51:1166(95)CA - - IRS, Austin District Office, Austin TX and NTEU Chapter 52, Austin TX - - 1996 FLRAdec CA - - v51 p1166



[ v51 p1166 ]
51:1166(95)CA
The decision of the Authority follows:


51 FLRA No. 95

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNAL REVENUE SERVICE

AUSTIN DISTRICT OFFICE

AUSTIN, TEXAS

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 52

AUSTIN, TEXAS

(Charging Party/Union)

DA-CA-30106

_____

DECISION AND ORDER

April 19, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. No opposition was filed to the exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish the Union with certain sanitized information concerning disciplinary actions. The Judge found that the Respondent violated the Statute.

Upon consideration of the Judge's decision, the exceptions, and the entire record in this case, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision. For the reasons stated below, we find that the Respondent was not obligated to furnish the information requested in connection with the Union's representation of employee James Howard. Accordingly, we dismiss that portion of the complaint. We further find, in agreement with the Judge, that the Respondent violated the Statute by: (1) failing to furnish the requested information in connection with the Union's representation of employee Jay Smith; (2) failing to furnish certain information in a timely manner; and (3) failing to advise the Union that other information did not exist.(2)

II. Judge's Decision

The facts are fully set forth in the Judge's decision, and are repeated here as necessary to our analysis. In separate requests, the Union sought "sanitized copies of all proposal letters, decision letters, letters of reprimand, oral admonishments confirmed in writing, counselling memos, and closed without action or clearance letters" in connection with adverse actions that were proposed to be taken against two unit employees in the IRS Austin District. Stipulation, General Counsel Exhibit 1(f) at 2.

One adverse action involved employee Howard, who failed to file his income tax returns timely (Howard case information). The Union initially requested, as relevant here, proposal and decision letters issued to non-bargaining unit employees in the Austin District for a 3-year period involving an alleged violation of Section 216.7 of the Standards of Conduct.(3) The Union claimed that the requested information "was a factor relied on in determining adequacy and appropriateness of the proposed action." General Counsel Exhibit 16 at 1. The Union stated that it needed the information "to analyze the propriety of the proposed action with respect to similar allegations of misconduct on the issue of disparate treatment[.]" General Counsel Exhibit 17 at 1. Subsequently, the Union expanded its information request to include all employees, unit and non-unit, in the Southwest Region, which includes the Austin District.

The other adverse action involved employee Smith, who was accused of falsifying relocation vouchers (Smith case information). The Union initially requested proposal and decision letters issued to non-bargaining unit employees in the Austin District for a 3-year period involving an alleged violation of Section 214.5 of the Agency's Standards of Conduct.(4) Again, the Union claimed that the requested information "was a factor relied on in determining adequacy and appropriateness of the proposed action." General Counsel Exhibit 9 at 2. The Union stated that it needed the information to enable it to analyze the propriety of the proposed action against similar allegations of misconduct on the issue of disparate treatment. The Union subsequently expanded its request to include all employees, unit and non-unit, in the Southwest Region. The Union noted that, although the Respondent was required to furnish the Union with copies of discipline and adverse actions simultaneously with their issuance to unit employees, under the terms of the parties' nationwide agreement,(5) the Union had not received any documents that addressed the same type of misconduct of which Smith was accused.

The Respondent denied the requests, stating that the release of information with respect to the non-bargaining unit employees would violate the Privacy Act, 5 U.S.C. § 552a,(6) and that the information with respect to bargaining unit employees outside the district office was not relevant and necessary under section 7114(b)(4) of the Statute. The Respondent also took the position that alternative means were available to the Union to secure the region-wide information. Subsequently, in the Smith case, the Respondent furnished information to the Union with respect to non-bargaining unit employees in the Austin District during discovery proceedings before the Merit Systems Protection Board (MSPB).

The Judge found that disclosure of the requested sanitized disciplinary information, in both the Howard and Smith cases, would not violate the Privacy Act. Assuming that employee privacy interests might be at stake even with regard to sanitized documents, the Judge balanced those interests against the public interest in disclosure and found that such disclosure would not constitute a clearly unwarranted invasion of personal privacy within the meaning of FOIA Exemption 6. The Judge also found that the information was disclosable under the routine use exception to the Privacy Act because the information was relevant and necessary.(7) The Judge determined that the requested disciplinary information satisfied the standards of Federal Personnel Manual (FPM) Letter 711-164, which requires that requested information be both "relevant" and "necessary."

The Judge also rejected the Respondent's assertion that the requested information in the Howard case was not releasable under 26 U.S.C. § 6103.(8) He found that the statutory definitions of "return" and "return information" under § 6103(b) exclude data in a form that cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer. As the Union requested sanitized information, the Judge concluded that the information is not covered by § 6103. The Judge also found that, in any event, such documents could be released under certain circumstances and that such circumstances were present here. Specifically, the Judge noted that the Respondent had not claimed the applicability of title 26 "when it released the data in question for bargaining unit employees in the Austin District office[]" even though the Respondent was required to provide unsanitized information under the parties' agreement and, thus, that the Respondent had previously released to the Union the same or similar information without fear of civil or criminal penalty. Judge's Decision at 12.

The Judge further found that the requested information met all the criteria contained in section 7114(b)(4) of the Statute. More specifically, the Judge determined that the information was necessary to enable the Union to carry out its representational responsibilities with regard to representing the two employees against whom adverse actions had been proposed. In reaching this result, the Judge granted the General Counsel's request that adverse inferences be drawn from the Respondent's refusal to comply with a subpoena that had been issued for the documents. Nonetheless, the Judge independently determined, based on the record, that the requested disciplinary information would assist the Union in assessing whether there was disparate treatment of unit employees, noting that IRS standards of conduct are applied to all employees regardless of their unit status. Although the Judge relied on existing Authority precedent that did not apply a particularized need standard, he found that, even under such a standard, the information was necessary to enable the Union to argue at either the oral reply stage or in a potential grievance that Smith and Howard had been subjected to disparate treatment and determine whether there was merit to proceeding further in representing the employees.

With regard to the Respondent's contention that alternative means were available to the Union to secure the information on a region-wide basis, the Judge determined that: (1) the furnishing of information under section 7114(b)(4) is not dependent on its availability from alternative sources; (2) requiring the Union to retrieve the requested information from about 200 local chapters to which the information had been provided pursuant to the parties' agreement is not viable for a variety of reasons; (3) use of an NTEU computerized information file is limited as it does not contain all the information requested; and (4) not all of the information requested by the Union is supplied under the agreement.(9) In addition, the Judge rejected the Respondent's argument that since it provided some of the information to the Union, there is no obligation to provide it again. Construing the argument as a waiver, the Judge found no evidence of a waiver in the pertinent agreement language or other evidence in the record.  

III. Respondent's Exceptions

A. 26 U.S.C. § 6103

According to the Respondent, the information requested with respect to the Howard case concerns employees who were disciplined for tax misconduct. The Respondent maintains that disclosure of that information is prohibited by 26 U.S.C. § 6103, which "generally provides that any return or return information may not be disclosed absent special circumstances." Exceptions at 28. The Respondent states that the Judge's conclusion that the information was disclosable under 26 U.S.C. § 6103 was not based on any evidence in the record and, in fact, the Judge ignored testimony with regard to the nature of the requested information. The Respondent further claims that the Judge failed to consider the law's strict provisions on release of information that cannot be avoided by sanitization because "removing the names does not change the character of the information." Id.

B. Privacy Act

With regard to the Judge's findings under the Privacy Act, the Respondent claims that the Judge's decision "reaches incorrect conclusions regarding the privacy issues present in this case and fails to give proper weight and balancing to the privacy concerns." Id. at 3.

More specifically, the Respondent states that, in assessing disclosure under FOIA Exemption 6, the Judge confused the public interest in disclosure of the information with the Union's interest and, thus, contravened the Supreme Court's holding in U.S. Department of Defense v. FLRA, ___ U.S. ___, 114 S. Ct. 1006 (1994). The Respondent claims that there is no true public interest in the requested information because it concerns only discipline given to individual employees and does not concern the workings of the Government. The Respondent also contends that the release of the requested information is significantly intrusive to employees' privacy interests because it is stigmatizing and embarrassing. The Respondent asserts that the privacy interests do not disappear merely because the Union is willing to accept sanitized documents because there are a number of "one-of-a-kind positions and positions with easily identifiable duties[.]" Exceptions at 27.

As to the Judge's finding that the information is disclosable as a routine use, the Respondent makes no argument that the Judge's decision was erroneous. Rather, the Respondent refers only to the 1992 Office of Personnel Management publication of "routine use provisions" and the requirements for establishing routine use consistent with those provisions. Id. at 24.

C. Section 7114(b)(4)

The Respondent excepts to the Judge's finding that the requested disciplinary information is necessary and claims that the Judge made numerous factual errors in reaching that finding.

First, the Respondent asserts that because the information with respect to bargaining unit employees had already been furnished to the Union, the Authority should find that the obligation to provide the requested information "has been met through the parties' contract." Id. at 22. The Respondent expresses the view that the "purposes of the Statute are not furthered by requiring Respondent to provide information again and again to NTEU[,]" and that "NTEU presumably negotiated the [contract] provisions with the idea of receiving information and thus presumably must also have planned what to do with this information." Id. at 22-23. The Respondent states that the information furnished extends to letters of reprimand and oral admonishments confirmed in writing and that the Judge's finding to the contrary was in error. The Respondent claims that NTEU's receipt of information on disciplinary and adverse actions under the agreement constitutes an "alternative means" of obtaining the information and that there can be no unfair labor practice when the information is "already in the Union's possession." Id. at 21.

Second, the Respondent claims that the Judge erred in finding that the Union sought the information for use in pending grievances because testimony indicated that the information was requested for use in oral reply proceedings.

Third, the Respondent maintains that the Judge erred in finding that the information "was 'more than merely useful'" because such a finding was in conflict with Union testimony that "[n]ormally I ask for everything I can that might be useful to represent a client." Exceptions at 10 (quoting Transcript at 90). The Respondent also argues that the Judge failed to apply the particularized need test and reasoning of Federal courts on this issue, and incorrectly determined that the requested information was necessary. The Respondent further maintains, in terms of its interests in non-disclosure, that the Authority should consider the amount of time that has elapsed since this dispute arose and the Union's "diminished need, if any, for this information." Id. at 15.

Fourth, with regard to the Smith case, the Respondent argues that the information request was not narrowly tailored, i.e., that it was overly broad, because the Union did not seek information only on falsification of vouchers but, rather, on all falsification cases. Id. at 5. The Respondent also argues that the Union had no need for information pertaining to this case and that the Judge's finding on this point is in error, because: (1) at the time of the unfair labor practice hearing, the MSPB record had been closed and the Union representative testified that he was unaware of how the record could be reopened; (2) in a discovery proceeding (based on MSPB law discussed below), the MSPB had denied the Union's request for region-wide information(10) and, as MSPB's discovery rules are more liberal than the "necessary" standard under section 7114(b)(4), the information clearly could not be considered necessary under the Statute; and (3) subsequent to the hearing, the MSPB upheld Smith's removal and thus there is no longer a need for the requested information.

Fifth, the Respondent maintains that the information requested for employees outside the Austin District is not relevant under MSPB law and that, as these cases involve adverse actions, MSPB standards apply. According to the Respondent, the MSPB's rationale is predicated on the view that disparate treatment can be shown only where employees are in the same management chain. The Respondent notes that the district director in each office acts as the deciding official for disciplinary and adverse actions. The Respondent adds that there are over 20,000 employees in the Southwest Region, but only about 1,000 employees work in the Austin District under the deciding official in the Smith and Howard cases.

D. Issuance of Subpoena and Drawing of Adverse Inferences

The Respondent contends that the subpoena "was not for proper purposes" and that it was improper to enforce the subpoena through adverse inferences. Exceptions at 8. The Respondent explains that there was nothing "unique about the requested documents" that would compel their production so as to permit their review. Id. The Respondent also states that the Judge's decision to draw adverse inferences "seems to be of no value" since his decision also analyzes the relevance and necessity of the information as if no adverse inferences were taken. Id. at 7.

E. Order Regarding Performance Appraisals

The Respondent claims that the Judge's remedial order incorrectly orders disclosure of performance appraisals. The Respondent points out that this case does not involve a request for such information.

IV. Analysis and Conclusions

A. Disclosure of the Information in the Howard Case Is Prohibited by 26 U.S.C. § 6103

In determining whether disclosure of the disciplinary information requested in the Howard case, concerning claimed violations of Section 216.7 of the Agency's Standards of Conduct, is prohibited by 26 U.S.C. § 6103 (§ 6103), the Authority first must determine whether the information constitutes "return" or "return information." Initially, we note that the Union did not expressly request tax returns or return information. Further, we find nothing in the record that clearly establishes that the requested information falls within the statutory definition of return or return information. However, because no party disputes that the requested documents constitute return or return information and, indeed, as they all treat the documents as encompassed within those terms, we will as well.

Next, we address whether the requested information is removed from the ambit of § 6103 by virtue of the Union's request that the information be furnished in a sanitized form. We reject the Judge's finding on this matter. The Judge offered no support for his construction of § 6103 as not covering sanitized information, even in the face of a contrary argument made by the Respondent that removal of names does not change the character of the information as return or return information, and he cited no relevant judicial or other precedent. However, the Supreme Court appears to have addressed this very issue in Church of Scientology of California v. IRS, 484 U.S. 9 (1987) (Scientology). In that case, the Court considered a request by the Church of Scientology for information relating to the church that was contained in the case files and data systems maintained by the Internal Revenue Service (IRS). The Court determined that the language of § 6103(b)(2) was not designed to address the redaction of otherwise identifying material and held that the "removal of identification from return information would not deprive it of protection under § 6103(b)." Id. at 18.

Although that case did not address information connected with an IRS employee, we see no basis on which to view the Court's decision as limited to tax information pertaining to non-agency personnel. Rather, the Court's interpretation of § 6103 clearly supports the Respondent's assertion that the information requested in the Howard case would retain its character as return or return information under § 6103 despite its sanitization. As a result, disclosure of the information as requested by the Union would be inconsistent with 26 U.S.C. § 6103.

It is unfortunate that the Respondent did not bring to the Judge's attention relevant judicial authority in support of its position. However, the Respondent did argue that sanitization does not change the character of the information as return or return information. In view of this argument and the Court's holding in Scientology, we are persuaded that the information falls within the ambit of § 6103.

Finally, we address whether the requested information is nonetheless disclosable under an exception to the general nondisclosure requirement of 26 U.S.C. § 6103. The exception set forth at 26 U.S.C. § 6103(l)(4) permits disclosure, upon written request, of return and return information to authorized legal representatives of employees for use in personnel matters when authorized by the Secretary of the Treasury. We find that although the General Counsel references this exception in its post-hearing brief to the Judge, the General Counsel has not established that the requirements attendant to that exception were met. It is well established that the General Counsel must prove all the elements of its claim that information is disclosable under section 7114(b)(4), including the requirement that the furnishing of information not be prohibited by law. In this case, the General Counsel has failed to do so.

In sum, we conclude, for the reasons expressed above, that disclosure of the disciplinary information requested in connection with the Howard case is prohibited by 26 U.S.C. § 6103. Accordingly, the Respondent's refusal to furnish that information did not violate the Statute. In light of this result, there is no need to address any of the Respondent's other exceptions with respect to disclosure of this information.

B. Disclosure of the Information in the Smith Case Is Not Prohibited by the Privacy Act

The Respondent has not argued that the Judge reached an incorrect result with regard to disclosure of the information as a routine use. Specifically, the Respondent has not asserted that the information sought in this case fails to meet the requirements for disclosure under that exception to the Privacy Act or in what manner the Judge's decision applying the routine use requirements was incorrect.

Under the Authority's Regulations, exceptions must "state the grounds for the exceptions[.]" 5 C.F.R. § 2423.27(a)(3). Our Regulations also require that briefs in support of exceptions must contain "[t]he argument, presenting clearly the points of fact and law relied on in support of the position taken . . . with specific page reference to the transcript and the legal or other material relied on." 5 C.F.R. § 2423.28(a)(3). Stated otherwise, to satisfy the regulatory requirements, a party must both raise an exception and argue in support of that exception. As the Respondent has made no argument whatsoever to support this exception, we adopt the Judge's conclusion that the requested disciplinary information in the Smith case is disclosable under the routine use exception to the Privacy Act.

Because the information is disclosable as a routine use, there is no need to analyze the Judge's determination, and the exception thereto, that the information is also disclosable consistent with FOIA Exemption 6. As the Authority stated in Department of the Air Force, Scott Air Force Base, Illinois, 51 FLRA 675, 691 (1995) (Scott Air Force Base), petition for review filed sub nom. Department of the Air Force v. FLRA, No. 96-1060 (D.C. Cir. Feb. 16, 1996), each exception to the Privacy Act operates independently. Thus, it is irrelevant whether the requested information is disclosable under FOIA Exemption 6.

In sum, we find that disclosure of the requested information in the Smith case is not prohibited by the Privacy Act.

C. The Information Requested in the Smith Case Is Necessary under Section 7114(b)(4) of the Statute

The framework for deciding whether information is necessary under section 7114(b)(4) of the Statute was established in Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (Member Talkin concurring) (IRS, Kansas City). The Authority held that a union requesting information under that section must establish a particularized need for the information by articulating, with specificity, why it needs that information, including the uses to which the information will be put, and the connection between those uses and the union's representational responsibilities under the Statute. The Authority also stated that a union's need will not be satisfied merely by showing that requested information is or would be relevant or useful, but that the union must demonstrate that the information is "'required in order for the union adequately to represent its members.'" 50 FLRA at 670 (quoting Department of Justice v. FLRA, 991 F.2d 285, 290 (5th Cir. 1993)). The union's responsibility for articulating and explaining its interests extends to more than a conclusory or bare assertion; among other things, the request for information must be sufficient to permit an agency to make a reasoned judgment as to whether the information must be disclosed under the Statute. As for the agency's responsibilities, the Authority stated that when it denies an information request, the agency must assert and establish any countervailing anti-disclosure interests.(11)

Where the parties are unable to agree on whether, or to what extent, requested information must be provided, we will find an unfair labor practice if a union has established a particularized need for the information and either: (1) the agency has not established a countervailing interest; or (2) the agency has established such an interest but it does not outweigh the union's demonstration of particularized need.

Applying the analytical framework of IRS, Kansas City, we find that the Union has established a particularized need for the requested information. The Union has explained why it needs the information (to ascertain whether there was disparate treatment of an employee), the uses to which the information will be put (to determine the appropriateness of the proposed penalty); and the connection between the uses and the Union's representational responsibilities under the Statute (to represent an employee against whom an adverse action was proposed). Thus, the Union has established that the information is required in order for it to represent its members adequately.

In so finding, we have considered the Respondent's claims that the information in this case is not needed by the Union and that the Judge made various factual errors in finding that the information is necessary. First, we reject the Respondent's claim that, because information on bargaining unit employees was already furnished to the Union under the parties' agreement, the Respondent should not be required to furnish the information again.(12) The Respondent did not except to the Judge's finding that there was no waiver, under the parties' agreement, of the Union's right to receive the information under section 7114(b)(4) of the Statute. Further, the Respondent has not established that the Judge's findings with respect to the Union's difficulty in obtaining information from other sources--namely, NTEU chapters nationwide--was in error.

Second, we disagree that the Judge erred in finding that the Union requested the information for use in "pending" grievances. The Judge stated that, although no grievances had been filed at the time of the information requests, "in both cases the potential for such a filing was present." Judge's Decision at 6. Thus, contrary to the Respondent's assertion, the Judge found that the Union needed the information for "potential" grievances.

Third, the Respondent maintains that the Judge's finding that the information was more than useful conflicts with Union testimony, which, in the Respondent's view, suggests that even the Union did not consider all the information it requested to be necessary. We reject the argument. As we found above, the Union has established that the information is necessary within the meaning of section 7114(b)(4) of the Statute.

Fourth, we reject the Respondent's contention that the Union's request for information involving claimed falsifications of vouchers was overly broad in that the request covered all falsification cases. Smith was charged with a violation of a standard of conduct that appears in the chapter entitled "Rules Concerning Employee Conduct" and addresses the intentional making of "false or misleading verbal or written statements in matters of official interest." Standard of Conduct 214.4, Joint Exhibit 3 at 3, 4. The Union explained that it requested the information involving employees who were alleged to have violated that standard of conduct because the standard applies to all IRS employees, regardless of unit status. The Union also explained that it had not received any information concerning non-unit employees and, further, that it had not received any information with respect to unit employees that addressed the same or similar alleged misconduct. Because the information already provided to the Union did not address the type of infraction that Smith was accused of committing, the Union's ability to ascertain whether Smith had been treated in a disparate manner and to assess the appropriateness of the proposed penalty would be seriously impaired if the Union could not examine the information it requested. Accordingly, we find that the Union has established a sufficient reason for seeking information relating to all claimed violations of Standard of Conduct 214.4. We also find that this situation is distinguishable from that presented in U.S. Department of Labor, Washington, D.C., 51 FLRA 462 (1995), in which a union requested name-identified disciplinary and suspension records covering a 5-year period. In that case, we found that the union's request was based on its view that the agency maintained information for that length of time. We concluded that the availability of information did not establish its necessity and that the union had not articulated or established with the requisite specificity that it needed information covering that extended period of time.

Fifth, we reject the Respondent's claim that information pertaining to employees outside the Austin District cannot be necessary under the Statute because it is not relevant under MSPB law and not discoverable under MSPB rules. We find, contrary to the Respondent's assertion, that judicial decisions imposing a particularized need standard on information requests under the Statute do not warrant application of MSPB law and rules in this case. In U.S. Department of the Treasury, Internal Revenue Service, Phoenix District and National Treasury Employees Union, Chapter 33, 43 FLRA 686, 689-90 (1991) (NTEU), the Authority found that arguments regarding the admissibility of information as evidence in other proceedings do not relieve an agency of its obligation to furnish information under the Statute.(13) Therefore, MSPB's position on admissibility of evidence does not govern the necessity of the information in this case. Moreover, at the time the Union made its information request, the Union was seeking to assist employee Smith at the oral reply stage of the proposed adverse action.(14) Even assuming the admissibility of evidence before the MSPB were relevant, there was no proceeding before the MSPB when the Union sought the information. See U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City, Utah, 40 FLRA 303, 310-11 (1991).

Finally, we find that the Respondent has not asserted any countervailing anti-disclosure interests. Cf. IRS, Kansas City, 50 FLRA at 672. Instead, the Respondent argues that the Authority should consider the amount of time that has elapsed since the dispute in this case arose and the Union's "diminished need, if any, for this information." Exceptions at 15. These matters do not constitute countervailing anti-disclosure interests as that term has been employed by the Authority and the courts. E.g., Scott Air Force Base, 51 FLRA at 684-89 (countervailing anti-disclosure interests included management's interest in confidentiality, supervisor's interest in privacy, and grievability of matter for which information was requested); United States Department of Justice v. FLRA, 988 F.2d 1267, 1271 (D.C. Cir. 1993) (possibility of union misuse of information). We interpret the Respondent's argument as an assertion that the information is not necessary within the meaning of section 7114(b)(4) of the Statute. As explained above, we have already rejected this argument.

In sum, we find that the information is necessary within the meaning of section 7114(b)(4) of the Statute. As there is no exception to the Judge's finding that the information satisfied all the other statutory criteria of section 7114(b)(4), we conclude that the General Counsel has established that the Respondent's refusal to furnish the disciplinary information requested in the Smith case violated section 7116(a)(1), (5) and (8) of the Statute. We issue an appropriate remedial order.(15)

D. Issuance of Subpoena Was Not Improper; the Judge Did Not Improperly Draw Adverse Inferences

Consistent with section 2429.7(e) of the Authority Regulations, a party may petition to revoke a subpoena, which shall be revoked if "the evidence the production of which is required does not relate to any matter under investigation or in question in the proceedings . . . or if for any other reason sufficient in law the subpoena is invalid." 5 C.F.R. § 2429.7(e). In this case, the Respondent did not petition to revoke the subpoena. There is no evidence that the Respondent was prevented from doing so if it believed the subpoena was improperly issued and, indeed, there is no evidence that the subpoena was not properly issued. As such, we find no merit to the Respondent's exception.

Similarly, we find no merit to the Respondent's claim that it was improper for the Judge to have drawn adverse inferences. As the Respondent concedes, there is no evidence that, in fact, the Judge drew adverse inferences. In any event, the Judge made independent findings regarding the necessity of the information, as if no adverse inferences had been drawn, and we have upheld the Judge's findings in that regard. See IV.C. above.

V. Order

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Internal Revenue Service, Austin District Office, Austin, Texas shall:

1. Cease and desist from:

(a) Failing and refusing to furnish sanitized copies of all proposal letters, decision letters, letters of reprimand, oral admonishments confirmed in writing, counselling memos, and closed without action or clearance letters issued to bargaining unit and non-bargaining unit employees in the Southwest Region during the period July 1, 1989 through September 2, 1992, in which the reason for the proposal was an alleged violation of the Internal Revenue Service Rules of Conduct, section 214.5, which information was requested by the National Treasury Employees Union, Chapter 52, Austin, Texas, the exclusive representative of certain of its employees.

(b) Failing to furnish information requested by the National Treasury Employees Union, Chapter 52, Austin, Texas, under the Federal Service Labor-Management Relations Statute in a timely manner.

(c) Failing to notify the National Treasury Employees Union, Chapter 52, Austin, Texas, that certain information requested under the Federal Service Labor-Management Relations Statute did not exist.

(d) 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 Federal Service Labor-Management Relations Statute:

(a) Furnish to the National Treasury Employees Union, Chapter 52, Austin, Texas, the exclusive representative of certain of its employees, sanitized copies of all proposal letters, decision letters, letters of reprimand, oral admonishments confirmed in writing, counselling memos, and closed without action or clearance letters issued to bargaining unit and non-bargaining unit employees in the Southwest Region during the period July 1, 1989 through September 2, 1992, in which the reason for the proposal was an alleged violation of the Internal Revenue Service Rules of Conduct, section 214.5.

(b) Respond in a timely manner to requests for information made by the National Treasury Employees Union, Chapter 52, Austin, Texas, under the Federal Service Labor-Management Relations Statute.

(c) Notify the National Treasury Employees Union, Chapter 52, Austin, Texas, when certain information requested under the Federal Service Labor-Management Relations Statute does not exist.

(d) Post at its facilities in the Austin District 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 the District Director and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other 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.

(e) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director of the Dallas Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

The allegation in the complaint that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish information with respect to employee James Howard is dismissed.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Internal Revenue Service, Austin District Office, Austin, Texas violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify our employees that:

WE WILL NOT refuse to furnish sanitized copies of all proposal letters, decision letters, letters of reprimand, oral admonishments confirmed in writing, counselling memos, and closed without action or clearance letters issued to bargaining unit and non-bargaining unit employees in the Southwest Region during the period July 1, 1989 through September 2, 1992, in which the reason for the proposal was an alleged violation of the Internal Revenue Service Rules of Conduct, section 214.5, which information was requested by the National Treasury Employees Union, Chapter 52, Austin, Texas, the exclusive representative of certain of our employees.

WE WILL NOT fail to furnish information requested by the National Treasury Employees Union, Chapter 52, Austin, Texas, under the Federal Service Labor-Management Relations Statute in a timely manner.

WE WILL NOT fail to notify the National Treasury Employees Union, Chapter 52, Austin, Texas, when information requested by it under the Federal Service Labor-Management Relations Statute does not exist.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL furnish to the National Treasury Employees Union, Chapter 52, Austin, Texas, sanitized copies of all proposal letters, decision letters, letters of reprimand, oral admonishments confirmed in writing, counselling memos, and closed without action or clearance letters issued to bargaining unit and non-bargaining unit employees in the Southwest Region during the period July 1, 1989 through September 2, 1992, in which the reason for the proposal was an alleged violation of the Internal Revenue Service Rules of Conduct, section 214.5.

WE WILL furnish information requested by the National Treasury Employees Union, Chapter 52, Austin, Texas, under the Federal Service Labor-Management Relations Statute in a timely manner.

WE WILL notify the National Treasury Employees Union, Chapter 52, Austin, Texas, when information requested by it under the Federal Service Labor-Management Relations Statute does not exist.

___________________________

(Agency)

Dated:_________ By:____________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, whose address is: 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, and whose telephone number is: (214) 767-0156.

APPENDIX

The relevant provisions of the parties' collective bargaining agreement are as follows:

Article 38 - Disciplinary Actions

Section 7 - The Employer will provide the Union with unsanitized copies of all admonishments, written reprimands, and proposals and decision letters for suspensions of fourteen (14) days or less, simultaneously with their issuance to employees.

Article 39 - Adverse Actions

Section 7 - The Employer will provided the Union unsanitized copies of all adverse action proposal and decision letters simultaneously with their issuance to employees.

26 U.S.C. § 6103 provides, in relevant part, as follows:

§ 6103. Confidentiality and disclosure of returns and return information

(a) General Rule.-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 service as such an officer or employee or otherwise or under the provisions of this section. For purposes of this subsection, the term "officer or employee" includes a former officer or employee.

(b) Definitions.--For purposes of this section--

(1) Return.--The term "return" means any tax or information return, declaration of estimated tax, or claim for refund . . . including supporting schedules, attachments, or lists which are supplemental to, or part of, the return so filed.

(2) Return information.--The term "return information" means--

(A) a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies . . . . or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense, and

. . . .

But such term does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer. . . .

26 U.S.C. § 6103(l)(4) provides in pertinent part:

(l) Disclosure of returns and return information for purposes other than tax administration.--

. . . .

(4) Disclosures of returns and return information for use in personnel or claimant representative matters.--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 former 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.

Concurring Opinion of Chair Segal:

I concur in all aspects of my colleagues' opinion in this case. I write separately to comment about the record before us on the issue whether the requested information in the Howard case is barred from disclosure by 26 U.S.C. § 6103.

The Union requested proposed and final disciplinary and adverse action letters issued to employees who allegedly violated the same provision of the Respondent's Standards of Conduct as allegedly violated by Howard. That provision requires employees to timely file their tax returns. Aside from the Respondent's bare assertion, the record establishes no connection whatsoever between the requested letters and 26 U.S.C. § 6103, which generally safeguards the confidentiality of "returns and return information." Nothing in the statutory definitions of "return" and "return information" suggests that these terms would encompass disciplinary and adverse action letters based on employee actions in allegedly untimely filing tax returns.

The Respondent, who has special expertise in this area, offers no explanation or support for its claim that the requested letters encompass return or return information under section 6103. At the same time, the Respondent does not dispute the Judge's findings that it has previously released similar information without asserting this statutory bar, and agreed to release this type of information to the Union under the parties' negotiated agreement. See Judge's Decision at 12. On the other hand, the General Counsel does not dispute the applicability of section 6103. While contending that the requested letters may be disclosed to the Union under the "written request" exception provided in 26 U.S.C. § 6103(l)(4), the General Counsel does not assert that such a request was ever made. Finally, although the Judge finds that the statutory bar does not apply because the information was requested in a sanitized manner, neither he nor any party cites a directly relevant Supreme Court case discussing the sanitization of information encompassed by section 6103.

As a result of the parties' cavalier treatment of this issue, basic questions of statutory construction that may have resulted in a different outcome are unexamined. However, I reluctantly agree with my colleagues that disclosure of the information is nevertheless barred in view of: (1) the fact that the parties do not dispute that the requested letters constitute return or return information; (2) Supreme Court precedent establishing that sanitization does not remove the information from protection under section 6103; and (3) the General Counsel's failure to establish that an exception to the bar on disclosure was requested. This resolution is consistent with the General Counsel's overall burden to establish that an unfair labor practice has been committed, and avoids prolonging this litigation on a point that appears to be of more concern to me than to the parties.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

INTERNAL REVENUE SERVICE, AUSTIN DISTRICT OFFICE AUSTIN, TEXAS

Respondent

and

NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 52,

AUSTIN, TEXAS

Charging Party

Case No. DA-CA-30106

Susan L. Nieser, Esq.
For the Respondent

Christopher J. Ivits, Esq.
For the General Counsel

Dennis Schneider, Esq.
For the Charging Party

Before: ELI NASH, JR.
Administrative Law Judge

DECISION

Statement of the Case

The Dallas Regional Director of the Federal Labor Relations Authority (herein called the Authority) issued a Complaint and Notice of Hearing on December 23, 1992, and a corrected complaint on January 13, 1993 alleging that the above-captioned Respondent violated section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish certain information which was necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining.

A hearing on the Complaint was conducted in Austin, Texas at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally.(1) All parties filed timely briefs which have been carefully considered.

Upon the entire record in this matter, my observation of the witnesses and their demeanor and from all the testimony and evidence at the hearing, I make the following:

Findings of Fact

A. The Smith information requests.

On August 26, 1992(2), Jay Smith, a bargaining unit employee, was issued a proposed adverse action notice by Respondent for allegedly making false statements on a relocation voucher which it is alleged violates Internal Revenue Service Rules of Conduct 214.5 (herein called IRS Rule 214.5) in pertinent part, provides as follows:

Employees will not intentionally make false or misleading verbal or written statements in matters of official interest.

Union President David Long represented Smith in the action. On August 27, Smith requested all material relied upon by Respondent in his case. Smith received the material Respondent relied on in issuing the proposal letter the same day that he made the request. One factor relied on in proposing a penalty for Smith was the consistency of that penalty with those imposed on other employees for the same or similar offenses.

Sometime later, the Union received a document dated August 10, 1992, which indicated that Michael McDermitt, Chief, Collection Division, Austin District used the consistency of the penalty with those imposed on employees for the same or similar offenses as he noted, that there were similar cases in which a proposed removal was issued to employees for taking money from taxpayers, falsifying official documents, and taking money from cash drawers to pay for a travel voucher. After receiving this information on August 28, Long made an information request to Respondent. The request addressed to Susan Henley, Chief, Advisory Assistance Section, Austin District, asked for, among other things, "a complete copy of all proposal letters and decision letters issued to non-bargaining unit employees in the Austin District during the period July 1, 1989 through August 28, 1992, in which the reason for the proposal was an alleged violation of the IRS Rules of Conduct. Document 7089 (Rev 5-9). Section 214.5" Long also noted that the request was being made under the provisions of Section 7114(b) of the Statute and was needed to properly represent Smith with respect to the proposed adverse action issued to him. Long further noted that he needed the information as to non-bargaining unit employees because the IRS Rules of Conduct apply to all employees regardless of their bargaining unit status. Long indicated the Union would accept the information in a sanitized manner. Long specifically needed this information to represent Smith in an oral reply to the proposed notice. Long represented other employees on previous occasions and had some success in either getting the penalty lessened or no penalty applied at all. It thus seems that the information was needed by Long to attempt to persuade the deciding official that the penalty in the proposed notice constituted disparate treatment, or was not consistent with the penalty imposed on others, or was either too harsh or inappropriate. Such success supports the Union's need for the requested data to rebut or assure that Respondent's claim that it had consistently applied the same or similar penalties in like cases was true.

Long received a September 3, 1992 response from Kathy Ford, Labor Relations Specialist, in which she denied Long's request for data for non-bargaining unit employees located in the Austin District.

Sometime around September 15, Long made a second information request for the Smith case. The second request was also addressed to Henley and expanded his previous request to the following:

A complete copy of all proposal letters, decision letters, letters of reprimand, oral admonishments confirmed in writing, counselling memos, closed without action or clearance letters, issued to non-bargaining unit employees in the Austin District during the period July 1, 1989 through August 28, 1992, in which the reason for the proposal was an alleged violation of Internal Revenue Service Rules of Conduct, Document 7089 (Rev 5-89), Section 214.5, and all such documents issued to all employees (bargaining unit and non-bargaining unit) in the Southwest Region during the period July 1, 1989 through August 28, 1992.

Long again noted that the Union would accept the information in sanitized manner. He specifically noted his need for the information in determining the adequacy and appropriateness of the penalty in the proposed action. Finally, Long noted that the material on non-bargaining unit employees was relevant and necessary as the IRS Rules apply to all employees.

Around September 23, Long received the denial of this second request from Ford. Although noting that the Union was willing to accept the information in a sanitized manner, Ford refused to provide the non-bargaining unit data on the grounds that such release would violate the Privacy Act. With respect to information on bargaining unit employees throughout the Southwest Region, Ford's position seemed to be that such information is not relevant and necessary because the consistency of the penalty is an issue which should only be addressed on an appointing office basis and not on a Region wide basis. Further, Ford noted that Long could obtain the documents he requested by contacting each local chapter of NTEU through the Southwest Region for the information.

Sometime around the end of March 1993, in response to a Merit Systems Protection Board (herein called MSPB) discovery proceeding, Respondent released the requested data pertaining to the non-bargaining unit employees located in the Austin District to Long. Long, however, never received the information requested on either non-bargaining unit employees or bargaining unit employees for the entire Southwest Region.

Smith's case at the time of the hearing was pending before the Merit Systems Protection Board. The Union might still need the requested data, since those documents might reveal something significant, which might require it to move to reopen the record in the case.

B. The Howard information request.

James Howard, a bargaining unit employee, received a notice of proposed adverse action on September 2. Howard was charged with allegedly failing to file in a timely manner his 1988, 1990 and 1992 Federal tax returns; violation of Section 216.7 of the Internal Revenue Service Rules of Conduct, Section 216.7 (herein called IRS Rule 216.7) provides as follows:

Employees will timely and properly file all required tax returns.

Like Smith, Howard was represented by Long in his capacity as Union President. On September 2, Long acting as Howard's union representative, requested that Respondent provide him all the material which Respondent relied upon in proposing the adverse action. On September 3, Henley responded to Long's request and provided the material relied upon. Included in the documentation sent to Long was a document which indicated that as a part of the penalty determination considerations, Respondent looked at the consistency of the penalty with those imposed on other employees for the same or similar offenses.

On September 9, Long made an information request under Section 7114(b)(4) in Howard's behalf. Long requested, among other things, a copy of all proposal and decision letters issued to non-bargaining unit employees in the Austin District from the period July 1, 1989 through September 2, 1992, where the reason for the action was the same alleged violation of IRS Rules as Howard was charged with, specifically, Section 216.7. The information was needed to represent Howard at his oral reply to the proposed notice of adverse action with the anticipation of either mitigating, lessening the penalty, or changing the proposed penalty to no penalty at all. The Union noted that it would be agreeable to receiving the requested data in a sanitized format. The Union also noted that it needed this information since it was a factor relied on by Respondent in determining the appropriateness and adequacy of the proposed adverse action.

On September 15, Long expanded the scope of this request by asking that Respondent provide a complete copy of all proposal letters, decision letters, letters of reprimand, oral admonishments confirmed in writing, counselling memos, closed without action or clearance letters, issued to non-bargaining unit employees in the Austin District during the period of July 1, 1989 through August 31, 1992, in which the reason for the proposal was an alleged violation of the IRS Rules, Section 216.7 and all such documents issued to all employees (bargaining unit and non-bargaining unit) in the Southwest Region during the period of July 1, 1989 through August 31, 1992. Long reiterated that he needed the information for the oral reply and that it was relevant since Respondent noted that it was a factor in determining the adequacy and appro-priateness of the penalty. In addition, Long again noted that the Union would accept the information in a sanitized format.

Respondent's Henley answered both Long requests in Howard's case, on September 22, denying the information. In denying the requests, Respondent refused to provide data on non-bargaining unit employees, although Long had indicated that he would accept the information in a sanitized manner, because of its view that to do so would violate the Privacy Act. Respondent also refused to provide the information for bargaining unit employees in the Southwest Region because in its determination, such data was not relevant and necessary because of its opinion that consistency of adverse action considerations should be applied at the appointing office basis. While it took this position regarding employees in other locations of the Southwest Region, Respondent did provided copies of the requested information for bargaining unit employees located in the Austin District.

At the time of the hearing, Howard's case was pending arbitration.

Aside from needing the requested information in Smith's and Howard's cases for the proposed reply, the Union also needed the information for potential grievances. At the time the Union made the requests in the Smith and Howard cases, it had not yet filed a grievance, but in both cases the potential for such a filing was present.

The data requested is routinely maintained by Respondent in the course of regular business. Documents such as the disciplinary and adverse actions letters and some closed without action or clearance letters are preserved in district offices and all of the requested documents are maintained in employee's official personnel folders.(3)

Conclusions

Respondent's contends that the Union was seeking to use the requested information to defend an employee at an arbitration hearing and that it is bound by the MSPB rule which would not allow the discovery of, or introduction of, into evidence of this type of information. Furthermore, Respondent urges that the information requested on a region-wide basis would not be relevant for an MSPB hearing and therefore not be relevant to a grievance under Cornelius v. Nutt, 472 U.S. 648 (1985). The record evidence in this case does not support Respondent's contention. That evidence clearly shows that Long was seeking the requested information in order to make an oral reply to proposed notices of adverse action. Furthermore, the Authority has dealt with similar information requests for IRS region-wide information and has held against Respondent. Internal Revenue Service, Phoenix District, 43 FLRA 686 (1991); Internal Revenue Service, Salt Lake City, Utah, 40 FLRA 303 (1991). In the above-cited cases the Authority noted that such requested Regional information was needed for a reply to a proposed notice of adverse action and held that arguments regarding the admissibility of information of evidence in other proceedings do not relieve an Agency of its obligation to furnish informa-tion under Section 7114(b)(4) of the Statute. Unfortunately, Respondent made little effort to distinguish those previous IRS cases which involve almost identical information requests. In fact, the above cited cases are on all fours with the instant matter, therefore, the undersigned is compelled to reach a result consistent with the existing Authority precedent.

Furthermore, Respondent's argument does not justify its refusal to furnish to the Union information requested for non-bargaining unit employees at the district level, or its failure in the Smith case to turn such information over to the Union in a timely manner, for in that situation the MSPB might find such information relevant, so too could an arbitrator.

Respondent provided some of the requested data, specifically, the disciplinary information relating to non-bargaining unit employees in the Austin District requested in connection with the Smith case. Respondent provided the information, in March 1993, as part of the MSPB discovery. Thus, nearly eight months elapsed before the information which was originally requested on August 28, 1992, was involuntarily surrendered by Respondent. Thus, Respondent never met its statutory obligation to provide the data. In Department of Defense Dependents Schools, Germany Region, 19 FLRA 790 (1985), the Authority found that the "exclusive representative may not be denied the opportunity to secure the requested information in a timely manner and without undue burden or delay." 19 FLRA 790, at 791. Similarly, in Department of Justice, Office of Justice Programs, 45 FLRA 1022 (1992), the Authority found that a five month delay, under the circum-stances was unreasonable and constituted a violation of the Statute. In this case, Respondent made no attempt to justify the eight-month delay in providing the requested documents to the Union. Even when it provided the information Respondent only gave the Union three documents. It is hardly unreason-able to find that Respondent's effort was hardly timely.

In addition, Respondent contends that alternative means are available to the Union to secure the information requested on a region-wide basis. In this regard it notes that under the parties' contract, the Union at each chapter level receives copies of all proposal and decision letters in adverse action cases. Thus, Respondent takes the position that if one chapter needs the information it can secure it itself by contacting each of its chapters, which will hopefully have the information and will provide it. First, it is noted, that Respondent's argument does not apply to those proposal letters and decision letters in adverse action cases where the employees were not in the bargaining unit. These are not provided to each chapter. Further, Respondent's argument does not apply to letters of reprimand, oral admonishments confirmed in writing, counselling memos, closed without action or clearance letters that were requested by the Union, as these documents are also not provided under the parties' contract.

The Authority has previously held that there is nothing in the language of Section 7114(b)(4) of its legislative history that indicates that Congress intended a union's right to information under the provisions of the Statute to be dependent on whether the information is reasonably available from an alternative source. U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 38 FLRA 3 (1990). Additionally, the record reveals that requiring the Union to go to each individual chapter to seek the same information is hardly adequate. In this regard, there are problems in that such decision letters or proposal letters are not always delivered to one source in each chapter and therefore each chapter does not have the assurance that all have been received. Each chapter consists of varying degrees of staff; some of whom are only part time. Further, some chapters are more active than others, with some chapters being very inactive. The records and files of some chapters would be unreliable. There are about 200 chapters throughout the country and contacting each one would take an inordinate amount of time and there would be no assurance that there would be a response as there is no obligation for a chapter to respond to another chapter's information request. Requiring each chapter to secure information from its other chapters would not be an effective or efficient means of running the Union or presenting a grievance. As to any claim that NTEU has computerized files that would allow the chapter to quickly and easily get the information it needs, the evidence establishes that such files only pertain to cases which have gone through some sort of litigation and would not include the type information specifically requested by the Union here.

Respondent's argument that since it has provided some of the requested documents to the Union and that as such it has no obligation to provide it again is also rejected. Respondent appears to be saying that there is some sort of waiver inherent in the Union's right to information contained in the parties' negotiated agreement. Not only is a waiver not evident in the pertinent contractual language but no evidence was presented to establish that any waiver existed. Therefore, the undersigned finds that there is no waiver in this case and Respondent's argument fails.

Respondent argues further that some of the requested data is not in existence. In this regard Respondent contends that for the Howard case, there are no documents for non-bargaining unit employees in the Austin District. While this certainly is an important factor to be considered as far as a remedy is concerned, Respondent's conduct in this situation was still violative of the Statute. More importantly the Union was never informed of the alleged non-existence of the data. Under U.S. Naval Supply Center, San Diego, California, 26 FLRA 324 (1987), an agency is required to inform the union as to the non-existence of requested data. Respondent's failure to do so in the initial case is violative of the Statute.

Section 7114(b)(4) of the Statute obligates an agency to furnish to the union, to the extent not prohibited by law, data which is normally maintained by the agency in the regular course of business; which is reasonably available and necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining, and; which does not constitute guidance, counsel or training for management officials or supervisors, relating to collective bargaining. Respondent admits that the requested data does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining. In this case the data requested by the Union met all the Statutory criteria and Respondent was obligated to provide the requested data.(4)

It is noted that the requested information was maintained by the Respondent in the regular course of business. In this regard, Respondent's witness Ford admitted, copies of disci-plinary and adverse action letters are maintained by the labor relations office. These letters, as well as counselling letters, closed without action letters, clearance letters and letters of reprimand are kept in individual employee files. In this case, the documents are normally maintained and reasonably available. As in Internal Revenue Service, Salt Lake City, supra, no evidence was presented in this case to establish that it would have been unduly burdensome for the Respondent to provide the Union with the requested data.

The Authority also concluded in Internal Revenue Service, Salt Lake City, supra, that information requested by a Union for the purpose of making an oral reply to a proposed notice of adverse action (in that case a proposed removal) was a legitimate representational purpose under the Statute which entitled the Union to the requested data. In this case, the requested data was necessary for the Union to carry out its representational function in representing both Smith and Howard. Here, Long's previous record in having penalties mitigated or abated at the oral reply stage establish that the Union can perform a valuable and important function at this stage. Data, which would allow it and would be necessary to establish disparate treatment in terms of application of penalty would certainly enhance and be necessary to that representational function. This is especially true in view of the fact that the Respondent makes consistency of the penalty for same or similar offenses a factor in determining the penalty at the proposing stage. Further, such documents as requested by the Union could also establish that there was no disparate treatment in terms of penalty and would assist the Union in determining how to handle or whether to proceed in the processing of such a case. Internal Revenue Service, Chicago, Illinois District Office, 40 FLRA 1070 (1991). Since the IRS Rules apply to all employees regardless of their bargaining unit status, the Union's request for such data for all employees would be relevant and necessary for a reply to a proposed adverse action because all such documentation could establish disparate treatment which could be used by the Union to argue for mitigation or abatement of the penalty imposed by the proposing official. Such information, when provided on a regional basis, would allow the Union to present to the deciding official evidence of how penalties have been applied in other districts and would allow the deciding official to determine if the proposed penalty was in line or consistent throughout the Region and other districts and allow the deciding official to determine the penalty accordingly. In Department of Defense Dependents Schools, Germany Region, 28 FLRA 202 (1987), the Authority held that disciplinary records information relating to non-bargaining unit employees, in that case, management officials and supervisors, was relevant and necessary for the union to effectively develop and present its arguments in a disciplinary action proceeding. Internal Revenue Service, Salt Lake City, supra.

Not only has the Authority consistently held that such data as the data requested in this case should be released to the Union, but the release of such data would be appropriate under the Fifth Circuit's decision in Department of Justice v. FLRA, No. 92-426 (1993) and the D.C. Circuit's particularized need standard as set out in NLRB v. FLRA, 952 F.2d 523 (1992). In this regard the requested information was more than merely useful to the Union. Without such data it would not be able to argue at either the oral reply stage or in a potential grievance that there was disparate treatment provided to the two employees in terms of penalty, for it would have no such evidence. Further, without such data, the Union would never be able to confirm or rebut any claim made by the Respondent that there was no disparate treatment for the two employees in terms of penalty. Finally, without such data the Union would be unable to make an accurate assessment of the cases of the employees, what should and should not be properly argued and whether the cases merited a grievance or the invocation of arbitration. In other words, without such data the Union would be unable to fulfill its representational duty under section 7116(b) and may have made decisions in these cases, such as not pursuing them, which would have left them open to liability for a failure to fulfill its representational obligations under the Statute.

The only new issue argued by Respondent is that under 26 USC 6301 it had no obligation to provide the requested data. 26 USC 6103 basically provides that returns and return information shall be confidential and should not be disclosed. 26 USC 6103(b) sets out to define the terms "return" and "return information". That definition specifically notes, "but such term does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer." The Union requested the data in this case in a sanitized manner, which would involve the redaction of such personal identifying information and thus would not be covered by the plain language of 26 USC 6103. In any event, such documentation can be released under certain circumstances. Such conditions are present here. First, Respondent did not make such a claim when it released the data in question for bargaining unit employees in the Austin District office. Secondly, the documents in question must be released to the Union in an unsanitized manner under the parties negotiated agreement. And, lastly the same or similar data has been released to the Union in the past without fear of civil or criminal penalty. Based on these circumstance, the undersigned sees no merit in Respondent's present claim that it is unlawful to release the requested data.

Nor is the release of the requested data prohibited by any other law. In this respect the Union indicated to management from the beginning that the requested data could be provided in a sanitized format. In U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310 (1990), the Authority held that when a Union requests data in a sanitized format it is unnecessary to reach Privacy Act issues. Such is the case in this situation. The Union's request which does not require the release of employee names or identifiers seemingly rules out privacy issues and concerns. Maxwell Air Force Base, Georgia, 36 FLRA 110 (1990).

Assuming there is a valid possibility of invading privacy, the Authority uses a balancing test to determine whether the Privacy Act prohibits disclosure of information under section 7114(b)(4) of the Statute. See, U.S. Department of Transportation, Washington, D.C., 47 FLRA 110 (1993). Under that test a balance is struck between the employee's right to privacy against the public interest in disclosure. One can say with some certainty, that in many instances individual employees would be inclined to maintain that information such as sought in this case, is private and thus, feel that the release of the information would be an invasion of his or her privacy. While this may be true, the exclusive representative's need for the information cannot be subordinated simply because of individual concerns. This is particularly true, where as here, the exclusive representative is representing employees in viable grievance situations and where it has an obligation to prepare itself for effective representation. Clearly, early resolution of grievances or potential grievances where the public interest is involved points toward a finding that the information should be made available in unsanitized form. Thus, release of requested data in unsanitized form has already been ordered despite the fact that the disclosure might be viewed as an invasion of personal privacy by individual employees. See U.S. Department of Veterans Affairs, Regional Office, San Diego, California, 44 FLRA 312 (1992); Social Security Administration and Social Security Administration Field Operations, Region II, 43 FLRA 164 (1991). Moreover, even if the Privacy Act was applicable it would not prohibit the release of such documentation to the Union. In this regard, the balancing test employed by the Authority in such cases weighs in favor of the release of such documentation. In Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 25 FLRA 1060 (1987) the Authority held that in such cases it would balance the individual's right to privacy and the public interest in having the information disclosed. Applying that axiom to this case, the balance should shift in favor of disclosure as the Union requested the information in order to perform its functions as an exclusive representative and is acting in and safeguarding the public interest, which is ensuring that Federal agencies observe statutory, regulatory, and collective bargaining procedures in disciplining employees. Further, there is limited intrusion into the privacy interest of the individuals involved as such documentation would be limited in release in that it would be only released to the Union for the limited purpose of performing its representational functions.

As to the privacy interests of the individuals involved, the Authority has held in National Treasury Employees Unions, Chapter 237, 32 FLRA 62 (1988), that a union is entitled to information concerning disciplinary and adverse actions even where the Union is not designated as the personal repre-sentative of the employees involved as its representational function is in the public interest.

Finally, it should be noted that the Respondent's concern for the privacy interests of its employees in these types of situations appears to be a new concern for these Privacy Act claims were not raised in previous similar cases for the similar data. Internal Revenue Service, Salt Lake City, supra; Internal Revenue Service, Phoenix District, supra. Furthermore, there is no evidence in the record or any reason to believe that the Union might publicize the information, or carelessly circulate the information. See, e.g., Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181 (1987).

Accordingly, it is found that the interests of disclosure of the requested data outweighs the limited intrusion on individual privacy interest and therefore the documents should be released.

5 U.S.C. section 552a is the Privacy Act which regulates disclosure of information in an agency record within a system of records retrievable by reference to an individual's name or other personal identifier. Such records are generally prohibited from disclosure unless one of the specific Privacy Act exceptions under 5 U.S.C. section 552a(b) is applicable. Section 552a(b)(2) permits disclosure of Privacy Act protected information to the extent such information is required to be released under the Freedom of Information Act (FOIA). FOIA provides that all records in the possession of the federal government agencies must be disclosed upon request unless subject to a specific FOIA exemption. Section (b)(6) of the FOIA provides that information contained in personnel files may be withheld if disclosure of the information would constitute a "clearly unwarranted invasion of personal privacy." See generally, U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990), enforcement denied sub nom., FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 941 F.2d 49 (1st. Cir.).

In making a determination as to whether requested information falls within the (b)(6) exemption, it is necessary to balance the competing interest of the employees' privacy against the public interest in disclosure. Moreover, the public interest to be examined when applying the balancing test required by exemption (b)(6), is that embodied in the Statute.

There are serious public interests favoring the disclosure of the information in unsanitized form, in cases such as this, where no more than a minimal intrusion into the employees' privacy interests occurs. In this case, the documents at issue which are arguably within the purview of the Privacy Act are disciplinary records. The disclosure of the disciplinary records aids the Union in evaluating how and what discipline is being meted out since it assists the Union in monitoring the administration of the appraisal and award systems, investigating and processing grievances and in seeing that employees are not treated in a disparate manner. See e.g., U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241 (1991).

Of particular note, Respondent has not articulated how, or in what manner, the disclosure of the requested information would constitute a clearly unwarranted invasion of employees' privacy interests to either the exclusive representative or to this forum. Respondent, really has never stated how disclosure of the information implicates any privacy interests of the affected bargaining unit employees, or how the employees would be stigmatized by the release of the data. Additionally, the Union here cannot reasonably obtain the information contained in the disciplinary records concerning region-wide bargaining and non-bargaining unit employees.

The central purpose of FOIA is to ensure that the Government's activities be opened to the sharp eye of public scrutiny. U.S. Dep't of Justice v. Reporters Committee, 109 S. Ct. 1468, 1482 (1989). (Reporters Committee). Additionally, official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose. In this case, disclosure of the disciplinary records certainly opens to "public scrutiny" what the Respondent is "up to" (Reporters Committee, 489 U.S. at 772-73) by showing that Respondent is protecting the public trust. Such information would help show Respondent's diligence in protecting that trust by making sure that its employees adhere to certain guidelines. "Official information that sheds light on an agency's performance of its statutory duties falls squarely within the statutory purpose." Reporters Committee, quoted in VARO, San Diego, at 318.

Under these circumstances, the balancing of the employees' privacy interests against the exclusive representative's need for the information would not result in a "clearly unwarranted" invasion of personal privacy.

Finally, the requested disciplinary records are also subject to disclosure as a "routine use" under Section (b)(3) of the Privacy Act.

These disciplinary records may also be subject to routine use exceptions contained in the system of records maintained by Respondent. Routine uses of records maintained in this system include:

To disclose information to an arbitrator to resolve disputes under a negotiated grievance procedure or to officials of labor organizations recognized under 5 U.S.C. Chapter 71 [the Statute] when relevant and necessary to their duties of exclusive representation.

Id., quoting, 55 Fed. Reg. 3844.

Respondent also points to guidance offered by the Office of Personnel Management (OPM), FPM Letter 711-164 is not inconsistent for it provides that information may be released as a "routine use" if the information is "relevant" and "necessary." "Relevant" meaning that "the nature of the information bears a traceable, logical, and significant connection to the purpose to be served." "Necessary" signifying that "there are no adequate alternative means or sources for satisfying the union's information needs."

As previously discussed, the relevance of the information is clear. There were pending potential grievances in the unit and there was also a potential for punishment. The Union representative through comparing penalties given to others had been able to have some grievants' penalties reduced and some even dropped by using the requested data effectively. In these circumstances, there is little question that a trace-able, logical, and significant connection exists between the disciplinary records and the use to which they would be put in the grievance process. Furthermore, the release of such data is compatible with the Privacy Act and is, therefore, consistent with section 7114(b)(4) of the Statute.

Accordingly, it is found that Respondent's failure to provide the above information constituted a violation of section 7116(a)(1), (5) and (8) of the Statute. Therefore, it is recommended that the Authority adopt the following:

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 Internal Revenue Service, Austin District Office, Austin, Texas, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the National Treasury Employees Union, Chapter 52, the exclusive repre-sentative of its employees, necessary and relevant information which was requested in connection with the processing of certain grievances.

(b) Failing and refusing to respond to requests for information by the National Treasury Employees Union, Chapter 52, the exclusive representative of its employees.

(c) 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 Federal Service Labor-Management Relations Statute:

(a) Upon request, furnish to the National Treasury Employees Union, Chapter 52, the information requested on August 28, 1992, September 9, 1992 and September 15, 1992, respectively, unsanitized copies of the performance appraisals of employees, which the National Treasury Employees Union, Chapter 52, requested in connection with the processing of certain grievance.

(b) Post at its facilities in the Internal Revenue Service, Austin District Office, where bargaining unit members represented by the National Treasury Employees Union, Chapter 52, 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 the Director, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure 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 of the Federal Labor Relations Authority, Dallas Region, 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, September 23, 1994

________________________
ELI NASH, JR.
Administrative Law Judge

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to furnish, upon request of the National Treasury Employees Union, Chapter 52, the exclusive representative of certain of our employees, copies of all proposal letters, decision letters, letters of reprimand, oral admonishments confirmed in writing, counselling memos, and closed without action or clearance letters issued to bargaining unit and non-bargaining unit employees in the Southwest Region.

WE WILL NOT refuse to furnish, upon request of the National Treasury Employees Union, Chapter 52, relevant and necessary data in a timely manner and/or inform the Union of the existence or non-existence of such data.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request of the National Treasury Employees Union, Chapter 52, the exclusive representative of certain of our employees, furnish it with copies of all proposal letters, decision letters, letters of reprimand, oral admonishments confirmed in writing, counselling memos, and closed without action or clearance letters issued to bargaining unit and non-bargaining unit employees in the Southwest Region.

WE WILL provide, upon request of the National Treasury Employees Union, Chapter 52, relevant and necessary data in a timely manner and/or will inform the Union of the existence or non-existence of such data.

__________________________
(Activity)

Date:____________ By:________________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Dallas Region, 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, and whose telephone number is: (214) 767-4996.




FOOTNOTES:
(If blank, the decision does not have footnotes.)


 Authority's Footnotes Follow:

1. Chair Segal's separate concurring opinion appears at the end of this decision.

2. No exceptions were filed to the Judge's conclusion that the Respondent violated the Statute by failing to furnish information in a timely manner and failing to advise the Union of the nonexistence of other information. Accordingly, we will not address those matters further except for their inclusion in our remedial order and notice to employees.

3. Section 216.7, entitled "Tax Obligations," states that "[e]mployees will timely and properly file all required tax returns." Joint Exhibit 3 at 6.

4. Section 214.5, entitled "False Statements," provides that "[e]mployees will not intentionally make false or misleading verbal or written statements in matters of official interest." Joint Exhibit 3 at 4.

5. The relevant agreement provisions are set forth in the Appendix to this decision.

6. The Privacy Act regulates the disclosure of any information contained in an agency "record" within a "system of records," as those terms are defined in the Privacy Act, that is retrieved by reference to an individual's name or some other personal identifier. 5 U.S.C. § 552a(a)(4), (5). With certain enumerated exceptions, the Privacy Act prohibits the disclosure of personal information about Federal employees without their consent. Two exceptions to this prohibition are relevant here. First, exception (b)(2) of the Privacy Act (the Freedom of Information Act or FOIA exception) provides that the prohibition against disclosure is not applicable if disclosure of the requested information would be required under the Freedom of Information Act, 5 U.S.C. § 552. Exemption (b)(6) of the FOIA (Exemption 6) provides, in turn, that information contained in "personnel and medical files and similar files" may be withheld if disclosure of the information would result in a "clearly unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(6). If such an invasion would result, then disclosure is not required by the FOIA. Second, exception (b)(3) of the Privacy Act, 5 U.S.C. § 552a(b)(3) (the routine use exception), provides for release of information "for a routine use as defined in section (a)(7) . . . ." A "routine use" is defined in section (a)(7) as the use of covered information "for a purpose which is compatible with the purpose for which it was collected[.]"

7. The Judge inadvertently relied on the routine use statement accompanying OPM/GOVT-2, which pertains to "Employee Performance File System Records." We take official notice under section 2429.5 of our Regulations that the requested information is contained in OPM/GOVT-1, which contains "General Personnel Records" and/or OPM/GOVT-3, which includes, among other things, "Records of Adverse Actions."

8. 26 U.S.C. § 6103 governs "Confidentiality and disclosure of returns and return information" Relevant portions are set forth in the Appendix.

9. The Judge stated that the "Respondent's argument does not apply to letters of reprimand, oral admonishments confirmed in writing, counselling memos, closed without action or clearance letters . . . as these documents are also not provided under the parties' contract." Judge's Decision at 8.

10. MSPB denied the Union's request for information, which was made in a motion to compel discovery, on the basis that the motion was untimely filed.

11. Member Wasserman did not participate in IRS, Kansas City and, as it is unnecessary to the disposition of this case, he expresses no opinion as to whether section 7114(b)(4) requires the Authority to take into account an agency's countervailing anti-disclosure interests when determining whether information is "necessary."

12. However, we agree with the Respondent that the Judge erred in stating that letters of reprimand and oral admonishments confirmed in writing are not provided to the Union under the parties' agreement. Noting the language of Article 38, Section 7 (see the Appendix), and absent any argument to the contrary, such matters apparently are provided to the Union.

13. The fact that the Authority has now adopted a particularized need requirement with respect to information requests does not warrant reevaluation of the Authority's position as reflected in NTEU. Without regard to the admissibility of evidence in MSPB proceedings, a union must satisfy the burdens set forth in IRS, Kansas City, which, as explained above, the Union has done in this case.

14. We find no merit to the Respondent's contention that the information with respect to the Smith case is no longer needed as the MSPB has issued a decision on his appeal. Whether a respondent has committed a violation of the Statute by unlawfully refusing to furnish information is predicated on the respondent's obligation to furnish the information at the time of the union's request--not at some later point in time. See U.S. Department of Justice, Office of Justice Programs, 45 FLRA 1022, 1025 (1992).

15. The Respondent correctly notes that this case does not involve performance appraisals. The remedial order will reflect the furnishing of disciplinary information only.


ALJ's Footnotes Follow:

1. A subpoena duces tecum issued in this case for disputed documents. Although Respondent refused to comply with the subpoena it did not file a Petition to Revoke or a Motion to Quash but, basically took the position that unless ordered to comply by a District Court Judge it would not turn over the subpoenaed documents. In view of the above, the General Counsel requested that sanctions be applied against Respondent for its wilful refusal to comply with the subpoena. Specifi-cally, the General Counsel requested that sanctions in terms of adverse inferences that finding the documents requested were relevant and necessary be granted and the Respondent not be allowed to elicit any testimony as to the documents it refused to provide. In all the circumstances, it is my view that it would be proper to draw such adverse inferences find-ing that the requested documents were relevant and necessary. National Oceanic Atmospheric Administration,