37:1310(110)CA - - Justice, INS, Border Patrol, El Paso, TX and AFGE, National Border Patrol Council - - 1990 FLRAdec CA - - v37 p1310

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37:1310(110)CA
The decision of the Authority follows:


37 FLRA No. 110

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

BORDER PATROL

EL PASO, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL

(Charging Party)

6-CA-80004

DECISION AND ORDER

October 30, 1990

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 Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondent's exceptions. The Respondent filed a motion to strike the General Counsel's opposition and the General Counsel filed a response to the Respondent's motion to strike.

The complaint alleged that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to furnish the Union with information requested under section 7114(b)(4) of the Statute. The complaint further alleged that the Respondent failed and refused to bargain in good faith, in violation of section 7116(a)(1) and (5) of the Statute, by unreasonably delaying the processing of the Union's request for information.

The Judge found that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to furnish the requested information to the Union. The Judge recommended that the Respondent be ordered to furnish the Union with the requested data. The Judge recommended dismissal of the separate alleged violation of section 7116(a)(1) and (5) of the Statute based on the Respondent's delay in responding to the Union's request.

Pursuant to section 2423.29 of our 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 procedural rulings. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order, as modified below.

II. Preliminary Matter

On April 17, 1989, the Respondent filed exceptions to the Judge's Decision. The General Counsel filed an opposition to the exceptions on May 3, 1989. Following the filing of the General Counsel's opposition, the Respondent filed a motion to dismiss the opposition as untimely filed. The General Counsel filed a response to the Respondent's motion to dismiss.

A. Positions of the Parties

The Respondent contends that the General Counsel failed to comply with section 2423.28(b) of the Authority's Regulations, which provides that an opposition may be filed within 10 days after service of exceptions. The Respondent maintains that the 10-day time period for filing an opposition started on April 17, 1989, the date the Respondent's exceptions were served by mail on the parties. According to the Respondent, when service is by mail, the "mail box" rule set forth in section 2429.22 of the Authority's Regulations allows 5 days to be added to the prescribed time period. Respondent's Motion to Strike at 2. Based on the April 17 service date, the Respondent argues that the General Counsel had until May 2, 1989, to file a timely opposition with the Authority.

The General Counsel contends that its opposition to the Respondent's exceptions was timely filed. The General Counsel argues that the Respondent is "attempt[ing] to take advantage of the 'mailbox' rule in a situation where the 'mailbox' rule should not apply." General Counsel's Response to Motion at 2. The General Counsel points out that the Respondent's exceptions, which were placed in the mail on April 17, 1989, were not received by the General Counsel until April 24, 1989. The General Counsel argues that because it did not receive the Respondent's exceptions within the 5 days provided for service by mail under section 2429.22 of the Authority's Regulations, the certified mail return receipt should be used to overcome the "presumed service date." Id. at 3.

The General Counsel contends that the 10-day time period for filing an opposition should start from the date the General Counsel received the exceptions, rather than from the "presumed service date." Id. The General Counsel points out that if the April 24, 1989, receipt date is considered the service date, then the due date for the General Counsel's opposition was May 4, 1989. Accordingly, the General Counsel maintains that its opposition is timely because it was filed on May 3, 1989.

B. Ruling on the Motion

For the following reasons, we conclude that the General Counsel's opposition was not timely filed and, accordingly, we will not consider it.

Section 2423.28(b) of the Authority's Regulations provides:

Any party may file an opposition to exceptions, and/or cross-exceptions, and a supporting brief with the Authority within ten (10) days after service of any exceptions to an Administrative Law Judge's decision.

The Respondent's exceptions were served on the General Counsel, by mail, on April 17, 1989. As the exceptions were served by mail, 5 days are added to the 10-day period for filing an opposition to the exceptions. 5 C.F.R. § 2429.22. Accordingly, the General Counsel had until close of business on May 2, 1989, to file its opposition. As noted previously, the General Counsel's opposition was filed on May 3, 1989. As such, the opposition was untimely filed.

The General Counsel's argument concerning the "presumed service date" is inapposite. A service date is "presumed" to determine the filing date of submissions to the Authority when a postmark date is not evident on the mailing. See 5 C.F.R. § 2429.21. There is no need, in this case, to establish a presumed service date because the actual service date is not disputed. That is, the General Counsel acknowledges that the Respondent's exceptions were served, by mail, on April 17, 1989.

Although it is clear that the exceptions were not received by the General Counsel until 7 days after the exceptions were served, the General Counsel had 8 days in which to timely file its opposition or request an extension of time. The General Counsel did neither. Moreover, in these circumstances, we find no "extraordinary circumstances" justifying a waiver of the expired time limit under section 2429.23 of our Regulations. Accordingly, as the opposition was not timely filed, we will not consider it herein.

III. Background

The facts, more fully set forth in the Judge's Decision, are summarized below.

On May 26, 1987, Patrol Agent and Union Chief Steward Robert Marren received his performance appraisal for the period of November 28, 1986, through April 31, 1987. By letter of June 1, 1987, the Union notified the Respondent that Marren was considering filing a grievance over his performance appraisal, and that certain data was needed by the Union to ascertain whether a basis existed for filing a grievance. The Union requested unsanitized copies of the following data on all journeymen unit employees at the Fabens Border Patrol Station:

A. Performance appraisals for the period 11/28/86 through 4/3[0]/87;

B. All documents contained in the performance work folder (including Mr. Marren), and;

C. Copies of any and all documents and reports completed during the period of 11/28/86 through 4/3[0]/87. (ex. I-213, I-50, DJ 296, I-44, G-166, G-170, memorandum, vehicle maintenance reports, G-205, all documents related to WA/OSC's and criminal prosecutions, etc.)

Judge's Decision at 4-5.

The Respondent informed the Union that it needed to know the specific nature of the grievance in order to determine whether the requested data was relevant and necessary. The Union responded that the data was relevant and necessary because the Union was investigating whether Marren's ratings were inconsistent with those of other unit employees.

By letter dated October 8, 1987, the Respondent replied to the Union's request for information, stating that copies of the requested appraisals were not relevant or necessary to the Union's "grievance investigation regarding [Marren's] 1987 performance appraisal." G.C. Exh. No. 27 at 1. However, the Respondent set forth the ratings assigned to the other 10 border patrol agents for each of the job elements, as well as the overall rating given each agent. The Respondent identified the employees by letters A through J; no names were given. The Respondent stated that "[p]erformance work folders [were] not maintained by the supervisor." Id. at 2.

The Respondent stated that the Union's request for documents and reports completed by the agents between November 28, 1986, and April 3[0], 1987, was "overly broad." Id. The Respondent also asserted that the requested forms and reports were not relevant or necessary because they "would not be reflective of an employee's actual level of performance." Id. The Respondent maintained that an employee's completed work was reviewed by the supervisor and corrections were made by the supervisors or employee at the time of submission. According to the Respondent, "[t]he incorrect copy [was] not retained." Id.

By letter dated October 14, 1987, the Union replied to the Respondent that the listing of ratings given to other GS-9 employees at the Fabens Station supported the Union's need for the requested information because it showed that Marren, who was more experienced than other GS-9 agents at the Fabens Station, received the second lowest rating in the Station. By letter dated October 14, 1987, the Respondent replied that its position on the Union's data request remained the same.

IV.Administrative Law Judge's Decision

The Judge rejected the Respondent's arguments that it was not required to supply the requested information under section 7114(b)(4) of the Statute because the requested information (1) was not necessary and relevant for processing the grievance; (2) was prohibited from disclosure by the Privacy Act; and (3) was nonexistent or not readily available. The Judge also rejected the Respondent's contentions that the Union's request for copies of forms and reports completed by the agents was overly broad and "burdensome." Judge's Decision at 14.

First, the Judge concluded that unsanitized performance appraisals, along with any related narratives, of the other Patrol Agents at the Fabens Station were necessary, within the meaning of section 7114(b)(4) of the Statute, to enable the Union to determine whether to file a grievance on behalf of Marren. The Judge reasoned that because the Union was investigating whether Marren's ratings were inconsistent with those of other unit employees, the Union would require unsanitized copies of the performance appraisals and narratives in order to consider those documents in connection with other performance records of the agents. In the Judge's view, if the names were not known, no effective comparison could be made between Marren's ratings and the ratings of the other agents because the Union "would be unable to relate the work product to a particular Patrol Agent." Id. at 10.

Second, the Judge addressed the Respondent's assertion that disclosure of the names of the Patrol Agents was prohibited by the Privacy Act, 5 U.S.C. § 552a. The Judge noted that the Privacy Act did not bar disclosure if disclosure was required under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The Judge pointed out that under the FOIA, all records in the possession of agencies must be disclosed upon request unless subject to a specific FOIA exemption.

According to the Judge, "[e]xemption (b)(6) of the FOIA permits an agency to withhold personnel files if a disclosure thereof would constitute a clearly unwarranted invasion of privacy." Id. at 11 (emphasis in original). Citing American Federation of Government Employees v. U.S. Department of Health and Human Services, 712 F.2d 931 (4th Cir. 1983), the Judge stated that Federal courts apply a balancing test to determine whether disclosure of such records would result in an invasion of privacy. The Judge noted that "[t]he balance to be drawn under FOIA's (b)(6) exemption is one between the protection of the individual's right to privacy and the promotion of important public interests." Id. Based on the Authority's decision in U.S. Equal Employment Opportunity Commission, Washington, D.C., 20 FLRA 357 (1985) (EEOC), the Judge concluded that "providing the unsanitized copies of the requested appraisals for the other ten Patrol Agents, together with any narratives, would not result in a clearly unwarranted invasion of their privacy." Id. Accordingly, the Judge found that the Respondent's refusal to furnish the Union with unsanitized copies of the performance appraisals and accompanying narratives violated section 7116(a)(1), (5), and (8) of the Statute.

Next, the Judge addressed the Respondent's contention that employee performance work folders did not exist. The Judge noted that the Respondent offered no testimony to support its contention that the folders did not exist or that the documents sought by the Union were not maintained by management. Thus, the Judge concluded "that [the] General Counsel [had] established, . . . a prima facie case with respect to the existence of such performance folders." Id. at 12.

The Judge further concluded that any documents in the work performance folders which concerned the work performance of the Patrol Agents were relevant and necessary for the Union to determine whether Marren was treated disparately with respect to his performance appraisal. Accordingly, the Judge found that the Respondent's failure to provide the documents in the performance folders violated section 7116(a)(1), (5), and (8) of the Statute. The Judge also noted, however, that "an agency cannot be responsible for data it does not possess." Id. at 13. Consequently, the Judge recommended that the Respondent be directed to supply the Union with "whatever documents kept in the performance folders that are available." Id.

Next, the Judge found that the record established that the requested documents, forms, records and reports submitted by the Patrol Agents at the Fabens Station "were utilized by [the] Respondent in evaluating the agent and assigning a rating for his performance during the prescribed period." Id. The Judge concluded that copies of the various reports and forms prepared by the agents were necessary for the Union to properly represent Marren and determine whether to pursue his grievance. The Judge rejected the Respondent's arguments that (1) the request was overly broad; and (2) supplying the requested information would be burdensome. The Judge found that the record did not support the Respondent's contentions.

The Judge noted that some of the forms or reports completed by the agents were not available and that the Respondent was not expected to furnish information which was not available. The Judge also noted that the reports in the "alien (A) files may have information [concerning] the alien which could be sanitized." Id. at 14.

The Judge concluded that the Respondent's refusal to supply copies of the requested information violated section 7116(a)(1), (5), and (8) of the Statute, and recommended that the Respondent be directed to furnish the Union with unsanitized copies of the available requested information.

Finally, the Judge found that it would be "inappropriate" to find a separate violation of section 7116(a)(1) and (5) based on the Respondent's delay in responding to the Union's request. Id. at 15. Accordingly, the Judge recommended the dismissal of the allegation that the Respondent violated section 7116(a)(1) and (5) of the Statute by engaging in unreasonable delay in processing the Union's request for information.

V.Respondent's Exceptions

A.First Exception

The Respondent excepts to the Judge's conclusion that the requested information was necessary, within the meaning of section 7114(b)(4) of the Statute, for the Union to determine whether it should file a grievance concerning Marren's performance appraisal.

The Respondent argues that the Union could not use the requested information to contest the accuracy of Marren's performance appraisal. According to the Respondent, under applicable law and regulations, employees' performance appraisals are based on pre-established performance standards. The Respondent asserts that "either an employee's appraisal is accurate or it is not." Respondent's Exceptions at 6. According to the Respondent, "[i]f it is not accurate, this can and must be demonstrated without reference to the performance and the appraisals of others." Id.

Further, the Respondent argues that the Judge concluded incorrectly that the information was necessary for the Union to determine whether Marren was treated disparately. The Respondent contends that, as the Union expressed concern only over whether Marren's rating was inconsistent with those of the other agents, it was not obligated to provide the requested information because "there was no allegation of improper motive in the determination by management of Mr. Marren's performance appraisal." Id. at 15. Moreover, the Respondent argues that Marren could not challenge the accuracy of his performance appraisal on the grounds of disparate treatment "because [it would] require the comparison of one employee's performance against others,' which is improper regardless of the imputed motive." Id. at 15.

Further, the Respondent contends that the requested copies of forms and reports completed by the agents during the prescribed period were not necessary because the supervisor "did not rely, on all of the pieces of paper in this . . . voluminous mass of documents in appraising employee performance." Id. at 17. The Respondent further maintains that the supervisor destroys material, which is actually used, after preparation of appraisals. The Respondent argues that the Judge "should have ordered the employer to provide the [u]nion with no more than copies of material (if still in existence) which was actually considered by the supervisor." Id. at 19.

B.Second Exception

The Respondent contends that the Judge erred in ordering the release of unsanitized information. The Respondent points out that in EEOC, which was relied on by the Judge, the Authority found that the "appraisals had to be released in order for the union to pursue a grievance, but that names or personal identifiers should not be released." Id. at 21. According to the Respondent, when the Privacy Act is asserted as a bar to the release of information, "the privacy interest of the individuals [who are the subject of the records] must be weighed against the interest [of] disclosure." Id. at 22. Citing the Supreme Court's decision in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee), the Respondent asserts that the interest to be weighed against the privacy interest of the individuals is "the public's interest in the information being released, and not the Union's interest in investigating whether there is grounds for a grievance . . . ." Id. at 23 (emphasis in original). The Respondent argues that the employees' interests in maintaining the privacy of their performance appraisals outweighs the "public's general interest" in disclosure of the appraisals. Id. at 24.

Furthermore, the Respondent contends that the "privacy interests of the employees here are so strong that they would outweigh . . . the Union's particular interest in disclosure . . . ." Id. at 26. According to the Respondent, "[t]he only interest identified by the Union and accepted by the ALJ in having the information unsanitized was the alleged need to be able to link the employees' appraisals with their work-product." Id. at 24 (footnote omitted). The Respondent maintains that disclosure of the employees' names is not necessary to make such comparisons "in light of the Union's admission that . . . the appraisals and work product could [be] linked by a non-identifying code." Id. at 24-25.

C.Third Exception

The Respondent contends that it is not required to furnish the requested information under section 7114(b)(4) of the Statute because the information is not "reasonably" available. Id. at 27. The Respondent claims that it would have to retrieve, examine, sanitize, duplicate, and match approximately 5,000 documents, maintained in different sections and offices, with the appropriate appraisal. The Respondent argues that complying with the request would be "so burdensome" that release of the data is not required "no matter how relevant the information[.]" Id. at 28.

VI.Analysis and Conclusions (*)

A.The Requested Data Was Necessary for the Union to Perform Its Statutory Obligations

As relevant here, section 7114(b)(4) of the Statute requires an agency to furnish a union, upon request, with information which is (1) normally maintained by the agency in the regular course of business; and (2) reasonably available and necessary for discussion, understanding, and negotiation of subjects within the scope of collective bargaining. It is well established that under section 7114(b)(4) of the Statute the exclusive representative has a right to information that is necessary to enable it to fulfill its representational functions, including data which will assist in the evaluation and processing of a potential grievance. See generally, U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990). See also, for example, Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 461, 462 (1990) (Dep't of Army, Hq. and Fort Bragg); U.S. Department of Defense, Defense Logistics Agency, Defense Contract Administration Services Region (Boston, Massachusetts), 31 FLRA 800, 801 (1988); Veterans Administration Washington, D.C. and Veterans Administration Regional Office, Buffalo, New York, 28 FLRA 260, 265 (1987); United States Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 26 FLRA 630, 633-4 (1987); Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181, 182 (1987).

There is no requirement that information requested under 7114(b)(4) of the Statute actually be used in a grievance. The union may decide not to file a grievance after it obtains the data. Moreover, an agency's contention that a potential grievance is not grievable does not relieve an agency of its obligation to furnish requested data. See, for example, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181, 185 (1987); Internal Revenue Service, National Office, 21 FLRA 646, 649 n.3 (1986). Further, performance appraisal data, requested for the purpose of making comparisons in potential grievance situations, is disclosable. See, for example, Rolla Research Center, U.S. Bureau of Mines, Rolla Missouri, 29 FLRA 107, 108-113 (1987) (requiring the release of performance appraisal data in order to permit the union to compare how supervisors rated employees). In short, data requested by a union is necessary, within the meaning of section 7114(b)(4) of the Statute, if it would be useful to the Union in the investigation and/or presentation of a potential grievance.

In this case, we find that the data requested by the Union was for the purpose of investigating whether there were grounds for filing a grievance over Marren's performance appraisal. We note that the Union's June 1, 1987, letter stated as follows:

Mr. Marren is contemplating filing a grievance over [his] appraisal and has requested assistance from the Union. Therefore, in order for the Union to investigate whether or not Mr. Marren has the basis for a grievance over his performance appraisal the following data is requested under authority of [section] 7114(b)(4). It is requested that [the Union] be provided with copies of all of the following data as it applies to all journeyman bargaining unit employees of Fabens Border Patrol Station[.]

G.C. Exh. 4. We further note that, in response to the Respondent's request for more information concerning the "specific nature of [the] grievance[,]" ( G.C. Exh. 22) the Union explained that the requested data was necessary because:

the Union [was] investigating whether or not Mr. Marren's rating was inconsistent with the ratings afforded other bargaining unit employees at his station, based on a review of all of the data requested. The grievance may containing [sic] other allegations of management violations, but the nature of the entire grievance cannot be determined until a review of all data considered "necessary and relevant" is completed. Only then, can all of the perceived violations be identified with certainty and the grievance presented.

G.C. Exh. 24 (emphasis in original).

It is clear, from the Union's request and subsequent further explanation, that the Union was requesting the data for the purpose of determining whether Marren's appraisal was inconsistent with the appraisals of other employees. As such, and in view of Marren's position as the Union's chief steward, it is clear also that the Union requested the information to determine whether Marren was treated disparately with respect to his performance appraisal. As such, we reject the Respondent's contention that the Union did not properly allege that the grievance involved disparate treatment.

Further, we reject the Respondent's contention that the requested information was not necessary because the information could not be used to challenge the accuracy of Marren's performance appraisal. Like questions of arbitrability, questions of whether the requested information was relevant in the grievance, or admissible as evidence in arbitration, are matters to be resolved in the grievance procedure. The information was requested in connection with the Union's investigation of a potential grievance concerning performance appraisal and the information was necessary for the Union to determine whether to proceed with the grievance. Moreover, the potential grievance concerned disparate treatment; disparate treatment cases inherently involve comparisons among employees.

Further, we reject the Respondent's assertion that it was not obligated to provide the data because the Union's information request did not meet a "discovery-type" standard similar to that required to obtain information in the private sector. Respondent's Exceptions at 10, n.4. We find nothing in the Statute or its legislative history to support a conclusion that discovery rules apply to a union's request for information under section 7114(b)(4).

As noted previously, under section 7114(b)(4) of the Statute an agency is required to furnish a union, upon request, with data which is necessary to the performance of its representational functions. A union's request for information must meet the requirements specified in section 7114(b)(4) of the Statute. A union is required to demonstrate that the information is necessary for the performance of its representational duties. This is demonstrated when the union, as in this case, shows that the information is necessary to determine whether to file a grievance.

Finally, we reject the Respondent's contentions that the requested information from employees' work folders is not necessary because not all such information is considered or maintained by supervisors. First, as noted by the Judge, the Respondent "adduced no testimony" to support its claim that the requested information is not maintained by supervisors. Judge's Decision at 11 (emphasis in original). Second, the record reflects that a supervisor is required to evaluate the agents on how well they prepare reports, forms, memorandum and other documents. Job Element No. 2 of the Performance Work Plan requires that the agent be evaluated on the preparation of "reports and documents relative to the final disposition of administrative and criminal cases." G.C. Exh. No. 3. Job Element No. 4 requires that the agent be evaluated on the preparation of "various administrative reports, forms, memoranda and other documents required by Service instructions and regulations." Id.

As the disputed appraisals are, in accordance with the Respondent's own appraisal system, based in part on forms and documents which, according to this record, are maintained by supervisors in employee work folders, we agree with the Judge that these forms and documents are necessary for the Union to evaluate the grievance. Accordingly, we reject the Respondent's assertion that the relevance of these documents should be determined during "the compliance stage" of these proceedings. Respondent's Exceptions at 19. We note, however, that consistent with the Judge's decision, certain of this requested information may no longer be in existence and, as such, cannot be supplied to the Union.

B. The Requested Information Was Reasonably Available

We note, at the outset, that the Respondent does not contend that the requested information is not normally maintained by the Respondent in the regular course of business. Therefore, we find that the requested data is normally maintained in the regular course of business.

With respect to the issue which is before us, we find that the record does not support the Respondent's contention that the requested data was not reasonably available, within the meaning of section 7114(b)(4) of the Statute, because "the request was so burdensome that release was not required . . . ." Id. at 27.

The Statute requires an agency to provide data which is reasonably available. Consistent with this requirement, an agency is not required to provide data which is available only through "extreme" or "excessive" means. See, Department of Health and Human Services, Social Security Administration, 36 FLRA 943, 950 (1990). Determining whether "extreme" or "excessive" means are required to retrieve available data requires case-by-case analyses of relevant facts and circumstances. Id.

Although the Judge found that the record contained "some suggestions" from the Respondent's counsel and the supervisor that providing certain reports would be burdensome, the Judge concluded that the record contained insufficient "details" concerning the extent of the burden. Judge's Decision at 14 (emphasis omitted). Consequently, the Judge rejected the Respondent's contention that the requested data was not reasonably available.

Our review of the record reflects that the Respondent presented only the testimony of the second-line supervisor at the Fabens Station to support its contention that the retrieval of the requested data would be burdensome. In this regard, the Respondent's supervisor testified that there would be some difficulty in retrieving the "213s" forms. Transcript at 76. The record contains no other evidence concerning the nature or extent of the alleged burden.

The Respondent has failed to establish that the requested information was available only through extreme or excessive means. Accordingly, we conclude that the requested information was reasonably available, within the meaning of section 7114(b)(4) of the Statute.

C. The Requested Information May Be Sanitized

The Judge found that the disclosure of unsanitized information was necessary only because "unless the names of . . . individuals are known, the Union would be unable to relate the work product to a particular Patrol Agent." Judge's Decision at 10. Likewise, according to the General Counsel, unsanitized information was necessary only "so that the Union could correlate the documents." General Counsel's Brief to the Judge at 4.

The Union's representative conceded at the hearing, however, that names or personal identifiers were not necessary and that the appraisals and other documents could have been linked by non-identifying codes. See Transcript at 27-28. Compare General Counsel of the National Labor Relations Board and National Labor Relations Board Union, 37 FLRA No. 84 (1990) (personally identified performance appraisals were necessary for the union to monitor the agency's performance appraisal system). In these circumstances, we conclude that disclosure of the requested data to the Union, in a sanitized and correlated form, will enable the Union to compare Marren's performance appraisal and work products with that of the other agents. As such, it is unnecessary to decide, in this case, whether disclosure of unsanitized information would be prohibited by law, within the meaning of section 7114(b)(4). See generally Portsmouth.

We note, in this regard, two things.

First, our finding that the information may be supplied in a sanitized form does not relieve the Respondent of its violation of the Statute in this case or prevent us from providing a remedial order. The Union clearly explained to the Respondent that it needed the requested information to determine whether Marren's performance evaluation was inconsistent with the other agents. However, even after the Union explained why the requested information was necessary, the Respondent furnished the Union with only a sanitized listing of the ratings given the other patrol agents.

The Respondent refused to provide the Union with copies of the requested information and did not at any time indicate to the Union that it was refusing to do so because the Union requested unsanitized information. Moreover, the Respondent has not at any time offered to sanitize and correlate the requested information. Instead, the Respondent has adamantly refused, from the Union's initial request throughout the processing of this case, to provide the Union with the disputed information in any form. The Respondent's unlawful refusal to furnish the Union with the requested information prevented the Union from carrying out its representational responsibilities under the Statute and, thereby, violated the Respondent's obligations under section 7114(b)(4).

Second, our determination that the requested information may be provided in a sanitized form does not privilege the Respondent to "over-sanitize" the documents so as to delete information necessary for the Union to discharge its representational responsibilities. See Bureau of Alcohol, Tobacco and Firearms, National Office Washington, D.C., 18 FLRA 611 (1985). As is the case with respect to any disputes over the existence of requested information, disputes over the sanitization of the requested information should be resolved during compliance proceedings.

VII. Summary

The information requested by the Union was reasonably available and necessary for the Union to determine whether to file a grievance on behalf of the employee. Therefore, we find that the Respondent was required, by section 7114(b)(4) of the Statute, to supply the requested information to the Union and its failure to do so violated section 7116(a)(1), (5), and (8) of the Statute. Accordingly, we will direct the Respondent to cease and desist from its violation of the Statute and to supply the requested data, in a sanitized and correlated form.

VIII. Order

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

1. Cease and desist from:

(a) Failing and refusing to furnish the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, the exclusive representative of its nonprofessional employees assigned to the Border Patrol Sectors, available sanitized and correlated copies of the information requested in the Union's letters of June 1, 1987 and July 20, 1987.

(b) In any like or related manner, interfering with, restraining, or coercing their 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 Federal Service Labor-Management Relations Statute:

(a) Upon request, furnish the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, with available sanitized and correlated copies of the information requested by the Union, in letters dated June 1, 1987 and July 20, 1987.

(b) Post at its Fabens Station facilities, El Paso, Texas, 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, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to their respective employees are customarily posted. Reasonable steps shall be taken to ensure 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.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to furnish the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, with available sanitized and correlated copies of the information requested by the Union in letters dated June 1, 1987 and July 20, 1987.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL furnish the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, with available sanitized and correlated copies of the information requested by the Union in letters dated June 1, 1987 and July 20, 1987.

___________________________
(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: 525 Griffin Street, Suite 926, Dallas, TX 75202, and whose telephone number is: (214) 767-4996.




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

*/ As no exceptions were filed to the Judge's recommended dismissal of the General Counsel's contention that the Respondent committed a separate violation of 7116(a)(1) and (5) of the Statute by delaying the processing o