41:0137(15)CA - - Justice, INS, Border Patrol, Dallas, TX and AFGE, National Border Patrol Council - - 1991 FLRAdec CA - - v41 p137

Other Files: 


[ v41 p137 ]
41:0137(15)CA
The decision of the Authority follows:


41 FLRA No. 15

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF JUSTICE

UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE

UNITED STATES BORDER PATROL

DALLAS, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

NATIONAL BORDER PATROL COUNCIL

(Charging Party)

6-CA-90117

DECISION AND ORDER

June 11, 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 filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent did not file an opposition to the General Counsel's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to furnish the Charging Party (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 the information.

The Judge found that the requested information constituted guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute and, therefore, was exempt from disclosure to the Union. The Judge did not address the allegation in the complaint that the Respondent unreasonably delayed the processing of the Union's information request. The Judge recommended that the complaint be dismissed.

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 and find that no prejudicial error was committed. We affirm the rulings. We adopt the Judge's findings and conclusions only to the extent consistent with this decision.

Contrary to the Judge, we find that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the disputed information to the Union. Accordingly, we will issue an appropriate remedial order for this aspect of the complaint. We will dismiss the separate alleged violation of section 7116(a)(1) and (5) based on the Respondent's delay in responding to the Union's request.

II. Facts

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

The Union is the exclusive representative for all nonprofessional employees assigned to the Respondent's Border Patrol Sectors, except those employees excluded by the Statute. The Union filed grievances on behalf of three employees who had been recommended for suspension as a result of alleged misconduct.

In connection with its processing of the grievances, the Union made an information request, pursuant to section 7114(b)(4) of the Statute, for three memoranda that related to the policy of the Respondent's Regional Office governing disciplinary and adverse actions. The Union explained that the information was needed in order to determine whether there was disparate treatment in the length of the grievants' suspensions compared to other cases involving similar misconduct and to determine whether the Respondent had violated the parties' collective bargaining agreement by failing to comply with its own policies.

After 5 months had elapsed without a response from the Respondent to the Union's request, the Union renewed its request. The Respondent denied the Union's requests on the basis that the information related to management's policy governing disciplinary and adverse actions and constituted guidance to management officials and supervisors that was exempt from disclosure under section 7114(b)(4)(C) of the Statute.

III. Administrative Law Judge's Decision

The Judge stated that this case "concerns whether certain data requested by the Union constitutes 'guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining' within the meaning of § [71]14(b)(4)(C) of the Statute." Judge's Decision at 2. The Judge found that the requested information--Respondent's memoranda concerning Regional Office policy governing disciplinary and adverse actions--constituted guidance, advice, counsel, or training provided for management officials or supervisors within the meaning of section 7114(b)(4)(C) of the Statute.

The Judge rejected the General Counsel's assertion that section 7114(b)(4)(C) relates "only to the actual process of collective bargaining; i.e., preparing for negotiations and discussing and evaluating union and management proposals . . . ." Id. at 6. The Judge stated that, pursuant to section 7114(b)(4) of the Statute, an agency has a duty to furnish data within the scope of collective bargaining, "which means not only actual negotiations but the union's full range of representational responsibilities, including the effective evaluation and processing of grievances." Id.

The Judge concluded, therefore, that because the Respondent's memoranda constituted guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute, the memoranda were exempt from disclosure. Accordingly, he found that the Respondent did not violate section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the memoranda. The Judge did not address the allegation in the complaint that the Respondent unreasonably delayed the processing of the Union's information request. The Judge recommended that the complaint be dismissed.

IV. General Counsel's Exceptions

The General Counsel excepts to the Judge's rejection of its position that section 7114(b)(4)(C) of the Statute "relates only to the actual process of collective bargaining." General Counsel's Exceptions at 1. The General Counsel asserts that section 7114(b)(4)(C) relates to the "actual process of collective bargaining [such as] preparing for negotiations and discussing and evaluating union and management proposals." Brief in Support of Exceptions (Brief) at 10. The General Counsel contends that the requested memoranda did not concern collective bargaining, but rather were examples of management policy that specified "the procedures to be followed by subordinate management officials in disciplinary/adverse actions[.]" Id. at 12. Accordingly, the General Counsel excepts to the Judge's failure to conclude that the requested information was not related to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute and, therefore, was not exempt from disclosure.

The General Counsel also maintains that the information is reasonably available, normally maintained and necessary and relevant "to prove disparate punishment during the arbitrations of three pending grievances." Id. at 9. The General Counsel asserts, therefore, that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing to provide the Union with the requested information. The General Counsel did not except to the Judge's failure to address the allegation in the complaint that the Respondent unreasonably delayed the processing of the Union's information request.

V. Analysis and Conclusions

A. The Requested Information Is Normally Maintained by the Agency and Is Reasonably Available and Necessary

Section 7114(b)(4) of the Statute requires an agency to furnish a union, upon request and to the extent not prohibited by law, data which: (1) is normally maintained by the agency in the regular course of business; (2) is reasonably available and necessary for discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (3) does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining. There is no contention in this case that disclosure of the requested information is prohibited by law.

It is well established that an agency is obligated under section 7114(b)(4) to provide an exclusive representative of its employees with information that is reasonably available and necessary for the union to effectively fulfill its representational functions and responsibilities in the processing of employee grievances. U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241, 251 (1991) (IRS), petition for review filed sub nom. United States Department of Treasury, Internal Revenue Service v. FLRA, No. 91-1153 (D.C. Cir. Mar. 29, 1991).

There is no dispute that the requested information was normally maintained by the agency in the regular course of business and was reasonably available, and we so find. We also find that the requested information was necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining. The requested information was needed by the Union in evaluating whether there was disparate treatment in the length of the grievants' suspensions compared to other cases involving similar misconduct and to determine whether the Respondent had violated the parties' collective bargaining agreement. We find, therefore, that the information was necessary for the Union to effectively represent the grievants in this matter. See IRS, 39 FLRA at 251-52. Accordingly, we find that the requested information was normally maintained by the agency in the regular course of business, and was reasonably available and necessary for the Union to carry out its representational function.

B. The Requested Information Is Not Exempt From Disclosure

The issue before the Judge was whether the information requested by the Union constituted guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute and was, therefore, exempt from disclosure. The Judge found that the requested information constituted guidance, advice, counsel or training for management officials or supervisors, relating to collective bargaining and was, therefore, exempt from disclosure on this basis. Contrary to the Judge, we find that the requested information does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining within the meaning of section 7114(b)(4)(C).

In National Labor Relations Board, 38 FLRA 506, 522-23 (1990) (NLRB), petition for review filed sub nom. National Labor Relations Board v. FLRA, No. 91-1044 (D.C. Cir. Jan. 24, 1991), the Authority held that

section 7114(b)(4)(C) exempts from disclosure to the exclusive representative information which contains guidance, advice, counsel, or training for management officials relating specifically to the collective bargaining process, such as: (1) courses of action agency management should take in negotiations with the union; (2) how a provision of the collective bargaining agreement should be interpreted and applied; (3) how a grievance or an unfair labor practice charge should be handled; and (4) other labor-management interactions which have an impact on the union's status as the exclusive bargaining representative of the employees.

The Authority further stated that section 7114(b)(4)(C) "does not exempt from disclosure guidance, advice, or counsel to management officials concerning the conditions of employment of a bargaining unit employee, for example: the personnel[] policies and practices and other matters affecting the employee's working conditions that are not specifically related to the collective bargaining process." Id. at 523. Applying these principles to the facts of that case, the Authority found that the exclusive representative had a right under section 7114(b)(4)(C) to obtain a management official's recommendation as to a request for part-time employment because that information, among other things, "was not guidance, advice, or counsel to management concerning the handling of a grievance or unfair labor practice charge." Id.

Applying those same principles to the facts and circumstances of this case, we find that the memoranda withheld by the Respondent did not concern guidance, advice, or counsel to management officials or supervisors concerning the handling of a grievance or any other matter relating to the labor-management process. Rather, the memoranda contained guidelines for managers and supervisors as to the procedures governing disciplinary and adverse actions. That is, the memoranda contained Agency personnel policies affecting the conditions of employment of unit employees. We conclude, therefore, that the memoranda were not exempt from disclosure under section 7114(b)(4)(C) of the Statute. See U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Chicago, Illinois District Office, 40 FLRA No. 96, slip op. at 16 (1991); National Park Service, National Capital Region, United States Park Service, 38 FLRA 1027, 1036 (1990), petition for review filed sub nom. National Park Service, National Capital Region, United States Park Service v. FLRA No. 91-1087 (D.C. Cir. Feb. 15, 1991); and NLRB.

Because we find that the memoranda do not constitute guidance, advice, counsel or training for management officials relating to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute, we conclude that the Respondent was required by section 7114(b)(4) of the Statute to furnish the requested information to the Union and that 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 require the Respondent to furnish the requested information to the Union.

As noted above, the complaint included a 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 initial request. However, the parties did not litigate this allegation before the Judge, and no exceptions were filed concerning the Judge's failure to address that allegation. Accordingly, we will dismiss this portion of the complaint.

VI. 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, Dallas, 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 employees, with requested memoranda that related to policy governing disciplinary and adverse actions of the Regional Office.

(b) In any like or related manner, interfering with, restraining, or coercing their employees in the exercise of their rights assured them 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 the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, the exclusive representative of its employees, with requested memoranda that related to policy governing disciplinary and adverse actions of the Regional Office.

(b) Post at its 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 Associate Regional Commissioner, Management, Immigration and Naturalization Service, 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, 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.

The allegation of the complaint that the Respondent violated section 7116(a)(1) and (5) of the Statute by unreasonably delaying the processing of the Union's request for information is dismissed.

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, the exclusive representative of our employees, with requested memoranda that related to policy governing disciplinary and adverse actions of the Regional Office.

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, the exclusive representative of our employees, with requested memoranda that related to policy governing disciplinary and adverse actions of the Regional Office.

(Activity)

Dated: By: