40:0792(64)CA - - Justice, INS, Border Patrol, El Paso, TX and AFGE, National Border Patrol Council - - 1991 FLRAdec CA - - v40 p792

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[ v40 p792 ]
40:0792(64)CA
The decision of the Authority follows:


40 FLRA No. 64

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF JUSTICE

UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE

UNITED STATES BORDER PATROL

EL PASO, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

NATIONAL BORDER PATROL COUNCIL

(Charging Party/Union)

6-CA-80173

DECISION AND ORDER

May 6, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's decision. The Judge found that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide data to the Union which it needed to determine whether to file a grievance.

The Respondent and the General Counsel filed exceptions to the Judge's decision. The General Counsel filed a motion to strike the Respondent's exceptions, and filed an opposition to the Respondent's exceptions. The Respondent filed an opposition to the General Counsel's exceptions and a motion to dismiss the complaint. The General Counsel then moved to strike the Respondent's opposition and the Respondent's motion to dismiss the complaint. The Charging Party also filed an opposition to the Respondent's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing. We affirm the rulings as discussed below in Section VI. B. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended order to the extent consistent with this decision.

II. Preliminary Matter

The General Counsel moved to strike the Respondent's exceptions as being untimely filed and untimely served on the parties. In a separately filed opposition to the Respondent's exceptions, the Charging Party similarly argued that the exceptions were untimely.

Under the Authority's Rules and Regulations, exceptions must be postmarked by the due date or, if hand delivered, filed in the Authority's Docket Room by that date. 5 C.F.R. §§ 2429.21(b) and 2429.24(a). The due date for exceptions to the Judge's decision in this case was December 26, 1989.

The Respondent's exceptions were discovered in an in-box in the Authority's Washington, D.C. Docket Room on the morning of December 27, 1989. They originated in the Respondent's Washington, D.C. office. No envelope, postmark or evidence of mailing was attached to the copy found in the Authority's Docket Room, and there was no date stamp or other indication of how or when the exceptions arrived.

In view of the fact that the Respondent's exceptions were first discovered in the Docket Room in-box after the December 26, 1989, due date with no evidence of the date or time of delivery, and there is no indication that the exceptions were received or postmarked by the date they were due, they are untimely and have not been considered.(1)

III. Background

This case involves a request for information under section 7114(b)(4) of the Statute. The General Counsel asserts that the information is necessary for the Union to determine whether to pursue a grievance on behalf of a unit employee. The potential grievance relates to the employee's Officer Corps rating.

Robert J. Marren is a border patrol agent at the Fabens Station, part of the Respondent's El Paso, Texas Sector Office. Since February 1987, he has been executive vice-president of the Union. On December 1, 1987, he received his Officer Corps ratings from his first-line and second-line supervisors, as was customary. Both supervisors gave him the highest overall rating possible. However, he received a rating of "good" rather than "very good" from both supervisors in several elements, including the productivity element. Marren believed that he had been treated differently than other agents because of his union activity.(2)

The rating factors for the productivity element are as follows:

1. Quantity and quality of work compare favorably with that of others who have similar production opportunity.

2. Finished product is technically satisfactory.

3. Diligently pursues tasks to completion without unnecessary delay.

On December 7, 1987, Marren wrote to the Respondent in his capacity as Union representative, stating that he was contemplating filing a grievance and that the Union was investigating the possibility that he had received disparate treatment. He requested the following three categories of unsanitized data relating to all journeymen unit employees of the Fabens Station from November 1986 through November 1987:

1. officer corps ratings;

2. all documents contained in the performance work folders or whatever other source of data management maintains with respect to [their] ratings (including Mr. Marren's);

3. copies of any and all documents and reports completed during the period covered by the 1988 officer corps rating i.e.:

I-213

 (Record of Deportable Alien)

I-274

 (Notice & Request for Disposition)

I-50

 (Daily Activity Report)

DJ-296

 (Bi-Weekly Time & Attendance Report)

I-44

 (Report of Apprehension & Seizure)

G-166

(Smuggling Report)

G-170

G-205

 (Vehicle Maintenance Report)

All documents related to WA/OSC and criminal prosecution.

Judge's Decision at 5-6.

The Respondent replied on December 28, 1987. First, the Respondent stated that the request for the Officer Corps ratings should be made to the Central Office where the Officer Corps ratings were due to be received on January 8, 1988. Second, the Respondent asserted that performance work folders are not maintained by supervisors and that no relevant material was available. Third, in regard to the request for the list of specific documents, the Respondent answered that the request was too broad, that not every piece of work product of an employee is reviewed by the supervisor, and that errors that are noted may be corrected "so that the incorrect product would not be maintained." Further, the reply said that a supervisor may use "refresher notes" for rating an employee. Id. at 6. (3)

The first category of documents sought refers to the Officer Corps ratings of the other ten border patrol agents in the bargaining unit. At the hearing before the Judge, there was a factual dispute about the existence of the documents in the second category, the performance work folders, for the period in question. Evidence was presented, however, that Martinez, Marren's second level supervisor, kept a memorandum of Marren's performance, including comments about productivity as well as other factors considered in the annual rating. In addition, Martinez kept administrative files, which could have contained comments about employees' work performance bearing on factors that comprise the rating evaluation.

Finally, the last group of items sought includes a long list of documents and work reports by the 11 border patrol agents. Daily work reports turned in by the agents on various forms constitute the production record of border patrol agents. Martinez testified that he did not have the work products or documents prepared by the agents when he rated them. Rather, he said that he used refresher notes and referred to the station log, which is completed daily. The station log, a summary of an agent's actions, records the arrest or apprehension of every alien. It shows factual data about the alien, but does not show the quality of an officer's work, or who logged in the report.

One of the Respondent's witnesses testified that he had been told it would probably take 350 hours to look through the log sheets and put together the documents sought. Tr. 59-60. Another witness for the Respondent testified that he did not know how long it would take to accumulate the requested documents for the full year of the rating period. He did testify that "if numerous employees requested this vast amount of data, . . . [w]e couldn't accomplish our primary mission," and he did not think there would be the budget to accomplish it. Tr. 170-71.

Prior to the hearing, the General Counsel served a subpoena on the Respondent requesting that the documents in question be produced at the hearing to resolve issues raised by the Respondent, such as whether the documents were relevant and necessary to the Union in fulfilling its representational duties, and certain concerns under the Privacy Act, 5 U.S.C. § 552a (1988). At the hearing, the General Counsel modified its request for subpoenaed documents to the 5-month period from November 28, 1986, through April 1987. In response to motions by the parties, the Judge made various rulings regarding the subpoena, including a partial denial 0f the Respondent's motion to revoke the subpoena and a refusal to grant the General Counsel's request for sanctions and a protective order.

After the hearing, the Respondent furnished to the Union the unsanitized ratings, the first category of documents sought.

IV. Administrative Law Judge's Decision

The Judge concluded that the Union was entitled to the available data requested, including the documents and reports by patrol agents for the period from November 28, 1986 through April 1987. In this regard, the Judge stated that the General Counsel had "modified the period for which it requested information" as to those dates. Judge's Decision at 5 n.7. The Judge found that the material was normally maintained, reasonably available and necessary for the Union to fulfill its representational duties, as set forth in section 7114(b)(4) of the Statute. He also found that to provide certain data would not impose an undue burden upon the Respondent or interfere with the normal functions of its organization. There was no assertion by the Respondent that the information requested constitutes guidance, advice, counsel or training for management officials or supervisors relating to collective bargaining. The Judge concluded that the refusal to furnish the information was a refusal to bargain, in violation of section 7116(a)(1) and (5) and a failure to comply with section 7114(b)(4) of the Statute, in violation of section 7116(a)(1) and (8).

Specifically with regard to the Officer Corps ratings, the Judge found that it was necessary for the Union to obtain the appraisals of the other similarly situated employees so that it could determine whether to file a grievance alleging disparate treatment. Although the Respondent had furnished all the requested information in this category after the hearing, the Judge found that the Respondent did not thereby fulfill its obligation under section 7114(b)(4), which requires that data be furnished in a timely manner. Accordingly, he found that the failure to do so violated the Statute.

With regard to the second category of information sought, the documents in performance work folders or other sources, the Judge found that information in any documents about the work performance of agents is necessary to assess whether the rating given Marren in the productivity element constituted disparate treatment.

Despite conflicting evidence as to whether performance work folders were kept during the rating year involved, the Judge noted that the Respondent kept memoranda containing comments about productivity and other administrative files that would bear on factors that comprise the rating evaluation. He therefore found a violation of the Statute in this regard and concluded that the Respondent should be directed to supply whatever pertinent documents or memoranda it has in its possession. The Judge noted that the availability of the items can best be determined during the compliance stage of the case.

With regard to the third category of information sought, the documents and reports by Patrol Agents, the Judge initially found the information to be necessary to enable the Union to decide whether to file a grievance on behalf of Marren.

The Judge found that no determination as to disparate treatment of Marren could be made in a grievance without examining the work records of the other agents. In this regard, the Judge found that "these documents would quantify the tasks performed by each employee and enable the Union to contrast Marren's productivity with his fellow workers. Obtaining these documents is therefore essential to the Union performing its representational functions." Judge's Decision at 13. The Judge also noted that although Marren's supervisor testified that he does not rely upon some of these work products by the agents in assessing their productivity, each form does measure the employee's production. Therefore, the Judge concluded "that a supervisor's failure to examine the work product should not militate against the need of the Union to evaluate such records." Id. n.16.

Although the Respondent contended that the request would require it to furnish approximately 10,000-15,000 documents and that they would be difficult to retrieve and may not be discoverable in any event, the Judge found that the request did not constitute an unreasonable burden. He stated that the original request for documents covering a twelve-month period had been shortened to a period of five months and that the General Counsel had stated on the record that a lesser number of reports would be acceptable.

In response to the Respondent's assertion that some of the data set forth in certain files, such as information about aliens, might be the basis for criminal prosecution, the Judge determined that disclosure of the names would not significantly aid the Union and that sanitization of the names of aliens in certain files would be proper. He therefore recommended an Order requiring the Respondent to provide the Union with the requested reports and documents comprising the work products for all patrol agents at Fabens Station for the period November 28, 1986 through April 1987, with the names of the aliens deleted from such data.

V. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel excepts to the Judge's conclusion that the period for which information is requested was shortened from twelve months to five months and to the portion of the recommended order limiting production of the requested information to the shorter period.

The General Counsel asserts that any references in the record by the General Counsel to a reduced time frame "were made only in relation to the issue of the subpoena[,]" which was an "attempt to alleviate any alleged burden placed on the Respondent in complying with the subpoena." General Counsel's Brief in Support of Exceptions at 5. The General Counsel states that this concession was made because it did not consider documents for the entire year covered by the complaint allegation to be necessary for the Judge to be able to determine "the relevance, necessity and other legal issues surrounding the documents." Id. The General Counsel asserts that the Union needs to review the documents for the entire rating period to establish a disparate treatment claim. Moreover, the General Counsel argues that a reduction in the time frame for the requested documents could have been accomplished only by amending the complaint.

The General Counsel also excepts to various procedural rulings by the Judge regarding the subpoena. These exceptions are discussed below in the section VI of this decision.

B. Respondent's Opposition to Exceptions; Motion to Dismiss Complaint

In its opposition, the Respondent argues that it should not have to produce documents in response to the subpoena. It also argues that sanctions should not be imposed for its failure to produce the documents, because the subpoena was improper in that it sought the same information that is at issue in this case and thereby circumvents the protections provided by section 7114(b)(4) of the Statute. In addition, the Respondent argues that its concerns under the Freedom of Information Act, 5 U.S.C. § 552 (1988) (FOIA) and the Privacy Act were legitimate and provide no basis for sanctions.

In support of its motion to dismiss, the Respondent asserts that the filing of an EEO complaint by Marren in a separate proceeding constituted an election under section 7121(d) of the Statute. The Respondent argues that, assuming the appraisals were subject to the negotiated grievance procedure, the filing of the EEO complaint, "at least 4 days before [Marren] filed his unfair labor practice charge" precludes the grievance and, therefore, eliminates the basis for the information request. Respondent's Opposition to Exceptions and Motion to Dismiss at 14.

C. General Counsel's Motion to Strike Respondent's Opposition and Respondent's Motion to Dismiss the Complaint

The General Counsel moves to strike the reference in Respondent's Opposition to its Merit Promotion and Reassignment Plan. According to the General Counsel, this "refers to an alleged agreement not introduced into the record and which therefore does not constitute record evidence in this case." General Counsel's Motion to Strike at 2.

Second, the General Counsel moves to strike Respondent's motion to dismiss the complaint, which asserts that Marren's filing of an EEO complaint was an election under section 7121(d) of the Statute that barred an unfair labor practice complaint. In this regard, the General Counsel argues that the EEO issue was not raised by the General Counsel in its exceptions and is therefore "not a valid opposition for it does not oppose anything raised by Counsel for the General Counsel. Moreover, Respondent has already filed exceptions in this case and its attempt to file cross exceptions via an opposition or motion to dismiss has already been rejected by the Authority in Marine Corps Logistics Base, Barstow, California, 33 FLRA No. 80 (1988)." General Counsel's Motion to Strike at 2-3.

VI. Analysis and Conclusions

A.Section 7121(d) Does Not Render the Request for Information in this Case Moot; Respondent's Motion to Dismiss the Complaint Is Denied

Section 7121(d) provides, in pertinent part, that an aggrieved employee affected by a prohibited personnel practice may raise the matter under a statutory procedure, such as an EEO procedure, or a negotiated grievance procedure, "but not both." The option shall be deemed to have been exercised when the employee initiates an action under the applicable statutory procedure or files a grievance in writing under the negotiated procedure, whichever occurs first.

Shortly after the Union filed, and the Respondent denied, the information request to assist the Union in deciding whether to file a grievance over border patrol agent Marren's Officer Corps rating, Marren filed an EEO complaint. From the record, it appears that the EEO complaint alleged that Marren had received a lower rating than he deserved in reprisal for having filed an earlier EEO complaint. A question is raised as to whether section 7121(d) of the Statute would preclude the filing of a grievance concerning discrimination based on Marren's Union activity.

The General Counsel asserts that as the Respondent's exceptions were untimely, this issue was raised for the first time in the Respondent's opposition to the General Counsel's exceptions. Because the General Counsel's exceptions did not raise the issue, the General Counsel argues that this defense is not properly before the Authority.(4)

For the reasons stated by the General Counsel, the Respondent's section 7121(d) defense arguably is not before us. However, the Respondent asserts, based on section 7121(d), that we must dismiss the complaint as a matter of law. In this unique circumstance, we will address the matter here. Accordingly, we deny the General Counsel's motion to strike.

In general, an agency's contention that a potential grievance is not grievable does not relieve an agency from its obligation to furnish requested information. See, for example, U.S. Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 37 FLRA 987, 995 (1990) (McClellan Air Force Base, California), and cases cited therein. We note that at the time of the request for information and the Respondent's denial of that request, not only was there no grievance, but there also was as yet no EEO complaint.

Moreover, on the record before us, we cannot determine whether Marren's filing of an EEO complaint over his Officer Corps rating constituted an exercise of this option under section 7121(d) that would preclude the filing of a grievance. If the Union were to file a grievance, that question would be for the arbitrator ultimately to decide based on the circumstances of any such grievance. Internal Revenue Service National Office, 21 FLRA 646, 649 n.3 (1986). Therefore, section 7121(d) does not compel the dismissal of the complaint. We note that the information sought by the Union is for the purpose of investigating a potential grievance. In this regard, an examination of the information might demonstrate that no contract violation had occurred, and therefore no grievance might be filed. Accordingly, we conclude that it cannot be established that the request for information in this case is moot.

In view of the foregoing, the Respondent's motion to dismiss the complaint is denied.

B. The Judge's Rulings at the Hearing are Affirmed

Prior to the hearing, the General Counsel served a subpoena on the Respondent requesting that the documents in question be produced at the hearing. The Judge made certain rulings with regard to the subpoena, to which the General Counsel excepts.

At the hearing, the Judge granted, in part, the Respondent's petition to revoke the subpoena as to some of the documents sought. Tr. 102; 127-28. The General Counsel argues that the Judge's ruling was incorrect. The Judge ultimately determined that all of the documents were relevant and necessary to the Union's potential grievance. Thus, the ruling had no adverse effect on the General Counsel's position. Therefore, in view of these circumstances and our ultimate disposition of this case, we conclude that the ruling of the Judge was not prejudicial error.

The Judge denied the General Counsel's request for a protective order regarding the items no longer subject to the subpoena as a result of the Judge's ruling. The General Counsel's request was based on an assertion that documents returned to the Respondent were likely to be lost or destroyed "because of Respondent's history of losing or destroying such documents." General Counsel's exceptions at 11. The General Counsel argued that protection was necessary because the ultimate disclosure of the documents to the Union remained at issue in the case.

The General Counsel also asked the Judge to impose sanctions regarding documents that the Respondent asserted it could not produce because of its concerns about sanitization. The request was that the Respondent be allowed no testimony or cross examination as to the documents it would not produce, and that the Judge draw an adverse inference as to the Respondent's refusal to produce the unsanitized documents for the Judge's examination. Tr. 140; 143-44. The Judge declined to impose sanctions.

A judge has the discretion to issue protective orders and to order sanctions, including drawing inferences adverse to the position of the party refusing to produce documents. We are satisfied that the Judge did not abuse his discretion in this case. Therefore, his denial of the General Counsel's requests for a protective order and for sanctions did not constitute error. See Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 30 FLRA 127, 138-39 (1987).

C. The Requested Information Is Necessary

We agree with the Judge, for the reasons he stated, that all three categories of documents are necessary for the Union to exercise its representational functions in determining whether to file a grievance regarding Marren's alleged disparate treatment in his Officer Corps rating.

D. Officer Corps Ratings and Performance Work Folders

We adopt the Judge's finding, for the reasons he stated, that the Respondent violated the Statute as alleged by refusing timely to furnish the Officer Corps ratings of employees similarly situated to Marren. We also adopt his findings as to the performance work folders or other similar documents, for the reasons stated by the Judge. The Respondent will be directed to furnish whatever pertinent documents or memos it has in its possession.

E. Documents and Reports by Patrol Agents

1.The General Counsel Did Not Agree to Reduce the Number of Documents Sought by the Union In Its Request for Information

The General Counsel excepts to the Judge's finding that the General Counsel had agreed at the hearing that documents and reports covering a shorter period than stated in the complaint would be acceptable as a remedy for the alleged unfair labor practice. Rather, it asserts that the agreement to accept documents for a shorter period was expressly limited to the scope of the subpoena.

We have reviewed the record carefully, and conclude that the Judge's finding that the General Counsel agreed at the hearing to limit the scope of the documents sought under the complaint is unsupported. Therefore, our inquiry must go beyond the Judge's determination that the furnishing of five months' worth of documents, representing between 5,000 and 7,500 items, is not an unreasonable requirement. Rather, the question is whether, under the circumstances, furnishing as many as 10,000 or more documents representing the reports of the eleven border patrol agents at Fabens Station for a twelve-month period would constitute an undue burden on the Respondent and thereby lead to the conclusion that the information requested is not reasonably available.

2. Documents Covering the Twelve-Month Rating Period Are Reasonably Available

The Statute requires that reasonably available data must be provided if the other conditions of section 7114(b)(4) are met. Consistent with this requirement, an agency is not required to provide information that is available only through "extreme" or "excessive" means. Determining whether extreme or excessive means are required to retrieve available information requires a case-by-case analysis. McClellan Air Force Base, California, 37 FLRA at 994; Department of Health and Human Services, Social Security Administration, 36 FLRA 943, 950 (1990) (Social Security Administration).

The Authority has held that it was not unreasonable to require production of records that would take three weeks to retrieve, especially where it appeared that some of the effort was due to the method of recordkeeping chosen by the agency. Social Security Administration, 36 FLRA at 950-51. Information also was found to be reasonably available where it would take an agency three to four weeks to write a new computer program that would be needed to retrieve the data. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 28 FLRA 306 (1987), reversed as to other matters sub nom. FLRA v. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, No. 87-1387 (D.C. Cir. Aug. 9, 1990). And in a case involving these same parties and virtually identical data, it was not established that approximately 5,000 sanitized items maintained in different sections and offices of the agency could be produced only through extreme or excessive means. U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1323-24 (1990) (INS, Border Patrol).

On the other hand, data was not found to be reasonably available where it "could have included information contained in personnel files maintained by over 6,000 first level supervisors, as well as hundreds of disciplinary files from various . . . personnel offices." Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, and Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 21 FLRA 529, 532 (1986).

There is little record evidence in this case regarding the means necessary to retrieve the work documents of the agents for the twelve-month rating period. One witness, based only on what he had been told, estimated that it would take more than 350 hours. Another witness could give no estimate of how long it would take, but nevertheless concluded that the impact on the mission of the Respondent "if numerous employees requested this vast amount of data" would be so great that "[w]e couldn't accomplish our primary mission," and that he did not think there would be the budget to do it. Tr. 170-71.

These estimates were made at the hearing after the Respondent had substantially gathered the five months' worth of documents required to comply with the subpoena. There is no indication that the Respondent's primary mission or budget were adversely affected by that effort, which is a significant indicator of the work necessary to retrieve the requested documents for the full twelve months.

In all the circumstances, in our view it has not been shown that production of the documents would require extreme or excessive means. Therefore, we conclude that the Respondent has not established that the requested information was not reasonably available within the meaning of section 7114(b)(4) of the Statute.

3. The Documents May Be Sanitized

The Judge found that sanitization of the names of aliens who are the subject of some of the documents would be proper, and based this conclusion on an uncontradicted finding that disclosure of such names would not significantly aid the Union in processing its grievance. He noted that some of the personal information set forth in the documents pertaining to aliens might be the basis for criminal prosecutions.

The General Counsel does not dispute the finding that disclosure of the names of aliens would not significantly aid the Union in processing its grievance. However, the General Counsel does argue that some of the documents released under the subpoena "were so heavily sanitized as to be non-documents." General Counsel's exceptions at 12. Thus, this case is distinguishable from INS, Border Patrol, 37 FLRA at 1324, where no such assertion was made, and where it was not necessary to analyze the scope of disclosure under the Privacy Act.

We conclude that the Privacy Act applies to at least some of the individuals named in some of the documents sought, and therefore that sanitization is necessary to protect the privacy of those individuals before the documents can lawfully be released.

We disagree with the General Counsel's assertion that the Privacy Act does not apply to any of the documents involved because they contain information about illegal aliens who are not protected by the Privacy Act. The Privacy Act applies to "a citizen of the United States or an alien lawfully admitted for permanent residence." 5 U.S.C. § 552a(a)(2). Although it is clear that many of the documents concern only illegal aliens who would not be protected by the Privacy Act, it is not clear from the face of a given document whether a particular subject was an illegal alien. Moreover, even where the subject of a document appears to be an illegal alien, the individual's status may not have been finally adjudicated.

The General Counsel's second basis for arguing that the Privacy Act does not apply is that the Respondent has not shown that the documents are contained in a system of records. The Privacy Act precludes disclosure of records contained in a system of records. 5 U.S.C. § 552a(b). The term "record" means:

any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph[.]

5 U.S.C. § 552a(a)(4). A "system of records" is "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual[.]" 5 U.S.C. § 552a(a)(5).

The General Counsel has not shown how the documents fall outside these definitions. Indeed, the record shows that the Respondent was able to retrieve a large number of the documents requested pursuant to the subpoena. It is unlikely that it could have done so if the documents were not maintained in a system of records. We conclude that the evidence is sufficient to establish that the documents are maintained in a system of records within the meaning of the Privacy Act. Accordingly, we conclude that the Privacy Act applies to at least some of the information sought.

With certain exceptions, the Privacy Act bars unconsented disclosure by Federal agencies of information about individuals. 5 U.S.C. § 552a(b)(2). See 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). As pertinent here, the relevant exception is contained in 5 U.S.C. § 552a(b)(2), which concerns disclosure required by the FOIA. In turn, the FOIA permits an agency to exempt from disclosure investigatory records compiled for law enforcement purposes, to the extent that the production of such records would "constitute an unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(7)(C). See generally, United States Dept. of Justice v. Reporters Committee for Freedom of the Press, 109 S. Ct. 1468 (1989) (Reporters Committee).

The documents sought clearly are records compiled for law enforcement purposes. Therefore, the Respondent could refuse to disclose those documents to the extent that they constitute "an unwarranted invasion of privacy."

The United States Supreme Court has held that the policy of full disclosure embodied in the FOIA "focuses on the citizens' right to be informed about 'what their government is up to.'" Reporters Committee, 109 S. Ct. at 1481. In Portsmouth, the Authority recognized that in cases involving information requested by a union in the course of fulfilling its representational functions under the Statute, the appropriate public interest to be applied is the facilitation of the collective bargaining process in the Federal sector. 37 FLRA at 524-31. Under either analysis, we see little or no public interest to be served by releasing the names or personal identifiers of aliens or other subjects, such as confidential informants or smugglers of aliens, contained in various reports requested by the Union. In particular, to assess whether to file a grievance regarding Marren's Officer Corps rating, the Union needs only information that will enable it to compare the work products of the eleven agents. The General Counsel has not shown why such a comparison cannot be made without the names and personal identifiers contained on the forms.

In contrast, the privacy interest of individuals who are the subject of the various reports could be substantial. From various documents, for example, confidential sources could be identified; arrest records and other facts about the aliens--some of whom may in fact be in this country legally--could be disclosed; and names and other information about individuals alleged to have illegally smuggled aliens into the country could be apparent.

In these circumstances, we conclude on balance that the release of these documents in unsanitized form would constitute "an unwarranted invasion of privacy" within the meaning of the Privacy Act. In order to safeguard against such an invasion of privacy, we will order appropriate sanitization of any documents subject to 5 U.S.C. § 552(b)(7)(C). Any disputes that may arise as to the proper extent of sanitization are appropriate for resolution at the compliance stage of this case. INS, Border Patrol, 37 FLRA at 1325.

VII. Summary

The information requested by the Union is normally maintained by the Respondent in the regular course of business; is reasonably available and necessary for the Union to determine whether to file a grievance on behalf of an employee; and does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining. 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, as alleged.

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 and Naturalization Service, United States Border Patrol, El Paso, Texas, 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 the Union's letter dated December 7, 1987, for the period November 1986 through November 1987, for the purpose of enabling the Union to perform its representational duties relating to the evaluation and processing of grievances. The data may be sanitized as necessary to protect the privacy of individuals under the Privacy Act, 5 U.S.C. § 552a and the Freedom of Information Act, 5 U.S.C. § 552.

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

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

(a) 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 the Union's letter dated December 7, 1987, for the period November 1986 through November 1987, for the purpose of enabling the Union to perform its representational duties relating to the evaluation and processing of grievances. The data may be sanitized as necessary to protect the privacy of individuals under the Privacy Act, 5 U.S.C. § 552a, and the Freedom of Information Act, 5 U.S.C. § 552.

(b) Post at its facilities at El Paso, Texas and Fabens, 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, Immigration and Naturalization Service, Southern Regional Office, Dallas, Texas, 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 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, Dallas Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

 

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and 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, sanitized as necessary, requested in the Union's letter dated December 7, 1987, for the period November 1986 through November 1987, for the purpose of enabling the Union to perform its 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, sanitized as necessary, requested in the Union's letter dated December 7, 1987, for the period November 1986 through November 1987, for the purpose of enabling the Union to perform its 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 any of its provisions, they may communicate directly with the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, whose address is: Federal Office Building, 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.)
 

1. In view of this determination, it is unnecessary to consider the General Counsel's alternative motion to strike certain portions of the Respondent's exceptions.

2. The reason for Marren's concern despite the high overall rating was that the individual element ratings yield a point total, which determines an employee's location on the promotion or transfer rosters. Tr. 74.

3. On January 11, 1988, Marren filed an EEO complaint against the Respondent alleging that the Respondent had discriminated against him in his Officer Corps rating because he had filed an earlier EEO com