[ v23 p239 ]
23:0239(31)CA
The decision of the Authority follows:
23 FLRA No. 31
DEPARTMENT OF JUSTICE
UNITED STATES IMMIGRATION
AND NATURALIZATION SERVICE
UNITED STATES BORDER PATROL
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
NATIONAL BORDER PATROL COUNCIL
Charging Party
Case No. 6-CA-50383
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint, and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, the Respondent filed exceptions and a
supporting brief limited to the Judge's recommended remedy. The General
Counsel filed an opposition to the Respondent's exceptions and a motion
to strike portions of such exceptions. /*/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge reached at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority adopts the Judge's
findings, conclusions and recommended Order as modified below.
In agreement with the Judge, the Authority finds that the Respondent
violated section 7116(a)(1), (5) and (8) of the Statute by failing to
furnish the American Federation of Government Employees, AFL-CIO,
National Border Patrol Council (AFGE) with the data described in its
March 5, 1985 request for information. The Respondent excepts to the
remedy contending that certain of the data, namely the Daily Assignment
and Equipment Logs (logs) for the eighteen month period requested by the
AFGE do not exist. The Respondent contends that these logs are only
kept for a thirty day period and then destroyed. Logs covering the
period for April 14, 1985 through April 30, 1985 have been retained only
because the Respondent's Counsel requested them at the beginning of the
hearing. The Respondent also argues that the other documents sought are
useless without the corresponding logs. The Respondent asks that the
Order be modified to require it to provide the data requested only for
the two week period for which it possesses the logs.
Contrary to the Respondent's argument, the record indicates that the
logs are maintained at Border Patrol sector headquarters in El Paso,
Texas in a file folder for each fiscal year for each particular Border
Patrol Station. The Authority has addressed the availability of records
in the past and has held that it is not an unfair labor practice to fail
to produce documents that do not exist. Army and Air Force Exchange
Service (AAFES), Lowry Air Force Base Exchange, Ft. Carson, Colorado, 13
FLRA 392 (1983). Consequently, while AFGE is entitled to the requested
data in the possession of the Respondent for the period in question, the
Respondent cannot be held accountable for that data it no longer
possesses. In the Authority's view, the availability of the data
involved can best be determined during the compliance stage of this
proceeding. We shall therefore modify the Order to require the
Respondent to supply whatever of the requested data it has in its
possession. During the compliance stage of this proceeding, the General
Counsel will determine what data is in fact available.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, it is
hereby ordered that the Department of Justice, United States Immigration
and Naturalization Service, United States Border Patrol shall:
1. Cease and desist from:
(a) Failing and refusing to furnish to the American Federation of
Government Employees, AFL-CIO, National Border Patrol Council, the
exclusive representative of its employees, the available data requested
in a letter dated March 5, 1985, addressed to the Associate Regional
Commissioner for Management, Immigration and Naturalization Service,
Southern Regional Office, Dallas, Texas, by Robert J. Marren, Vice
President, National Border Patrol Council, for the purpose of enabling
the National Border Patrol Council to perform representational duties
relating to the evaluation and processing of 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 Statute:
(a) Furnish to the American Federation of Government Employees,
AFL-CIO, National Border Patrol Council, the exclusive representative of
its employees, the available data requested in a letter dated March 5,
1985, addressed to the Associate Regional Commissioner for Management,
Immigration and Naturalization Service, Southern Regional Office,
Dallas, Texas, by Robert J. Marren, Vice President, National Border
Patrol Council, for the purpose of enabling the National Border Patrol
Council to perform representational duties relating to the evaluation
and processing of grievances.
(b) Post at its Dallas, Texas and Lordsburg, New Mexico 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 Regional Commissioner, Immigration and Naturalization
Service, Southern Regional Office, Dallas, Texas, or a designee, 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., August 15, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 American Federation of
Government Employees, AFL-CIO, National Border Patrol Council, the
exclusive representative of our employees, the available data requested
in a letter dated March 5, 1985, addressed to the Associate Regional
Commissioner for Management, Immigration and Naturalization Service,
Southern Regional Office, Dallas, Texas, by Robert J. Marren, Vice
President, National Border Patrol Council, for the purpose of enabling
the National Border Patrol Council to perform representational duties
relating to the evaluation and processing of grievances.
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 furnish to the American Federation of Government Employees,
AFL-CIO, National Border Patrol Council, the exclusive representative of
our employees, the available data requested in a letter dated March 5,
1985, addressed to the Associate Regional Commissioner for Management,
Immigration and Naturalization Service, Southern Regional Office,
Dallas, Texas, by Robert J. Marren, Vice President, National Border
Patrol Council, for the purpose of enabling the National Border Patrol
Council to perform representational duties relating to the evaluation
and processing of grievances.
(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 its provisions, they may communicate directly with the Regional
Director, Region VI, Federal Labor Relations Authority whose address is:
Federal Office Building, 525 Griffin Street, Suite 926, Dallas, Texas
75202, and whose telephone number is: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 6-CA-50383
DEPARRMENT OF JUSTICE, UNITED STATES
IMMIGRATION AND NATURALIZATION
SERVICE, UNITED STATES BORDER PATROL
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL BORDER
PATROL COUNCIL
Charging Party
Shirley A. Epperson, Esquire
For the Respondent
Christopher J. Ivits, Esquire
John M. Bates, Esquire
For the General Counsel
Mr. Robert J. Marren
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. Section 7101, et seq. (hereinafter referred to as
"the Statute"), and the Rules and Regulations issued thereunder.
The complaint alleged that since on or about March 14, 1985, the
Department of Justice, United States Immigration and Naturalization
Service, United States Border Patrol (Respondent) has failed and refused
to comply with the provisions of Section 7114(b)(4) of the Statute by
refusing to furnish to the American Federation of Government Employees,
AFL-CIO, National Border Patrol Council (Charging Party or Union)
certain information relating to a possible grievance concerning alleged
irregularities in the Respondent's use of administratively
uncontrollable overtime (AUO) as such overtime pertains to bargaining
unit members employed by the Respondent as Border Patrol Agents at
Respondent's Lordsburg, New Mexico Border Patrol Station. It was
further alleged that such conduct violated Sections 7116(a)(1), (5) and
(8) of the Statute.
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Based upon the entire record,
including exhibits, relevant evidence adduced at the hearing, and briefs
filed by the parties, I make the following findings of fact, conclusions
and recommendations.
Findings of Fact
Duties of Bargaining Unit Members
With certain exceptions the union is the exclusive representative for
all of Respondent's nonprofessional personnel assigned to Border Patrol
Sectors. Included among these bargaining unit employees is a group of
Border Patrol agents assigned to the Lordsburg, New Mexico Border Patrol
Station. /1/ The Station is responsible for patrolling distances up to
80 miles north and south of the Station, and 45 miles west of the
Station (Tr. 21). Approximately one and one half hours of driving time
is consumed when agents are assigned to work locations 80 miles north or
south of the Station, and about 45 minures of travel is involved if
assigned to locations 45 miles west of the Station (Tr. 22-23).
Agent duties relate primarily to apprehending aliens who have entered
the United States illegally. This objective is pursued through various
work activities designed to accomplish the objective. Agents are
assigned line watch (patrolling the border), city patrol (visiting local
communities in the Lordsburg area of operations), farm and ranch check
(visiting local farms and ranches), traffic observation (patrolling area
highways and roads), and industry check (visiting lumber camps in the
Lordsburg area) (Tr. 20-21).
Agents report to the Lordsburg station prior to the commencement of
their work shifts in order to check the Daily Assignment and Equipment
Log to ascertain their duties (Tr. 21; G.C. Exh. No. 8). Assignments
are generally posted three to four days in advance so that agents will
know what they will be doing (Tr. 23). Work assignments are rotated.
As a result each bargaining unit member is affected by any change in
work practices (Tr. 23, 30). Agents spend time at the beginning and end
of their shifts performing administrative duties (Tr. 21-22).
Agents Subject to Laws and Regulations Relating to AUO
Border Patrol Agents are subject to laws and regulations relating to
AUO. These are reflected in the provisions of 5 U.S.C. Section
5545(c)(2) and 5 C.F.R. Section 550.151-550.154. Section 5545(c)(2) of
Title 5 provides:
(c) The head of an agency, with the approval of the Office of
Personnel Management, may provide that --
(2) an employee in a position in which the hours of duty cannot
be controlled administratively, and which requires substantial
amounts of irregular, unscheduled, overtime duty with the employee
generally being responsible for recognizing, without supervision,
circumstances which require him to remain on duty, shall receive
premium pay for this duty on an annual basis instead of premium
pay provided by other provisions of this subchapter, except for
regularly scheduled overtime, night, and Sunday duty, and for
holiday duty. Premium pay under this paragraph is determined as
an appropriate percentage, not less than 10 percent nor more than
25 percent, of such part of the rate of basic pay for the position
as does not exceed the minimum rate of basic pay for GS-10, by
taking into consideration the frequency and duration of irregular
unscheduled overtime duty required in the position.
Under the quoted provision and implementing regulations, AUO is
earned by agents as a result of supervisory direction and/or by reason
of an agent recognizing, without supervision, circumstances which
require an agent to remain on duty (Tr. 24-25, 88).
Compensation for regular overtime work (as distinct from AUO), is
payable in accordance with the provisions of 5 U.S.C. Section 5542. The
Comptroller General has ruled that time involved in travel between
headquarters and Border Patrol check points, and in performing
ministerial duties at headquarters, may qualify as authorized or
approved regular overtime (as distinct from AUO), when it is duly
authorized in advance and is scheduled to recur on successive days or
after specified intervals, as distinguished from situations where
schedules are made on a day-to-day or hour-to-hour basis, and where the
amount of overtime varies with no discernible pattern (G.C. Exh. No. 3).
This ruling held that it was improper to characterize such duly
authorized or approved overtime as AUO, but that compensation for such
directed overtime work should be paid in accordance with the provisions
of 5 U.S.C. Section 5542, and not 5 U.S.C. Section 5545(c)(2).
Respondent Changes Practice Concerning AUO /2/
The record established that in the past, employees had been permitted
to find justification for AUO during travel time spent in returning to
the Lordsburg Station. Employees did this by endeavoring to locate
illegal aliens while driving back to the Lordsburg Station at the end of
a shift (Tr. 51). This sometimes involved seeking out violations on the
highway, checking culverts for trails, and by using binoculars to
observe criminal activity (Tr. 89-91). In such cases agents had been
allowed to use their own discretion and then claim AUO to process
illegal aliens apprehended.
The Respondent changed this practice by withdrawing the privilege of
working AUO based upon criminal activity observed on return trips, or
based on criminal activity arising outside of work areas specifically
assigned (Tr. 51). Agents were told that AUO could only be based upon
activity arising out of areas specifically assigned by the Respondent
(Tr. 102). The Union received information that the change in practice
outlined had continued for a three-year period (Tr. 35-36).
Respondent's administration of the AUO policy outlined led to a
series of corrective actions initiated by Respondent to bring agents
into compliance with Lordsburg Station operational directives governing
the use of AUO (Tr. 27). Certain bargaining unit employees were of the
opinion that administration of this AUO policy was not in accordance
with law and regulations governing AUO, particularly with respect to
Respondent's refusal to recognize agent discretion to claim AUO in
appropriate cases. It was further contended that employees receiving
corrective actions might be adversely affected from a career standpoint.
It was felt that such employees might unjustifiably be considered
insubordinate or uncooperative (Tr. 28, 94-95).
Bargaining Unit Members Apprise Union of Perceived Irregularities in
Administration of AUO
In February of 1985, a Lordsburg Border Patrol Agent complained to
the Union that agents were being assigned AUO in violation of law (Tr.
23, 78, 93-94). This was followed up by the Union in discussions with
other bargaining unit employees (Tr. 29, 78). Some employees felt that
they were being improperly denied AUO in some instances, and that in
others they were being improperly denied a higher rate of pay associated
with directed overtime work (Tr. 28-29). A portion of the
dissatisfaction expressed stemmed from the belief that the Respondent
was not complying with the cited Comptroller General decision with
respect to the assignment of AUO for overtime specifically authorized in
advance, and scheduled to recur on successive days, or after specified
intervals (Tr. 24, 31, 56-57; G.C. Exh. No. 3).
On the basis of the foregoing, the Union envisioned the possibility
of Respondent authorizing or permitting the abuse of AUO in situations
wherein AUO was claimed for travel and administrative work specifically
approved in advance, and scheduled to recur on successive days (Tr.
44-45, 46-49, 67-68, 78-79, 87-88). It was also felt that Respondent
might be improperly denying AUO in situations involving otherwise
appropriate AUO work generated during the course of an agent's return to
the Lordsburg Station (Tr. 50-52, 58-59, 68-69). The Union determined
that proof relating to the abuse of AUO, if available, could be used as
the basis for a possible grievance alleging failure on the part of the
Respondent to pay bargaining unit employees proper amounts for regular
directed overtime work in accordance with the provisions of law,
regulation, decisions of the Comptroller General, and the collective
bargaining agreement (Tr. 31-32). /3/ It was also felt that there might
be a basis for the filing of a grievance based on the issuance of
corrective actions without legal justification. The Union also saw the
possibility of bringing about discontinuance of certain practices, and
the possibility of backpay awards (Tr. 76-77).
The Union sought the proof needed to establish a grievance or
grievances of the type outlined by submitting a request for information
to the Respondent on March 5, 1985 (G.C. Exh. No. 5). The request, in
the form of a letter to the Associate Regional Commissioner, Management,
Immigration and Naturalization Service, Dallas, Texas, identified
specific Lordsburg Station records for fiscal year 1984, and continuing
to the date of the request, a period of approximately 18 months. /4/
Records identified included unsanitized copies of:
1. Form I-213's (Record of Deportable Alien)
2. Form I-50's (Border Patrol Activity and Time Report)
3. Daily Assignment and Equipment Logs
4. Memoranda submitted by Lordsburg personnel in response to
"AUO and shift assignments."
The information was described as being necessary to "adequately
represent bargaining unit employees from the Lordsburg Border Patrol
Station concerning AUO and Shift assignment (sic). . . . " The request
referenced the definition of "grievance" set out in Section 7103(a)(9)
of the Statute, and the duty of an agency to furnish information
described in Section 7114(b)(4) of the Statute. It was further noted
that the information was needed to permit the Union to "properly
research this matter."
The record established that although the request was not specifically
limited to documents pertaining to work activity of employee members of
the bargaining unit, the Respondent understood from prior practice that
such requests related only to documents pertaining to bargaining unit
members, and that in this instance such a limited request was being made
(Tr. 37-38). This factual showing was not contradicted by the
Respondent. It is therefore determined that the Union and Respondent
understood the request to be inapplicable to documents relating to the
work activity of employees who were not members of the bargaining unit.
By memoranda dated March 14, 1985, the Respondent denied the request
on the ground that the subject matter involved was not negotiable, that
no change in procedures was being proposed by the Respondent, that there
was no expectation of bargaining, and lately that "the material
requested does not appear to be relevant or necessary for any authorized
representational duty." (G.C. Exh. No.9).
The Union replied on or about March 21, 1985, and explained that the
material was needed to research complaints made by personnel at the
Lordsburg Station (G.C. Exh. No. 10). Again, the statutory definition
of "grievance" was referenced, and the earlier March 5th request was
resubmitted in its entirety with the clarification.
The record disclosed the following facts concerning the data
requested:
1. Form I-213's (Record of Deportable Alien). This form provides
details relating to the apprehension of deportable aliens, such as
location of apprehension, date and hour of apprehension, identity of
Border Patrol Agent involved, and a narrative discussion of the event
(G.C. Exh. No. 6; Tr. 38, 62-63).
2. Form I-50's (Border Patrol Activity and Time Report). This form
reflects hours worked by Border Patrol Agents; duties performed during
the hours worked; AUO credited and the specific hours associated with
AUO; and the duties performed during AUO (G.C. Exh. No. 7; Tr. 38-39,
62).
3. Daily Assignment and Equipment Logs - These documents reflect
assigned duties and areas wherein duties were scheduled to be performed,
together with the hours of duty which specific employees were assigned
to work (G.C. Exh. No. 8; Tr. 39-40, 62).
4. Memoranda submitted by Lordsburg personnel in response to "AUO
and shift assignments." G.C. Exh. No. 11, an exhibit introduced to
illustrate data in this category, reflects details of an agent's
response to Respondent's refusal to allow AUO because of Respondent's
policy relating to AUO. /5/ Such documents would necessarily serve to
expose available details of information relating to the Respondent's
implementation of AUO policy.
The record revealed that the Union would have been able to
reconstruct any irregularities in the payment of regular overtime,
and/or the administration of AUO under existing law, by examining and
correlating information reflected in the documents described (Tr. 62-63,
65-67).
The record also included an uncontradicted showing that the
information sought was normally maintained by the Respondent in the
regular course of business; that it was reasonably available; that
production would not be unduly burdensome (Tr. 70-74); and that the
data sought did not constitute guidance, advice, counsel, or training
provided for management officials or supervisors, relating to collective
bargaining. Post-hearing argument of counsel concerning the burdensome
nature of the request was not supported by the evidence pertaining to
this factual issue. Respondent's counsel also argued in her
post-hearing brief that Daily Assignment and Equipment Logs were
maintained for a 30-day period only. However, the record did not
establish that the logs sought herein were not in fact, entirely or in
part, available. /6/
Discussion and Conclusions
Section 7114(b)(4) of the Statute provides in pertinent part:
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation --
. . . . . . .
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data --
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining. . . . "
Section 7114(b)(4) language mandating production of data reasonably
available and necessary for full and proper discussion, understanding,
and negotiation of subjects within the scope of collective bargaining
includes data necessary to enable a union to fulfill representational
responsibilities relating to the effective evaluation and processing of
grievances. U.S. Equal Employment Opportunity Commission, Washington,
D.C., 20 FLRA 357 (1985); U.S. Customs Service, Region VII, Los
Angeles, California, 10 FLRA 251, 253 (1982); Veterans Administration
Regional Office, Denver, Colorado, 7 FLRA 629 (1982).
In a recent decision, Farmers Home Administration, Finance Office,
St. Louis, Missouri, 19 FLRA 195 (1985), petition for review filed sub
nom. American Federation of Government Employees, AFL-CIO, Local 3354 v.
FLRA, No. 85-1493 (D.C. Cir. August 6, 1985), the Authority, relying on
its prior decision in Army and Air Force Exchange Service (AAFES), Fort
Carson, Colorado, 17 FLRA No. 92 (1985), petition for review filed sub.
nom. American Federation of Government Employees, Local 1345 v. FLRA,
No. 85-1378 (D.C. Cir. June 21, 1985) (hereinafter AAFES), held that the
disclosure of data sought pursuant to Section 7114(b)(4) requires a case
by case determination as to whether the data has been requested, whether
it is normally maintained, whether it is reasonably available, whether
it is necessary to enable the exclusive representative to fulfill its
representational obligations, and also a determination that disclosure
of the data sought would not be prohibited by law, including the Privacy
Act. /7/
In this case the record shows that the data sought was requested by
the Union, that it was sought specifically for the purpose of
researching bargaining unit employee complaints concerning possible
grievances outlined herein, that the request was refused by the
Respondent, that the data was normally maintained by the Respondent,
that the data was reasonably available, and that it did not constitute
guidance, advice, counsel, or training provided for management officials
or supervisors, relating to collective bargaining.
The record also reflected that the data was necessary for the purpose
of evaluating possible bargaining unit employee grievances relating to
alleged failure on the part of the Respondent to pay employees for
directed overtime work and relating to alleged improper denial of AUO
associated with duties performed by bargaining unit employees. Such
data was also necessary for the purpose of determining whether a basis
existed for grieving certain corrective actions initiated by the
Respondent against bargaining unit employees for the purpose of
implementing AUO policy and procedures. /8/
Denial of access to the data effectively precluded the evaluation of
possible grievances based upon the theories outlined, as it clearly
appeared that only through a perusal and analysis of the documents
requested would the Union be in a position to determine whether a basis
for alleged irregularities existed in fact.
In large measure Respondent's defenses relate to issues more
appropriately interposed during the course of any grievances filed, and
do not, for the most part, relate to the fundamental issue of whether or
not the data sought is subject to the provisions of Section 7114(b)(4).
Respondent argues at length that no evidentiary basis exists to support
a grievance, even though the entire purpose of the request was designed
to aid the Union effort to determine whether an evidentiary basis for
grievances could be developed. That is, Respondent appears to argue
that there is little or no chance of the Union filing a successful
grievance; that it is unlikely that helpful evidence would be
uncovered; or that Respondent's position on factual and legal issues
would be sustained in the event grievances were filed. In the context
of the circumstances presented in this case, all of these unsupported
contentions were speculative in nature, and did not provide a basis for
concluding that the documents were not necessary.
Without passing upon the Union's grievance theories, it is sufficient
to note that the Union has at least an arguable basis for examining the
data on behalf of bargaining unit employees. The demand is not
frivolous in nature, and the documents sought are needed to evaluate
complaints in the light of existing law and regulations pertaining to
directed overtime and AUO. It is not necessary that the Union establish
that a grievance will be successfully presented, or that the data sought
will produce evidence to establish a grievance. It is sufficient if the
record establishes that examination of data is necessary in order to
intelligently evaluate the possibility of initiating a viable grievance.
On the basis of the factual picture presented it is conceivable that
data requested will establish the viability of one or more of the
grievance theories advanced by the Union.
As noted the record must reflect a determination that disclosure of
the data sought would not be prohibited by law, including the Privacy
Act. /9/ The record herein does not reflect any indication that
disclosure would be prohibited by law.
Arguably the provisions of the Privacy Act would be relevant here
unless one of the specific Privacy Act exceptions is applicable. The
only possible exception applicable in this case is the one set forth in
5 U.S.C. Section 522a(b)(2). This exception permits disclosure of
Privact Act -- protected information to the extent such information is
"required" to be released under the Freedom of Information Act (FOIA).
/10/ The FOIA provides that all records must be disclosed upon request
unless subject to a specific FOIA exemption. /11/ Under exemption 5
U.S.C. Section 552(b)(6) of the FOIA, an agency is allowed to withhold
personnel and medical files and similar files, the disclosure of which
would constitute a clearly unwarranted invasion of privacy. In such
cases, the Federal courts and the Authority apply a balancing test to be
determined whether disclosure would result in a clearly unwarranted
invasion of Privacy. /12/
Applying the test outlined it is determined that it is necessary for
the Union to know whether or not the Respondent's AUO policies are being
implemented in a manner which contravenes existing statutes and
regulations. This knowledge is needed in order to process employee
complaints relating to the matter. The Union would not be in a position
to apprise bargaining unit members of their rights concerning the issues
posed without pursuing the inquiry suggested by the information request
submitted to the Respondent. The data is necessary for the purpose of
enabling the Union to determine whether a grievance or grievances should
be filed on behalf of bargaining unit employees.
The record developed reflects that the information sought would be
relatively innocuous. In view of the Union's need for the data to
pursue its representational duties, compared to the limited intrusion,
if any, on the privacy of the employees involved, it is determined that
disclosure of the data would not result in a clearly unwarranted
invasion of such employees' privacy.
On the basis of the foregoing it is determined that the Respondent
violated Sections 7116(a)(1), (5) and (8) of the Statute by failing to
furnish the Union with data described in the Union's March 5, 1985,
request for information. Having found that the Respondent violated
Sections 7116(a)(1), (5) and (8) of the Statute, it is recommended that
the Authority issue the following Order:
ORDER
Pursuant to Section 2423.29 of the Authority's Rules and Regulations
and Section 7118 of the Statute, the Authority hereby orders that the
Department of Justice, United States Immigration and Naturalization
Service, United States Border Patrol, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish to the American Federation
of Government Employees, AFL-CIO, National Border Patrol Council,
the exclusive representative of its employees, data requested in
letter dated March 5, 1985, addressed to the Associate Regional
Commissioner for Management, Immigration and Naturalization
Service, Southern Regional Office, Dallas, Texas, by Robert J.
Marren, Vice President, National Border Patrol Council, for the
purpose of enabling the National Border Patrol Council to perform
representational duties relating to the evaluation and processing
of 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 Statute:
(a) Furnish to the American Federation of Government Employees,
AFL-CIO, National Border Patrol Council, the exclusive
representative of its employees, data requested in letter dated
March 5, 1985, addressed to the Associate Regional Commissioner
for Management, Immigration and Naturalization Service, Southern
Regional Office, Dallas, Texas, By Robert J. Marren, Vice
President, National Border Patrol Council, for the purpose of
enabling the National Border Patrol Council to perform
representational duties relating to the evaluation and processing
of grievances.
(b) Post at its Dallas, Texas and Lordsburg, New Mexico
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 Regional Commissioner,
Immigration and Naturalization Service, Southern Regional Office,
Dallas, Texas, or a designee, 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.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, 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.
/s/ Louis Scalzo
LOUIS SCALZO
Administrative Law Judge
Dated: January 28, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) It was established that since the beginning of fiscal year 1984
this group has included approximately 15 bargaining unit members. As of
the date of the hearing there were 9 Lordsburg Border Patrol Agents
assigned to work out of the Lordsburg Station (Tr. 19).
(2) The complaint does not base any element of the unfair labor
practice alleged upon a unilateral change in the terms and conditions of
employment.
(3) Article 27 of the agreement relates to overtime other than AUO,
and Article 4, Section B of the agreement makes it clear that the
parties intended that "existing or future laws and the regulations of
appropriate authorities" would be applicable in the administration of
all matters covered by the agreement (G.C. Exh. No. 4).
(4) The Union was advised that illegal practices had continued over a
three-year period. However, it was felt that records for an
eighteen-month period would provide an adequate basis for either
substantiating or disproving employee claims. It was also concluded
that the lesser period would facilitate resolution of the issue
presented to the Union by bargaining unit employees (Tr. 35-36).
(5) Respondent's Argument to the contrary notwithstanding, this
document was not introduced to establish a basis or support for a
specific grievance, but merely to illustrate the nature of documents in
this category.
(6) Evidence concerning these elements would ordinarily fall within
the purview of Respondent's special knowledge relating to the data
sought.
(7) Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1897 (codified
as amended at 5 U.S.C. Section 552a (1982)).
(8) Respondent argues that AUO is not addressed in the collective
bargaining agreement and that as a result would not be a grievable
matter under the terms of the grievance procedure set out in the
collective bargaining agreement. However, this defense was not
established with respect to each of the theories advanced by the Union
as possible grounds for a grievance. Moreover, it is noted that the
term "grievance" is broadly defined in Section 7103(a)(9) of the Statute
as: "any complaint -- (A) by any employee concerning any matter
relating to the employment of the employee; (B) by any labor
organization concerning any matter relating to the employment of any
employee; or (C) by any employee, labor organization, or agency
concerning -- (i) the effect or interpretation, or a claim of breach, of
a collective bargaining agreement; or (ii) any claimed violation,
misinterpretation, or misapplication of any law, rule, or regulation
affecting conditions of employment. . . . "
(9) Respondent's counsel notes in her post-hearing brief that the
documents would have to be reviewed to determine whether disclosure
would be prohibited by the Privacy Act; but there is no contention that
disclosure in this case would violate the Privacy Act, nor was there any
showing that disclosure in this case would generate such a result.
(10) Freedom of Information Act, Pub. L. No. 89-554, 80 Stat. 383
(codified as amended at 5 U.S.C. Section 552 (1982)).
(11) 5 U.S.C. Section 552(a)-(b) (1982).
(12) See Farmers Home Administration, Finance Office, St. Louis,
Missouri, supra; and U.S. Equal Employment Opportunity Commission,
Washington, D.C., supra, and relevant authorities cited therein.
APPENDIX
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
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to furnish to the American Federation of
Government Employees, AFL-CIO, National Border Patrol Council, the
exclusive representative of our employees, the data requested in letter
dated March 5, 1985, addressed to the Associate Regional Commissioner
for Management, Immigration and Naturalization Service, Southern
Regional Office, Dallas, Texas, by Robert J. Marren, Vice President,
National Border Patrol Council, for the purpose of enabling the National
Border Patrol Council to perform representational duties relating to the
evaluation and processing of grievances.
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 furnish to the American Federation of Government Employees,
AFL-CIO, National Border Patrol Council, the exclusive representative of
our employees, the data requested in letter dated March 5, 1985,
addressed to the Associate Regional Commissioner for Management,
Immigration and Naturalization Service, Southern Regional Office,
Dallas, Texas, by Robert J. Marren, Vice-President, National Border
Patrol Council.
(Agency or Activity)
Dated: . . .
By: (Signature)
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, Region VI,
whose address is: Federal Office Building, 525 Griffin Street, Suite
926, Dallas, Texas 75202, and whose telephone number is: (214)
767-4996.