---

47 FLRA No. 64

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

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/Union)

SA-CA-20236

_____

DECISION AND ORDER

May 21, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1 of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.

The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to furnish information requested by the Union pursuant to section 7114(b)(4) of the Statute.

For the following reasons, we find that the Respondent violated the Statute, as alleged in the complaint.

II. Facts

The National Border Patrol Council of the American Federation of Government Employees, AFL-CIO (AFGE), is the exclusive representative of a nationwide consolidated unit of employees, including employees in the Western Region of the Immigration and Naturalization Service (INS). The U.S. Border Patrol, Tucson Sector, is a part of the Western Region of the INS. The Charging Party is an agent of AFGE for purposes of representing unit employees at Respondent's Tucson facilities.

The Respondent proposed to suspend a unit employee for 90 days for failing to comply with INS policies and for conduct unbecoming an officer. After consideration of the Union's written reply, the Respondent decided to suspend the employee for 30 days. In its decision, the Respondent found that the employee had not complied with INS standards, policies, regulations and instructions. However, the Respondent concluded that the allegation relating to conduct unbecoming an officer had not been sustained.

The Union timely invoked arbitration over the employee's (hereinafter the grievant) 30-day suspension under the parties' collective bargaining agreement. Subsequently, the Union requested the following information from the Respondent:

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.

Stip., Exh. 7 (emphasis omitted).

In response to the Union's request, the Respondent provided the Union with one final decision letter regarding a 60-day suspension issued to a different employee.⁽¹⁾ The Union then requested a copy of the proposal letter which preceded that final decision letter, stating that the proposal letter was "relevant and necessary to present the case of [the grievant] in the upcoming arbitration." Stip., Exh. 12. The Respondent denied the Union's request on the grounds that "this type of proposal letter is not relevant to arbitration or other third party review." Stip., Exh. 13.⁽²⁾

The parties stipulated that proposal letters are normally maintained in the regular course of business, are reasonably available, and do not constitute guidance, advice, counsel, or training for management officials or supervisors relating to collective bargaining.

III. Positions of the Parties

A. Respondent

The Respondent argues that the requested proposal letter is not necessary, within the meaning of section 7114(b)(4) of the Statute, because proposal letters "are akin to indictments and as such, are often vastly different from the final decision." Respondent's Brief at 1. The Respondent asserts, in this regard, that the "only relevant information is that upon which the Deciding Official relied to sustain a reason for the action and the penalty imposed." Id. According to the Respondent, this latter information is not contained in proposal letters.

B. General Counsel

The General Counsel contends that the requested proposal letter is necessary for the Union to effectively represent the grievant in the arbitration of his 30-day suspension. The General Counsel claims that the final decision letter provided by the Respondent is of little use to the Union without the proposal letter because the final decision letter does not set forth the facts upon which the disciplinary action was predicated. The General Counsel maintains that both the proposal and the final decision letters are necessary for the Union to compare how the grievant and the other employee were disciplined for similar charges.

IV. Analysis and Conclusions

Section 7114(b)(4) of the Statute requires an agency to furnish a union, upon request, with information which: (1) is normally maintained in the regular course of business; (2) is reasonably available; (3) is necessary for full discussion, understanding, and negotiations of subjects within the scope of collective bargaining; (4) does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining; and (5) is not otherwise prohibited from disclosure by law.

The Respondent stipulated that proposal letters, including the one disputed in this case, are normally maintained and reasonably available and do not constitute guidance, advice, counsel, or training for management officials or supervisors relating to collective bargaining. Further, the Respondent does not argue that disclosure of the disputed proposal letter is prohibited by law.⁽³⁾ Instead, the sole issue before us is whether the requested proposal letter is necessary, within the meaning of section 7114(b)(4) of the Statute.

The Union requested the disputed proposal letter, and stated to the Respondent that it needed the letter, in order to prepare for an arbitration hearing regarding the grievant's 30-day suspension.⁽⁴⁾ Section 7114(b)(4) encompasses information necessary for preparation and presentation of grievances and arbitration hearings. For example, U.S. Department of the Treasury, United States Customs Service, Southwest Region, Houston, Texas, 43 FLRA 1362 (1992); U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Montana, 39 FLRA 241, 251-52 (1991); U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1320 (1990). See also American Federation of Government Employees, AFL-CIO Local 1345 v. FLRA, 793 F.2d 1360, 1364 (D.C. Cir. 1986) (court stated that a union's information request must be evaluated "in the context of the full range of union responsibilities in both the negotiation and the administration of a labor agreement.") (emphasis in original).

Moreover, the record here supports the Union's argument that the requested proposal letter is necessary. In this connection, the final letter provided by the Respondent states only, as relevant here:

In his letter . . ., the Deputy Chief Patrol Agent proposed that you be removed from your position . . . That proposal was based on the following reasons:

Reason I-- Improperly . . . accessing the Arizona criminal justice information system . . . in violation of Arizona revised statutes . . . ;

Reason II-- Noncompliance with policies and instructions issued by the Service and falsification, of material fact in connection with any record or investigation;

Reason III--Conduct prejudicial to the best interests of the Service.

Careful consideration has been given to the notice of proposal . . ., your written reply . . ., your oral reply . . ., and the evidence in support of each. . . .

I find that the Specifications in Reason I are proven; therefore, the Reason is sustained. I find that Specifications 1 and 3 in Reason II are proven; therefore, the Reason is sustained. I find that Specification 2 in Reason II is not proven. I find the Specifications in Reason III are proven; therefore, the Reason is sustained.

. . ., by your actions, you placed the access to a valuable law enforcement tool . . . in jeopardy. Therefore, it is my decision that the sustained Reasons warrant disciplinary action of suspension from duty for sixty (60) days. . . .

Stip., Exh. 9.

This final decision letter addresses the suspension of another employee in the Respondent's Tucson sector for, in part, the same reason (failure to comply with applicable policies and regulations) the Respondent suspended the grievant. The decision letter also discloses that certain specifications supporting the proposal to suspend the other employee for this reason were sustained by the deciding official and that another specification was not sustained. The necessity of this final decision letter to the Union is clear to us and, apparently, was clear also to the Respondent, which, as noted above, furnished the document to the Union in an unsanitized form.

However, the final decision letter furnished to the Union contains no facts and other discussion which would enable the Union to assess whether the grievant was treated disparately or how effectively to prepare for the grievant's arbitration hearing. In this connection, we agree with the General Counsel that "[t]he decision letter . . ., in and of itself, is of little or no use to the [Union] without the proposal letter." G.C.'s Brief at 11. As such, we conclude that the proposal letter is necessary, within the meaning of section 7114(b)(4), and that the Respondent's failure to furnish the Union with the proposal letter violated the Statute.

We note the decision of the United States Court of Appeals for the District of Columbia Circuit in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA), where the court concluded that an agency need not disclose certain requested information to a union unless the union has a "'particularized need' for such information." Id. at 534. The court also held that the Statute requires the Authority to consider "countervailing interests" against disclosure. Id. at 531. Subsequently, the court issued its decision in Department of the Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992) (Scott AFB), where, based on NLRB v. FLRA, the court determined that the Authority ordered disclosure of certain requested information without properly considering the "countervailing interests against disclosure." Scott AFB, 956 F.2d at 1224.

We do not decide whether we will adopt NLRB v. FLRA and Scott AFB. However, even if we were to adopt and apply those decisions here, they would not change our conclusion that the disputed information is necessary, within the meaning of section 7114(b)(4) of the Statute. In this regard, the Union's need for the disputed proposal letter, as articulated to the Respondent, is clear. On the other hand, the Respondent asserts no countervailing interest against disclosure. Instead, the Respondent observes only that proposal letters "are often vastly different from the final decision." Respondent Brief at 1. In this case, it is precisely because of the difference between the proposal and final letters--that the proposal letter contains the facts and circumstances necessary for the Union to understand the final letter--that we conclude that the proposal letter is necessary.

As the Union's need for the requested information is clear and demonstrated, and the Respondent asserts no countervailing interest against disclosure, we find that, even if we were to adopt and apply NLRB v. FLRA and Scott AFB here, we would conclude that the requested proposal letter is necessary within the meaning of section 7114(b)(4) of the Statute. Therefore, the Respondent was required to supply the letter to the Union and its failure to do so violated section 7116(a)(1), (5) and (8) of the Statute. Accordingly, we will direct the Respondent to cease and desist from its violation of the Statute and to supply the proposal letter to the Union.

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Border Patrol, Tucson Sector, Tucson, Arizona, 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 certain of its employees, the proposal letter it requested on January 18, 1992.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

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

(a) Upon request, furnish to the Union the requested proposal letter.

(b) Post at all its facilities in the Tucson Sector, Tucson, Arizona, 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, 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.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco 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.

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 National Border Patrol Council, American Federation of Government Employees, Local 2544, AFL-CIO, the exclusive representative of certain of our employees, the information requested by the Union on January 18, 1992.

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, upon request, furnish to the Union the information requested on January 18, 1992.

_____________________________
(Agency)

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 its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco CA 94103, and whose telephone number is: (415) 744-4000.

---

---

---

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

1. The record does not disclose whether the employee was a member of the bargaining unit represented by the Union.

2. There is no contention that any documents other than this one disputed proposal letter are involved here. In this regard, the Respondent asserts, and the General Counsel does not dispute, that "[t]he sole issue in this case is the relevance of a proposal letter . . . The Union has received the decision letter in that case . . . ." Respondent's Brief at 1. Accordingly, our decision addresses only the one disputed proposal letter.

3. Although, in its answer (Stip., Exh. 1(c)), the Respondent denied the allegation in the unfair labor practice complaint that disclosure of the requested proposal letter was not prohibited by law, the Respondent does not address that matter in its brief. We note, in this connection, that the final decision letter provided by the Respondent regarding the other employee was not sanitized prior to its disclosure to the Union.

4. There is no indication in the record before us that the grievability or arbitrability of the matter is in dispute.

---