[ v46 p1526 ]
46:1526(146)CA
The decision of the Authority follows:
46 FLRA No. 146
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
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.
(Respondents)
and
NATIONAL BORDER PATROL COUNCIL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
(Charging Party/Union)
7-CA-00683
7-CA-10291
AND
U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C. AND
U.S. IMMIGRATION AND NATURALIZATION SERVICE,
NORTHERN REGION, TWIN CITIES, MINNESOTA
(Respondents)
and
NATIONAL BORDER PATROL COUNCIL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
(Charging Party/Union)
7-CA-10373
DECISION AND ORDER
February 26, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority on exceptions filed by the General Counsel and the Respondents to the attached decision of the Administrative Law Judge.
In Case No. 7-CA-00683, the Judge concluded that Respondents Department of Justice, Office of Inspector General (OIG) and Department of Justice, Office of Professional Responsibility (OPR) violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with section 7114(a)(2)(B) of the Statute and by requiring a unit employee to reveal the content of discussions with a Union representative. In Case No. 7-CA-10291, the Judge found that Respondents OIG and OPR violated section 7116(a)(1) of the Statute by requiring a Union representative to reveal the content of discussions with a unit employee. The Judge recommended dismissal of the portions of these complaints alleging violations of the Statute by Respondents Department of Justice (DOJ) and Immigration and Naturalization Service (INS). In Case No. 7-CA-10373, the Judge found that Respondent INS violated section 7116(a)(1), (5), and (8) of the Statute by failing to furnish the Union with information requested under section 7114(b)(4) of the Statute.(1)
Respondents OIG and OPR filed exceptions to the decision in Cases Nos. 7-CA-00683 and 7-CA-10291 and Respondent INS filed exceptions to the decision in Case No. 7-CA-10373. The General Counsel filed an opposition to the exceptions as well as cross-exceptions in Cases Nos. 7-CA-00683 and 7-CA-10291.(2) Respondent INS filed an opposition to the General Counsel's cross-exceptions and the General Counsel filed a response to the opposition.(3)
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order in Cases Nos. 7-CA-00683 and 7-CA-10291.(4)
In Case No. 7-CA-10373, we agree with the Judge that Respondent INS violated the Statute by failing to provide the Union with information requested under section 7114(b)(4) of the Statute. We adopt the Judge's findings conclusions and recommended Order as modified below.
II. Case No. 7-CA-10373
A. Facts
Respondent INS proposed to remove a unit employee from his position for alleged theft of Government property; falsification, misstatement, or exaggeration of fact in connection with employment; falsification, misstatement, or exaggeration of fact in connection with an investigation; and conduct unbecoming an officer. The notice of proposed removal stated that the facts used to support the removal were documented in a specified OIG report.(5)
The affected employee designated the Union as his representative in connection with the proposed removal. Subsequently, the Union notified Respondent INS of such designation and made three requests for information under section 7114(b)(4) of the Statute. The Union stated, in this regard, that it had been designated to act on behalf of the affected employee and that the requested information was needed "[i]n order to properly respond to the allegations set forth in the notice" of proposed removal. G.C. Exh. 5. As discussed in more detail in the Judge's decision, the requests encompassed the following information: (1) proposed and final decisions involving adverse and disciplinary actions in the Northern Region of INS from January 1, 1985, to November 1990, for "offenses similar to those alleged against" the affected unit employee; (2) the OIG file containing the report referenced in the notice of proposed removal; (3) the statutory and regulatory authority for the OIG to investigate the employee; (4) any agreements between INS and OIG relating to such investigations; and (5) investigative manuals for the conduct of OIG investigations. The Union notified Respondent INS that it would accept the requested disciplinary and adverse action letters in a sanitized form.
Respondent INS provided the Union with the OIG report referenced in the notice of proposed removal but did not provide exhibits to the report or any other remaining requested information. With Union assistance, the affected employee made an oral reply to the notice of removal, following which the removal was reduced to a 5-day suspension. The Union filed a grievance and invoked arbitration over the suspension. The arbitration hearing was pending at the time of the unfair labor practice hearing in this case.
B. Judge's Decision
The Judge found, for reasons set forth fully in his decision, that Respondent INS violated section 7116(a)(1), (5), and (8) by failing to furnish the Union with the aforementioned requested information.
First, the Judge concluded that, with certain exceptions,(6) the requested information was normally maintained by, and reasonably available to, Respondent INS. In particular, the Judge found that Respondent INS normally maintained: (1) proposed and final disciplinary and adverse action letters issued after November 1987;(7) (2) statutory and regulatory authority for OIG to investigate INS employees; and (3) an INS manual regarding investigations.
In connection with the manual, the Judge noted that prior to April 1989, INS/OPR conducted investigations in accordance with an INS/OPR manual. The Judge found that after OIG assumed responsibility for such investigations, a new manual was not developed. "Instead, OIG investigators make use of the old INS/OPR manual . . . ." Judge's Decision at 14. The Judge stated that the manual was normally maintained by, and reasonably available to, Respondent INS because it was in the possession of INS employees.
With respect to the requested OIG file, the Judge found that an OIG file consists of: (1) an investigative report; and (2) various exhibits and other documents that "may or may not be relevant to the case." Id. at 15. The Judge found that "OIG does not release copies of its files to anyone outside of OPR or OIG." Id. However, according to the Judge, OIG does release copies of its investigative reports, with exhibits deemed relevant by OIG, to agencies upon request. The Judge found that, in this case:
OIG released to INS the investigative report without the accompanying exhibits, but with a list of the missing exhibits. Upon the Union's request for the "entire file," the report with only the list of exhibits was furnished by INS.
Id. at 16. Subsequently, after the Union requested copies of certain exhibits and documents in the file,(8) Respondent INS contacted "the collateral OIG coordinator and DOJ headquarters to ascertain whether the entire OIG investigative file . . . could be obtained[]" and was informed orally that OIG "would not release any additional information other than that already provided (the OIG report)." Id. at 18.
The Judge concluded that although Respondent INS was not in possession of the OIG file, the entire file, including the requested exhibits and other documents, was normally maintained by, and reasonably available to, the Respondent:
Although the entire OIG investigative file is never released, copies of the report of investigation and exhibits deemed relevant by OPR/OIG are released to agencies upon request. Since INS could request OPR/OIG, which are different components of its parent agency, DOJ, for the . . . documents included within the Union's request (with the exception of the entire file), they are within the control of the agency and are normally maintained within the meaning of section 7114(b)(4).
Id. at 27 (citations omitted).
Second, the Judge concluded, for reasons stated fully in his decision, that the requested information was necessary for the Union to represent the affected employee:
The Union requested the information "in order to properly respond to the allegations." The Union's immediate purpose in requesting the data was to assist [the employee] in responding to the proposed removal action. In addition, recognizing that an adverse decision was likely to follow the proposal, the Union requested the data to prepare for the pursuit of a grievance following management's decision.
Id. at 28.
With particular regard to the OIG file, the Judge found that the requested exhibits and other documents (see n.8) were necessary except insofar as those documents revealed "names of confidential sources, techniques, and derogatory information about other employees not connected with [the affected employee's] case." Id. at 30. According to the Judge, the Union did not show that "disclosure of these data in an unsanitized format is necessary . . . ." Id.
Third, the Judge found that none of the requested information was prohibited from disclosure by law. The Judge noted, in this regard, that the Union had advised Respondent INS that it would accept the requested disciplinary and adverse actions letters in a sanitized form. The Judge also noted the absence of any assertion or evidence that the requested information constituted advice, guidance, counsel or training related to collective bargaining, within the meaning of section 7114(b)(4)(C) of the Statute.
Based on the foregoing, the Judge concluded that, except for the requested memoranda and/or agreements between INS and OIG, Respondent INS failed to comply with section 7114(b)(4) of the Statute by failing to provide the Union with the requested information. The Judge stated the following concerning the OIG file:
Respondent's earlier efforts to obtain some of the . . . information in the possession of OPR/OIG . . . does not preclude the finding of a violation. The requests were not made in good faith since, at the time the requests were made, INS was of the opinion, and continues to assert, that section 7114(b)(4) did not apply and that all of the requested information is irrelevant.
Id. at 32. Moreover, the Judge concluded that, although the requested memoranda and/or agreements do not exist, Respondent INS violated the Statute by failing to advise the Union.
To remedy the Respondent's violation of the Statute, the Judge recommended, among other things, that Respondent INS be directed to provide the Union with: (1) disciplinary and adverse action letters issued after November 1987, in a sanitized form; (2) statutory and regulatory authority for OIG to investigate INS employees; (3) the INS manual regarding investigations; and (4) the report of investigation, exhibits and other requested documents contained in the OIG file, in a sanitized form.
C. Exceptions
Respondent INS claims, with respect to all the requested documents, that at the time of the Union's request, the Union's sole expressed reason for the request was to respond to the then-proposed adverse action. According to the Respondent, the Judge erred in considering the possible need for the documents in connection with a statutory appeal or grievance because these reasons were not communicated to the Respondent at the time of the request.
Respondent INS also claims that none of the requested information is necessary for discussion or negotiation over matters within the scope of collective bargaining, as required by section 7114(b)(4) of the Statute. The Respondent maintains, in this regard, that the Union's representation of the affected employee in this case was not one of the Union's functions as an exclusive representative. On a related point, the Respondent claims that, as the proposed adverse action could have resulted in review by the Merit Systems Protection Board (MSPB), the Authority should apply MSPB standards to determine whether the requested disciplinary and adverse action letters are necessary. In addition, citing National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA), Respondent INS argues that it was not required to furnish the Union the requested information under section 7114(b)(4) because the Union failed to "show a particularized need" for the information. Exceptions at 20.
Respondent INS also makes arguments regarding specific items of requested information.
With regard to the requested manual for conducting investigations, Respondent INS asserts that the Judge erred in concluding that it maintains the manual in the regular course of business. In addition, the Respondent claims that "an obsolete manual that set out the proper procedure under which a defunct organization (OPR[/]INS) used to conduct investigations[]" cannot be necessary, within the meaning of section 7114(b)(4). Id. at 30.
With regard to the OIG file, Respondent INS claims that the Judge erred in concluding that the portions of the file which were not furnished to it by OIG were normally maintained by, and reasonably available to, the Respondent. In addition, Respondent INS disputes the Judge's conclusion that its request to OIG for the complete file was not made in good faith. The Respondent argues, however, that even if its request was not made in good faith, such finding is "absolutely irrelevant." Id. at 34.
Finally, Respondent INS objects to the Judge's findings with regard to the Union's request for statutory authority for the OIG to conduct investigations and memoranda and/or agreements between INS and OIG concerning such investigations. According to the Respondent, the requested statutory authority, which is contained in the United States Code and is available from a commercial publisher, does not constitute "data," within the meaning of section 7114(b)(4) of the Statute. As for the memoranda and/or agreements, Respondent INS claims that any failure to notify the Union that such documents did not exist was not encompassed by the complaint in this case and the Judge's finding that it violated the Statute by such failure is inconsistent with the Judge's refusal at the hearing to amend the complaint to encompass this allegation.
D. Opposition
The General Counsel contends generally that the Judge's decision that Respondent INS violated the Statute by failing to provide the Union with copies of the requested information is fully supported by the record and consistent with applicable case law.
Specifically, the General Counsel disputes the Respondent's arguments regarding the Union's expressed need for the information. According to the General Counsel, the Union's requests for information were sufficient to put the Respondent on notice that the Union's need for the information could extend beyond the affected employee's oral reply to the proposed adverse action. In addition, the General Counsel contends that the Respondent has misrepresented the record in two respects. First, the General Counsel argues that, contrary to the Respondent's assertions, the Judge did not find that Respondent INS was informed by OIG that OIG would not release the entire OIG file. The General Counsel maintains that the record is devoid of any evidence of contact between the Respondent and OIG on this point. Second, the General Counsel argues that the Judge did not rule that the complaint did not encompass an allegation that the Respondent violated the Statute by failing to advise the Union that certain requested information did not exist.
Finally, the General Counsel argues that it is "premature to draw any certain conclusions" regarding the application of NLRB v. FLRA to this case. General Counsel's Cross Exceptions and Opposition at 11. The General Counsel also argues, however, that in view of the Judge's order that certain documents be sanitized as well as the lack of "any showing by Respondent[] that there were 'countervailing anti-disclosure interests' which would nullify the Union's established need for the data," the Judge's decision "would certainly survive application of the [c]ourt's decision." Id. at 12.
III. Analysis and Conclusions
For the following reasons, we conclude that, except for the portions of the OIG file that were not exhibits, Respondent INS violated the Statute by failing to provide the Union with the requested information. In so doing, we reject the following arguments by Respondent INS.
First, we have no basis for concluding that the requested statutory authority for OIG to conduct investigations of INS employees is not data, within the meaning of section 7114(b)(4) of the Statute. The Authority previously has ordered the disclosure of similar information, U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 38 FLRA 3, 7 (1990) (copies of portions of Federal Personnel Manual and Federal Employees' Compensation Act), without regard to the fact that the information was available from a commercial source, Department of Veterans Affairs, Department of Veterans Affairs Medical Center, Fort Lyon, Colorado, 41 FLRA 1091, 1098 (1991) (copy of transcript of arbitration hearing available from reporting company).
Second, contrary to Respondent's assertion, the Judge did not rule at the hearing that the complaint in this case could not encompass a violation based on Respondent's failure to advise the Union that requested memoranda and/or agreements did not exist. Indeed, the Judge specifically acknowledged "cases . . . holding that such a failure is a violation of [section 7116(a)(5)]" and stated that if Counsel for the General Counsel "want[ed] to rest on the complaint in order to prove those allegations," the hearing could "go forward." Transcript of Proceedings at 45.
Third, MSPB precedent concerning the admissibility of evidence in statutory appeals procedures does not govern Authority determinations under section 7114(b)(4). For example, U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City, Utah, 40 FLRA 303, 310-11 (1991) (IRS). Accordingly, we decline Respondent's request that we determine whether the requested disciplinary and adverse action letters would be discoverable in MSPB proceedings.
Fourth, we reject the Respondent's argument that the requested information did not relate to subjects within the scope of collective bargaining. We note that in National Labor Relations Board, 38 FLRA 506 (1990) (NLRB), remanded as to other matters sub nom., NLRB v. FLRA, 952 F.2d 523 (D.C. Cir. 1992), we concluded that the term "collective bargaining" in section 7114(b)(4) encompasses bargaining, administration of a collective bargaining agreement, third-party dispute resolution procedures, the processing of grievances and cases before the Authority, and other labor-management activities that affect unit employees' conditions of employment or a union's status as exclusive representative. For the reasons fully set forth in NLRB, we find the requested information sufficiently related to collective bargaining so as to be within the Respondent's obligation under section 7114(b)(4). See NLRB, 38 FLRA at 518-23. Compare Commander Naval Air Pacific, San Diego, California and Naval Air Station Whidbey Island, Oak Harbor, Washington, 41 FLRA 662, 669-73 (1991) (information requested for lobbying efforts found not sufficiently linked to union's representational responsibilities under the Statute).
Fifth, we agree with the Judge that the requested information was necessary, within the meaning of section 7114(b)(4). In particular, we agree with the Judge's finding that the Union requested the information "to assist [the affected employee] in responding to the proposed removal action[,]" including assistance and representation following the Respondent's decision regarding the action. Judge's Decision at 28. This reason is sufficient to establish that the information is necessary under section 7114(b)(4). See IRS, 40 FLRA at 310-11.
The Respondent cites NLRB v. FLRA in support of its argument that the requested information is not necessary. In that case, 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." 952 F.2d at 534. The court also held that, in determining whether requested information is necessary, "countervailing interests" against disclosure should be considered. Id. at 531.
As discussed previously, the Judge found, and we agree, that the Union had a clear, articulated need for the requested information in this case to assist and represent a unit employee in connection with a proposed removal action.(9) Moreover, we agree with the General Counsel that Respondent INS has neither asserted nor shown any "'countervailing anti-disclosure interests' which would nullify the Union's established need for the data." General Counsel's Cross Exceptions and Opposition at 12. In any event, noting in particular that requested information which may contain confidential information (including internal memoranda and investigatory notes) may be sanitized, no such interests appear to exist from the record.(10) For example, Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas and American Federation of Government Employees, AFL-CIO, National Border Patrol Council, 43 FLRA 697, 709 (1991), petition for review filed sub nom. Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas v. FLRA, No. 92-4149 (5th Cir. Feb. 13, 1992). Accordingly, without determining the extent to which NLRB v. FLRA applies here or addressing the merits of the decision, we conclude that, even under that decision, the requested information was necessary, within the meaning of the Statute.
Similarly, except for the documents in the OIG file that were not exhibits, the requested information was normally maintained by, and reasonably available to, Respondent INS. Under section 7114(b)(4) of the Statute, an agency is required to provide a Union with requested information which is, as relevant here, "normally maintained" and "reasonably available." In determining whether information is normally maintained by an agency, the Authority examines whether the information is within the control of the agency. For example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, New Bedford District Office, New Bedford, Massachusetts, 37 FLRA 1277, 1284-85 (1990). In determining whether information is reasonably available to an agency, the Authority determines whether the information is accessible or obtainable through means which are not extreme or excessive. For example, Department of Health and Human Services, Social Security Administration, 36 FLRA 943, 950-52 (1990). The physical location of requested information is not relevant, provided the information is subject to the agency's control or can be retrieved and provided to the agency at its request. See U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1323-24 (1990). See also U.S. Department of Transportation, Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191, 197 (1991); Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA 298, 309-10 (1991).
We agree with the Judge that, except for the portions of the OIG file that were not exhibits, the requested information is sufficiently under the control of and otherwise available and accessible to Respondent INS as to satisfy the requirements of section 7114(b)(4).(11) In this regard, the record establishes and the Judge found that the OIG releases "copies of the report of investigation with attached exhibits to agencies upon request." Judge's Decision at 15. As such, we conclude that the requested report of investigation and exhibits are normally maintained by, or reasonably available to, Respondent INS. In this case, Respondent INS received and furnished the Union a copy of the OIG report of investigation, but did not furnish the exhibits. Therefore, we conclude that Respondent's failure to furnish the Union with the exhibits constituted a failure to comply with section 7114(b)(4) of the Statute, in violation of section 7116(a)(1), (5), and (8). However, we further conclude that the other documents requested from the OIG file are not normally maintained by, or reasonably available to, Respondent INS.(12) In this connection, the record establishes and the Judge found that, with the exception of reports of investigation and attached exhibits, "OIG does not release copies of its files to anyone outside of OPR or OIG." Id. Accordingly, Respondent's failure to provide the Union with the other documents did not constitute a refusal to comply with section 7114(b)(4) of the Statute.(13)
In sum, we conclude that the failure of Respondent INS to provide the Union with the requested: (1) disciplinary and adverse action letters in a sanitized form; (2) investigation manual; (3) statutory and regulatory authority for OIG to investigate INS employees; and (4) exhibits to the report of investigation in a sanitized form, constituted a failure to comply with section 7114(b)(4) of the Statute, in violation of section 7116(a)(1), (5), and (8).
IV. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that:
A. The U.S. Department of Justice, Office of the Inspector General, Washington, D.C., the U.S. Department of Justice, Office of Professional Responsibility, Washington, D.C., shall:
1. Cease and desist from:
(a) Requiring any bargaining unit employee of the U.S. Immigration and Naturalization Service, U.S. Border Patrol, to take part in an examination in connection with an investigation without allowing the exclusive representative of such employee to actively assist, and consult with, such employee, where representation has been requested by the employee and the employee reasonably believes that the examination may result in disciplinary action against him or her.
(b) Requiring an employee, who is a representative of the National Border Patrol Council, American Federation of Government Employees, AFL-CIO (Union), to disclose, under threat of disciplinary action, the content or substance of any statement made by an employee to such Union representative in the course of actual or potential disciplinary proceeding or other protected representational activity.
(c) Requiring an employee to disclose, under threat of disciplinary action, the content or substance of any statement made by the employee to a Union representative in the course of an actual or potential proceeding or other protected representational activity.
(d) 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 of the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, and Senior Border Patrol Agent Jason Wood, repeat the examination of Senior Border Patrol Agent Jason Wood that occurred on July 18, 1990, at which he was denied his right to active Union representation. In repeating the examination, afford Wood his statutory right to active Union representation. After repeating the examination reconsider any disciplinary action taken against Wood and/or the retention in Wood's personnel records of any information obtained during the July 18, 1990, interview. On reconsideration of the disciplinary action, as appropriate, make Wood whole for any losses suffered to the extent consistent with the decision upon reconsideration and, if relevant, afford him whatever grievance and appeal rights are due under any relevant collective bargaining agreement, law or regulation.
(b) Post at all locations within the U.S. Immigration and Naturalization Service, U.S. Border Patrol, where bargaining unit employees represented by the National Border Patrol Council, American Federation of Government Employees, AFL-CIO are located, copies of the attached Notice (APPENDIX A) on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Inspector General, U.S. Department of Justice, the Director, Office of Professional Responsibility, U.S. Department of Justice, and the Regional Commissioner, U.S. Immigration and Naturalization Service, Northern Region, 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 these 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, Denver 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.
B. The U.S. Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the Union with data requested on November 21, 26, and December 13, 1990, including: proposal/decision notices issued after November 1987 in a sanitized form; exhibits to the report of investigation in a sanitized form; statutory/regulatory authority for OIG to conduct investigations of INS employees; and an INS manual regarding investigations of INS employees.
(b) Failing and refusing to inform the Union that certain data requested on November 21, 26 and December 13, 1990, did not exist.
(c) In any like or related manner, failing or refusing to furnish to the Union, upon request, 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, which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining, and which is not prohibited by law from release.
(d) In any like or related manner, interfering with, restraining or coercing employees in the exercise of there rights assured by the Federal Service Labor-Management Relations Statute.
(e) 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) Furnish the Union with data requested on November 21, 26, and December 1, 1990, including: proposals/decision notices issued after November 1987 in a sanitized form; exhibits to the report of investigation in a sanitized form; statutory/regulatory authority for OIG to conduct investigations of INS employees; and an INS manual regarding investigations of the INS employees.
(b) Otherwise furnish to the Union, upon request, 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, which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining, and which is not prohibited by law from release.
(c) Post at its facilities copies of the attached Notice (APPENDIX B) on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by Regional Commissioner, Northern Region, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employee 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 2424.30 of the Authority's Rules and Regulations, notify the Regional Director, Denver 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.
The allegations against the U.S. Department of Justice, in Cases Nos. 7-CA-00683, 7-CA-10291, and 7-CA-10373 are dismissed. The allegations against the Department of Justice, Immigration and Naturalization Service in Cases
Nos. 7-CA-00683 and 7-CA-10291 are dismissed.
APPENDIX 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 NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT require any bargaining unit employee of the U.S. Immigration and Naturalization Service, U.S. Border Patrol, to take part in an examination in connection with an investigation without allowing the exclusive representative of such employee to actively assist, and consult with, such employee, where representation has been requested by the employee and the employee reasonably believes that the examination may result in disciplinary action against him or her.
WE WILL NOT require an employee, who is a representative of the National Border Patrol Council, American Federation of Government Employees, AFL-CIO (Union), to disclose, under threat of disciplinary action, the content or substance of any statement made by an employee to such Union representative in the course of actual or potential disciplinary proceeding or other protected representational activity.
WE WILL NOT require an employee to disclose, under threat of disciplinary action, the content or substance of any statement made by the employee to a Union representative in the course of an actual or potential proceeding or other protected representational activity.
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 of the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, repeat the examination of Senior Border Patrol Agent Jason Wood that occurred on July 18, 1990, at which he was denied his right to active Union representation. In repeating the examination, afford Wood his statutory right to active Union representation. After repeating the examination reconsider any disciplinary action taken against Wood and/or the retention in Wood's personnel records of any information obtained during the July 1990 interview. On reconsideration of the disciplinary action, as appropriate, make Wood whole for any losses suffered to the extent consistent with the decision upon reconsideration and, if relevant, afford him whatever grievance and appeal rights are due under any relevant collective bargaining agreement, law or regulation.
Date: ___________
_______________________________
Inspector General
U.S. Department
of Justice
Washington, D.C.
Date: ____________
_______________________________
Director, Office of Professional
Responsibility, U.S. Department
of Justice, Washington, D.C.
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, Denver Regional Office, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204, and whose telephone number is: (303) 844-5224.
APPENDIX B
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 Union with data requested on November 21, 26, and December 13, 1990, including: proposal/decision notices issued after November 1987 in a sanitized form; exhibits to the report of investigation in a sanitized form; statutory/regulatory authority for OIG to conduct investigations of INS employees; and an INS manual regarding investigations of INS employees.
WE WILL NOT fail and refuse to inform the Union that certain data requested on November 21, 26 and December 13, 1990, did not exist.
WE WILL NOT in any like or related manner, fail or refuse to furnish to the Union, upon request, 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, which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining, and which is not prohibited by law from release.
WE WILL, furnish the Union with data requested on November 21, 26, and December 1, 1990, including: proposals/decision notices issued after November 1987 in a sanitized form; exhibits to the report of investigation in a sanitized form; statutory/regulatory authority for OIG to conduct investigations of INS employees; and an INS manual regarding investigations of the INS employees.
Date: _____________
_________________________________
Regional Commissioner
U.S.
Immigration and Naturalization Service,
Northern Region, Twin Cities,
Minnesota
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, Denver Regional Office, whose address is: 1244 Speer Boulevard, Suite 100 Denver, CO 80204, and whose telephone number is: (303) 844-5224.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. In Case No. 7-CA-10373, the Judge dismissed Respondent DOJ as a party to the case at the hearing. As no exceptions were filed to the dismissal, we will also dismiss this complaint as to Respondent DOJ.
2. We conclude that the General Counsel's cross-exceptions satisfy the requirements of section 2423.28(a) of the Authority's Regulations. Accordingly, we deny the motion by Respondent INS that the cross-exceptions be dismissed.
3. As the Authority's Regulations do not provide for the filing of a response to an opposition, the General Counsel's response has not been considered.
4. The General Counsel does not except to the Judge's decision to dismiss the portions of these complaints alleging violations by Respondent DOJ. Cross-Exceptions at 3 n.1. Moreover, in view of the Judge's uncontested findings that the individual who conducted the disputed investigation was under the exclusive control and supervision of Respondent OIG during the investigation and that Respondent INS could not "in any way" control the investigation, we agree with the Judge that these complaints should be dismissed as to Respondent INS also. Judge's Decision at 3.
5. Prior to April 1989, investigations of INS employees, such as the affected employee in this case, were conducted by the Office of Professional Responsibility of INS (INS/OPR). In April 1989, the responsibility for conducting such investigations was transferred by Congress to the Department of Justice OPR and the Department of Justice OIG.
6. As is discussed in more detail below, the Judge concluded that certain portions of the requested OIG file were not normally maintained by or reasonably available to Respondent INS. In addition, the Judge found that Respondent INS did not maintain the requested memoranda and/or agreements between INS and OIG concerning OIG investigations because "[n]o such memoranda/ agreements exist . . . ." Judge's Decision at 14.
7. Although the Union requested disciplinary and adverse action material issued after January 1, 1985, the Judge found, and it is not disputed, that Respondent INS maintains only such material issued after November 1987.
8. The Union requested: (1) exhibits to the report (two memoranda concerning initiation of the investigation, two complaint forms containing allegations against the affected employee, and personal bank records of the employee); and (2) other documents that are contained in the OIG file but were not made exhibits to the report (investigator's notes, tape recordings of six interviews conducted by the investigator, and affidavits made in connection with subpoenas for bank records).
9. As noted previously, the Union filed a grievance and invoked arbitration over the Agency's decision to suspend the affected employee. There is no indication in the record before us that the grievability or arbitrability of the matter is in dispute.
10. No exceptions were filed to the Judge's finding that only sanitized information was necessary or needed to be provided by the Respondent.
11. Although the requested memoranda and/or agreements between INS and OIG do not exist and are not, therefore, normally maintained by and reasonably available to the Respondent, we agree with the Judge that the Respondent's failure to notify the Union violated the Statute. For example, Social Security Administration, Baltimore, Maryland and Social Security Administration, Area II, Boston Region, Boston, Massachusetts, 39 FLRA 650, 656 (1991).
12. 12/ As noted previously, no exceptions were filed to the Judge's dismissal of the complaint in this case as to Respondent DOJ. Accordingly, we do not address whether, or to what extent, OIG files could be found to be normally maintained by and/or reasonably available to that Respondent.
13. 13/ In view of our conclusion, we do not address further the Judge's finding that the Respondents efforts to obtain information from the OIG file were not made in good faith.