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



[ v23 p674 ]
23:0674(89)CA
The decision of the Authority follows:


 23 FLRA No. 89
 
 DEPARTMENT OF THE TREASURY 
 INTERNAL REVENUE SERVICE 
 WICHITA DISTRICT, WICHITA, KANSAS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 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
 process for obtaining authorization for disclosure of taxpayer
 information in connection with an employee grievance, led the court to
 the conclusion that the employees did not have adequate notice that they
 lacked sufficient authorization for their subsequent disclosure of their
 dailies to their union lawyers.  Id.  In these circumstances, the court
 determined that the Respondent committed an unfair labor practice by
 orally admonishing the employees for the disclosure to their union
 lawyers.
 
    The Authority accepts the court's opinion as the law of the case and,
 consistent with that opinion, shall issue an order to remedy the unfair
 labor practice.  The court suggested (791 F.2d at 188-89 n.11) that a
 possible remedial provision would be a requirement that the Respondent
 post signs explaining the prohibition in 26 U.S.C. Section 6103 on
 disclosure of taxpayer information, and the procedure for obtaining
 authorization for disclosure.  While the Authority's Order does not
 contain such a provision, we note that nothing in this Decision and
 Order precludes the Respondent from notifying its employees in an
 appropriate manner of the prohibition on unauthorized disclosure of
 taxpayer information, and of the procedure for obtaining proper
 authorization for such disclosure.  We encourage the Respondent to do
 so.
 
    We further note that the record discloses that employee Moore's
 supervisor refused to recommend Moore for a high quality step increase
 because of his disclosure of taxpayer information to the union lawyers.
 17 FLRA at 509.  See also NTEU v. FLRA, 791 F.2d at 185 n.3.  Consistent
 with the court's opinion, our Order requires the Respondent to recommend
 Moore for a high quality step increase and to consider and act upon the
 recommendation without regard to his disclosure to the union lawyers,
 since he lacked adequate notice that he did not have authorization to
 make the disclosure.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Department of the Treasury, Internal Revenue
 Service, Wichita District, Wichita, Kansas, shall:
 
    1.  Cease and desist from:
 
    (a) Disciplining employees for unauthorized disclosure of
 confidential taxpayer information to non-employee attorneys in
 connection with an employee grievance, where the employees lack adequate
 notice that they have not obtained sufficient authorization to disclose
 the information.
 
    (b) In any like or related manner interfering with, restraining or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Recommend employee Moore for a high quality step increase, and
 consider and act upon the recommendation without regard to his
 disclosure of taxpayer information in connection with an employee
 grievance, since he lacked adequate notice that he did not have
 sufficient authorization to make the disclosure.
 
    (b) Post at its facility where employees in the bargaining unit are
 located copies of the attached Notice on forms to be furnished by the
 Federal Labor Relations Authority.  Upon receipt of such forms, they
 shall be signed by an appropriate official of the Respondent, and shall
 be posted and maintained for 60 consecutive days thereafter, in
 conspicuous places where notices to employees are customarily posted.
 Reasonable steps shall be taken to ensure that such Notices are not
 altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VII, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    Issued, Washington, D.C., October 22, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) Section 7116(a)(1) and (2) provides:
 
    Section 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency --
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
          (2) to encourage or discourage membership in any labor
       organization by discrimination in connection with hiring, tenure,
       promotion, or other conditions of employment(.)
 
 
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT discipline employees for unauthorized disclosure of
 confidential taxpayer information to non-employee attorneys in
 connection with an employee grievance, whe