Department of Justice, U.S. Immigration and Naturalization Service, El Paso, Texas and American Federation of Government Employees, National Border Patrol Council (Authority decision, October 28, 1992)

Final FLRA decision. This is a final unfair-labor-practice order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Border Patrol Council requested records from the El Paso INS office to decide whether to grieve its disclosure of information about an employee's driving ability to Texas authorities. INS refused to provide the records, violating its duty to furnish information needed for union representation. By the time of the order, the employee had left the bargaining unit. The Authority agreed that the union no longer had a representational need for these particular records, so it did not order their production. It adopted a cease and desist order, a workplace notice, and a compliance report.

Decision snapshot

• Authority: Information requests under 5 U.S.C. § 7114(b)(4); unfair labor practice under § 7116(a)(1), (5), and (8).
• Outcome: Information refusal found unlawful; cease and desist, notice, and report ordered without production of the requested records.
• Key point: A past refusal can be unlawful even when later events remove the need to produce the records as a remedy.

Full text (FLRA public release)

[ v46 p381 ]
46:0381(33)CA

The decision of the Authority follows:

46 FLRA No. 33

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF JUSTICE

UNITED STATES IMMIGRATION AND

NATURALIZATION SERVICE

EL PASO, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

AFL-CIO

NATIONAL BORDER PATROL COUNCIL

(Charging Party/Union)

6-CA-00519

DECISION AND ORDER

October 28, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent did not file an opposition to the exceptions.

The complaint alleged 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. The Judge also concluded that the appropriate remedy for the violation is a cease and desist order. Therefore, his recommended Order does not direct the production of the requested information.

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 and conclusions, except as discussed below, and the Judge's recommended Order.(*/)

Although we agree with the Judge that, in the circumstances of this case, the remedy should not include an order directing the production of the requested information, we disagree with his conclusion that F.E. Warren Air Force Base, Cheyenne, Wyoming, 44 FLRA 452 (1992) (F.E. Warren), signaled a change in Authority precedent in this area. In F.E. Warren, the Authority found that the respondent had violated the Statute by not releasing a requested report to the union. Nonetheless, the Authority concluded that the remedy should not require the production of the report, which pertained to alleged misconduct by one employee, because that individual was no longer an employee and had "disappeared" and because the report "could not have been used to otherwise further the Union's representational duties." 44 FLRA at

460. In reaching this conclusion, the Authority relied on two cases in which
     production of requested information was not ordered. In both of those cases, the charging party was no longer seeking the release of the information. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Detroit District, Detroit, Michigan, 43 FLRA 1378, 1388, 1391 (1992) (Authority adopted judge's decision, which found that the union acknowledged it no longer had a need for the information); U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241 (1991) (Authority noted that neither the General Counsel nor the charging party had expressed an interest in obtaining the requested information).

In contrast, the Authority will order the production of requested documents to remedy a failure to supply information pursuant to section 7114(b)(4) of the Statute, even if the grievant on whose behalf the request was originally made is no longer an employee, where the information remains necessary for the Union to fulfill the full range of its obligations as exclusive bargaining representative. See Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 43 FLRA 697, 711 n.* (1991) (INS II), petition for review filed, No. 92-4149 (5th Cir. Feb. 13, 1992); Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 41 FLRA 259, 262 (1991) (INS I), denying reconsideration to 40 FLRA 792 (1991). Nothing in F.E. Warren affected the Authority's remedial policy that production should be ordered where receipt of the requested information will enable the union to further its representational interests.

In this case, the Union requested various documents to determine whether to file a grievance alleging that the Respondent had supplied Texas authorities with information regarding an employee's ability to operate a motor vehicle. That individual is no longer employed by the Respondent. Unlike INS I and II, which involved, respectively, potential grievances over whether the respondent had discriminated against the former employee in his Officer Corps rating and his yearly performance appraisal, matters of continuing interest to the entire bargaining unit, this case concerns information that, like the report at issue in F.E. Warren, had significance only for the one individual affected by the Respondent's alleged conduct. As the employee is no longer part of the bargaining unit, the Union no longer has a representational interest in possessing the requested documents. Accordingly, we agree with the Judge's determination that, in the circumstances of this case, a cease and desist order is sufficient.

II. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Department of Justice, United States Immigration and Naturalization Service, El Paso, Texas, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish, upon request by the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, the exclusive representative of its employees, information which is reasonably available and necessary for the Union to effectively represent unit employees in grievance proceedings, or for purposes of determining whether to file grievances.

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

2. Take the following affirmative action in order to effectuate the
   purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Post at its El Paso, Texas, facilities 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 and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

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

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, upon request by the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, the exclusive representative of our employees, information which is reasonably available and necessary for the Union to effectively represent unit employees in grievance proceedings, or for purposes of determining whether to file grievances.

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.

_________
(Activity)

Dated:____ By:________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

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

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

*/
No exceptions were filed to the Judge's
conclusion that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing and refusing to furnish the requested information.