17:0485(75)CA - Treasury, IRS, Wichita District, Wichita, KS and NTEU -- 1985 FLRAdec CA
[ v17 p485 ]
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.