23:0239(31)CA - DOJ, INS, Border Patrol and AFGE, National Border Patrol Council -- 1986 FLRAdec CA



[ 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