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.