23:0674(89)CA - Treasury, IRS, Wichita District, Wichita, KS and NTEU -- 1986 FLRAdec CA

[ v23 p674 ]
The decision of the Authority follows:

 23 FLRA No. 89
 Charging Party
                                            Case No. 7-CA-30514 
                                                (17 FLRA 485)
                       DECISION AND ORDER ON REMAND
    On April 15, 1985, the Authority issued its Decision and Order in the
 above-entitled proceeding.  The Authority found that the Respondent had
 not committed an unfair labor practice by disciplining two employees for
 disclosure of confidential taxpayer information to non-employee union
 lawyers in the course of preparation for a grievance proceeding.  The
 Authority, in agreement with the Administrative Law Judge, found that
 the disclosure by the two employees violated section 6103 of the
 Internal Revenue Code, 26 U.S.C. Section 6103 (1982), and pertinent
 Internal Revenue Service regulations, because the employees had not
 obtained the requisite authorization for such disclosures.  The
 Authority determined, therefore, that the Respondent had not violated
 section 7116(a)(1) and (2) of the Statute /*/ by disciplining the two
 employees.  Department of the Treasury, Internal Revenue Service,
 Wichita District, Wichita, Kansas, 17 FLRA 485 (1985).
    Thereafter, on May 23, 1986, the U.S. Court of Appeals for the
 District of Columbia Circuit reversed the Authority's Decision and
 remanded the matter to the Authority for proceedings consistent with the
 court's opinion.  National Treasury Employees Union v. FLRA, 791 F.2d
 183 (D.C. Cir. 1986).  The Court agreed with the Authority that 26
 U.S.C. Section 6103 prohibits the disclosure of confidential taxpayer
 information by employees for personnel matters absent appropriate
 authorization for disclosure.  However, the court determined that in the
 "unique circumstances" present in this case, the two employees did not
 have fair notice that the disclosure to their union lawyers was
 unlawful.  791 F.2d at 184.  The court noted that the employees
 submitted a written request to their supervisor for information relevant
 to an employee grievance.  Specifically, employees Bates and Moore
 requested copies of the Revenue Officer Dailies, or daily work records,
 for four employees, including Bates and Moore.  The court stated that
 the supervisor, who was not authorized to permit disclosure of taxpayer
 information, essentially told the two employees to disclose their own
 dailies to each other, without obtaining appropriate authorization.  Id.
 at 187.  This behavior, along with prevalent uncertainty about the