41:0259(27)CA - - Justice, INS, Border Patrol, El Paso, TX and AFGE, National Border Patrol Council - - 1991 FLRAdec CA - - v41 p259
[ v41 p259 ]
The decision of the Authority follows:
41 FLRA No. 27
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on the Respondent's motion for reconsideration of our decision in Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 40 FLRA No. 64 (1991). The General Counsel filed a response to the motion.
Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. For the following reasons, we conclude that the Respondent has failed to establish that extraordinary circumstances exist warranting reconsideration of our decision. Accordingly, we will deny the Respondent's motion.
II. The Decision in 40 FLRA No. 64
In 40 FLRA No. 64, the Authority concluded, in agreement with the Judge, that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to provide information to the Union that it needed to determine whether to file a grievance. The employee on whose behalf the Union was considering filing a grievance had filed an Equal Employment Opportunity (EEO) complaint after the Union had made its request and the Respondent had refused to furnish the information. The Authority found that the filing of the EEO complaint did not relieve the Respondent from its obligation to furnish the requested information under section 7114(b)(4) of the Statute. The Authority concluded that section 7121(d) of the Statute did not compel the dismissal of the complaint because, among other things, it could not be determined, based on the record, whether the filing of the EEO complaint constituted an exercise of the employee's option under section 7121(d) that would preclude the filing of a grievance. The Authority stated that that issue would be before an arbitrator if a grievance were to be filed. Accordingly, the Authority concluded that it could not be established that the information request was moot.
The Authority found that the information sought was reasonably available and necessary for the Union to perform its representational duties within the meaning of section 7114(b)(4) of the Statute. It found further that sanitization of certain documents would be necessary before their release so as not to constitute an unwarranted invasion of privacy within the meaning of the Freedom of Information Act, 5 U.S.C. § 552(b)(7)(C). The Authority directed the Respondent to cease and desist from engaging in its unlawful conduct and to furnish, appropriately sanitized, the available data requested by the Union.
III. The Respondent's Motion for Reconsideration and the General Counsel's Response
The Respondent asserts that reconsideration of the decision in 40 FLRA No. 64 is warranted for three reasons. First, it reiterates its argument that the potential grievant's election of a statutory appeal procedure under section 7121(d) of the Statute precluded the Union's right to information and that the Authority's decision is inconsistent with, and represents a departure from, established case law. In this regard, the Respondent asserts that the General Counsel lacked jurisdiction to "entertain" the unfair labor practice charge which led to the complaint, Respondent's motion at 2, because section 7116(d) requires that "[i]ssues which can properly be raised under an appeals procedure may not be raised as unfair labor practices . . . ."
Second, assuming that the General Counsel had jurisdiction, the Respondent points out that the prospective grievant was removed from his position for performance-based reasons subsequent to the parties' submission of arguments to the Authority on the Judge's decision in this case. Therefore, the Respondent argues, the employee no longer has standing to grieve, and the purpose for which the information was sought has been mooted. Thus, the Respondent contends that, even if it committed the unfair labor practice, the remedy "has . . . become punitive[.]" Respondent's motion at 2.
The Respondent also argues that this case is no different from U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241 (1991) (Internal Revenue Service, Helena District), 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). In that case, the Authority found an unlawful failure to furnish information but in the circumstances did not order the Respondent to furnish the requested information.
Third, the Respondent states that the documents are the same as were sought in U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310 (1990). Therefore, according to the Respondent, assuming proper jurisdiction, the prior decision "must be considered res judicata, at least insofar as concerns the remedy . . . ." Id. at 3.
The General Counsel's response to the motion for reconsideration argues that the Respondent did not establish extraordinary circumstances warranting review.
IV. Analysis and Conclusions
We conclude, based on our discussion below, that the Respondent has not established the existence of extraordinary circumstances, within the meaning of section 2429.17 of the Statute, to warrant reconsideration of our decision in 40 FLRA No. 64.
We again reject the Respondent's assertion that the potential grievant's filing of an EEO complaint precluded the Union's right to information. The information request was made, and refused by the Respondent, before the employee filed the EEO complaint. In this regard, the Respondent's reliance on Library of Congress, 19 FLRA 267 (1985), is misplaced. In that case, no unfair labor practice was found when an activity refused a request for information to process a collateral discrimination complaint, because it was determined that the request effectively was turned down after the EEO complaint was filed. Moreover, as noted in 40 FLRA No. 64, it is well established that a contention that a potential grievance is not grievable does not relieve an agency from its obligation to furnish information. Slip op. at 10. If a grievance were filed, it would be for the arbitrator ultimately to decide whether that grievance would be arbitrable. Id. at 11.
We also find that removal of the potential grievant from employment does not render moot the Union's need for information, nor does it cause the remedy to become "punitive" in nature.(*) Although the information was specifically requested with regard to one employee's Officer Corps rating, it is clear that the Union has the right to information that is necessary for it to fulfill a broader range of its obligations as exclusive bargaining representative. See American Federation of Government Employees, AFL-CIO, Local 1345 V. FLRA, 793 F.2d 1360, 1364 (D.C. Cir. 1986) (AFGE v. FLRA) (in a case involving a request for information regarding two bargaining unit employees whom the union had not been asked to represent concerning their disciplinary discharges, the court stated that the duty to provide information "must be evaluated in the context of the full range of union responsibilities in both the negotiation and the administration of a labor agreement." (Emphasis in original.)) As the court stated in AFGE v. FLRA, "[o]ften a policy established in connection with a particular personnel action may affect employees beyond those immediately involved." 793 F.2d at 1364. Therefore, we conclude that although the potential grievant is no longer in the bargaining unit, the remedy imposed in 40 FLRA No. 64 remains appropriate.
In Internal Revenue Service, Helena District, relied on by the Respondent, we noted that the grievance involved had been resolved without the requested information. We also noted that neither the charging party nor the General Counsel had requested that the remedy include the provision of the requested data. We therefore determined that a cease and desist order would be sufficient to remedy the unlawful failure to furnish the information. In this case, however, the fact that the employee involved is no longer employed by the Respondent does not give the finality to the dispute evidenced by the resolution of the grievance in the prior case. As noted, the issue here may have implications beyond the interests of the individual.
As requiring the Respondent to furnish the information was deemed appropriate when the information was necessary to explore a potential grievance, it follows that it is required so long as it remains necessary for the Union otherwise to fulfill its representational functions. Accordingly, the violation requires the remedy granted in 40 FLRA No. 64. We note, however, that in the compliance stage of this proceeding the parties are free to reach an agreed-upon accommodation regarding the provision of the data in view of the fact that the potential grievant no longer is an employee. See U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City, Utah, 40 FLRA 303, 311 (1991).
Finally, we conclude that a prior case involving these parties, 37 FLRA 1310 (1990), is not res judicata with regard to this case. The material sought, the time periods covered by the requests, and the purposes for the requests are different. In addition, different arguments were made in the two cases. See U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 38 FLRA 1256, 1264-65 (1991), petition for review filed sub nom. Immigration and Naturalization Service v. FLRA, No. 91-4153 (5th Cir. Feb. 28, 1991). The instant case concerns a request for information initially sought to determine whether to file a grievance over elements of an employee's Officer Corps rating for the period November 1986 through November 1987. In the earlier case, documents were sought concerning the annual performance appraisal of the same employee, for the period of November 1986 through April 1987. Thus, although a major category of information sought in both cases involved documents pertaining to other employees similarly situated, the requested information differed in the two cases. In addition, even for the information that is common to the two cases, the periods covered by the requests were different.
In sum, the Respondent has not established extraordinary circumstances warranting reconsideration of our decision in 40 FLRA No. 64. The Respondent's motion for reconsideration will, therefore, be denied.
The Respondent's motion for reconsideration of the Authority's Decision and Order in 40 FLRA No. 64 is denied.
(If blank, the decision does not have footnotes.)
*/ In its motion for reconsideration, the Respondent requested that the decision on reconsideration be held in abeyance until the Merit Systems Protection Board (MSPB) had ruled on the employee's appeal of his removal. Subsequently, Respondent received and forwarded to the Authority a copy of the MSPB's decision. The decision upholds the employee's removal. Robert J. Marren v. Department of Justice, Dkt. No. DA07529110251 (May 16, 1991).