Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Dallas, Texas and American Federation of Government Employees, National Border Patrol Council (Authority decision, October 26, 1992)

FLRA remand decision. The Authority returns the unfair labor practice complaint to an administrative law judge for further proceedings. The information disclosure dispute remains unresolved. This decision does not present a final judicial review period under 5 U.S.C. § 7123(a).

Plain-English summary

The National Border Patrol Council requested three disciplinary policy memoranda while pursuing grievances about proposed suspensions. Border Patrol refused to provide them, and an administrative law judge initially found them exempt from disclosure. The Authority had reversed that ruling, but a federal appeals court returned the case for reconsideration of whether the union needed the memoranda under the governing disclosure rule. The Authority found that the existing record could not support that determination. It sent the complaint back to the judge for further proceedings without resolving the alleged unfair labor practice.

Decision snapshot

• Authority: Information disclosure under 5 U.S.C. § 7114(b)(4).
• Outcome: Complaint remanded to the administrative law judge; no final violation finding in this decision.
• Key point: The record did not establish whether the requested memoranda met the statutory necessity standard.

Full text (FLRA public release)

[ v46 p295 ]
46:0295(26)CA

The decision of the Authority follows:

46 FLRA No. 26

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF JUSTICE

UNITED STATES IMMIGRATION AND NATURALIZATION
SERVICE

UNITED STATES BORDER PATROL

DALLAS, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

AFL-CIO

NATIONAL BORDER PATROL COUNCIL

(Charging Party/Union)

6-CA-90117

41 FLRA 137 (1991)

DECISION AND ORDER ON REMAND

October 26, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Dallas, Texas v. FLRA, No. 91-1371 (D.C. Cir. Jul. 31, 1992) (order) (DOJ v. FLRA). 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 refusing to furnish the Union with certain information requested under section 7114(b)(4) of the Statute. For the following reasons, we conclude that the complaint must be remanded to the Administrative Law Judge for further proceedings.

II. Background

In connection with the processing of grievances concerning the recommended suspension of three employees, the Union requested, under section 7114(b)(4) of the Statute, three memoranda that related to the policy of the Respondent's Regional Office governing disciplinary and adverse actions. The Respondent denied the Union's requests on the basis that the information related to management's policy governing disciplinary and adverse actions and constituted guidance to management officials and supervisors that was exempt from disclosure under section 7114(b)(4)(C) of the Statute.

The Judge concluded that because the memoranda constituted guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute, the memoranda were exempt from disclosure. Therefore, the Judge found that the Respondent did not violate section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the memoranda to the Union.

Contrary to the Judge, the Authority concluded that the memoranda did not constitute guidance, advice, counsel or training for management officials relating to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute. Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Dallas, Texas, 41 FLRA 137, 141-43 (1991) (Border Patrol). The Authority found that the requested information "was necessary for the Union to effectively represent the grievants" and "necessary for the Union to carry out its representational function." Id. at 141. The Authority held that the Respondent's failure to furnish the requested memoranda violated section 7116(a)(1), (5), and (8) of the Statute and it directed the Respondent to furnish the requested information to the Union.

In DOJ v. FLRA, the court referenced its decision in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA) and stated that the Authority should reconsider its decision in Border Patrol in light of NLRB v. FLRA. Accordingly, the court remanded the case for the Authority to reconsider in light of NLRB v. FLRA.

III. Analysis and Conclusions

Pursuant to the court's order in DOJ v. FLRA, we must reconsider the Authority's previous determination that the requested information is necessary, within the meaning of section 7114(b)(4)(B) of the Statute. In particular, we must reconsider that determination in light of the court's decision in NLRB v. FLRA concerning section 7114(b)(4)(B). NLRB v. FLRA, 952 F.2d at 531-34. The record before us is not sufficient to make the determinations required by the court's remand. Accordingly, we will remand this case to the Judge for further processing. See U.S. Department of Labor, Washington, D.C., 44 FLRA 1540 (1992).

IV. Order

The complaint is remanded to the Judge for further proceedings consistent with this decision.

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