51:0768(68)CA - - INS, Border Patrol, Del Rio, TX and AFGE, National Border Patrol Council, Local 2366, AFL-CIO - - 1996 FLRAdec CA - - v51 p768



[ v51 p768 ]
51:0768(68)CA
The decision of the Authority follows:


51 FLRA No. 68

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE

UNITED STATES BORDER PATROL

DEL RIO, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL

LOCAL 2366, AFL-CIO

(Charging Party)

6-CA-10866

6-CA-10867

_____

DECISION AND ORDER

January 31, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.(1)

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge (Judge). The General Counsel filed an opposition to the Respondent's exceptions. In response to an Authority order directing the parties to file supplemental statements regarding the application to this case of recent court decisions, the Respondent, General Counsel and Charging Party filed briefs.

The consolidated complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to negotiate with the Union regarding the impact and implementation of the policy used to determine employee assignments to certain units. It further alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to comply with section 7114(b)(4) when it refused to furnish documents the Union requested in connection with those assignments. The Judge found that the Respondent violated the Statute as alleged.

Upon consideration of the Judge's decision and the entire record, we conclude that the Judge erred in finding a violation of the Statute based on the Respondent's refusal to negotiate with the Union, and we dismiss the complaint as to that allegation. As discussed below, we also conclude that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to comply with section 7114(b)(4), as alleged.

II. Judge's Decision

The facts are fully set forth in the Judge's decision and are summarized here. The American Federation of Government Employees, National Border Patrol Council, AFL-CIO (NBPC) is the certified exclusive representative of a nationwide consolidated unit of employees at the United States Immigration and Naturalization Service (INS), United States Border Patrol, including employees employed by the Respondent at Del Rio, Texas. The Charging Party, Local 2366, is an agent of NBPC for the purpose of representing unit employees in the subdivision of the Border Patrol known as the Del Rio Sector. INS and NBPC were parties to a collective bargaining agreement that had expired at the time of the relevant events.

For at least two years prior to the hearing, the Respondent operated six different units, including three specialized units--a War on Drugs unit, a Brush unit, and a Plain Clothes unit. All of the employees in the Del Rio facility are equally qualified for assignment to these units by grade. Assignment to the specialized units is considered desirable and is also career enhancing because of the opportunity to gain specialized experience for one full year or longer. As found by the Judge, an employee must request assignment to one of the specialized units by memorandum.

Having received a number of complaints about the process by which the Respondent was selecting employees for the specialized units, the Union believed that the selection procedures were tainted with favoritism and were affecting the morale of the employees. As a result, the Union requested, by letter to the Chief Patrol Agent of the Del Rio Sector, "mid-term bargaining in regards to the current policy of assigning Agents to [the three units] . . . since the current policy has had an adverse impact on training, career advancement, favortism [sic] and morale." G.C. Exh. 2. In the same letter, the Union requested copies of all memoranda submitted by agents requesting assignment to the three specialized units to "determine if the complaints by the employees are true and correct" and to represent the employees "in any rightful charges against the Agency." Id.

The Respondent denied the request for bargaining, claiming that it concerned management's right to assign work and was not negotiable under the parties' expired negotiated bargaining agreement. The Respondent also denied the request for information, claiming that the matter was "moot" because it had denied the bargaining request. Judge's Decision at 5.

At the hearing, the Union's representative stated that the Union had requested bargaining only over the procedures being used to assign agents to the units, and had requested copies of the memoranda to determine if there was a difference in assignments based on the content of the memoranda. He asserted that the memoranda requesting assignments were necessary "to more or less compare between agents [who] submitted memos . . . and the agents [who] never submitted memorand[a], but were assigned to these units[]" and stated that they would also be helpful in formulating proposals. Transcript (Tr.) at 31-32.

The Judge determined that, under Authority precedent, the Respondent had a statutory obligation to engage in mid-term bargaining, at the Union's request, over the impact of the Respondent's assignment policy and that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to do so. The Judge also found that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to provide memoranda that the Union needed to prepare for negotiations and to evaluate and process potential grievances regarding the assignment policy.

III. Positions of the Parties

A. Respondent's Exceptions and Supplemental Brief

The Respondent argues that it has neither a statutory nor a contractual duty to bargain below the level of exclusive recognition over assignments to specialized units because, at the time of the Union's request to bargain, the agreement had expired and the parties had not negotiated such a right at the level of recognition. The Respondent claims that there is no basis on which to conclude that Local 2366 was seeking to bargain on behalf of NBPC and asserts that even if Local 2366 had the authority to bargain, the expired contract and a memorandum of understanding provided for bargaining at the sector level only over management-initiated changes.

With regard to the request for information, the Respondent preliminarily contends that the Union's request did not contain an assertion that the data was necessary to prepare for bargaining, and that the complaint in this regard was not amended at the hearing to conform to evidence developed at the hearing. Therefore, the Respondent asserts, it was improper for the Judge to consider the Union's need for the memoranda in connection with bargaining as a basis for finding that the data was necessary within the meaning of section 7114(b)(4). The Respondent also asserts that, in any event, it had no duty to provide the data on this basis because it had no obligation to bargain below the level of exclusive recognition. The Respondent argues that the Union "did not present its request for data in connection with any particularized grievance or specific grievant[,]" and that there is "no indication as to how the requested memoranda would shed light on any question regarding reassignment policies."(2) Exceptions at 35 (emphasis in original). Moreover, the Respondent maintains that there is no indication that the employees wanted the Union to know the contents of their "personal communiques . . . ." Id. at 36.

In its supplemental brief, the Respondent reiterates the positions stated in its initial brief regarding the Union's lack of a particularized need and states that it has a countervailing nondisclosure interest in protecting the privacy interests of employees who submitted memoranda.

B. General Counsel's Opposition and Supplemental Brief

The General Counsel relies on the Judge's undisputed findings that the parties' collective bargaining agreement had expired and that they had continued to adhere to the terms of the expired agreement, including those that governed the structure for bargaining. The General Counsel claims that the Judge was correct in finding that the exclusive representative had delegated bargaining authority to Local 2366 and that the Union had not waived its right to bargain about assignments to specialized units, which the General Counsel contends is a negotiable matter and not covered by the parties' agreement.

With regard to the information request, the General Counsel contends that "the evidence supports the Judge's conclusions that the information would be helpful to the Union in both investigating and determining whether to file a grievance over the 'complaints by the employees' . . . and to prepare proposals for negotiations over the impact of the Respondent's current selection policy." Opposition at 4. The General Counsel submits that all of the arguments raised in the exceptions are without merit.

In its supplemental brief, the General Counsel argues that the particularized need test set forth in recent court decisions should not apply to this case and that the Respondent established no basis for its failure to disclose the requested information.

C. Charging Party's Brief

Although the Charging Party argues that the particularized need standard should not apply to information sought under section 7114(b)(4)(B), it asserts that its original request clearly established that the information is necessary under any test, and that the Respondent has failed to establish any countervailing interest against disclosure.

IV. Analysis and Conclusions

A. The Respondent's Refusal to Bargain With Local 2366 Did Not Violate the Statute

From its inception, the parties have viewed this case as involving mid-term bargaining. The Charging Party requested "mid-term bargaining in regards to the current policy of assigning Agents" to the specialized units at the Del Rio station and the charge specifically alleges a mid-term bargaining violation. G.C. Exhs. 2; 1(a).(3) Throughout the hearing, as well as in their briefs to the Judge, the parties referred repeatedly to mid-term bargaining and based their arguments on precedent involving mid-term bargaining issues. Although the Judge recognized the undisputed fact that the collective bargaining agreement between the parties had expired, his entire analysis and the precedent he applied relied on the parties' position that the case involved "mid-term bargaining." Therefore, it is clear that the case was litigated from beginning to end solely as a mid-term bargaining case.

It is fundamental to the definition of "mid-term" bargaining that it take place during the term of an existing collective bargaining agreement. See Internal Revenue Service, 29 FLRA 162, 166 (1987). As the Judge found, however, although the parties had continued to adhere to the terms of the expired agreement, there was in fact no existing collective bargaining agreement at the time of the Union's bargaining request. Provisions resulting from bargaining over mandatory subjects survive the expiration of a collective bargaining agreement, "in the absence of either an express agreement to the contrary or the modification of those conditions of employment in a manner consistent with the Statute." Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington and Federal Aviation Administration, Washington, D.C., 14 FLRA 644, 647 (1984). However, the continuation of individual provisions, by operation of law, to govern aspects of the parties' relationship during a period following expiration of a term agreement, has never been held to constitute a collective bargaining agreement. Accordingly, the Judge erred in relying on precedent involving an agency's obligation to engage in mid-term bargaining. No other theory of violation was litigated or is apparent.(4) Consequently, we dismiss the portion of the complaint alleging that the Respondent violated the Statute by refusing to bargain with Local 2366 over the assignments to specialized units.

B. The Requested Information Is Necessary Within the Meaning of Section 7114(b)(4)

Recently, the Authority issued 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), which set forth the analytical framework for determining whether information is "necessary" under section 7114(b)(4) of the Statute. We held that a union making a request under that section must establish a particularized need for the requested 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. We 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.'" Id. 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, we stated that when it denies an information request, the agency must assert and establish any countervailing anti-disclosure interests. The agency will not satisfy its burden by making conclusory or bare assertions.

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.

1. The Union Sufficiently Articulated and Established Its Need for the Information

In its letter seeking copies of all memoranda requesting assignment to specialized units, the Union gave two specific reasons for its request: to determine if complaints by employees about the current policy of assigning agents are true and correct; and to represent the employees "in any rightful charges against the Agency." G.C. Exh. 2. At the hearing, the General Counsel also asserted the Union's need to formulate bargaining proposals concerning the Respondent's assignment policy.

With regard to the first two reasons, we conclude that the Union has both articulated and established a sufficient need for the memoranda.(5) In its letter requesting the information, the Union clearly stated its concern that the Respondent's assignment policy had an adverse effect on the employees' conditions of employment and morale and specifically mentioned its belief that the Respondent had exercised favoritism in making the assignments. Moreover, the Union indicated that it might be necessary to take action on behalf of the unit employees to correct the perceived problems.

Undisputed testimony at the hearing established, and the Judge specifically found, that in order to be considered for any of the specialized units, an agent was required to submit a memorandum. Tr. at 31; Judge's Decision at 4. Despite this policy, however, the testimony establishes both an inconsistency and a disparity in the selection process. First, some employees were selected for these units without submitting a memorandum. Tr. at 41; Exceptions at 5 n.2; 35.(6) Second, the memoranda submitted ranged from one-sentence requests to those of a page or two describing the background of the agent making the request. Tr. at 31-32, 38. As the Union representative testified, the Union needs the memoranda that were submitted to analyze the process through which employees were selected. Based on this information, the Union can decide whether or not to file a grievance or a charge.(7) In this regard, information may be found necessary within the meaning of section 7114(b)(4)(B) when it is required to determine whether to file a grievance. See, for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA 298, 308 (1991). Accordingly, we conclude that the Union sufficiently articulated and established its need for the requested memoranda for the purposes of determining the validity of employee complaints and representing employees in any charges that it might decide to file based on those complaints.

2. Respondent's Asserted Countervailing Interest and Balancing of Respective Interests

In support of its interest in withholding the information, the Respondent points solely to the absence of evidence that the employees who wrote the memoranda desired that their contents be released to the Union. However, the Respondent does not further explain, and it is not apparent, why the employees who wrote the memoranda have a privacy interest in them. The record discloses only that the memoranda are requests for assignment to a particular unit, and the Respondent has not shown any actual or potential privacy interests that would be implicated in releasing that information. The record also establishes that at the time it denied the Union's request, the Respondent stated only that the request for information was moot; the Respondent did not indicate, either at that time or during the hearing, that it was concerned about any privacy interests. For these reasons, we find that the Respondent has not met its burden of establishing an interest in nondisclosure. IRS, Kansas City, 50 FLRA at 670 (an agency may not satisfy its burden of establishing countervailing anti-disclosure interests by making conclusory or bare assertions).

The Respondent has not established countervailing interests that outweigh the need established by the Union for the memoranda. Accordingly, we conclude that the need established by the Union for the requested memoranda outweighs the countervailing interest asserted by the Respondent. As it is undisputed that all the other statutory requirements for disclosure of the requested information have been met, we conclude that the Respondent violated the Statute, as alleged, by its refusal to furnish the requested memoranda.

V. Order

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the American Federation of Government Employees, National Border Patrol Council, Local 2366, the agent of the exclusive representative of certain of its employees, copies of memoranda submitted by employees requesting consideration for assignment to the Brush, War on Drugs, and Plain Clothes units, requested by the Union on February 13, 1991.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Furnish the American Federation of Government Employees, National Border Patrol Council, Local 2366, the agent of the exclusive representative of certain of its employees, copies of memoranda submitted by employees requesting consideration for assignment to the Brush, War on Drugs, and Plain Clothes units, requested by the Union on February 13, 1991.

(b) Post at its facilities in the Del Rio Sector 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 Chief Patrol Agent, Del Rio Sector, 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.

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

IT IS FURTHER ORDERED that the allegation of the complaint relating to a refusal to bargain by the Respondent is dismissed.

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 NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to furnish the American Federation of Government Employees, National Border Patrol Council, Local 2366, the agent of the exclusive representative of certain of our employees, copies of memoranda submitted by employees requesting consideration for assignment to the Brush, War on Drugs, and Plain Clothes units, requested by the Union on February 13, 1991.

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 the American Federation of Government Employees, National Border Patrol Council, Local 2366, the agent of the exclusive representative of certain of our employees, copies of memoranda submitted by employees requesting consideration for assignment to the Brush, War on Drugs, and Plain Clothes units, requested by the Union on February 13, 1991.

__________________________
(Activity)

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 any of its provisions, they may communicate directly with the Regional Director, Dallas Regional Office, Federal Labor Relation Authority, whose address is: Federal Office Building, 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, and whose telephone number is: (214) 767-4996.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424

UNITED STATES IMMIGRATION
AND NATURALIZATION SERVICE
UNITED STATES BORDER PATROL,
DEL RIO, TEXAS
Respondent

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
NATIONAL BORDER PATROL
COUNCIL, LOCAL 2366, AFL-CIO
Charging Party

Case Nos. 6-CA-10866
6-CA-10867

Pat Beechem
Bruce Fuller
Representatives of the Respondent

Luis E. Solis
Representative of the Charging Party

Joseph T. Merli
Counsel for the General Counsel, FLRA

Before: GARVIN LEE OLIVER
Administrative Law Judge

DECISION

Statement of the Case

The consolidated unfair labor practice complaint alleges that Respondent violated section 7116 (a) (l) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7116(a)(1) and (5), by refusing to negotiate with the Charging Party regarding the impact of the policy used by Respondent to determine which employees are assigned to the Brush, War on Drugs, and Plain Clothes units at the Del Rio Station. The complaint also alleges that Respondent violated section 7116 (a) (l), (5), and (8) of the Statute by refusing to furnish the Charging Party information pursuant to section 7114 (b) (4) consisting of all memorandums submitted by employees requesting consideration for such assignments.

Respondent's answer denied the commission of any unfair labor practice.

A hearing was held in Del Rio, Texas. The Respondent, Charging Party, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed helpful briefs. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

The American Federation of Government Employees (AFGE), National Border Patrol Council, AFL-CIO (NBPC) is the certified exclusive representative of a nationwide consolidated unit of employees appropriate for collective bargaining at the United States Immigration and Naturalization Service (INS), United States Border Patrol, including employees located at Del Rio, Texas. The Charging Party, Local 2366, is an agent of NBPC for the purpose of representing unit employees in the Del Rio Sector. (General Counsel's Ex. 2, 3; Tr. 27, 62-63). Local 2366 President Luis Solis is the representative designated by the Union to deal with management in the Sector. (Tr. 27, 62-63).

For at least the past two years the Respondent's Del Rio station has operated about six different units which include a War On Drugs (WOD) unit, a Brush unit, and a Plain Clothes unit in addition to three regular rotating units. (Tr. 11).

The three regular rotating units all rotate through three different shifts every month. The three shifts are 8:00 a.m. to 4:00 p.m., 4:00 p.m. to 12:00 p.m., and 12:00 p.m. to 8:00 a.m. There are approximately 18 employees assigned to each rotating unit. The employees assigned to the standard rotating units wear a uniform on a daily basis which includes a uniform shirt and trousers, handgun side arm, belt and holster, walkie-talkie radio, flashlight, and handcuffs. The employees assigned to these units perform a variety of duties including line watch, river watch, traffic check, freight train check, and sensor check. (Tr. 12-13, 19).

The WOD unit works from Monday to Friday, from 7:00 a.m. to 3:00 p.m. The three employees normally assigned to this unit remain in the unit for a year without rotating. The unit consists of GS-9 and GS-11 Border Patrol Agents. The agents assigned to the WOD unit normally wear their uniform on a daily basis. These employees perform duties associated with the Respondent's drug awareness program, e.g., giving presentations to students in local public schools. (Tr. 16-17, 20, 26).

The Brush unit works seven days a week from 6:00 a.m. to 2:00 p.m. The employees assigned to the Brush unit do not rotate to other shifts, but remain in the Brush unit for as long as three years. There are approximately 8 to 10 GS-9 and/or GS-11 Border Patrol Agents in the Brush unit. These employees wear their uniform on a daily basis and perform such duties as maintaining paths called "drags," checking the drags for signs of pedestrian traffic or "sign cutting," and tracking aliens through the brush, i.e., open, undeveloped terrain. (Tr. 14-15, 19, 26).

The Plain Clothes unit works seven days a week from 6:00 p.m. to 2:00 a.m. The employees in the unit do not rotate to other shifts, but remain in the unit for a year or longer. There are 6 GS-9 and/or GS-11 Border Patrol Agents in this unit. These employees do not wear their uniform on a daily basis. The Plain Clothes unit is an anti-smuggling, i.e., alien smuggling, unit. Therefore, the Border Patrol Agents assigned to the Plain Clothes unit perform their assigned duties at night, such as checking highways and motels for suspicious vehicles and aliens. (Tr. 17-18, 26).

Assignment to one or more of the specialized units, i.e., Brush, WOD, and Plain Clothes units, is desirable for a number of reasons, depending on the unit. For example, no uniform is required in the Plains Clothes unit, weekends are off in the WOD unit, and there is no monthly rotation in all three specialized units. Assignment to one of these specialized units is also career enhancing since the employee gains the benefit of experience in a special field for at least one full year or longer. (Tr. 20-22, 36).

Any employee who wants to be assigned to either the Brush, WOD, or the Plain clothes unit must submit a memorandum to the Patrol Agent in Charge (PAIC) requesting to be considered for a particular unit. There are approximately 80 to 84 employees working at the Del Rio station. It is possible that each employee could submit three separate memoranda, one for each specialized unit. The memoranda are maintained by the PAIC. (Tr. 23, 30, 31).

All of the employees working at the Del Rio station are equally qualified for assignment to the Brush, WOD, and Plain Clothes units, as far as the employees' grades are concerned. That is, the Brush, WOD, and Plain Clothes units are staffed with GS-9 Border Patrol Agents and/or GS-11 Senior Border Patrol Agents. All the Border Patrol Agents at the Del Rio station are either GS-9 or GS-11 agents. (Tr. 25, 26).

Sometime prior to February 13, 1991, a number of employees approached the Union complaining about the policy or process used by management to select which employees were to be assigned to the specialized units. The Union and these employees believed that the selection procedures were tainted with favoritism and were effecting the morale of the employees. (Tr. 23).

Based upon these concerns, the Union made a written request for mid-term bargaining, dated February 13, 1991, asking to negotiate the current policy followed by Respondent when assigning employees to the units. The Union's letter stated that the current procedures were having an adverse impact on training, career advancement, and morale. (Tr. 24, GC EX 2). The Union also requested that it be furnished, pursuant to the Statute, copies of all memoranda submitted by employees requesting assignment to the Brush, WOD, and Plain Clothes units "so that the Union can determine if the complaints by the employees are true and correct and to represen[t] the employees in any rightful charges against the Agency. The mid-term bargaining will be conducted to the fullest exten[t] permitted by law." (Tr. 29-32, GC EX 2).

Luis Solis, President, Local 2366, wanted to bargain mid-term over the procedures Respondent was using to assign certain agents to the units. He was not requesting to bargain over who would be assigned, how many units would be assigned, on the number, types, or grades of employees to be assigned. (Tr. 26, 28-29). He requested the information to compare employees who had submitted memoranda against the employees who had not, but who nevertheless were assigned to a specialized unit. He also wanted to compare the nature of the memoranda against assignments to see if there was a difference in assignments between those employees who wrote only one sentence and those who wrote one or two pages setting forth their relevant experience. He believed this information would be helpful in formulating proposals. (Tr. 31-32).

Respondent did not request a clarification of the Union's request. (Tr. 29). By letter dated February 27, 1991, the Respondent, through William B. Gibson, Chief Patrol Agent, denied the Union's request for mid-term bargaining claiming that the Union's request concerned management's right to assign work, a matter already contained in the parties' contract under Article 4 C. Gibson also denied the Union's request for information as "moot" since the request for mid-term bargaining had been denied. (GC EX 3, R EX 1).

Respondent admits that copies of all memorandums submitted by employees in the bargaining unit requesting consideration for assignment to the Brush, War on Drugs, and Plain Clothes units at the Del Rio station are normally maintained by Respondent in the regular course of business, are reasonably available, do not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining, and are not prohibited from disclosure by law. Respondent denies that the information is necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. (GC EX. 1(f), 1(h)).

INS and NBPC are parties to a collective bargaining agreement which was executed on September 30, l976 and expired in late l978 or early l979. Its terms have continued to be followed by the parties. Article 3 E, F, and G provide as follows:

E. Representatives of the Agency and the Union at the sector or district level shall have the opportunity to meet monthly or at any time at the request of either party for the settlement of local problems and for the improvement of communications, understanding, and cooperation between the Agency and constituent units of the Union. Any understanding reached at these meetings shall be recorded, signed by the parties involved, and copies forwarded to the local president or designated representative and the Regional Commissioner. Such understanding will remain in effect until amended or rescinded by mutual agreement.

F. The Union will notify the Agency of the names of designated representatives of each Region, District and Sector and any changes as they occur.

G. The parties recognize that from time to time during the life of the agreement, the need will arise requiring the change of existing Agency regulations covering personnel policies, practices and/or working conditions not covered by this agreement. The Agency shall present the changes it wishes to make to existing rules, regulations and existing practices to the Union in writing. The Union will present its views (which must be responsive to either the proposed change or the impact of the proposed change) to the Agency within 30 calendar days of receipt of the proposed change. Reasonable extensions to this time limit may be granted on request. Changes in national policy shall be referred to the President of each national council if such changes impact on either of the National Councils.

If disagreement exists, either the Agency or the Union may serve notice on the other of its interest to enter into formal negotiations on the subject matter. Such negotiations must begin within 39 calendar days of the date the Agency receives notice from the Union that it does not agree with proposed changes.

Agreed upon changes will be appended to this agreement and will be subject to Article 38.

Article 4 C provides, as follows:

C. Management officials of the agency retain the right, in accordance with applicable laws and regulations--(1) to direct employees of the agency; (2) to hire, promote, transfer assign, and retain employees in positions within the agency, and to suspend, demote, discharge, or take other disciplinary action against employees; (3) to relieve employees from duties because of lack of work or for other legitimate reasons; (4) to maintain the efficiency of the Government operations entrusted to them; (5) to determine the methods, means, and personnel by which such operations are to be conducted; and (6) to take whatever actions may be necessary to carry out the mission of the agency in situations of emergency.

Article 34 provides as follows:

ARTICLE 34 - Negotiation of Supplemental Agreements

A. AFGE locals designed by the Union shall be allowed to negotiate a supplemental agreement covering all eligible employees in the Sector or District. It is understood there will be only one supplemental agreement per Sector or District.

B. It is understood by the parties to this Agreement that this is the master Agreement and that only a supplemental Agreement may be negotiated at the local level. The master agreement is governing and controlling and nothing may be included in the Local supplemental Agreement which is in conflict with this Agreement. The rights clauses apply to all supplemental Agreements negotiated. Where provisions of a supplemental Agreement are in conflict with the terms of this master Agreement, the terms of the master Agreement shall govern. It is further understood that local supplemental Agreements shall not repeat or paraphrase any provisions of this master Agreement.

C. Matters appropriate for negotiation, not excluded under Article 4, Section c, shall consist of but not be confined to, policies regarding (1) general working conditions such as safety, sanitation, heat, ventilation, etc., (2) employee benefits and services such as parking, lockers, eating facilities, work clothing where applicable, etc., (3) opportunities for job related training, (4) leave scheduling, (5) work shifts consistent with (4), (5) and (6) of Section C of Article 4 of this Agreement, (6) overtime work scheduling.

There is no evidence that Local 2366 has negotiated a supplemental agreement.

On June l0, l977 the parties signed a Memorandum of Understanding to clarify INS' obligation to negotiate at the Regional, District and Sector level under Article 3G. It provides, in pertinent part, as follows:

2. District and Sectors. When Districts or Sectors have decided to take actions which will change personnel policies,practices and/or working conditions, the authorized Union Local (or, in the absence of an authorized Local, the appropriate regional Vice-President for the INS and/or Border Patrol Council) will be given 15 days advance notice which will normally occur during the monthly meeting between the Union and Management. The parties may discuss such changes during such meetings and management should give maximum consideration to Union comments and suggestions on relevant matters. If the Union representatives so elect, they may request negotiations on the changes and/or the impact of the changes as appropriate. Such negotiations will be requested within 15 calendar days of notification of a planned changed. Such negotiations will commence within one week of receipt of a request for negotiations from the Union representative. Agreements reached at such negotiations will be recorded in a memorandum of understanding to be signed by the Union representative and the District Director or Chief Patrol Agent.

There was no discussion of the provision being applied to authorize Union-initiated mid-term bargaining. The concern was that the Union be notified of management- initiated changes. (Tr. 60-61).

The NBPC at the national level attempted to negotiate language which would provide for Union-initiated mid-term bargaining under the national contract when a proposed contract was before an interest arbitrator in 1987. That arbitrator rejected the Union's proposal and left it out of his recommended contract.

The Del Rio Sector has never entered into bargaining solely at the initiation of the Union on a mid-term basis. The Del Rio Sector has dealt with Local 2366 only where management has proposed policy changes. (Tr. 62-63).

Discussion and Conclusions

Request for Mid-Term Bargaining

The General Counsel contends that Respondent violated section 7116(a)(1) and (5) of the Statute when it denied the Union's request for mid-term bargaining over the impact of the current policy used by the Respondent to determine which employees are assigned to the Brush, War on Drugs, and Plain Clothes units. Relying on Internal Revenue Service, 29 FLRA 162 (1987) (IRS) the General Counsel claims that Respondent had the duty to bargain as the subject of the Union's request is not covered by the parties' agreement, there was no clear and unmistakable waiver of the Union's right to engage in mid-term bargaining over this matter, and a change in working conditions was not required prior to requesting mid-term bargaining. The General Counsel points out that the Union's request concerned a negotiable matter, appropriate arrangements for employees adversely affected by the exercise of management's right to assign work, and Respondent never requested a clarification of the Union's request.

Respondent no longer disputes that the Union's request concerns a negotiable matter under section 7106(b)(2) and (3), or that such bargaining can be requested under the Authority's IRS decision. Nor does Respondent claim that the Union clearly and unmistakably waived its right to initiate such bargaining. However, Respondent strongly maintains that such mid-term bargaining can only be requested at the national level of recognition; that the nature of negotiations at a level below the national level of recognition is a matter governed by contract; that the national agreement, negotiated in 1976, delegated to the Union Local only the right to negotiate at mid-term in response to changes in practices initiated by management; that, therefore, Respondent did not commit an unfair labor practice by denying the Union Local's request to initiate bargaining; and any issue of contract interpretation should be deferred to the negotiated grievance procedure. (Respondent's Brief, 7-11).

Regardless of the provisions of the agreement limiting mid-term bargaining only to management-initiated changes, the Authority in the IRS decision on remand concluded that the duty to bargain in good faith imposed by the Statute is not so limited and requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters which are not addressed in the agreement and were not clearly and unmistakably waived by the union during negotiation of the agreement. See also U.S. Department of Defense Dependents Schools, Mediterranean Region, Madrid, Spain, 39 FLRA 755, 758 (1990). Thus, by operation of law, the exclusive representative, AFGE, NBPC, had the right to initiate such bargaining in the absence of the exceptions established by the Authority.

The issue of where, that is, at what level such bargaining will take place requires an examination of the Statute and the parties' agreements and delegations of bargaining authority. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 39 FLRA 1409, 1417-18 (1991), (Ogden); United States Marine Corps, Washington, D.C. 42 FLRA 3 (1991), petition for review filed sub. nom. United States Marine Corps, Washington, D.C. et. al. v. FLRA, No. 91-1527 (D.C. Cir. Nov 1, 1991). Respondent's position that this is a question of contractual interpretation and should be deferred to the negotiated grievance procedure is rejected. See U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 31 FLRA 1231 (1988).

The AFGE, NBPC is the certified exclusive representative of a nationwide consolidated unit. Since the exclusive recognition is at the national level, the Statute, in the absence of an agreement between the parties, or other appropriate delegation of authority, does not require negotiations at any other level. See, e.g., Department of Health and Human Services, Social Security Administration, 6 FLRA 202 (1981); Department of Defense Dependents Schools and Overseas Education Association, 12 FLRA 52, 53 (1983); Ogden, 39 FLRA at 1417.

The parties' agreement in this case has provided various forums for the exchange of information and negotiation at the national, regional, and local levels in order to assure the success of their relationship. Article 3F requires the Union to notify the Agency of its designated representatives at the Region, District, and Sector levels. Under Article 3E representatives of the Agency and the Union at the Sector and District level may meet on a monthly basis to settle local problems and arrive at a written understanding. Article 34A permits Union locals to negotiate one supplemental agreement per sector or District. There is no evidence that Local 2366 has ever negotiated such a supplement which may include matters regarding work shifts. Article 3G, as amended by the MOU, also addresses mid-term bargaining at all levels. However, when the agreements were negotiated, the parties contemplated mid-term bargaining only with respect to management-initiated changes at the various levels and, by its terms, the agreement addresses only management-initiated changes.

Portions of agreements specifying which officials shall represent the parties in negotiations constitute permissive subjects of bargaining and either party may elect not to be bound thereby upon the expiration of the agreement. Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington, and Federal Aviation Administration, Washington, D.C., 14 FLRA 644 (1984). In this case, the parties have continued to adhere to the bargaining structure set out in their agreements.

The request to bargain here was made by Local 2366, which the record shows is the recognized agent of NBPC for the purposes of representing unit employees in the Del Rio Sector. The request was made through its locally designated representative, Luis E. Solis. Thus, the request to bargain mid-term was effective. Compare Ogden, 39 FLRA at 1417-18.

As the requested bargaining related to the impact of local unit assignments, the Union could reasonably conclude under the Statute and agreements that Respondent had the authority to enter into such negotiations. As no time did Respondent ever advise Local 2366 that the Del Rio Sector lacked such authority, or suggest that the Union's request to bargain should be submitted at some other level.

Since Local 2366's mid-term bargaining request was made by an authorized agent of the exclusive representative, concerned a negotiable matter, was not covered by the parties' agreement, and the Union did not clearly and unmistakably waive its right to bargain about the matter, Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate with the Local, as alleged.

Request for Information

Under section 7114(a) of the Statute, a labor organization which as been accorded exclusive recognition is entitled to "act for, and negotiate collective bargaining agreements" covering all employees in the unit. Section 7114(b)(4) of the Statute provides that an agency shall, upon request, furnish the exclusive representative, to the extent not prohibited by law, data which is normally maintained 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, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining.

There is no dispute that the information requested by the Union, consisting of all memorandum submitted by employees requesting consideration for assignments to the Brush, War on Drugs, and Plain Clothes units at the Del Rio Station, is normally maintained by the Respondent, is reasonably available, does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining, and is not prohibited from disclosure by law.

Local 2366 requested the data to determine if complaints of favoritism in assignments were true and to represent employees "in any rightful charges against the Agency." The Union also requested the information for the purpose of preparing for mid-term bargaining. Respondent denied the request as moot since the request for mid-term bargaining had been denied.

The Authority has held that section 7114(b)(4) encompasses information necessary for an exclusive representative to perform effectively the full range of representational responsibilities, including information necessary to enable a union to process a grievance, or prepare for negotiations. Federal Aviation Administration, Aviation Standards National Field Office, Mike Monroney Aeronautical center, Oklahoma City, Oklahoma, 43 FLRA 1221, 1226-27 (1992) (collecting cases).

Since it has been held, contrary to Respondent's position, that Respondent was obligated to engage in mid-term negotiations with Local 2366, the data was necessary for Local 2366 to prepare for such negotiations. The memoranda and subsequent investigation could disclose the format and the nature of information submitted by employees which was most relevant and effective in gaining such assignments. This information would provide guidelines for bargaining.

As noted, it is well settled, under section 7114(b)(4) of the Statute, that the Union's right to information necessary to fulfill its representational functions includes data which will assist in the processing of a grievance, including the evaluation and processing of a potential grievance or potential issues in a grievance. See U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1319-1320 (1990). There is no requirement that the information requested actually be used in a grievance. The Union may decide not to file a grievance after it obtains the data, or it may decide not to raise a particular issue in a grievance already filed.

In this case the Union requested the information in order to investigate complaints the Union had received from employees. Solis testified that the Union needed the information in order to compare employees who had submitted memoranda against those employees who had not, but who were assigned to a specialized unit regardless. It is reasonable that the Union would want to start its potential grievance investigation with a list of employees who had submitted memoranda. Copies of the memoranda would provide this information. The Authority has emphasized that a union has a significant interest in the issue of disparate treatment and that documents relating to that issue are necessary within the meaning of section 7114 of the Statute. Department of Transportation, Federal Aviation Administration, New England Region, Burlington, Massachusetts, 38 FLRA 1623, 1629 (1991).

It is concluded that the data requested was necessary. As the request satisfies all the elements of section 7114(b)(4), it is concluded that Respondent violated section 7116(a)(1), (5), and (8) of the Statute by its failure to comply with section 7114(b)(4) and furnish the Union the data requested by letter dated February 13, 1991.

Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order:

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 United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas shall:

1. Cease and desist from:

        (a) Failing and refusing to bargain in good faith with the American Federation of Government Employees,

National Border Patrol Council, Local 2366, the agent of the exclusive representative of its employees, upon request, regarding the impact and implementation on employees in the bargaining unit caused by the current policy used to determine which employees are assigned to the Brush, War on Drugs, and Plain Clothes units at the Del Rio station.

        (b) Failing and refusing to furnish the American Federation of Government Employees, National Border Patrol council, Local 2366, the agent of the exclusive representative of certain of its employees, with copies of memorandums submitted by employees requesting consideration for assignment to the Brush, War on Drugs, and Plain Clothes units, requested by the Union on February 13, 1991.

        (c) In any like or related manner interfering with, restraining or coercing its employees in the exercise of 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) Bargain in good faith with the American Federation of Government Employees, National Border Patrol Council, Local 2366, the agent of the exclusive representative of certain of its employees, by negotiating, upon request, regarding the impact on employees in the bargaining unit caused by the current policy used to determine which employees are assigned to the Brush, War on Drugs, and Plain Clothes units at the Del Rio station.

        (b) Furnish the American Federation of Government Employees, National Border Patrol Council, Local 2366, the agent of the exclusive representative of certain of its employees, with copies of memorandums submitted by employees requesting consideration for assignment to the Brush, War on Drugs, and Plain Clothes units, requested by the Union on February 13, 1991.

        (c) Post at its facilities in the Del Rio Sector 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 Chief Patrol Agent, Del Rio Sector, 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.

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

Issued, Washington, DC, July 13, 1992

_______________________
GARVIN LEE OLIVER
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 fail and refuse to bargain in good faith with the American Federation of Government Employees, National Border Patrol Council, Local 2366, the agent of the exclusive representative of certain of our employees, upon request, regarding the impact on employees in the bargaining unit caused by the current policy used to determine which employees are assigned to the Brush, War on Drugs, and Plain Clothes units at the Del Rio station.

WE WILL NOT fail and refuse to furnish the American Federation of Government Employees, National Border Patrol council, Local 2366, the agent of the exclusive representative of certain of our employees, with copies of memorandums submitted by employees requesting consideration for assignment to the Brush, War on Drugs, and Plain Clothes units, requested by the Union on February 13, 1991.

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

WE WILL bargain in good faith with the American Federation of Government Employees, National Border Patrol Council, Local 2366, the agent of the exclusive representative of certain of its employees, by negotiating, upon request, regarding the impact on employees in the bargaining unit caused by the current policy used to determine which employees are assigned to the Brush, War on Drugs, and Plain Clothes units at the Del Rio station.

WE WILL furnish the American Federation of Government Employees, National Border Patrol Council, Local 2366, the agent of the exclusive representative of certain of our employees, with copies of memorandums submitted by employees requesting consideration for assignment to the Brush, War on Drugs, and Plain Clothes units, requested by the Union on February 13, 1991.

_______________________________
(Activity)

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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Dallas Regional Office, whose address is: 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202, and whose telephone number is: (214) 767-4996.




FOOTNOTES:


1. This case was considered and all deliberations were completed prior to the date on which Donald S. Wasserman was sworn in as a Member of the Authority. Therefore, Member Wasserman did not participate in this decision.

2. In this vein, the Respondent contends that the Judge ignored an "internal inconsistency in the testimony" and should have found that the submission of a memorandum was sufficient but not necessary for consideration for assignment to a specialized unit. Exceptions at 5 n.2; 35. We reject the Respondent's suggestion that we overrule the Judge's finding in this regard. The Judge specifically found that employees who wanted assignments to the specialized units were required to submit a memorandum to the Patrol Agent in Charge. The testimony to which the Respondent adverts reflects that some personnel were assigned without submitting memoranda. Rather than demonstrating an inconsistency, this testimony supports the Union's concern over favoritism in the process through which selections were made. However, even if this testimony did demonstrate an inconsistency, the Judge's finding was based on a credibility determination, which the Authority will not overrule unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. Redstone Arsenal Exchange, Army and Air Force Exchange Service, Redstone Arsenal, Alabama, 50 FLRA 51, 51 (1994). We have examined the record and find no basis for reaching a contrary conclusion.

3. According to the General Counsel, the complaint alleges "that Respondent violated [the Statute] by refusing to negotiate in response to a mid-term bargaining request . . . ." G.C. Supplemental Brief at 1 (emphasis added). In light of the General Counsel's interpretation, we view the complaint, which does not indicate whether the alleged violation involves mid-term or term bargaining, as alleging a refusal to engage in mid-term bargaining.

4. We note, for example, the Respondent's acknowledgment that it would have been obligated to bargain with the exclusive representative over its assignment policy.

5. In view of our determination below, we do not consider whether, as the General Counsel asserted at the hearing, the information also is necessary for the Union to formulate bargaining proposals.

6. As noted earlier, we adopt the Judge's finding that the submission of a memorandum was required in order to be considered for assignment to the specialized units. See note 2, above. Accordingly, we reject the Respondent's argument that the absence of a memorandum would not provide a basis for comparison. Exceptions at 35 n.10. Rather, we conclude that the fact that an employee who did not submit a memorandum requesting reassignment was reassigned would be information required for the Union to investigate employee complaints and to adequately represent those employees.

7. Our conclusion that the Union needs the requested memoranda for its stated purpose does not reflect a finding that the content of the memoranda is in fact dispositive in the selection process. However, given the Judge's findings that consideration for assignment to a specialized unit is conditioned on the submission of a memorandum and that content of the