U.S. Federal Labor Relations Authority

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17:0485(75)CA - Treasury, IRS, Wichita District, Wichita, KS and NTEU -- 1985 FLRAdec CA

[ v17 p485 ]
The decision of the Authority follows:

 17 FLRA No. 75
 Charging Party
                                            Case No. 7-CA-30514
                            DECISION AND ORDER
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint and recommending
 that the complaint be dismissed.  Thereafter the General Counsel and the
 Charging Party filed exceptions and briefs, and the Respondent filed an
 opposition thereto.
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and Recommended Order.
    IT IS ORDERED that the complaint in Case No. 7-CA-30514 be, and it
 hereby is, dismissed.  
 Issued, Washington, D.C., April 15, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
                                       Case No.: 7-CA-30514
    James E. Dumerer, Esquire
    On Brief:  Gary A. Anderson, Esquire
    For the Respondent
    M. Kathryn Durham, Esquire
    On brief:  William Harness, Esquire
    For the Charging Party
    James J. Gonzales, Esquire
    For the General Counsel
    Before:  WILLIAM B. DEVANEY, Administrative Law Judge
    Administrative Law Judge
                           Statement of the Case
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
 et seq., /1/ and the Final Rules and Regulations issued thereunder, 5
 C.F.R. 2423.1, et seq., concerns whether discipline, oral admonishment,
 for disclosure of taxpayer information to a non-employee union attorney
 in the course of a grievance procedure violated Secs. 16(a)(2) or (1) of
 the Statute, i.e., whether such discipline was imposed as the result of
 the employees' participation in protected activity.  This proceeding was
 initiated by a charge filed on July 28, 1983 (G.C. Exh. 1(a)) which
 alleged violations of Secs. 16(a)(1), (2), (4) and (5) of the Statute;
 by a First Amended Charge, filed on November 7, 1983 (G.C. Exh. 1(b)),
 which alleged violations of Secs. 16(a)(1) and (2) of the Statute;  and
 set the hearing for January 10, 1984.  By Order dated December 7, 1983
 (G.C. Exh. 1(f)), the hearing was rescheduled for January 19, 1984,
 pursuant to which a hearing was duly held on January 19 and 20, 1984, in
 Kansas City, Missouri, before the undersigned.
    All parties were represented at the hearing, were afforded full
 opportunity, to be heard, to examine and cross-examine witnesses, to
 introduce evidence bearing on the issues, and were afforded the
 opportunity to present oral argument which each party waived.  At the
 close of the hearing, February 21, 1984, was fixed as the date for
 mailing post hearing briefs which time was subsequently extended,
 initially, upon motion of the Charging Party, National Treasury
 Employees Union (hereinafter, also, referred to as "NTEU"), with which
 Respondent and General Counsel joined, to March 8, 1984, and later, upon
 motion of Respondent, to March 12, 1984.  Respondent, NTEU and the
 General Counsel each timely mailed an excellent brief, received on or
 before March 14, 1984, which have been carefully considered.  Attached
 to the brief of the General Counsel was a motion to Correct The
 Transcript of Proceedings, to which no opposition was filed.  General
 Counsel's motion to correct the transcript is granted, except as
 follows:  the correction requested on p. 151, line 18, is actually on
 line 17, and is granted;  the correction requested on p. 215, line 17,
 is denied (statement by Mr. Gonzales as it appears in the transcript may
 not be wholly accurate but the requested correction does not achieve any
 clarification);  the correction requested on p. 346, line 23, is denied
 (Transcript appears wholly correct);  the correction requested on p.
 409, line 16, is denied (in context, it appears that "September", not
 "November", was the month stated in Mr. Gonzales' question as the
 transcript shows).  In addition, on my own motion, I make the following
 corrections:  page 61, line 5, "at" is corrected to read "to";  and the
 name of William K. Kasper, which appears in the Index (p. 308), and at
 page 384, line 22, page 385, lines 15, 19, 25, page 386, line 12, page
 387, lines 17 and 20, page 456, lines 15 and 21 and page 460, line 10,
 as "William K. Casper", is corrected to read "Kasper." The transcript is
 hereby corrected as fully set forth in the Appendix hereto.
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings and
    1.  At all times material, NTEU has been certified as the exclusive
 representative of a consolidated unit of all professional and
 nonprofessional employees of the Internal Revenue Service, with certain
 exceptions more fully described in Paragraph 4(a) of the Complaint,
 which unit includes the Wichita District (hereinafter, also referred to
 as "IRS" or "Respondent").  The Kansas City, Kansas, office is a
 post-of-duty within the Wichita District.  At all times material, a
 collective bargaining agreement (G.C. Exh. 2) was in effect covering the
 Wichita District.
    2.  Messrs. Robert B. Bates and Robert E. Moore are senior GS-12
 Revenue Officers (RO) and at all times material were under the immediate
 supervision of Mr. Glenn Schreiber, Collection Group Manager (Tr. 41,
 245, 279-280).  On, or about, October 3, 1983, Mr. Bates transferred to
 the Lenexa, Kansas, post-of-duty (Tr. 41, 280) and ceased to be under
 the supervision of Mr. Schreiber.  At the time of the hearing, Mr. Bates
 had been a RO for 18 1/2 years, a Group Manager from 1974-1977, when his
 Group was eliminated in a reorganization, and a senior RO for 12 1/2
 years (Tr. 41).  Mr. Moore has been a RO for over 16 years and a senior
 RO for 11 years (Tr. 245).  Mr. Bates has served as President of Chapter
 51 since 1979 (Tr. 44).  Mr. Moore has been Kansas City steward for NTEU
 since about 1981 (Tr. 247).  Mr. Schreiber's immediate supervisor is Mr.
 Kenneth N. Portz, Chief, Collection Division, Wichita, Kansas.  Mr.
 Clarence M. King, Jr. is District Director and is also located in
 Wichita.  Mr. King is Mr. Portz' immediate supervisor.
    3.  On November 4, 1982, Mr. Schreiber placed three of Mr. Bates'
 files in Bates' in box with instructions to initial the cases and return
 them to Mr. Schreiber.  Mr. Bates quite correctly interpreted this as
 notice of documentation of his work performance for inclusion in his
 drop file.  Mr. Bates testified that he had never before received
 negative drop file documentation and, after initialing the files, went
 to Mr. Schreiber's office with a copy of the files on November 8, 1982,
 and asked why he had been asked to initial these cases.  Mr. Schreiber
 told Mr. Bates that these were examples of unsatisfactory work
 performance and he had an in-grade coming up three or four months down
 the line and it would be taken into consideration.  Mr. Bates requested
 that union steward Moore come in and try to resolve this problem, to
 which Mr. Schreiber agreed, and Mr. Bates left Mr. Schreiber's office.
 Later that day, Messrs. Moore and Bates met with Mr. Schreiber.  Mr.
 Bates began by stating that he had reached a point with his inventory of
 cases that he was unable to complete his work within the time periods
 that Mr. Schreiber desired;  that his inventory was full of overage
 cases, large dollar cases and high priority other investigations.  Mr.
 Bates stated that since Mr. Schreiber had begun documenting his cases
 and placing them in his drop file, he wanted to come to terms on what
 could be done to prevent this and asked for a list of priorities.  Mr.
 Schreiber stated that if Mr. Bates cut out the horseplay around the
 office, using the telephone to talk about tennis, watering his plants,
 and, in general, used his time more effectively his inventory problem
 would not exist.  He further stated that he had recently reduced the
 number of zip codes assigned to Mr. Bates and, as a result, he would be
 receiving fewer assignments.  Mr. Bates further stated that he needed
 relief from the number of cases he had in order to carry out his union
 duties.  Mr. Moore's memorandum of the meeting (G.C. Exh. 5-B), made
 within an hour after the meeting, and Mr. Moore's testimony (Tr. 272),
 indicates that Mr. Schreiber stated that he ". . . couldn't make
 allowances for that . . . ." (Mr. Bates' activity as Union President /2/
 );  however, the parties all agreed that for the next 60 days Mr. Bates
 would receive no short deadline assignments;  that Mr. Schreiber would
 indicate to Mr. Bates the priority he wanted cases worked;  and that
 during this 60 day period Mr. Schreiber would cease further negative
 documentation of Mr. Bates' work (G.C. Exh. 5-B).  Mr. Schreiber also
 pointed out that a number of cases in Mr. Bates' inventory contained
 payment agreements ". . . that he was just merely holding it and
 artificially inflating his inventory . . . that if he would transfer
 these in, it would reduce his inventory so it could be monitored by
 IDRS." (Integrated Data Retrieval System, i.e., that payment agreements
 would be monitored by computer, rather than manually) (Tr. 392).  Mr.
 Schreiber stated that Mr. Bates agreed to do this within the next 30 to
 60 days.  Mr. Schreiber wrote out an inventory priority, had it typed
 and gave Mr. Bates a copy on November 8, 1982 (G.C. Exh. 4).  Mr.
 Schreiber's "Inventory Priorities" memorandum of November 8, 1982,
 stated, in part, as follows:
          " . . . You agreed to take most of the taxpayers you had on
       payment agreements and transfer them into Office Branch as your
       first priority.  Your second priority would be giving appropriate
       attention to the large dollar cases . . . the third priority
       should be Other Investigations that had a definite deadline, such
       as a statute, discharge or subordination date.  The fourth
       priority would be potential business seizures.
          "You asked for relief in the area of your inventory, and I
       agreed to divert any OI's that have short deadlines for the next
       60 days . . . and during this period, I will abstain from
       documenting any other cases for placing in your drop file.  You
       felt that at the end of this period you could have your inventory
       under reasonable control. . . ." (G.C. Exh. 4).
    4.  Being dissatisfied about the "negative documentation", on
 November 10, 1982, Mr. Bates submitted a written request to Mr. Moore to
 represent him " . . . regarding a potential grievance. . . ." and
 authorized Mr. Moore, ". . . obtain any information you may deem
 necessary. . . ." (G.C. Exh. 6).  On November 10, 1982, Mr. Moore
 prepared a memorandum to Mr. Schreiber entitled, "In Contemplation of a
 Grievance Under the Agreement" in which he requested the following
          "All Form 5450 Collection Daily Time Utilization Reports
       submitted by the GS-12 Revenue Officers in Group III beginning
       with the time reporting period which began in May 1982.
          "All Form 795 Daily Report of Collection Activity submitted by
       the GS-12 Revenue Officer in Group III beginning with the time
       reporting period which began in May 1982.
          "Since this information is located in the Kansas City office,
       please provide it to me by Monday, November 15, 1982." (G.C. Exh.
 Mr. Moore gave Mr. Schreiber his memorandum requesting data in Mr.
 Schreiber's office and a discussion ensued.  Mr. Moore stated that Mr.
 Schreiber went over it, " . . . to review exactly what it was that I
 wanted.  He made the statement . . . 'Well, you're wanting all of the
 Grade 12 dailies?  Do you want Neil Gregarson's daily?'" (Tr. 276-277).
 Mr. Moore said, " . . . no, we didn't need Neil Gregarson's dailies"
 (Mr. Gregarson was on extended sick leave and retired in 1982), and Mr.
 Moore stated that Mr. Schreiber then said,
          "' . . . so really all you're needing is four revenue officers'
       dailies?  You and Bates have your own, right?' I said, 'Yeah,
       we've got our own.'
          "He says, 'Really, the only thing you need from me would be Jim
       Gaunce and Ken Kelley's dailies.' I said that would be fine.
          "Q.  And did he say when the other two revenue officers'
       dailies would be furnished to you?
          "A.  He wouldn't give me an answer.  He said the group clerks
       were very busy." (Tr. 277).
 Mr. Moore stated that it was group clerks', " . . . responsibility to
 pull those files and make copies of them." (Tr. 278).  Mr. Moore further
 stated that,
          " . . . I walked away from there thinking, 'Well, I am going to
       use my dailies and Bob Bates' dailies, and the only thing that I
       am going to get from this information request is the dailies from
       Ken Kelley and Jim Gaunce, the other other (sic) two Grade 12's.'"
       (Tr. 279).
 Mr. Moore stated that he told Mr. Bates, "'We're just going to use our
 own', something of that nature.  We weren't getting the dailies that we
 had requested." (Tr. 280).
    Mr. Schreiber did not recall the particulars of his discussion with
 Mr. Moore on November 10, but testified that, after making a xerox copy
 for his file, he sent the original to Mr. Merle Simpson, Labor Relations
 Specialist, and a copy to Mr. Portz.  Mr. Schreiber stated that all
 information requests must be forwarded to the data management
 specialist, Mr. Simpson;  that he was not "authorized to release
 information directly to the union." (Tr. 392);  and that Mr. Moore" . .
 . knew that I could not release that." (Tr. 441).  The data requested by
 Mr. Moore was, in fact, supplied /3/ on November 24, 1982 (Form 5450,
 Collection Daily Time Utilization Reports and Form 795, Daily Report of
 Collection Activity, for GS-12 RO in Group III, as requested by Mr.
 Moore, were supplied," . . . void of any tax information or revenue
 officer identification.  They have been numerically coded to identify
 the revenue officer if this becomes necessary." (G.C. Exh. 16A,
 memorandum of Portz to Simpson).
    5.  At some point, Mr. W. William Harness, NTEU National Counsel,
 decided that he and Ms. Durham, the NTEU staff attorney assigned
 responsibility for the Wichita District, should come to Kansas City on
 Monday, November 15, on the Bates matter. Ms. Durham notified Mr. Moore,
 apparently on Friday, November 12 (Thursday, November 11, having been a
 holiday), that they would be in Kansas City on Monday.  Mr. Moore made
 it clear that when he had his discussion with Mr. Schreiber on November
 10 they (Bates and Moore) did not know that the NTEU attorneys would
 become involved on the scene (Tr. 326).  Also, apparently, on November
 12, Mr. Moore made arrangements with Mr. Schreiber to use the Conference
 Room on November 15;  but he stated he didn't " . . . recall any big
 conversation in regard to the Conference Room" (Tr. 280) and Mr.
 Schreiber was not asked about it.  Mr. Moore stated that he couldn't
 recall whether he mentioned to Mr. Schreiber that the NTEU attorneys
 were coming but thought perhaps Bates had (Tr. 279);  Mr. Bates said he
 did not tell Mr. Schreiber but thought Mr. Moore had told Mr. Schreiber
 (Tr. 111);  and Mr. Moore stated he didn't recall, discussing this
 upcoming meeting with the attorneys being present with Mr. Schreiber any
 time prior to November 15 (Tr. 325).  Mr. Schreiber testified that he
 did not know that Harness or Durham would be in Kansas City on November
 15 prior to November 15 (Tr. 385) nor did he have any discussion as to
 any meeting with NTEU attorneys prior to November 15 (Tr. 384).  Having
 considered the testimony carefully, I fully credit Mr. Schreiber's
 testimony that he had not been advised of any meeting with NTEU
 attorneys prior to November 15 and that he did not know that either Mr.
 Harness or Ms. Durham was to be in Kansas City on November 15 until Mr.
 Bates introduced Mr. Harness and Ms. Durham to him on the morning of
 November 15 at which time Mr. Harness and Ms. Durham asked to meet with
 him later in the day.
    6.  Mr. Harness and Ms. Durham arrived in Kansas City on Sunday
 afternoon or evening November 14, 1982, and Mr. Bates met with them in
 Mr. Harness' hotel room (Tr. 118).  Mr. Bates had his 795s with him and,
 at the request of Mr. Harness and Ms. Durham, gave them his 795s and
 left the 795s with the attorneys (Tr. 239-240).  On the following day,
 Monday, November 15, 1982, after introducing Mr. Harness and Ms. Durham
 to Mr. Schreiber, Messrs. Bates, Moore and Harness and Ms. Durham went
 to the Conference Room and there Mr. Moore, at Mr. Harness' request,
 gave Mr. Harness his 795s to examine (Tr. 150, 282, 347).  The RO Daily
 Reports contained taxpayer identification and it is conceded that no
 effort was made by the ROs to sanitize their reports or to mask in any
 manner the taxpayer identification;  however, Mr. Harness asserts that
 he had no interest in taxpayer identification and that he looked only at
 the statistical information at the bottom of each report to get an idea
 of how Bates' inventory, productivity, and case assignments compared
 with Moore's.  Using the 795s, Mr. Harness did make comparative
 statistical analyses.
    7.  At about 10:30 a.m. on November 15, 1982, pursuant to their
 request earlier that day, the parties met in the Conference Room.
 Present for Respondent were Mr. Schreiber and Mr. William K. Kasper,
 Examination Group Manager (Tr. 456).  Mr. Bates was present with his
 representatives:  Mr. Harness, Mr. Moore and Ms. Durham.  Mr. Harness
 opened the meeting with strongly worded critical statements concerning
 Mr. Schreiber, including profanity (Tr. 435, 457-458), and a threat that
 " . . . we'll get you for this, Glenn" (Tr. 458) or " . . . Schreiber,
 we're going to get you . . . ." (Tr. 434), together with agitated finger
 pointing and fist shaking (Tr. 434-435).  Mr. Harness' conduct resulted
 in Mr. Schreiber's getting up to leave the meeting;  but Mr. Kasper told
 Mr. Harness that he " . . . thought he could conduct the meeting without
 that type of language or carrying on, and Glenn stayed in the meeting."
 (Tr. 458;  see, also, Tr. 355).  Mr. Bates' grievance (G.C. Exh. 9) was
 submitted during the meeting by Mr. Harness together with a request for
 information, dated November 12, 1982, and signed by Ms. Durham (G.C.
 Exh. 8), which requested some of the same information previously
 requested by Mr. Moore on November 10 (G.C. Exh. 7-A) but in the main
 sought additional data.  /4/ Mr. Harness' critical statements of Mr.
 Schreiber evoked the response from Mr. Schreiber that, "'You,' pointing
 to Harness, 'you and the union are going on the offensive' . . . 'I am
 rejecting the 60-day memo (G.C. Exh. 4) that I issued and I am going to
 start documenting Bates' lunch hours, his coffee breaks and everything
 in general.'" /5/ (Tr. 284, 356;  G.C. Exhs. 11 and 12).  Subsequently,
 Mr. Harness quoted case inventory statistics, including numbers of cases
 assigned, cases closed, and number of taxpayers.  When Mr. Harness began
 quoting those statistics, Mr. Schreiber asked Mr. Harness where he had
 got that information and Mr. Moore replied, "From the Dailies" (Tr.
 285).  Mr. Schreiber then asked Mr. Moore, "Did you give him the
 dailies?" and Mr. Moore responded that he had.  (Tr. 285).  Mr.
 Schreiber then asked Mr. Moore, "Did you sanitize the dailies?" and Mr.
 Moore said "no." (Tr. 285).  Mr. Moore stated that Mr. Schreiber " . . .
 pulled out his pencil and made a note of it and proceeded with the
 meeting." (Tr. 285).
    8.  Mr. Schreiber testified that, "Mr. Kasper had observed the same
 scene, and he knew that there had been an illegal disclosure made . . .
 because the NTEU attorneys are not members of IRS.  So at the end of the
 meeting at 12:15 I went to my room . . . and called the Inspection
 Service . . . And I talked with Mr. Dave Lewis, and I told him what had
 happened.  Mr. Lewis indicated . . . that it was a disclosure and that
 he was going to talk to his supervisor about it and decide how to
 proceed.  And an hour or two later . . . he called back and said he had
 discussed the situation with the supervisor and they were in agreement
 that an illegal disclosure had been made, because the NTEU attorneys
 were not members of Internal Revenue Service, and said he was going to
 run it by the United States Attorney's Office." /6/ (Tr. 388).
    9.  On November 16, 1982, Mr. Schreiber called Mr. Moore to his
 office /7/ and Mr. Moore stated that Mr. Schreiber asked,"' . . . Did
 you give your dailies to the attorneys?  I said yes.  He said, 'Did you
 sanitize them?' I said no. . . ." (Tr. 286).  On November 19, 1982, Mr.
 Schreiber wrote a memorandum to Mr. Portz, Chief, Collection Division,
 Wichita District about the disclosure made by Revenue Officer Moore
 (G.C. Exh. 25-B) and on November 30, 1982, after his interview of Mr.
 Bates, wrote a memorandum to "Personnel-- Attention:  Merle Simpson"
 concerning the disclosure by Revenue Officer Bates (G.C. Exh. 25-C).
 Following Mr. Schreiber's memorandum to Mr. Portz and/or Mr. Schreiber's
 memorandum to Personnel, both Personnel and Mr. Portz sought the advice
 of the disclosure officer, Mr. James Manuszak who advised that the ROs
 were without authority to release the dailies to the NTEU attorneys,
 that " . . . the Code . . . clearly puts the determination of to and how
 much in the hands of management" (Tr. 493) and " . . . that information
 was not released according to the statute." (Tr. 494).
    10.  On December 3, 1983, Mr. Portz issued notices of proposed
 disciplinary suspension of three working days to Mr. Bates and to Mr.
 Moore for the unauthorized disclosure of official and confidential tax
 information to NTEU attorneys on November 15, 1982 (G.C. Exhs. 17 and
    11.  On December 7, 1982, Mr. Bates contacted Mr. Portz and scheduled
 an oral reply hearing for himself and for Mr. Moore on January 5, 1983
 (Res. Exh. 6).
    12.  On December 21, 1982, NTEU attorney Durham called Mr. Portz to
 discuss the pending actions against Messrs. Bates and Moore and
 expressed her desire to settle the matter and to avoid suspension of the
 employees.  Mr. Portz agreed to consider her arguments and stated that
 he would call her the following day.  Mr. Portz made a file memorandum
 of his conversation with Ms. Durham (Res. Exh. 7).  Mr. Portz called Ms.
 Durham on December 22, reviewed his memorandum of their conversation of
 the preceding day and Ms. Durham agreed that it correctly stated the
 essence of their conversation (Res. Exh. 8).  Mr. Portz testified that
 he told Ms. Durham,
          " . . . that I had considered all the points that were made and
       that in view of the fact that there was a reply by telephone that
       I would consider this to be an oral reply or in lieu of an oral
       reply, and that I would reduce the proposed suspension of three
       days down to oral admonishment, which is the least disciplinary
       action given.
          "And that I would issue a letter to that effect.  And there
       were two requests made, as I recall.  One was I not issue a letter
       prior to December 27th, and the other was that a sentence be
       included in the letter, and that was that a copy of that letter
       would not be placed in the personnel file, official personnel
       file, or any other official file." (Tr. 464;  Res. Exh. 8).
    13.  On December 27, 1982, Mr. Portz issued a letter to Mr. Bates
 (G.C. Exh. 26) and to Mr. Moore (G.C. Exh. 27) in which he notified each
 of them that the proposed three day suspension was reduced to an oral
 admonishment and that " . . . A copy of this letter will not be placed
 in your Official Personnel Folder or your Supervisory drop file. . . ."
 (G.C. Exhs. 26 and 27).
    14.  On January 4, 1983, Ms. Durham called Mr. Portz and complained
 that the letters did not, in her opinion, conform to the agreement she
 had reached with Mr. Portz on December 22.  NTEU now alleged that the
 agreement was that the matter be dropped altogether rather than
 settlement by oral admonishment.  There were repeated exchanges both
 written and by telephone between Mr. Portz, the employees, and Ms.
 Durham over the next two months and, finally, on March 23, 1983, Mr.
 Portz sent the employees, Messrs. Bates and Moore, a letter in which, to
 settle the dispute, he offered to reinstate the letters of proposed
 suspension and afford the employees the opportunity for an oral reply
 hearing which they had been demanding (G.C. Exh. 33).  The employees
 agreed;  on April 5, 1983, Mr. Portz again issued letters of proposed
 suspension (G.C. Exhs. 34 and 35);  and an oral reply hearing was held
 by Mr. Portz on April 29, 1983, at which the employees were represented
 by Mr. Harness.  On May 26, 1983, Mr. Portz issued his decision.  Again,
 he decided that the employees would each receive an oral admonishment
 (G.C. Exhs. 38 and 39).
    There is no dispute that the disclosure of taxpayer information to
 NTEU attorneys by RO Bates and Moore occurred in the course of
 preparation for a grievance proceeding.  From this, General Counsel
 asserts, in part, that:
          "In this case, the very conduct which Portz cites for
       disciplinary purposes itself ("You made an unauthorized disclosure
       of official and confidential tax information. . . .  On or about
       November 15, 1982, you provided unsanitized copies of your revenue
       officer dailies (Form 795) to NTEU Attorneys. . . ." G.C. Exhs. 17
       and 18) is protected activity under the Statute.  To be sure,
       Portz charged that there was an unauthorized disclosure " . . . to
       NTEU attorneys who were visiting the Kansas City, Kansas Office."
       (footnote omitted) However, the evidence is uncontroverted that
       these 2 NTEU attorneys and Moore, at all material times, were
       agents of the exclusive bargaining representative, were preparing
       a grievance on behalf of a unit employee, and therefore were
       engaged in activity protected under the Statute. . . .  Their
       (NTEU attorneys') examination of Bates' and Moore's Dailies was an
       integral component of the Union's representational function. . .
       ." (General Counsel Brief, pp. 28-29)
 Similarly, NTEU asserts, in part, that:
          " . . . Bates and Moore were Union officials at all times
       relevant to this proceeding, that they were engaged in
       representational activity when they showed their Dailies to Union
       attorneys Harness and Durham, and that the discipline was
       motivated by the disclosure of the Dailies to Union
       representatives. . . ." (NTEU Brief, p. 13).
    I fully agree, of course, that protected activity flowing from
 exclusive representation by a labor organization includes the right to
 file and process grievances, United States Department of Treasury,
 Bureau of Alcohol, Tobacco and Firearms, Chicago, Illinois, 3 FLRA No.
 116, 3 FLRA 724 (1980);  but the fact that the right to file and process
 a grievance is a protected right under the Statute begs the question.
 Engagement in the protected right of filing and processing a grievance
 neither obviates nor alters the confidentiality of taxpayer information
 mandated by the Internal Revenue Code, 26 U.S.C. 6103, and if the
 disclosure of taxpayer information to NTEU attorneys by Revenue Officers
 Bates and Moore was in violation of the Internal Revenue Code and
 applicable Regulations, it was no less violative of the Code and
 Regulations because it occurred in the process of a grievance procedure.
  Stated otherwise, the umbrella of protected activity is not so broad as
 to encompass every aspect of conduct ancillary to that protected
 activity.  /8/
    NTEU was entitled to data necessary and relevant to carry out its
 representational obligation in the processing of Mr. Bates' grievance,
 Veterans Administration Regional Office, Denver, Colorado, 7 FLRA No.
 100, 7 FLRA 629, 637 (1982);  Bureau of Alcohol, Tobacco and Firearms,
 National Office and Western Region, San Francisco, California, 8 FLRA
 No. 108, 8 FLRA 547 (1982), and the record plainly shows that, inter
 alia, the Dailies (Form 795), requested by Mr. Moore on November 10,
 1982 (G.C. Exh. 7-A), were both necessary and relevant to the processing
 of Mr. Bates' grievance.  Indeed, the information requested by Mr. Moore
 on November 10, including the Dailies, and by Ms. Durham on November 15,
 1982 (G.C. Exh. 8-- dated November 12 but not submitted until November
 15, 1982), was furnished by Respondent on November 24, 1982 (G.C. Exh.
 16-A).  This case does not involve a request for data, pursuant to Sec.
 14(b)(4) of the Statute, which was denied.  To the contrary, both the
 Internal Revenue Code, 26 U.S.C. 6103(a)(4), and Respondent's
 Regulations, 26 C.F.R. 301.9000-1 (see, also, Federal Register, Vol. 46
 No. 48, Thursday, March 12, 1981), provide the manner for disclosure of
 data involving taxpayer information;  requests for such information were
 made;  and Respondent supplied the requested information, so there is no
 issue concerning relevancy or necessity of the information requested.
    Rather, the issue is whether the disclosure of taxpayer information
 by Revenue Officers Bates and Moore to NTEU attorneys Harness and Durham
 on, or before, November 15, 1982, constituted an unlawful disclosure.
 There is no dispute whatever that Messrs. Bates and Moore, at the
 request of the attorneys, did give Mr. Harness and Ms. Durham their
 Dailies (Forms 795).  Indeed, Mr. Bates supplied his Dailies on November
 14 and left them overnight with Mr. Harness in his hotel room and Mr.
 Moore supplied his Dailies to the attorneys on November 15, 1982.  Nor
 is there any dispute that the Dailies contained taxpayer identification
 or that the Revenue Officer's copies of Form 795 are subject to the same
 degree of security as other taxpayer information in the possession of
 the Internal Revenue Service (Tr. 240-243, 266-267, 327-328, 336-337).
 Respondent asserts that,
          " . . . the exclusive procedure through which the forms 795 . .
       .  /9/ could be shown to the union attorneys is that provided by
       Sec. 6103(a)(4) (26 U.S.C. 6103(1)(4)):
          "The Secretary may disclose returns and return information--
          "(A) Upon written request--
          "(i) to an employee or former employee of the Department of the
       Treasury, or to the duly authorized legal representative of such
       employee or former employee, who is or may be a party to any
       administrative action or proceeding affecting the personnel rights
       of such employee;  or
                                .  .  .  .
          "solely for use in the action or proceeding, or in preparation
       for the action or proceeding, but only to the extent that the
       Secretary determines that such returns or return information is or
       may be relevant and material to the action or proceeding;  or
          "(B) to officers and employees of the Department of the
       Treasury for use in any action or proceeding described in
       subparagraph (A), or in preparation for such action or proceeding,
       to the extent necessary to advance or protect the interests of the
       United States.
          "It is manifest and admitted that Bates and Moore both failed
       to comply with this statutory requirement before releasing the
       forms.  They thus violated the Statute:
          "Returns and return information shall be confidential, and
       except as authorized by this title--
          "(1) no officer or employee of the United States,
                                .  .  .  .
          "shall disclose any return or return information obtained by
       him in any manner in connection with his services as such an
       officer or an employee or otherwise or under the provisions of
       this section." (26 U.S.C. 6103(a)) (Res. Brief, pp. 12-13)
       (Emphasis in original).
    General Counsel and NTEU urge several grounds as to why the
 disclosure of return information by RO Bates and Moore to the NTEU
 attorneys was not in violation of the Statute, 26 U.S.C. 6103, or of the
 Regulations, 26 C.F.R. 301, 9000-1 (G.C. Exh. 41), Internal Revenue
 Manual (IRM) 0735.1, Handbook of Employee Responsibilities and Conduct,
 Sec. 229.1 (G.C. Exh. 45), in substance as follows:
    First, because the disclosure occurred in the course of preparation
 for a grievance proceeding the disclosure was part of protected activity
 and, therefore, was not an unauthorized disclosure.  For reasons set
 forth above, I reject this assertion.
    Second, use by grievant Bates and by steward Moore of their Dailies
 to prepare for and determine the merits of a grievance constituted
 protected activity;  management can not dictate who will represent the
 grievant or the Union;  and management can not lawfully withhold from
 one Union representative data which is available to another for the
 purpose of documenting a grievance (General Counsel's Brief p. 29);  or,
 as stated in essence by NTEU, Mr. Schreiber told Moore that Moore and
 Bates had copies of their own Dailies and they should use them;  Union
 attorneys representing Bates in a personnel matter are entitled to the
 return information;  and Respondent's attempt to create a distinction
 between disclosure to Union representatives who happen to be IRS
 employees and disclosure to Union attorneys who are not employees of IRS
 is without merit (NTEU's Brief, pp. 14-17).
    The short answer is that the Internal Revenue Code does, indeed, make
 a distinction concerning disclosure of taxpayer information to
 employees. Thus, subsection (h) provides as follows:
          "(h) Disclosure to Federal offices and employees for purposes
       of tax administration, etc.--
          "(1) Department of the Treasury-- Returns and return
       information shall, without written request, be open to inspection
       by or disclosure to officers and employees of the Department of
       the Treasury whose official duties require such inspection or
       disclosure for tax administration purposes." (26 U.S.C.A.
 Tax Administration is defined as follows:
          "Tax administration-- The term 'tax administration'--
          "(A) means--
          "(i) the administration, management, conduct, direction, and
       supervision of the execution and application of the internal
       revenue laws or related statutes (or equivalent laws and statutes
       of a State) and tax conventions to which the United States is a
       party, and
          (ii) the development and formulation of Federal tax policy
       relating to existing or proposed internal revenue laws, related
       statutes, and tax conventions, and
          "(B) includes assessment, collection, enforcement, litigation,
       publication, and statistical gathering functions under such laws,
       statutes, or conventions." (26 U.S.C.A. 6103(b)(4))
 See, United States v. Mangan, 575 F.2d 32, 39-40 (2d Cir. 1978), where
 Judge Friendly held, in part, that,
          " . . . the definition of 'tax administration' in Sec.
       6103(b)(4) is so sweeping as to compel rejection of a restrictive
       interpretation.  Clearly this case (fraud by an IRS Agent)
       involved 'the administration, management, (and) conduct . . . of
       the execution and application of the internal revenue laws' and
       'assessment, collection, enforcement (and) litigation . . .
       functions under such laws'" (575 F.2d at 40).
 The distinction is further apparent in 26 C.F.R. 301.9000-1(c) which
 specifically states, in part, that,
          " . . . The disclosure, including the production of internal
       revenue records or information to any person outside the Treasury
       Department . . . shall be made only with the prior approval of the
       Commissioner. . . . ." (26 C.F.R. 301.9000-1(c)).
    The use of the Dailies by Messrs. Moore and Bates was not questioned;
  Respondent concedes that " . . . IRS employee stewards had been allowed
 to utilize tax return information to process grievances within the
 Service. . . ." (Respondent's Brief, p. 8);  and this case does not
 involve any allegation of unlawful disclosure of taxpayer information as
 the result of the utilization or access to taxpayer information by IRS
 employees.  Consequently, except to note that the Internal Revenue Code
 does make a distinction between employees of the Department of the
 Treasury and non-employees, it is unnecessary to decide, and would
 wholly inappropriate to decide as an issue that was neither raised nor
 developed on the record, the parameters of disclosure of taxpayer
 information among employees to process grievances within the Service.
 Steward Moore was free to use his Dailies and Mr. Bates' Dailies and he
 could have taken the "management information" (Tr. 503-504) from the
 Dailies, i.e. as distinguished from confidential taxpayer information,
 and supplied such "management information" to the NTEU attorneys, or
 Messrs. Moore and Bates could have sanitized their Dailies by blocking
 out confidential taxpayer information before delivering their Dailies to
 the NTEU attorneys without disclosing confidential taxpayer information;
  but neither was free to disclose confidential taxpayer information to
 the NTEU attorneys.  Rather, disclosure of returns and return
 information may be made to non-employees of the Department of the
 Treasury only by the Secretary, or his designee, pursuant to Sec.
 6103(1)(4) of the Internal Revenue Code.  /140/
    Third, that Mr. Schreiber authorized the utilization of the Dailies
 by the NTEU attorneys because he " . . . approved the use of those
 Dailies for representational purposes" (NTEU's Brief, p. 16);  that " .
 . . Schreiber was aware prior to the November 15 grievance meeting that
 Harness and Durham would be reviewing the Dailies. . . .";  and that, "
 . . . Schreiber placed no restrictions on the use Bates and Moore could
 make of their Dailies" (NTEU's Brief, pp. 17-18);  or as General Counsel
 asserts, " . . . Schreiber had assented to steward Moore's
 representational use of his and Bates' Dailies without restrictions. . .
 ." (General Counsel's Brief, p. 29).
    The record shows, as Mr. Moore testified and as I have found, that on
 November 10, 1982, Mr. Schreiber did state to Mr. Moore that "You and
 Bates have your own (dailies), right?";  that Mr. Moore said "Yeah,
 we've got our own" and that Mr. Schreiber then said, "Really, the only
 thing you need from me would be Jim Gaunce and Ken Kelley's dailies" to
 which Mr. Moore responded " . . . that would be fine" (Tr. 277).  The
 record is clear that Mr. Moore understood that he was going to use his
 dailies and Mr. Bates' dailies (Tr. 279);  but Mr. Schreiber's comments
 concerned only Mr. Moore's use of his and Mr. Bates' dailies as an
 employee.  Indeed, Mr. Moore stated that when he had his discussion with
 Mr. Schreiber on November 10, that neither he nor Mr. Bates knew that
 the NTEU attorneys would become involved on the scene (Tr. 326).
 Further, as I have found, Mr. Schreiber did not know prior to November
 15, 1982, when Mr. Bates introduced him to Mr. Harness and to Ms.
 Durham, that either Harness or Durham was coming to Kansas City.  While
 it is true that sometime after his meeting with Mr. Schreiber on
 November 10, apparently on November 12, as November 11 was a holiday,
 Mr. Moore made arrangements with Mr. Schreiber to use the conference
 room on November 15;  but the record does not show that Mr. Moore
 mentioned to Mr. Schreiber that NTEU attorneys would be present.  To the
 contrary, Mr. Moore testified that he didn't " . . . recall any big
 conversation in regard to the Conference Room" (Tr. 280) and further
 stated that he didn't recall discussing the upcoming meeting with the
 attorneys being present with Mr. Schreiber any time prior to November 15
 (Tr. 325).  In view of Mr. Moore's November 10 memorandum, Mr. Moore's
 subsequent request to use the Conference Room on November 15 would have
 appeared wholly consistent with Mr. Moore's handling of the contemplated
 grievance.  Even if, contrary to my finding, Mr. Schreiber had been
 informed in advance that NTEU attorneys were coming to Kansas City,
 there is nothing in the record that shows, or even suggests, that use of
 RO dailies by anyone other than IRS employees, and specifically Messrs.
 Moore and Bates, was ever discussed or considered by Mr. Schreiber or by
 Mr. Moore in their discussion on November 10, 1982, and the record shows
 no subsequent discussion about the matter prior to November 15 except,
 possibly, that, as Mr. Moore testified, he " . . . did follow up several
 times on when we could expect the other two RO dailies" and that Mr.
 Schreiber said " . . . they would get to it as soon as they could" (Tr.
 280-281) and it is conceivable that Mr. Moore could have made such a
 "follow up" on November 12;  but if there were any "follow up" on
 November 12, the "discussion" was only as Mr.Moore indicated.
 Consequently, I reject the assertion of NTEU and the General Counsel
 that Mr. Schreiber's assent to steward Moore's representational use of
 his and Bates' dailies either directly or by implication authorized or
 permitted the use of the dailies for representational purposes by any
 person other than Mr. Moore, and certainly neither authorized nor
 condoned the use of the dailies by anyone outside the Department of the
 Treasury.  Moreover, Mr. Schreiber testified that all information
 requests must be forwarded to the data management specialists;  that he
 (Schreiber) was not authorized to release information directly to the
 union (Tr. 392);  and that Mr. Moore knew that he (Schreiber) could not
 release the data Mr. Moore had requested (Tr. 441).  As the procedures
 are spelled out in the Internal Revenue Regulations, the knowledge of
 Mr. Moore of the procedures, attributed to Mr. Moore by Mr. Schreiber,
 which was not denied by Mr. Moore, is both reasonable and unavoidable.
 Mr. Bates' knowledge of the Regulations must also be inferred not only
 because of his long service and general familiarity with IRS Regulations
 but because of his service as a supervisor and as an instructor (Tr.
 42-43, 236).
    Fourth, " . . . the Agency should be precluded from imposing
 discipline on Bates and Moore because the Agency . . . disclosed to
 Durham and Harness unsanitized, confidential tax return information.
 The information disclosed was significantly more confidential than the
 Dailies Moore and Bates showed Harness." (NTEU's Brief, p. 20) (See,
 also, General Counsel's Brief, pp. 17-18).  While the dailies requested
 by Mr. Moore on November 10, 1982, were supplied on November 24, 1982, "
 . . . void of any tax information or revenue officer identification. . .
 ." (G.C. Exh. 16A, memorandum of Portz to Simpson), it is true that in
 response to Ms. Durham's request (G.C. Exh. 8), Respondent did supply
 various material in unsanitized form, /11/ including an unsanitized
 Delinquency Investigation Inventory Profile, unsanitized copies of the
 three case files entered into Mr. Bates' drop file, etc.  Nevertheless,
 this argument begs the question.  The fact that Respondent could, and
 did, disclose taxpayer information, pursuant to written request, it
 deemed necessary to resolve the issues involved in Mr. Bates' grievance,
 does not mean that ROs Moore and Bates could disclose taxpayer
 information to non-Treasury Department employees, namely, NTEU attorneys
 Harness and Durham.  In my opinion they could not.
    Fifth, "This disclosure code of conduct training, which Bates himself
 also conducted as a supervisor and senior RO, did not identify any
 procedures or policies to be followed which might limit access to a
 Daily by an NTEU representative, regardless of whether that
 representative was an IRS employee or not" (G.C.'s Brief, p. 25);  "The
 two Union officials testified that they were aware of no training course
 material or Service policy memorandum prohibiting them from showing
 their Dailies to a non-employee Union representative." (NTEU's Brief, p.
 21).  It is plain that nothing in the Internal Revenue Code or
 Regulations permits access to a Daily by a non-IRS employee.  It is not
 disputed that a RO's Dailies containing taxpayer identification is
 subject to the same rules as to confidentiality as other return
 information and, while Sec. 6103(h) of the Internal Revenue Code permits
 disclosure to employees of the Treasury Department for tax
 administration purposes, Sec. 6103(1)(4) is both clear and unambiguous
 that only the Secretary, or his designee, may disclose returns and
 return information for purposes other than tax administration, upon
 written request-- "to an employee . . . or to the duly authorized legal
 representative of such employee. . . ." (26 U.S.C.A. 6103(1)(4)(A)(i)).
 Moreover, in a 1976 arbitration decision involving the Des Moines
 District and NTEU, where documents containing confidential taxpayer
 information had been sent to Mr. Robert M. Tobias, then Chief Counsel of
 NTEU, the arbitrator specifically stated, /12/
          "The arbitrator finds little in the Union's argument to justify
       the revelation of confidential information concerning a taxpayer
       except when the taxpayer in question is himself the employee
       facing discharge or other disciplinary action.  The means for
       sharing with NTEU the pertinent information concerning other
       taxpayers by deleting confidential data should put the
       grievant-employee or his/her attorney at no disadvantage.
          "Accordingly, the arbitrator does not believe IRS employees
       have a right to violate disclosure rules and regulations on
       grounds of attorney-client privileges." (In the matter of
       Arbitration between:  Internal Revenue Service, Des Moines
       District and National Treasury Employees Union, Chapter 4, at p. 8
       (December 15, 1976) (A. Lee Belcher, Arbitrator).  (G.C. Exh. 46).
    Whether either Mr. Bates or Mr. Moore was aware of this arbitration
 decision, Mr. Harness certainly was (Tr. 371-372), and when he requested
 that RO Bates and Moore give him their dailies he did so with knowledge
 that IRS considered release of confidential taxpayer information by
 employees to NTEU attorneys constituted an unlawful disclosure and that
 arbitrator Belcher had concluded that such disclosure was not protected
 on the grounds of attorney-client privilege.
    Similarly, in a 1980 arbitration decision involving the Austin
 District and NTEU, where the employee had disclosed confidential tax
 information to Congressmen and to the United States Civil Service
 Commission, the arbitrator upheld the three-day suspension and denied
 the grievance.  The arbitrator considered, distinguished and rejected
 the applicability of the Des Moines decision, supra, for the reason
          " . . . the Arbitrator there (Belcher, Des Moines District,
       supra) specifically held that release of the information involved
       was not improper . . . because 'all such revealed information had
       lost its confidential nature' due to extensive media coverage and
       court records.  That being the case, he held that Management's
       objective of reminding the grievants and other employees in the
       District of the rules concerning confidential information could
       have been effectively achieved through individual discussions,
       conferences, etc.  Here, on the other hand, a clear-cut violation
       of the Rule has been established." (In the Matter of Arbitration
       between:  Internal Revenue Service, Austin District and National
       Treasury Employees Union, Chapter 52, at p. 12) (May 12, 1980)
       (Raymond Goetz, Arbitrator) (Res. Exh. 4).
 As this arbitration decision issued during Mr. Bates' incumbency as
 President of Chapter 51, there is a greater probability that he would
 have received notice from NTEU of this decision;  but whether he, or Mr.
 Moore, had such notice, again, certainly, the knowledge of attorneys
 Harness and Durham of this decision can be inferred.
    Accordingly, as the Internal Code and Regulations issued thereunder
 are quite specific concerning confidentiality of taxpayer information
 and make no provision for disclosure of confidential information to
 non-employees except in the manner set forth in 26 U.S.C.A. 6106(1)(4),
 and the record not only fails to show any basis for a belief that such
 disclosure to NTEU attorneys was permissible, but, to the contrary,
 affirmatively shows that two arbitrators had held that disclosure of
 confidential taxpayer information by employees to non-employees was
 improper, I find no merit in the assertion of General Counsel and of
 NTEU.  The proscription of the Code to employees is "Thou shalt not
 disclose confidential taxpayer information" and the Regulations provide,
 inter alia, that,
          "Any . . . employee who receives a request for internal revenue
       records or information, the disposition of which is not covered by
       a procedure established by the Commissioner, shall promptly
       communicate the contents of the request to the Commissioner
       through the appropriate supervisor. . . .  Such . . . employee
       shall await instructions from the Commissioner concerning the
       response to the request. . . ." (26 C.F.R. 301.9000-1(d)(2), G.C.
       Exh. 41).
 It is not asserted that the request of the NTEU attorneys for Bates'
 and/or Moore's dailies was covered by any procedure established by the
 Commissioner other than that provided by Sec. 6103(1)(4) of the Internal
 Revenue Code and implemented by Regulation, see 26 C.F.R. 301.9000-1(c)
 (G.C. Exh. 41), Regional Commissioner Memorandum 12-80, Rev. 1, Par. E
 (G.C. Exh. 42), and, while the record does not disclose that
 Respondent's training addressed nondisclosure to non-employee
 representatives, it is abundantly clear that its training fully
 addressed nondisclosure to any person, except as provided by the
 Internal Revenue Code.  See, IR Manual 229.1, G.C. Exh. 45.  Nothing in
 the Internal Revenue Code or the Regulations permits an employee to
 disclose confidential taxpayer to a non-employee representative and,
 while a record may be disclosed to unions recognized as exclusive
 bargaining representatives, Federal Register, Vol. 46, No. 48, Thursday,
 March 12, 1981, at p. 1665, such disclosure is governed by 26 U.S.C.A.
 6103(1)(4).  Indeed, "legal representative" is specifically addressed by
 Sec. 6103(1)(4) and having prohibited disclosure in the broadest of
 terms (6103(a)) and having provided for disclosure to a "duly authorized
 legal representative", in the broadest of terms, only pursuant to Sec.
 6103(1)(4)(A), Respondent had made it clear that its proscription on
 disclosure of confidential tax information by employees applied without
 limitation to persons, including "legal representatives", except as
 provided by the Internal Revenue Code and the Internal Revenue Code
 makes no exception whatever for union representatives;  but, to the
 contrary, refers to representative only in the broad connotation of
 "duly authorized legal representative" to whom disclosure may be made
 solely pursuant to Sec. 6103(1)(4)(A).  Although I am aware that Mr.
 Harness testified that he had previously used taxpayer information, he
 made it clear that, "The files . . . were furnished by the Internal
 Revenue Service" (Tr. 354) and while he stated that there were forms
 that had also been prepared by an employee and " . . . we used during
 the course of the hearing. . . ." (Tr. 354) and management was aware of
 this (Tr. 354), the record does not show whether such forms contained
 taxpayer information nor the circumstances involved in their use;
 however, as noted above, the two arbitration decisions referred to left
 no doubt that employee disclosure of confidential taxpayer information
 to a non-employee was proscribed.  Nor, of course, did the arbitration
 decisions admit to any doubt as to the position of IRS concerning such
 disclosure of tax information by employees not in accordance with the
 Internal Revenue Code.
    Sixth, that attorneys Harness and Durham " . . . did not see the
 taxpayer information . . . " because Harness was not " . . . interested
 in that information" (NTEU's Brief, p. 19).  NTEU's assertion that
 "Bates provided the documents to Harness who reviewed them for the first
 time on Monday morning November 15 . . . ." (NTEU's Brief, p. 19) is
 simply not true.  Mr. Bates testified that he gave Harness and Durham
 his dailies, at their request, at the hotel on Sunday, November 14, and
 left them with the attorneys (Tr. 239-240) and Mr. Moore testified that
 he gave the attorneys his dailies, at their request, on the morning of
 November 15.  In each instance, the complete forms 795s were furnished
 to the attorney and Mr. Moore testified that he told Mr. Schreiber that
 he had not sanitized the dailies (Tr. 285).  As previously noted, if the
 795s had been sanitized or if Messrs. Bates or Moore had furnished only
 the "management" information, I would have no hesitation in finding that
 there was no improper disclosure of taxpayer information;  but that is
 not the case.  The dailies, Forms 795s, were furnished complete;  they
 had not been sanitized;  and whether attorneys Harness or Durham
 utilized, or were interested in, the taxpayer identification contained
 thereon, there is no possible doubt that the confidential taxpayer
 information contained was, indeed, given to the attorneys and that this
 constituted a disclosure of confidential taxpayer information.
    For all of the foregoing reasons, I conclude that Messrs. Bates and
 Moore made an unlawful disclosure of confidential taxpayer information
 by furnishing their Form 795s (dailies) to NTEU attorneys.  I agree
 fully with Respondent that "It is manifest and admitted that Bates and
 Moore both failed to comply with this statutory requirement (6103(1)(4))
 before releasing the forms.  They thus violated the Statute. . . . "
 (Respondent's Brief, p. 13).
    General Counsel (G.C.'s Brief, p. 34) and NTEU (NTEU's Brief, p. 22)
 further assert that union animus was, in any event, the reason for Mr.
 Schreiber lodging the charge of unlawful disclosure against Messrs.
 Bates and Moore.  Thus, General Counsel asserts that, "This matter would
 never have reached Manuszak, Simpson, or Portz were it not for the
 discriminatory animus of Schreiber" (G.C.'s Brief, p. 34).  I do not
    Although the record shows that Mr. Harness opened the meeting of
 November 15 on an acrimonious note with strong criticism of Mr.
 Schreiber laced with profanity, threats, finger pointing and fist
 shaking which did evoke Mr. Schreiber's response that, as the Union was
 going on the offensive, he was rejecting the 60 day memo that he had
 issued and that he was going to start documenting Bates' lunch hours,
 his coffee breaks and everything in general, the record shows that the
 sole motivation for Mr. Schreiber's inquiry was Mr. Harness' use of
 statistics which appeared to have come from IRS documents and Mr. Moore
 responded that it had come from the dailies;  that he had given them to
 Mr. Harness;  and that he (Moore) had not sanitized them.  At that
 point, Mr. Moore stated that Mr. Schreiber made a note of it and
 proceeded with the meeting.  Having learned of what appeared to him to
 have been an unlawful disclosure of confidential taxpayer information,
 Mr. Schreiber was obligated to report it (See, for example, IR Manual
 217.21, G.C. Exh. 45), and immediately after the meeting he did so by
 calling the Inspection Service.  The Inspection Service agreed that
 there had been an illegal disclosure.  All that followed flowed
 inescapably from the discovery of alleged disclosure of taxpayer
 information.  No action, by Mr. Schreiber or by Mr. Portz, was brought
 about or motivated in any manner by union animus.  Quite to the
 contrary, Mr. Portz, rather than harboring animosity, reduced the
 proposed three-day suspension to an oral admonishment.
    While I find the lodging of charges of unlawful disclosure was not
 motivated in any manner by union animus, nor was discipline invoked
 because of protected activity, if, contrary to my finding, union animus
 were a factor, the record is clear and unequivocal that the position of
 IRS is, and consistently has been, that disclosure of confidential
 taxpayer information by employees to anyone outside the Treasury
 Department is unlawful except in strict compliance with Sec. 6103, and
 once the disclosure by Messrs. Bates and Moore was discovered Respondent
 would have taken disciplinary action in the absence of protected
 activity.  Internal Revenue Service, Washington, D.C., 6 FLRA No. 23, 6
 FLRA 96 (1981);  United States Department of Interior, Office of the
 Secretary, U.S. Government Comptroller for the Virgin Islands, 11 FLRA
 No. 91, 11 FLRA 521 (1983);  Veterans Administration Medical Center,
 Buffalo, New York, 13 FLRA No. 46, 13 FLRA 283 (1983).  Respondent's
 consistent position is well illustrated by the two arbitration decisions
 referred to above.  In addition, of course, there is the mandate of the
 Internal Revenue Code, and Regulations, including, inter alia, Regional
 Commissioner memorandum 12-80, Rev. 1 (G.C. Exh. 42).
    Because the imposition of discipline was lawful, i.e., was motivated
 wholly by discovery of an unlawful disclosure of confidential taxpayer
 information to non-employee attorneys, the fact that Mr. Moore had made
 an unlawful disclosure was a factor which Respondent properly considered
 in determining whether to recommend Mr. Moore for a high quality step
 increase and I find nothing impermissible in Mr. Schreiber's statement
 to Mr. Moore, as Mr. Moore testified, that,
          ". . . what you did was very serious.  In fact, . . . you could
       have been prosecuted.  The only reason you weren't prosecuted was
       that it lacked sufficient jury appeal . . . because of your poor
       judgment in turning those dailies over to an attorney, I was
       getting ready to turn you in for a high quality but I can't do it
       now . . . I can't submit the high quality . . . because of your
       poor judgment on this.  Portz wouldn't sign it, the Director
       wouldn't sign it.  I can't.  I can't do it." (Tr. 290) (See, also,
       Mr. Schreiber's like testimony at Tr. 390-391).
    Accordingly, having found that Respondent did not reprimand employees
 Bates and Moore because they engaged in activity protected by the
 Statute and that Respondent did not thereby violate Secs. 16(a)(1) or
 (2) of the Statute, it is recommended that the Authority adopt the
    The Complaint in Case No. 7-CA-30514 be, and the same is hereby,
                                       WILLIAM B. DEVANEY
                                       Administrative Law Judge
 Dated:  August 10, 1984
         Washington, DC
 --------------- FOOTNOTES$ ---------------
    /1/ For convenience of reference, sections of the Statute hereinafter
 are, also, referred to without inclusion of the initial "71" of the
 Statute reference, e.g., Section 7116(a)(2) will be referred to, simply,
 as "Sec. 16(a)(2)".
    /2/ On December 9, 1982, at the first step meeting on Mr. Bates'
 subsequently filed grievance, Respondent stated, " . . . orally that
 Bates was entitled to recognition of his union duties. . . ." (G.C. Exh.
 22) and on December 9, 1982, " . . . A total of 25 Taxpayer cases were
 divided up between the other three Grade 12's (myself included) and one
 Grade 11.  Bates' inventory was reduced to a total Taxpayer Caseload
 below the other three Grade 12's.  Bates feels comfortable with the
 adjusted caseload. . . ." (G.C. Exh. 22).
    /3/ Notwithstanding Mr. Moore's assertion that, "We weren't getting
 the dailies that we had requested," there is nothing in the record to
 support such assertion, except in the sense that they were not going to
 receive them by November 15, 1982, the date Mr. Moore had asked that
 they be provided.  As noted, all the data requested by Mr. Moore was
 provided on November 24, 1982.
    /4/ This request noted that:
       " . . . NTEU understands that many of the documents will be
       sanitized to protect the privacy of the taxpayer and the Revenue
       Officer. . . ." (G.C. Exh. 8).
    /5/ Mr. Harness met with District Director King on November 16, 1982,
 and by letter dated November 23, 1982 (G.C. Exh. 15-A), Mr. King stated,
 in part, as follows:
          " . . . I have determined that the comments made by Mr.
       Schreiber during your November 15, 1982, meeting were made in its
       heat of emotions after being subjected to intimidating comments;
       physical abuse, i.e., the raising of your voice and the manner in
       which you pointed your finger, and in general an
       other-than-business-like discussion laced with profanities . . . I
       have . . . received an agreement from Mr. Schreiber to adhere to
       the '60 day moratorium' he and Mr. Bates had worked out earlier. .
       . ." (G.C. Exh. 15-A).
    /6/ Mr. Lewis later that day called and stated that, " . . . the
 United States Attorney did not feel the case had jury appeal and that
 they would decline to prosecute it and that he was returning the
 information to Mr. King . . . to be handled administratively." (Tr.
    /7/ Mr. Bates was in Wichita on November 16 (G.C. Exh. 15-B);  but
 Mr. Schreiber interviewed Mr. Bates on November 29, 1982, and asked him
 if he had provided his dailies to NTEU attorneys and Mr. Bates said he
 had;  that they were not sanitized;  that the dailies contained taxpayer
 names;  and that the dailies covered six months, " . . . May through
 October, 1982." (G.C. Exh. 25-C).
    /8/ Department of Transportation, Federal Aviation Administration,
 Las Vegas Control Tower, Las Vegas, Nevada, A/SLMR No. 796, 7 A/SLMR 150
 (1977);  United States Forces Korea/Eighth United States Army, 11 FLRA
 No. 79, 11 FLRA 434, 436 n. 3 (1983);  Harry S. Truman Memorial Veterans
 Hospital, Columbia, Missouri, 14 FLRA No 20, 14 FLRA 103 (1984);
 Department of Defense, Army and Air Force Exchange Service, Fort Eustis,
 Fort Eustis, Virginia and National Association of Government Employees,
 Local R4-114, Case No. 4-CA-30433 (OALJ 84-85, July 5, 1984).
    /9/ Respondent asserts in its Brief, "sanitized or not" (Res. Brief,
 p. 12);  however, for the purpose of this proceeding, I do not agree.
 In his proposed notices of disciplinary suspension (G.C. Exhs. 17 and
 18), Mr. Portz stated, "Specification 1:  On or about November 15, 1982,
 you provided unsanitized copies . . ." and the testimony of Mr.
 Schreiber clearly shows that he believed they had made an unauthorized
 disclosure of confidential taxpayer information to the attorneys because
 they had not masked or sanitized their 795s.  Accordingly, I shall
 consider Respondent's assertion only as it applies to this case, namely,
 to unsanitized forms 795.
    /10/ I am aware that subsection (1) of 6103 is entitled, "Disclosure
 of return and return information for purposes other than tax
 administration" and that subparagraph (4) is entitled, "Disclosure of
 returns and return information for use in personnel or claimant
 representative matters" (26 U.S.C.A. 6103(1) and (1)(4)).  Obviously, as
 the Code is structured, information which was available, pursuant to
 subsection (h), to employees of the Department of the Treasury for tax
 administration purposes may cease to be for tax administration purposes
 and, therefore, obtainable, even by an employee, only pursuant to
 6103(1)(4).  As noted above, I express no opinion concerning the
 parameters of 6103(h).
    The obvious distinction is that information disclosed pursuant to
 6103(h) is specifically limited to employees of the Department of the
 Treasury for tax administration purposes, while information disclosed by
 the Secretary pursuant to 6103(1)(4) is neither limited to tax
 administration purposes nor to employees but is fully available to the
 "duly authorized legal representative." (See, also, Federal Register,
 Vol. 46, No. 48, page 1665, March 12, 1981).
    /11/ Note footnote 12 at p. 18 of General Counsel's Brief which quite
 correctly states that G.C. Exhibits 16(B), (C) and (D) were "sanitized"
 at the hearing at the suggestion of the undersigned;  but were
 unsanitized when received by NTEU.
    /12/ In light of mitigating circumstances, the arbitrator found,
 however, that three day suspensions were too harsh and set them aside.
 Nevertheless, the arbitrator stated:  " . . . In the case before the
 arbitrator, the Service properly sought to remind the grievants, and all
 other district employees through the resulting communications, of the
 rules and regulations concerning confidential information. . . ." (id.,
 at p. 9).