employee attorneys, the fact that Mr. Moore had made
an unlawful disclosure was a factor which Respondent properly considered
in determining whether to recommend Mr. Moore for a high quality step
increase and I find nothing impermissible in Mr. Schreiber's statement
to Mr. Moore, as Mr. Moore testified, that,
". . . what you did was very serious. In fact, . . . you could
have been prosecuted. The only reason you weren't prosecuted was
that it lacked sufficient jury appeal . . . because of your poor
judgment in turning those dailies over to an attorney, I was
getting ready to turn you in for a high quality but I can't do it
now . . . I can't submit the high quality . . . because of your
poor judgment on this. Portz wouldn't sign it, the Director
wouldn't sign it. I can't. I can't do it." (Tr. 290) (See, also,
Mr. Schreiber's like testimony at Tr. 390-391).
Accordingly, having found that Respondent did not reprimand employees
Bates and Moore because they engaged in activity protected by the
Statute and that Respondent did not thereby violate Secs. 16(a)(1) or
(2) of the Statute, it is recommended that the Authority adopt the
following:
ORDER
The Complaint in Case No. 7-CA-30514 be, and the same is hereby,
dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: August 10, 1984
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(a)(2) will be referred to, simply,
as "Sec. 16(a)(2)".
/2/ On December 9, 1982, at the first step meeting on Mr. Bates'
subsequently filed grievance, Respondent stated, " . . . orally that
Bates was entitled to recognition of his union duties. . . ." (G.C. Exh.
22) and on December 9, 1982, " . . . A total of 25 Taxpayer cases were
divided up between the other three Grade 12's (myself included) and one
Grade 11. Bates' inventory was reduced to a total Taxpayer Caseload
below the other three Grade 12's. Bates feels comfortable with the
adjusted caseload. . . ." (G.C. Exh. 22).
/3/ Notwithstanding Mr. Moore's assertion that, "We weren't getting
the dailies that we had requested," there is nothing in the record to
support such assertion, except in the sense that they were not going to
receive them by November 15, 1982, the date Mr. Moore had asked that
they be provided. As noted, all the data requested by Mr. Moore was
provided on November 24, 1982.
/4/ This request noted that:
" . . . NTEU understands that many of the documents will be
sanitized to protect the privacy of the taxpayer and the Revenue
Officer. . . ." (G.C. Exh. 8).
/5/ Mr. Harness met with District Director King on November 16, 1982,
and by letter dated November 23, 1982 (G.C. Exh. 15-A), Mr. King stated,
in part, as follows:
" . . . I have determined that the comments made by Mr.
Schreiber during your November 15, 1982, meeting were made in its
heat of emotions after being subjected to intimidating comments;
physical abuse, i.e., the raising of your voice and the manner in
which you pointed your finger, and in general an
other-than-business-like discussion laced with profanities . . . I
have . . . received an agreement from Mr. Schreiber to adhere to
the '60 day moratorium' he and Mr. Bates had worked out earlier. .
. ." (G.C. Exh. 15-A).
/6/ Mr. Lewis later that day called and stated that, " . . . the
United States Attorney did not feel the case had jury appeal and that
they would decline to prosecute it and that he was returning the
information to Mr. King . . . to be handled administratively." (Tr.
388).
/7/ Mr. Bates was in Wichita on November 16 (G.C. Exh. 15-B); but
Mr. Schreiber interviewed Mr. Bates on November 29, 1982, and asked him
if he had provided his dailies to NTEU attorneys and Mr. Bates said he
had; that they were not sanitized; that the dailies contained taxpayer
names; and that the dailies covered six months, " . . . May through
October, 1982." (G.C. Exh. 25-C).
/8/ Department of Transportation, Federal Aviation Administration,
Las Vegas Control Tower, Las Vegas, Nevada, A/SLMR No. 796, 7 A/SLMR 150
(1977); United States Forces Korea/Eighth United States Army, 11 FLRA
No. 79, 11 FLRA 434, 436 n. 3 (1983); Harry S. Truman Memorial Veterans
Hospital, Columbia, Missouri, 14 FLRA No 20, 14 FLRA 103 (1984);
Department of Defense, Army and Air Force Exchange Service, Fort Eustis,
Fort Eustis, Virginia and National Association of Government Employees,
Local R4-114, Case No. 4-CA-30433 (OALJ 84-85, July 5, 1984).
/9/ Respondent asserts in its Brief, "sanitized or not" (Res. Brief,
p. 12); however, for the purpose of this proceeding, I do not agree.
In his proposed notices of disciplinary suspension (G.C. Exhs. 17 and
18), Mr. Portz stated, "Specification 1: On or about November 15, 1982,
you provided unsanitized copies . . ." and the testimony of Mr.
Schreiber clearly shows that he believed they had made an unauthorized
disclosure of confidential taxpayer information to the attorneys because
they had not masked or sanitized their 795s. Accordingly, I shall
consider Respondent's assertion only as it applies to this case, namely,
to unsanitized forms 795.
/10/ I am aware that subsection (1) of 6103 is entitled, "Disclosure
of return and return information for purposes other than tax
administration" and that subparagraph (4) is entitled, "Disclosure of
returns and return information for use in personnel or claimant
representative matters" (26 U.S.C.A. 6103(1) and (1)(4)). Obviously, as
the Code is structured, information which was available, pursuant to
subsection (h), to employees of the Department of the Treasury for tax
administration purposes may cease to be for tax administration purposes
and, therefore, obtainable, even by an employee, only pursuant to
6103(1)(4). As noted above, I express no opinion concerning the
parameters of 6103(h).
The obvious distinction is that information disclosed pursuant to
6103(h) is specifically limited to employees of the Department of the
Treasury for tax administration purposes, while information disclosed by
the Secretary pursuant to 6103(1)(4) is neither limited to tax
administration purposes nor to employees but is fully available to the
"duly authorized legal representative." (See, also, Federal Register,
Vol. 46, No. 48, page 1665, March 12, 1981).
/11/ Note footnote 12 at p. 18 of General Counsel's Brief which quite
correctly states that G.C. Exhibits 16(B), (C) and (D) were "sanitized"
at the hearing at the suggestion of the undersigned; but were
unsanitized when received by NTEU.
/12/ In light of mitigating circumstances, the arbitrator found,
however, that three day suspensions were too harsh and set them aside.
Nevertheless, the arbitrator stated: " . . . In the case before the
arbitrator, the Service properly sought to remind the grievants, and all
other district employees through the resulting communications, of the
rules and regulations concerning confidential information. . . ." (id.,
at p. 9).