[ v52 p1231 ]
52:1231(116)CA
The decision of the Authority follows:
52 FLRA No. 116
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
U.S. BORDER PATROL
TUCSON SECTOR
TUCSON, ARIZONA
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2544, AFL-CIO
NATIONAL BORDER PATROL COUNCIL
(Charging Party)
and
IMMIGRATION AND NATURALIZATION SERVICE
WESTERN REGIONAL OFFICE
LAGUNA NIGUEL, CALIFORNIA
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2544, AFL-CIO
(Charging Party)
SA-CA-20236
SF-CA-30308
SF-CA-31679
_____
DECISION AND ORDER
March 14, 1997
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz
and Donald S. Wasserman, Members.
I. Statement of the Case
This consolidated unfair labor practice case is before the
Authority on exceptions filed by the Respondent to the Judge's
recommended Decision and Order. The General Counsel and the
Union filed oppositions to the Respondent's exceptions.
The complaints allege that the Respondent violated section
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) by refusing to furnish the Union
with information about certain disciplinary actions. The Judge
concluded that the Respondent violated the Statute, as alleged in
the complaints. On consideration of the Judge's Decision and the
entire record in this case, and for the reasons expressed below,
we conclude that the Respondent did not violate the Statute.
Accordingly, we dismiss the complaints.
II. Background and Judge's Decision
The complaint in Case No. SF-CA-20236 results from the
Union's request that the Respondent furnish it disciplinary
letters given to employees charged with certain infractions in the
Western Region during the preceding 5 years. The Union
specifically requested the following:
1. A copy of all proposal and final decision letters
relating to the charge of NON-COMPLIANCE WITH STANDARDS,
POLICIES, REGULATIONS OR INSTRUCTIONS ISSUED BY THE
SERVICE, for the past five years, within the Western
Region;
2. A copy of all proposal and final decision letters
relating to disciplinary or adverse action resulting from
the escape of an alien in custody, for the past five years,
within the Western Region[.]
G.C. Exh. 7. With regard to the reason the Union needed the
information, the Union representative making the request stated
that the Union had "invoked [its] right to arbitrate the matter of
the suspension given to [a particular] Border Patrol Agent" and
that the representative would be "presenting the Union's case in
this matter." Id. The Respondent denied the Union's information
request on the grounds that it was "overbroad in scope" and that,
insofar as the request concerned information regarding the escape
of an alien, it was irrelevant to the employee's suspension.
G.C. Exh. 9.
The complaints in Case Nos. SF-CA-30308 and SF-CA-31679
result from two other requests for information. With regard to
SF-CA-30308, the Respondent had proposed to reprimand an employee
for disruptive and disrespectful conduct. The Union
representative requested a copy of "all proposal and final
decision letters relating to like or similar charges for the past
two years within the Western Region," stating, as relevant here,
that the requested information was "required in order to carry out
[the representative's] duties and responsibilities in 5 U.S.C.
Chapter 71." G.C. Exh. 17. With regard to SF-CA-31679, the
Respondent had proposed to reprimand an employee for making a
false statement to his supervisor. The Union requested "[c]opies
of any and all proposals and/or final decisions for like or
similar disciplinary actions issued within the Western
Region . . . for the past three (3) years," asserting, as relevant
here, that the information was requested under section 7114(b)(4)
"in order to carry out [the representative's] duties and
responsibilities." G.C. Exh. 26. The Respondent denied both
requests, stating that its policy was not to release region-wide
information. G.C. Exhs. 18, 29. Although the Respondent provided
the Union with certain information, including sanitized proposal
and decision letters for two other Tucson Sector employees, it
refused to release any information from any other sectors in the
Western Region.
The Judge found, based on testimony at the hearing, that
the Union had asked for the information in all three cases in
order to compare the disciplinary actions proposed or taken
against the three employees with actions against similarly
situated employees who worked in other sectors of the Western
Region. He also found that the Union had no obligation to
establish a "particularized need" for the information because the
Respondent did not assert that the information constituted
intramanagement advice, guidance, counsel, or training, within the
meaning of section 7114(b)(4)(C) of the Statute. Id. at 14. As
relevant here, the Judge concluded that the Union's requests
satisfied all the requirements of section 7114(b)(4) of the
Statute, and that the Respondent violated the Statute by failing
to furnish the information. Therefore, he recommended an order
directing it to release the information requested by the Union.
III. Positions of the Parties
A. Respondent
The Respondent argues that the particularized need standard
applies to all requests for information under section 7114(b)(4)
of the Statute and not just to requests for information involving
intramanagement guidance. In addition, as to the complaint in
Case No. SA-CA-20236, the Respondent argues that Merit Systems
Protection Board (MSPB) precedent should be applied to conclude
that the only information relevant to an assertion of disparate
treatment is information relating to actions taken in an
employee's own work unit. In this case, according to the
Respondent, the work unit is the Tucson sector, not the Western
Region. As to the complaints in Case Nos. SF-CA-30308 and SF-CA-
31679, which concern proposed -- not final -- disciplinary
actions, the Respondent argues that the Union had no obligation to
represent the employees and therefore no right under the Statute
to request the information.
B. General Counsel
The General Counsel argues that the Union in this case has
demonstrated a particularized need for the requested information.
According to the General Counsel, the Union specified "why it
needed the requested information, including the uses to which [it]
would put the information." Opposition at 12. The General
Counsel asserts that the Union's information requests "were
sufficient to permit [the Respondent] the opportunity to make a
reasoned judgment as to whether the information must be disclosed
under the Statute." Id. at 13.
C. Union
The Union asserts that the Respondent "was aware of
precisely why the Union wanted the information, and the uses to
which such information would be put." Opposition at 7. According
to the Union:
In each case, Respondent was aware that the employee
was facing disciplinary action, and had elected to be
represented by the Union. The information requested
would have enabled the Union to determine whether the
grievant had been treated in a disparate manner
compared to other employees in the same Region.
Id.
IV. Analysis and Conclusions
A. The Union Was Required to Establish and Articulate a
Particularized Need for the Information
Subsequent to the Judge's decision and the filing of
exceptions, the Authority decided Internal Revenue Service,
Washington, D.C. and Internal Revenue Service, Kansas City Service
Center, Kansas City, Missouri, 50 FLRA 661 (1995) (IRS, Kansas
City). In IRS, Kansas City, the Authority stated that, in order
to effectuate the purposes of the Statute, it would apply the
"particularized need" standard discussed by the court in National
Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) to
all requests for information under section 7114(b)(4) "whether or
not the information request involves intramanagement guidance."
50 FLRA at 669. As a result, the Union in this case was required
to establish and articulate a particularized need for the
information it requested without regard to whether that
information constituted advice, guidance, counsel, or training for
management officials.
IRS, Kansas City holds that a union requesting information
under section 7114(b)(4) of the Statute must articulate, 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. A union will not satisfy this burden merely by showing
that the information is or would be relevant or useful, but must
show that it requires the information in order to adequately
discharge its representational functions. This showing demands
more than conclusory or bare assertions. Although a union's
request for information need not be so specific as to reveal its
strategies or the identity of potential grievants, its request
must nevertheless be sufficient to permit the agency to make a
reasoned judgment about whether the Statute requires disclosure.
See id. at 669-70. In addition, subsequent decisions applying
IRS, Kansas City have made it clear that a union must articulate
its interests in disclosure of the information at or near the time
of the request -- not for the first time at an unfair labor
practice hearing. See, e.g., U.S. Department of the Treasury,
Internal Revenue Service, Washington, D.C. and U.S. Department of
the Treasury, Internal Revenue Service, Oklahoma City District,
Oklahoma City, Oklahoma, 51 FLRA 1391, 1396 (1996).
B. The Union Has Not Articulated or Established a
Particularized Need for the Requested
Information
1. Relevant Authority Precedent
The sufficiency of requests for employee disciplinary
information has been examined in four decisions issued by the
Authority since IRS, Kansas City: U.S. Department of Justice,
Washington, D.C. and U.S. Immigration and Naturalization Service,
Northern Region, Twin Cities, Minnesota and Office of Inspector
General, Washington, D.C., 51 FLRA 1467 (1996) (Twin Cities);
Internal Revenue Service, Austin District Office, Austin, Texas,
51 FLRA 1166 (1996) (IRS, Austin); Scott II; and Department of
Labor, Washington, D.C., 51 FLRA 462 (1995) (Labor). The
Authority found that the unions articulated and established
particularized need for requested information in Twin Cities, IRS,
Austin, and Scott II. In Labor, the Authority concluded that
particularized need had not been established.
In Labor, the union asked for employee disciplinary
suspension records covering a 5-year period "to prepare for
arbitration proceedings involving suspensions of five unit
employees [and to] ensure that the [agency] had been 'consistent
in its disciplinary actions of all employees.'" 51 FLRA at 476
(citation omitted). The Authority concluded that, although the
union had articulated a general need for some disciplinary
records, it had not explained why it needed the exact information
it had requested or the particular uses to which it would put that
information. The Authority also concluded that the union had not
shown why it needed disciplinary records covering a period of 5
years, pointing out that the union testified at the hearing that
it had specified 5 years in its request only "because it believed
that the [a]gency maintained such records for that time period."
Id.
In Scott II, the union requested a copy of any disciplinary
action taken against a particular supervisor for using physical
force against a unit employee. The union had filed a grievance
over the matter seeking appropriate discipline against the
supervisor and, in response to the grievance, the respondent
asserted that "'[a]ppropriate action ha[d] been taken regarding
the supervisor.'" 51 FLRA at 677 (citation omitted). In its
request for the information and a subsequent clarification of that
request, the union stated, among other things, that the
information was needed to prepare for arbitration and "to
determine if the requested remedy of disciplinary action against
the supervisor was in fact taken, and what that action was." Id.
(citation omitted). The union added:
Upon our review of this information, we may well
conclude that no further action i[s] warranted . . .
. In other words, we need this to assess the need to
pursue arbitration.
Id. The Authority concluded that these statements clearly
articulated the union's need for the information and satisfied the
particularized need standard set forth in IRS, Kansas City. 51
FLRA at 682-84.
In IRS, Austin, as relevant here, the union was
representing an employee facing a proposed adverse action for
having allegedly violated the respondent's standards of conduct.
The union requested, among other things, proposed and final
disciplinary and adverse action letters issued to employees in a
particular geographic area during a 3-year period. The union
claimed that the information was a "factor relied on in
determining adequacy and appropriateness of the proposed action"
and informed the agency that it needed the information "to analyze
the propriety of the proposed action with respect to similar
allegations of misconduct on the issue of disparate treatment."
51 FLRA at 1167-8. The Authority concluded that the union had
demonstrated a particularized need for the requested information
because:
The Union has explained why it needs the information
(to ascertain whether there was disparate treatment
of an employee), the uses to which the information
will be put (to determine the appropriateness of the
proposed penalty)[,] and the connection between the
uses and the Union's representational
responsibilities under the Statute (to represent an
employee against whom an adverse action was
proposed).
Id. at 1178.
Finally, in Twin Cities, the union requested three
categories of information to prepare for representation of a unit
employee in an oral reply to a proposed removal: (1) disciplinary
and adverse action letters issued within a particular geographic
area during a 5-year period for offenses similar to those for
which the employee was charged; (2) exhibits to an inspector
general report mentioned in the notice of proposed removal; and
(3) copies of the regulatory and statutory authority for the
inspector general to investigate the employee. The Authority
concluded that the union's expressed reason for the latter two
categories of information -- "to properly respond to the
allegations" in the notice -- lacked sufficient specificity to
satisfy the standard set forth in IRS, Kansas City and, as such,
the union did not establish a particularized need for that
information. 51 FLRA at 1481, 1482. In reaching this conclusion,
the Authority found it inappropriate to consider the additional
reasons for requesting the information that were offered by the
union for the first time at the unfair labor practice hearing,
because these reasons were not communicated to the respondent "'at
a time when it reasonably could have assessed the necessity [of]
the information.'" Id. at 1481 (quoting U.S. Equal Employment
Opportunity Commission, 51 FLRA 248, 258 (1995) (EEOC).
The Authority reached a different conclusion about the
first category of information requested by the Union in Twin
Cities: proposed and final disciplinary and adverse action
letters. As to this category, the Authority held that
particularized need had been established by the Union. Although
the reason stated by the Union in its written request for this
category of information was identical to that stated for the other
categories, which the Authority found insufficient to establish
particularized need, additional explanation was provided by the
Union prior to the agency's decision to deny the request. In this
regard, unlike the other categories of information, the parties
met shortly after the request to discuss the reasons the union
requested the letters. At that meeting, the union stated that it
needed the letters "to compare the discipline the [r]espondent had
proposed [to the employee] with that given to other employees who
had committed similar offenses." Twin Cities, 51 FLRA at 1473-74.
The parties also discussed the respondent's concerns about the
privacy of such other employees, and the union clarified that it
was requesting sanitized information.
Taking into account both the reasons offered at the meeting
and those contained in the written request for the disciplinary
and adverse action letters, the Authority concluded that the union
had "clearly explained why the requested . . . letters were
[necessary]." Id. at 1475. The Authority also found that, in the
circumstances presented, it was appropriate to consider reasons
offered by the union for the first time in testimony at the unfair
labor practice hearing concerning the scope -- temporal and
geographic -- of the request. The Authority pointed out that no
questions regarding the scope of the request had been raised at
the parties' meeting, and concluded that refusing to consider the
testimony would give "undue weight to whether the [respondent]
asked or the union answered questions about matters that, unlike
other matters that were discussed at the [parties'] meeting,
neither party appeared concerned about at the time of the
request." Id. at 1476. In this connection, the Authority
distinguished Labor, where, as noted previously, the Authority
concluded that reasons offered by the union for the first time at
the unfair labor practice meeting did not establish particularized
need. Id. at 1475-76.
2. Consistent with this Precedent,
the Union Did Not Establish
Particularized Need in These
Cases
In these cases, there is no evidence that the Union ever
explained to the Respondent, with sufficient particularity, why
it needed the requested information, what it intended to do with
it, or how it related to the Union's representational
responsibilities. The Union never expanded on its initial
requests, the Respondent never requested clarification of the
requests, and the parties never discussed them.
The Judge's finding in this case that the Union wanted to
compare disciplinary actions proposed or taken against similarly
situated employees and supervisors elsewhere in the Western Region
is based exclusively on the Union's testimony at the hearing. The
evidence nowhere indicates that the Union communicated anything
about this to the Respondent when it asked for the information, or
at any other time prior to the hearing. More particularly, in SF-
CA-30308 and SF-CA-31679, the Union described the proposed and
final letters it was requesting as ones involving "like or
similar" charges to those involved in the two disciplinary actions
for which it was providing representation. However, unlike cases
in which the Authority found that unions had articulated
particularized need for information for comparison purposes, the
Union here did not adequately explain why it needed the requested
disciplinary information. As such, this case is distinguishable
from U.S. Department of Transportation, Federal Aviation
Administration, New England Region, Bradley Air Traffic Control
Tower, Windsor Locks, Connecticut, 51 FLRA 1054, 1067-68 (1996),
where the union requested certain information concerning awards
"to determine whether unit employees had been treated differently"
under the awards program, and further explained at the hearing
that the information was needed "for comparison purposes, to
determine whether bargaining unit and non-bargaining unit
employees were being recognized in the same manner for the same
performance." It also is distinguishable from IRS, Kansas City, 50
FLRA at 671, where the union requested a performance appraisal for
the particular purpose of making a "comparison" between that
appraisal and the appraisal of a grievant it was representing.
Although Union testified at the hearing that it requested
the information in Case No. SF-CA-31679 "to see if there was a
possibility of any [racial] discrimination[,]" transcript at 55,
the Union did not articulate this reason for requesting the
information at any time prior to the hearing. Accordingly, it
cannot be considered herein. See, e.g., EEOC, 51 FLRA at 258. As
to SA-CA-20236, the Union stated only that it had "invoked [its]
right to arbitrate the matter of suspension" given a particular
Border Patrol agent. G.C. Exh. 7. Moreover, even though the
Respondent had explained to the Union when it initially denied the
request, in Case No. SA-CA-20236, that information requests
covering the entire Western Region (as opposed to the Tucson
Sector) were overbroad and that certain of the information sought
by the Union was irrelevant, the Union's only response was to
reduce the period covered by its request from 5 to 4 years.
As the Authority stated in IRS, Kansas City, "a request for
information must be sufficient to permit an agency to make a
reasoned judgment as to whether information must be disclosed
under the Statute." 50 FLRA at 670 (footnote omitted). At no
time did the Union explain to the agency with requisite
specificity why it needed the disciplinary information it
requested, what it planned to do with that information, or how it
related to the union's representation of bargaining unit
employees. Accordingly, this case is distinguishable from Scott
II, IRS, Austin, and Twin Cities, where, as set forth above, the
unions provided specific reasons for their information requests.
Indeed, even in Labor, where the Authority concluded that the
union had not established particularized need, the union
demonstrated a need for some, but not all, of the requested
disciplinary records by asserting, in its request, that the
records were needed to "ensure that the [agency] had been
'consistent in its disciplinary actions of all employees.'"
Labor, 51 FLRA at 476 (citation omitted). In this case, the
Union's requests contain no such statement of need beyond the
general assertion, in SF-CA-30308 and SF-CA-31679, that the
information was required for the Union to carry out its
representational duties and the statement, in SF-CA-20236, that
the Union had "invoked [its] right to arbitrate" a particular
suspension. G.C. Exh. 7.
Because the Union's requests, standing alone, were
insufficient to permit the Respondent to make a reasoned judgment
about its obligation to disclose the requested information, we
conclude that the Union failed to establish and articulate a
particularized need for that information under section
7114(b)(4). Accordingly, and without addressing the Respondent's
other argument, we conclude that the complaints must be
dismissed.
V. Order
The complaints are dismissed.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
UNITED STATES BORDER PATROL
TUCSON SECTOR
TUCSON, ARIZONA
Respondent
and
NATIONAL BORDER PATROL COUNCIL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2544, AFL-CIO
Charging Party
and
IMMIGRATION AND NATURALIZATION
SERVICE WESTERN REGIONAL OFFICE
LAGUNA NIGUEL, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2544, AFL-CIO
Charging Party
Case Nos. SA-CA-20236
SF-CA-30308
SF-CA-31679
James LoSasso
Thomas Michael O'Leary, Esq.
For the Respondent
John R. Pannozzo, Jr.
For the General Counsel
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
On May 27, 1992, the Regional Director for the
San Francisco Region of the Federal Labor Relations Authority
(herein called the Authority), pursuant to a charge filed on
January 23, 1992, by the National Border Patrol Council, American
Federation of Government Employees, Local 2544,
AFL-CIO (herein called the Union), issued a Complaint and Notice
of Hearing in Case No. SA-CA-20236 which alleged that the United
States Border Patrol, Tucson Sector, Tucson, Arizona (herein
called Respondent USBP), committed an unfair labor practice within
the meaning of section 7116(a)(1), (5) and (8) of the Federal
Service Labor-Management Relations Statute (herein called the
Statute). The Complaint alleges that on December 30, 1991 and
January 14, 1992, Respondent USBP, through its acting chief patrol
agent and chief patrol agent refused to furnish the Union with
certain region wide data that was maintained at the Western
Regional Office in Laguna Niguel, California and a proposed
decision letter regarding a senior border patrol agent in the
Tucson Sector.
On November 12, 1992, the parties stipulated the case to
the Authority. In the Stipulation of Facts, the parties agreed
that disciplinary and adverse actions are normally maintained at
the Western Regional Office in Laguna Niguel, California for
periods of two and four years, respectively; the disciplinary and
adverse actions were not maintained at the individual facilities
after completion; that the information can be retrieved and that
it does not constitute guidance, advice, counsel or training for
management officials. Based on the stipulated record, the
Authority issued its decision in United States Border Patrol,
Tucson Sector, Tucson, Arizona, 47 FLRA 684 (1993). The Authority
determined that the Union was entitled to a single proposed
decision letter involving one agent. On June 3, 1993, the General
Counsel filed a Motion for Reconsideration on the basis that the
Authority improperly limited its decision to a single proposed
disciplinary letter and inadvertently failed to address the
Union's broader request for region wide data, which was maintained
at the Western Regional Office in Laguna Niguel. The proposed
decision letter concerning the agent which was addressed by the
Authority was provided by Respondent USBP to the Union after the
Authority's initial decision. Thereafter, on August 27, 1993, the
Authority,
in 48 FLRA 391 granted the Motion for Reconsideration
and remanded the case to the Regional Director of the
San Francisco Region for further processing.
On July 15, 1994, the Regional Director for the
San Francisco Region of the Authority, pursuant to a charge filed
by the Union on December 15, 1992, issued a Complaint and Notice
of Hearing in Case No. SF-CA-30308 alleging that Respondent USBP
committed an unfair labor practice within the meaning of
section 7116(a)(1), (5) and (8) of the Statute by refusing to
furnish the Union with certain region wide data that was
maintained at the Western Regional Office in Laguna Niguel.
Also on July 15, 1994, the Regional Director for the
San Francisco Region of the Authority, pursuant to a charge filed
by the Union on September 20, 1993, issued a Complaint and Notice
of Hearing in Case No. SF-CA-31679 alleging that the Immigration
and Naturalization Service, Western Regional Office, Laguna
Niguel, California (herein called Respondent INS) committed an
unfair labor practice within the meaning of section 7116(a)(1),
(5) and (8) of the Statute by refusing to furnish the Union with
certain region wide data that was maintained at the Western
Regional Office in Laguna Niguel.
On July 22, 1994, the Acting Regional Director for the San
Francisco Region of the Authority issued an Order Consolidating
Cases in the above-matters.
A hearing on the Consolidated Complaint was held before the
undersigned in Los Angeles, California. All parties were
represented and afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce evidence and to argue
orally. Post hearing briefs were filed and have been duly
considered.
Upon consideration of the entire record in this case,
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 Union is the exclusive representative of a nationwide
consolidated unit of employees appropriate for collective
bargaining, including employees at Respondent USBP's Tucson,
Arizona facilities. The Union is an agent of American Federation
of Government Employees for the purpose of representing unit
employees who work for the United States Border Patrol.
Respondent's INS's Western Regional Office consists of the five
Border Patrol sectors, which are as follows: Tucson, Yuma, El
Centro, San Diego and Livermore, and INS District Offices located
in the states of Nevada, Arizona and California. The Union
represents the bargaining unit employees within the five Border
Patrol sectors and the American Federation of Government Employees
INS Council represents the employees located in the states of
Nevada, Arizona and California.
Four of the five Border Patrol sectors maintain facilities
along the United States-Mexico border. They are: Tucson, Yuma,
El Centro and San Diego. The Tucson Sector border facilities are
as follows: Douglas, Naco, Senoita, Nogales, Tucson and Ajo.
Agent Robert Speer worked at the Douglas, Arizona facility. The
Yuma Sector border facility is Yuma. The El Centro, California
Sector border facility is in Calexico. The San Diego Sector
border facilities are Imperial Beach, Brownfield and Chula
Vista.
Michael Albon served as the local president from 1990 to
January 1994 representing bargaining unit employees in grievance,
arbitration and Merit Systems Protection Board (herein called
MSPB) proceedings. The Union sought region wide data covering the
five Border Patrol sectors in order to represent three employees
Robert Speer, Donna LaRue and Mark E. Miller in proposed
disciplinary actions against the. The Union responded to
Respondent USBP's proposed adverse action and represented Speer at
arbitration. With regard to both LaRue and Miller, the Union
responded to Respondent USBP and INS's respective proposed
disciplinary action, and filed second and third step grievances on
their behalf. In all three cases, the Union was chosen by the
respective employee as their representative. LaRue submitted
written notification to Coffin that Albon was representing her in
connection with the proposed reprimand. The Union would have
accepted the requested data for all three matters in sanitized
form.
A. Case No. SA-CA-20236
On October 18, 1991, Respondent USBP, through Coffin,
issued a proposed ninety (90) day suspension, without pay, to
Border Patrol Agent Robert Speer based on a noncompliance with
standards, policies, regulations or instructions issued by the
service and conduct unbecoming an officer. Speer allegedly
failed to prepare the proper immigration paperwork concerning two
illegal, juvenile, female aliens prior to releasing them near the
United States-Mexican border. Specifically, Speer failed to
complete the Form 1-213 (record of deportable alien), Form 1-274
(request for voluntary departure to Mexico) and the Perez-Funez
Advisement (State of Arizona injunction form). Furthermore, Speer
allegedly failed to follow the Administrative Manual and the
Border Patrol Handbook, used profanity and made suggestive sexual
remarks toward the illegal, female aliens. The conduct that Speer
was charged with could have occurred within any of the five Border
Patrol sectors. It was therefore, possible for the Union to
compare disciplinary and adverse actions taken against employees
in other sectors, particularly, those sectors with border
facilities.
On November 6, 1991, Union Station Steward Kevin Nix,
submitted a written reply to the proposed adverse action relating
to Speer. The written reply stated, in part, that the two
juveniles, illegal, female aliens escaped from Speer's custody,
and therefore, the two aliens were not denied their rights to due
process by Speer's inability to properly execute Forms 1-213, 1-
274 and the Perez-Funez Advisement.
On December 10, 1991, Respondent, through Coffin, suspended
Speer for thirty (30) calendars days, without pay, from December
23, 1991 to January 21, 1992. The suspension letter noted that
Speer had not complied with standards, policies, regulations or
instructions issued by the agency. The allegation relating to
conduct unbecoming an officer was not sustained by the evidence.
On December 16, 1991, the Union submitted an expedited arbitration
request in connection with the thirty-day suspension pursuant to
the negotiated agreement.
On December 28, 1991, acting as Speer's representative, the
Union requested certain data from Respondent USBP, including the
following region wide data:
1. A copy of all proposal and final decision letters
relating to the charge of Non-Compliance with
Standards, Policies, Regulations or Instructions issued
by the Service, for the past five years, within the
Western Region.
2. A copy of all proposal and final decision letters
relating to disciplinary or adverse action resulting
from the escape of an alien in custody, for the past
five years, within the Western Region.
The Union requested the data in Item 1 because it wanted to
determine whether Speer had been disparately treated in terms of
the charge alleged and the penalty imposed by Respondent USBP.
The Union wanted to compare the charges assessed and penalties
imposed upon similarly situated employees and supervisors in other
sectors. The proposal letters, it seems, provides more factual
information regarding an alleged incident than do final decision
letters. Thus, proposal letters could have assisted the Union in
under-tanding the circumstances associated with the noncompliance
charge.
The Union requested the data in Item 2 because it wanted to
determine whether Speer had been disparately treated in terms of
the charge alleged and the penalty imposed by Respondent USBP.
Once again, the Union desired to compare
the charges assessed and penalties imposed upon similarly situated
employees and supervisors in other sectors. Further, the Union
hoped to find out whether employees and supervi-sors, who allowed
aliens to escape, were also charged with
a noncompliance like Speer or was there some other charge assessed
by Respondent USBP. Without the requested data, when it took the
case to arbitration, the Union argued disparate treatment before
the arbitrator, but lost.
The charge assessed by Respondent USBP against Speer, is
significant because different charges contain a different range of
penalties under the Department of Justice's Standard Schedule of
Disciplinary Offenses and Penalties for Employees of the U.S.
Department of Justice.
On December 30, 1991, Respondent USBP, through Coffin,
denied the Union's data request on the basis that it was over
broad in scope as to Items 1 and 2 and also irrelevant with regard
to Item 2. Respondent USBP stated that "actions taken by other
Sectors or Districts within Western Region are not material to the
action under arbitration." On January 2, 1992, in response to the
Union's data request Respondent USBP, through Sector Counsel
Thomas Michael O'Leary, furnished the Union with one unsanitized,
final decision letter that had been issued to Senior Border Patrol
Agent Rodolfo Greene in the Tucson Sector involving noncompliance
with policies and instructions issued by INS. Respondent USBP did
not provide the Union with the notice of proposed disciplinary
action, dated November 30, 1988. The final decision letter did
not state the circumstances that led to the noncompliance charge.
On January 5, 1992, the Union submitted another data
request seeking the same information as the December 28, 1991 data
request, except for the past four years instead of five. On
January 14, 1992, Respondent USBP denied the Union's January 5,
1992 data request, stating, in part, as follows:
Your reduction in the time periods in request numbered
2 is noted. However, since the time period was not the
sole basis of the denial of your requests, the
decisions outlined in my December 30, 1991 letter
remain.
Thereafter, on January 18, 1992, the Union, requested the
November 30, 1988, proposed disciplinary letter issued to Greene.
In addition, the Union noted that the information was relevant and
necessary to the presentation of the Speer case at arbitration.
On January 21, 1992, Chief Patrol Agent Ronald J. Dowdy denied the
Union's request for the proposal letter in the Greene matter,
stating that the proposal letter was not relevant to arbitration
or other third party review. Dowdy also noted that the decision
letter decides the facts as well as the appropriate penalty. As
noted previously, the Greene proposal letter was provided by
Respondent USBP to the Union after the Authority's decision in
that case.
B. Case No. SF-CA-30308
Sometime around, November 24, 1992, a proposal of
disciplinary action was issued to Radio Operator Donna LaRue.
LaRue, a member of the bargaining unit, was charged with conduct
that was disruptive to the workplace, and disrespect-ful conduct
through the use of insulting and abusive language to or about
others. LaRue's offense was allegedly placing derogatory remarks
into the official radio log book and harassing a fellow employee
through the use of vulgar language and remarks about his religion.
The official radio log book is a daily record of the radio traffic
and other events occurring within a sector during the normal
workday. Each sector maintains an official radio log book. The
conduct which LaRue was charged could have occurred within any of
the five Border Patrol sectors. Furthermore, the Union hoped it
could compare disciplinary actions taken against similarly
situated employees, who worked in other sectors, with that of
LaRue.
Around November 24, 1992, LaRue designated Albon as her
representative in the matter. On November 25, 1992, the Union
submitted a data request to Respondent USBP seeking "a copy of all
proposal and final decision letters relating to like or similar
charges for the past two years within the Western Region." The
data request noted that the Union needed the information in order
to carry out its representational responsibilities in responding
to the proposed action. The Union requested the region wide data
because it wanted to determine whether LaRue had been disparately
treated by Respondent USBP in terms of the charge alleged and the
penalties imposed in comparison to similarly situated employees.
The Union again desired to see the proposal letters in hope that
they would provide greater detail regarding the conduct leading up
to the disciplinary action.
On December 4, 1992, Respondent USBP, responded to the data
request by providing two sanitized proposed and two sanitized
final decision letters concerning two Tucson Sector employees. In
response to the region wide request, Respondent USBP stated in
pertinent part that, "The Western Regional Office, ROLMR, policy
is to furnish information pertaining to sector actions only. . .
." The Union's need to respond to the proposed disciplinary
action, was never mentioned by Respondent USBP as a basis for
denying the data request.
On December 10, 1992, the Union submitted a written reply
to the proposed reprimand on behalf of LaRue. A final decision
letter sustaining the reprimand issued on January 12, 1993. On
February 15, 1993, the Union filed a step two grievance on behalf
of LaRue which was denied by Respondent on March 3, 1993. A step
three grievance on behalf of LaRue filed on March 13, 1993 was
denied on April 5, 1993, by Respondent USBP. The official
reprimand remains in LaRue's personnel file.
C. Case No. SF-CA-31679
On August 6, 1993, a proposal to officially reprimand was
issued by Respondent USBP to Border Patrol Agent Mark E. Miller.
Miller was charged with making false statements to his
supervisors. In this regard, Miller allegedly twice went to his
residence during a day in which he was scheduled to make a court
appearance, but told his supervisor that he only went once.
Miller later admitted to his supervisor that he had in fact gone
to his residence on two separate occasions. Miller was
represented by a Union steward from Phoenix, Arizona, Francis M.
Moyer. The conduct with which Miller was charged could have
occurred within any of the five Border Patrol sectors.
Furthermore, the Union could have compared the disciplinary
actions taken against similarly situated employees, who worked in
other sectors, with Miller's own.
The Union, submitted a data request to Respondent USBP,
on August 12, 1993, seeking the following data:
"Copies of any and all proposals and/or final decisions
for like or similar disciplinary actions issued within
the Western Region of the Immigration and
Naturalization Service for the past three (3) years."
The data request noted that the Union needed the
information in order to carry out its representational
responsibilities in responding to the proposed action. Albon, who
spoke with Moyer prior to the submission of the data request,
provided his input into the matter, instructed Moyer on how to
request data and possibly forwarded to Moyer a copy of an
information request. The Union requested the region wide data
because it wanted to determine whether Miller had been disparately
treated by Respondent USBP in terms of the charge alleged and the
penalties imposed in comparison to similarly situated employees.
Further, the Union wanted to see if there was possible racial
discrimination against Miller, who is black. The Union again
wished to see the proposal letters because they provided greater
detail regarding the conduct which led to the disciplinary action.
On August 16, 1993, Respondent USBP, answered the Union's
data request with regard to some items, but forwarded the region
wide portion of the data request to Respondent INS's Western
Region Labor Relations Specialist for a response. Respondents'
August 16, 1993 letter also acknowledged that the Union was
Miller's designated representative in the matter. The Union's
need to respond to the proposed disciplinary action, was never
mentioned by Respondent USBP as a basis for denying the data
request. On August 17, 1993, the Union, submitted a written reply
to the proposed reprimand on behalf of Miller.
On August 18, 1993, Respondent INS, through Labor Relations
Specialist James P. LoSasso, denied the Union's data request with
regard to Item 5. The information request was denied based on the
following:
Western Regional Office, and each of the districts and
sectors within, have a long standing policy and
practice of not expanding the scope of disciplinary
actions beyond the level from which these actions would
be honored by providing cases from that Sector only. .
. . In summary, Western Region does not release region
wide disciplinary cases to the various Sectors.
No other reason was provided by Respondent INS for denying the
data request, including the Union's need to respond to the
proposed disciplinary action.
Thereafter, on September 1, 1993, Respondent USBP, issued
a final decision letter that sustained the reprimand. On
September 17, 1993, the Union filed a step two grievance on behalf
of Miller and on the same day, amended the step two grievance.
Respondent USBP denied the step two grievance on October 4, 1993.
On October 13, 1993, the Union filed a step three grievance on
behalf of Miller which was denied by Respondent on November 10,
1993. The Union invoked arbitration on behalf of Miller on
November 24, 1993.
D. Decision-Making Process
The data requests in all three cases were made pursuant to
section 7114(b)(4) of the Statute. The employees within the five
Border Patrol sectors are all subject to the same penalties
associated with violative conduct, disciplinary actions, adverse
actions, Administrative Manual provisions, Border Patrol Manual,
negotiated agreement, Federal Personnel Manual, Justice Department
Standards of Conduct, Central and Regional Office policy memoranda
and immigration forms.
Albon could represent employees in other sectors if
designated by the National Border Patrol Council. Further, Albon
has represented employees at all stages of disciplinary
proceedings. All three employees in this consolidated matter
designated the Union as their representative.
Western Region maintains all of the disciplinary and
adverse action files for the regional employees. The files are
kept in alphabetical order and the labor relations staff has
access to all proposed and final decision letters within the five
Border Patrol sectors. The Western Regional Office policy, for
the six years preceding this hearing, has been not to provide
region wide data to the Union in disciplinary matters. Respondent
INS's rationale for not providing region wide data is predicated
on EEOC and MSPB case law, which supposedly states that for
purposes of analyzing disparate treatment claims only comparisons
between employees who share common supervision are required.
In normal situations for the respective sectors, the deputy
patrol agent proposes employee discipline, and the chief patrol
agent serves as the deciding officials except for reprimands. The
chief patrol agent is completely autonomous within his sector and
has final decision authority with regard to discipline. The
proposing and deciding sector officials can exercise their
discretion regarding application of Justice Department standard
schedule of disciplinary offenses and penalties. There is a wide
range of penalties that can be assessed in connection with a
particular type of conduct. The same offense in the respective
sectors could result in a different charge or penalty depending on
the facts, the seriousness of the offense, the range of penalties,
whether it is repeat conduct and if there are mitigating factors.
Similar types of violative conduct within the respective sectors
could lead to different charges being made against an employee, a
different application of mitigating factors thereby, resulting in
the imposition of a different penalty.
A regional labor relations staff member reviews
disciplinary actions. The Labor Relations Office at Western Region
conducts a technical review of draft proposal letters. If the
proposal letter is procedurally and technically correct, the labor
relations specialist will return the letter to the sector with a
recommendation that it be issued. Prior to the issuance of a
final decision letter, the case is discussed with the labor
relations specialist from the Western Regional Office, who serves
as an advisor.
The labor relations specialist is supposed to ensure that
there is consistency in discipline throughout the Western Region.
However, the sectors are not required to accept the disciplinary
recommendations from the Western Regional Office. Frequently, the
Western Regional Office is forced to defend a sector decision at
arbitration or MSPB that it recommended against. There are
differences of opinion between sector management and the Western
Regional Office regarding the nature of the charge and the
appropriate penalty to be assessed. Moreover, there are
differences of opinion among the respective sectors in terms of
charges, mitigating factors and assessed penalties.
This subjective decision-making process is further
complicated by the fact that certain offenses can result in a
charge that was outside the Department of Justice standard
schedule of disciplinary offenses and penalties. For example,
various types of criminal conduct, such as murder, rape and abuse
of an alien, are so unique in nature that they can only be
explained through a narrative proposal. Respondents' witness,
Thomas Feeney, equated mental and sexual abuse in the context of
on-the-job criminal behavior. Thus, while Speer, who was
originally accused of making obscene gestures and suggestive
sexual remarks to the illegal female aliens, was not charged
criminally in connection with the performance of his duties, it
has been suggested that he could have been.
The conduct of which Speer was accused, could have taken
place in any of the border facilities. The misconduct of which
LaRue and Miller were accused, could also have taken place within
any of the five Border Patrol sectors. Even though the respective
sectors are autonomous, they are all required to observe the same
statutory, regulatory and collective bargaining procedures in
connection with disciplinary actions. Despite the autonomy, it is
my view that the use of region wide evidence could be valuable in
swaying a deciding official in a third party proceeding.
Furthermore, it would undoubtably assist an exclusive
representative in assessing its response to proposed disciplinary
actions for obviously, if there is a certain consistency amongst
the sectors, it might be persuaded by the data received to proceed
no further with the matter.
The data requests that were submitted by the Union in the
three cases all contained the following language: "If this
request is denied, in whole or in part, please inform me, in
writing, of the . . . specific statutory, regulatory, or
contractual citations on which that decision is based."
Discussion and Conclusions
These three cases were consolidated for hearing because the
Union sought in each case to obtain region wide data concerning
employee disciplinary and adverse action proposals and final
decision letters in connection with the respective disciplinary
matters. The data was requested solely to represent three
employees who had designated the Union to represent them in their
respective disciplinary matters. Thus, the issue in each case is
the same with only the nature of the action differing.
In 48 FLRA NO. 35, the Authority remanded SA-CA-20236 to
the San Francisco Regional Director for resolution of the issues
surrounding "whether the requested information is necessary within
the meaning of section 7114(b)(4)." Finding that the parties'
stipulation on which it based its decision in 47 FLRA 684 was
insufficient to make a determination in the case "because the
parties do not agree, and the record does not disclose, what
information is in dispute." In that matter, the record now
discloses that the Union sought region wide data from Respondent
as follows:
1. A copy of all proposal and final decision letters
relating to the charge of Non-Compliance with
Standards, Policies, Regulations or Instructions issued
by the Service, for the past five years, within the
Western Region.
2. A copy of all proposal and final decision letters
relating to disciplinary or adverse action resulting
from the escape of an alien in custody, for the past
five years, within the Western Region.
The data requested by the exclusive representative in the
Speer case, as well as in the other cases, herein exists in the
disciplinary and adverse action files maintained by the Western
Region. In addition, the requests were not, as Respondent seems
to conclude in its brief, for the entire disciplinary file of any
Western Region employee. It is also clear from the record that
the Union sought only the action and proposal letters involving
disciplinary action for employee conduct similar to that for which
action letters issued to the three individuals it represented.
Finally, it is noted that the requested information was maintained
by the Respondent in the regular course of business. In this
regard, Respondents' admitted that copies of disciplinary and
adverse action letters are maintained by the Western Region.
These letters, as well as counseling letters, closed without
action letters, clearance letters and letters of reprimand are
kept in individual employee files. In this case, the documents
are normally maintained and reasonably available. Moreover, no
evidence was presented to show that it would have been unduly
burdensome for the Respondent to provide the Union with all the
requested data.
In SF-CA-30308 the Union requested, "A copy of all proposal
and final decision letters relating to like or similar charges for
the past two years within the Western Region." The Union
submitted that the information was needed to carry out its
representational responsibilities in responding to the proposed
action against employee LaRue who was issued a proposed reprimand
on November 24, 1992. The Union's request for information was
submitted on November 25, 1992. A decision letter was issued in
the matter on
January 12, 1993.
In SF-CA-31679 the Union requested, "Copies of any and all
proposals and/or final decision for like or similar disciplinary
action issued within the Western Region of the Immigration and
Naturalization Service for the past three (3) years." The Union
noted that it needed the requested data in order to carry out its
representational responsibilities in responding to a proposed
action. A proposal to reprimand employee Mark Miller was issued
on August 6, 1993, and the Union's request for information was
submitted on August 12, 1993. Respondents' decision letter was
issued on September 1, 1993.
In all three cases, the Union clearly had grievable matters
covering the data. In fact, there is no question that all of the
employees involved in the data requests had "grievances" as
broadly defined. Additionally, the Union had a contractual and
statutory obligation to represent these three employees.
Section 7114(b)(4) of the Statute obligates an agency to
furnish to the union, to the extent not prohibited by law, data
which is normally maintained by the agency in the regular course
of business; which is reasonably available and necessary for full
and proper discussion, understanding and negotiation of subjects
within the scope of collective bargaining, and; which does not
constitute guidance, counsel or training for management officials
or supervisors, relating to collective bargaining. Respondent
admits that the requested data does not constitute guidance,
advice, counsel, or training provided for management officials or
supervisors relating to collective bargaining. Accordingly, the
requested data met all the Statutory criteria and, therefore an
obligation to provide the requested data exists.
Here again, an agency challenges the exclusive
representative's need for certain information contending, no
"particularized need" for the information was established for the
requested data. In its remand of 20206, the Authority at least
examined the stipulation of the parties and sought only to clarify
"whether the requested information is necessary within the meaning
of section 7114(b)(4)." After its review of the record there it
made no mention of "particularized need," nor did it remand the
matter for a determination in that regard. It seems reasonable to
assume that it did not intend to apply such a standard in the
case, where adverse action and discipline data was the only
information sought. In any event, it is abundantly clear that the
"particularized need" standard is applied only when certain
conditions are present, which do not exist in this case. Thus,
there is no hint, even by Respondent, that the requested documents
represented intra management communications. Since intra
management documents, as described in 7114(C), was not a part of
the data requested, the undersigned rejects Respondents' argument
concerning the necessity to show a "particularized need". In
these circumstances, it is found that the Union was not required
to state a particularized need for the informa-tion that it sought
in this matter, at any stage of the proceedings.
The General Counsel argues that the Union is entitled to
the requested data region wide and that Respondents should be
estopped from making certain arguments. The General Counsel also
maintains that Respondent's claim that the data requests should be
judged by MSPB or EEOC standards are erroneous. Furthermore, it
contends that the particularized need standard asserted by
Respondent applies only to information requests which constitute
guidance, advice, counsel or training provided for management or
supervisors related to collective bargaining and that is
admittedly not the case here.); In a sum, the General Counsel
argues that Respondent should be collaterally estopped from
raising the Privacy Act, "particularized need" or the MSPB-EEOC
case law defenses.
With respect to the General Counsel's collateral estoppel
approach to the case, it is noted that there is no mutuality of
parties or issues, and therefore, it must be found that collateral
estoppel is not applicable here. What is obvious, however, is
that many of the issues raised by Respondents' here have been
already considered and resolved, on more than one occasion, by the
Authority. Clearly, the issue of whether information requested to
assist an exclusive representative in responding to proposed
disciplinary actions has been found necessary under section
7114(b)(4) in at least one of Respondent's regional offices.
Similarly, a review of the case law in the area reveals that the
Authority has required agencies to provide region wide data the
exclusive represen-tative. The rationale of those cases being,
such data is necessary for the Union to carry out its
representational functions under the Statute. Respondents' do not
distinguish this matter either factually or legally from those
previous decisions in which the Authority has already decided that
the agency should supply the data. This failure to differentiate,
leaves me with little choice, after studying existing case law to
apply it to these matters. Furthermore, the Authority has found
it appropriate, in cases where disparate treatment is at issue,
for the exclusive representative to seek such region wide data to
determine whether a proposed or final decision is consistent with
penalties imposed on other employees for similar misconduct. I am
bound to follow existing Authority precedent, therefore, I am
constrained to find that the defenses offered by Respondent in
this case, lack merit.
Accordingly, it is found that Respondent's failure
to provide data on a region wide basis, concerning action proposal
and final decision letters relating to disciplinary actions which
were necessary for the exclusive representative to carry out its
representational functions in each of three cases each constituted
separate violations of section 7116(a)(1), (5) and (8) of the
Statute. Therefore, it is recommended that the Authority adopt
the following:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that the United States Border Patrol, Tucson
Sector, Tucson, Arizona and Immigration and Naturalization
Service, Western Regional Office, Laguna Niguel, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the National
Border Patrol Council, American Federation of Government
Employees, Local 2544, AFL-CIO, the exclusive representative of
its employees, necessary and relevant information which was
requested in connection with the processing of certain grievances.
(b) In any like or related manner, interfering with,
restraining or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service Labor-
Management Relations Statute:
(a) Upon request, furnish to the National Border
Patrol Council, American Federation of Government Employees, Local
2544, AFL-CIO, sanitized copies of all proposal and final decision
letters relating to the charge of Non-Compliance with Standards,
Policies, Regulations or Instructions; all proposal and final
decision letters relating to disciplinary or adverse action
resulting from the escape of an alien in custody; copies of any
and all proposals and/or final decision for like or similar
disciplinary action issued with the Western Region; copies of all
proposal and final decision letters relating to like or similar
charges for the past two years within the Western Region.
(b) Upon request, furnish to the National Border
Patrol Council, American Federation of Government Employees, Local
2544, AFL-CIO copies of any and all region wide, proposed and
final decision letters on discipline involving specifically
identified infractions for the last three years within the Western
Region, which information is necessary and relevant to the Union's
representation of a unit employee in a proposed reprimand or
grievance under the negotiated grievance procedure.
(c) Post at its facilities in the Immigration and
Naturalization Service, Western Regional Office, Laguna Niguel,
California, copies of the attached notice regarding Case No. SF-
CA-31679 on forms to be furnished by the Authority. Upon receipt
of such forms, they shall be signed by the Director of the
Administrative Center 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.
(d) Post at all its facilities in the United States
Border Patrol, Tucson Sector, Tucson, Arizona copies of
the attached notice regarding Case Nos. SA-CA-20236 and
SF-CA-30308 on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by the Chief Patrol
Agent, Tucson 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.
(e) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, notify the Regional Director,
San Francisco Region, Federal Labor Relations Authority, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
Issued, Washington, DC, June 28, 1995
ELI NASH, JR.
Administrative Law Judge (Attachment A)
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National Border
Patrol Council, American Federation of Government Employees, Local
2544, AFL-CIO, the exclusive representative of certain of our
employees, Non-Complaince with Standards, Policies, Regulations or
Instructions and all proposal and final decision letters relating
to disciplinary or adverse action resulting from the escape of an
alien in custody; copies of any and all proposals and/or final
decision for like or similar disciplinary action issued with the
Western Region; copy of all proposal and final decision letters
relating to like or similar charges for the past two years within
the Western Region.
WE WILL NOT in any like or related manner, interfere with,
restrain or coerce our employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
WE WILL, upon request of the National Border Patrol Council,
American Federation of Government Employees, Local 2544,
AFL-CIO, the exclusive representative of certain of our employees,
furnish it with Non-Complaince with Standards, Policies,
Regulations or Instructions and all proposal and final decision
letters relating to disciplinary or adverse action resulting from
the escape of an alien in custody; copies of any and all proposals
and/or final decision for like or similar disciplinary action
issued with the Western Region; copy of all proposal and final
decision letters relating to like or similar charges for the past
two years within the Western Region.
(Activity)
Date: By:
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
other material.
If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor Relations
Authority, San Francisco Region, 901 Market Street, Suite 220, San
Francisco, California 94103-1791, and whose telephone number is
(415) 744-4000.
(Attachment B)
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to furnish to the National Border
Patrol Council, American Federation of Government Employees, Local
2544, AFL-CIO the agent of the exclusive represen-tative, the
National Border Patrol Council, American Federation of Government
Employees, AFL-CIO, copies of any and all region wide, proposed
and final decision letters on discipline which information is
necessary and relevant to unit employees in a proposed reprimands
or grievances under the negotiated grievance procedure.
WE WILL NOT in any like or related manner interfere with, restrain
or coerce our employees in the exercise of right assured by the
Federal Service Labor-Management Relations Statute.
(Activity)
Date: By:
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
other material.
-2-
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, San Francisco Region, 901 Market Street, Suite 220, San
Francisco, California 94103-1791, and whose telephone number is
(415) 744-4000.
FOOTNOTES FOR THE AUTHORITY:
(If blank, the
decision does not have footnotes.)
1. Following the Authority's remand of the complaint in Case No. SA-CA-20236 in United States Border Patrol, Tucson Sector, Tucson, Arizona, 48 FLRA 391 (1993), the San Francisco Regional Director consolidated it for hearing with the complaints in Case Nos. SF-CA-30308 and SF-CA-31679.
2. The Union later amended its request to cover 4, rather than 5, years. The Respondent adhered to its initial decision to deny the request. The Respondent ultimately furnished the Union with one unsanitized decision letter given one other employee in the Tucson Sector, but refused to release either the proposal on which that decision was based or any other disciplinary information for any other employees in the Western Region.
3. The request also stated that the information was requested under 5 U.S.C. § 7513(e). However, as that statutory provision is not asserted to be relevant to disposition of the complaint now before us, we do not address it further.
4. The Judge concluded that it was not necessary to determine whether disclosure of the requested information was prohibited by the Privacy Act because, based on hearing testimony, he found that the Union would have accepted the information in sanitized form. In view of the decision herein, we do not address this finding.
5. The Respondent relies on the court's decision in Department of the Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992), remanding Department of the Air Force, Scott Air Force Base, Illinois, 38 FLRA 410 (1990) (Scott I). Subsequent to the filing of the exceptions, the Authority issued its decision on remand from the court, Department of the Air Force, Scott Air Force Base, Illinois, 51 FLRA 675 (1995) (Scott II), concluding that the respondent violated the Statute by failing to furnish the union the requested information. The Authority's decision on remand was enforced by the U.S. Court of Appeals for the D.C. Circuit in Department of the Air Force, Scott Air Force Base, Illinois v. Federal Labor Relations Authority, 104 F.3d 1396 (D.C. Cir. 1997).
6. We note that, in Bureau of Indian Affairs, Uintah & Ouray Area Office, Ft. Duchesne, Utah, 52 FLRA 629 (1996) (Chair Segal dissenting) (BIA), the Authority concluded that the union had established a particularized need for information it requested inconnection with its representation of an employee who had been terminated for particular offenses. Unlike the case now before us, the request in BIA was not for disciplinary records; the union requested the dates of birth of certain employees for the purpose of making a subsequent request for state driver license records.
7. In Labor, the Authority also concluded that disclosure of the requested information was prohibited by the Privacy Act. The Authority went on to consider the question of particularized need to comply with the order of the court in United States Department of Labor v. FLRA, No. 91-1174 (D.C. Cir. Jan. 7, 1992) (mem.), remanding U.S. Department of Labor, Washington, D.C., 39 FLRA 531 (1991).
8. Our decision that the Respondent did not violate the Statute in these cases should not be taken as approval of its failure to engage the Union in any meaningful discussion of the Union's requests. We encourage all parties to follow the example set in Twin Cities by meeting to discuss their respective interests in the disclosure of information and attempting to accommodate those interests without resorting to litigation.
FOOTNOTES FOR ALJ:
(If blank, the decision
does not have footnotes.)
1. The Tucson Sector has a reputation for drug smuggling at border crossings. The San Diego Sector has a reputation for drug smuggling and severe alien crossing problems. The Livermore Sector is primarily concerned with problems associated with rural agriculture - farming and ranching. However, these various problems, which are experienced by the respective sectors, could occur in any of the five Border Patrol sectors. For example, alien crossings could take place anywhere along the United States-Mexico border, and four out of the five sectors have border facilities.
2. Disciplinary actions include suspensions of fourteen (14) days or any lesser penalty, and adverse actions, include suspensions of fifteen (15) days or any greater penalty.
3. In its brief, Respondent argues that it had no duty to provide the information in Case Nos. 30308 and 31679, since at the time those requests were made the Union was not the exclusive representative of either LaRue or Miller. This concern was resolved long ago by the Authority in National Treasury Employees Unions, Chapter 237, 32 FLRA 62 (1988) where it found that a union is entitled to information concerning disciplinary and adverse actions even where it is only designated as the personal representative of the employees involved as its representational function is in the public interest. Here the Union, at the time of the data requests, had been designated to represent both LaRue and Miller. Consequently, Respondents' speculation that there was "no vested separate entitlement" allowing the Union to obtain the requested data, is rejected.
4. It has never been disputed that the requested information was "normally maintained by and reasonably available" or that it "does not constitute guidance, advice, counsel, or training for management officials or supervisors relating to collective bargaining." In fact, it appears that the parties stipulated the above. Furthermore, Respondent did not challenge the above in its answer or at the hearing. However, it appears not to have initially challenged that the disclosure of the information is prohibited by law, an issue it now seeks to raise, either.
5. See, Article 31, Section B and Article 32, and Article 33 of the collective bargaining agreement, all of which deal with representation and the grievance and arbitration procedures established by the parties.
6. The Authority's position on the issue of whether precedent of MSPB and EEOC are governing in proceedings before it is clearly set out in several cases. See Twin Cities, infra; Salt Lake City, infra. Based on those holdings, Respondents' position is rejected.
7. In agreement with the General Counsel, it is found that the particularized need standard is not applicable to the instant matter. See, National Park Service, National Capitol Region, United States Park Police, 48 FLRA 1151, 1161-1164 (1993); ); United States Customs Service, Region IV, Miami, Florida, 48 FLRA 1239, 1242-1243 (1993).
8. It is worthy of note that in this case, the Union has not made a request for unsanitized data, but has indicated that the data could be provided in a sanitized format. When the request is for data in the sanitized format i.e. without identifiers such as names, addresses, social security or employee numbers, it is unnecessary to reach the Privacy Act issue raised here. See, U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310 (1990); Maxwell Air Force Base, Georgia, 36 FLRA 110 (1990). Accordingly, it is unnecessary for the undersigned to address whether the disclosure of the information requested is prohibited by law.
9. U.S. Department of Justice, Washington, D.C. and U.S. Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota and Office of Inspector General, Washington, D.C. and Office of Professional Responsibility, Washington, D.C., 46 FLRA 1526, 1529-36 (1993), petition for review filed sub nom. U.S. Department of Justice, Washington, D.C. and U.S. Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota and Office of Inspector General, Washington, D.C. and Office of Professional Responsibility, Washington, D.C. FLRA, No. 93-1284 (D.C. Cir. April 26, 1993).
10. U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City, Utah, 40 FLRA 303, 311 (1991), petition for review withdrawn. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City District, Salt Lake City, Utah v. FLRA; No. 91-1287 (D.C. Cir. 1992); Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Detroit District, Detroit, Michigan, 43 FLRA 1378, 1391 (1992).