51:1467(119)CA - - INS, Northern Region, Twin Cities, MN and National Border Council, AFGE // [ Justice, Immigration and Naturalization Service ] - - 1996 FLRAdec CA - - v51 p1467
[ v51 p1467 ]
The decision of the Authority follows:
51 FLRA No. 119
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION SERVICE,
NORTHERN REGION, TWIN CITIES, MINNESOTA
NATIONAL BORDER PATROL COUNCIL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
46 FLRA 1526 (1993)
DECISION AND ORDER ON REMAND
June 28, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This case is before the Authority pursuant to a remand of portions of the Authority's decision in U.S. Department of Justice and National Border Patrol Council, 46 FLRA 1526 (1993) (DOJ/INS) by the U.S. Court of Appeals for the District of Columbia Circuit. U.S. Department of Justice; Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, Office of Inspector General, Washington, D.C.; and Office of Professional Responsibility, Washington, D.C. v. FLRA, 39 F.3d 361 (D.C. Cir. 1994) (DOJ v. FLRA).(1) The court remanded those portions of the decision concerning the complaint in Case No. 7-CA-10373, wherein the Authority concluded that the Respondent U.S. Department of Justice, Immigration and Naturalization Service (INS) had violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to provide the Union with certain information it had requested in connection with the proposed removal of a unit employee.(2) The court instructed the Authority to consider whether the requested information is "necessary" in light of the court's decision in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA). The court vacated the Authority's order as to the Respondent's failure to furnish this information and remanded these portions of the order to the Authority for further consideration. DOJ v. FLRA, 39 F.3d at 370.
For the reasons discussed below, we conclude that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to release certain disciplinary records that were requested by the Union. We further conclude that the other requested information at issue is not necessary, within the meaning of section 7114(b)(4) of the Statute and, therefore, that the Respondent did not violate section 7116(a)(1), (5), and (8) of the Statute by refusing to release this information to the Union.
In early 1990, the OIG commenced an investigation of Border Patrol Agent Jason Wood, who was employed by the Respondent.(3) As a consequence of the investigation, on November 19, 1990, the Respondent notified Wood that it proposed to remove him on the grounds that he had stolen Government property; falsified, misstated, exaggerated, or concealed material facts in connection with an investigation or other proper proceeding; and engaged in conduct unbecoming an officer. Thereafter, having been designated to act on Wood's behalf in the disciplinary proceeding, the Union made three requests for information pursuant to section 7114(b)(4) of the Statute. In the first two requests, dated November 21 and 26, 1990, the Union stated that the information was needed "to properly respond to the allegations [set forth] in the notice" of proposed removal. DOJ/INS, 46 FLRA at 1556. The Union requested, as relevant here:
(1) proposed and final decisions involving adverse and disciplinary actions in the Northern Region of the INS from January 1, 1985, to November 1990, for "offenses similar to those alleged against Wood;"
(2) the entire OIG investigative file containing the report mentioned in the notice of proposed removal and the accompanying exhibits;(4)
(3) the statutory and regulatory authority supporting the OIG's investigation of Wood;
(4) investigative manuals for the conduct of OIG investigations.
Id. at 1556-58.(5)
Subsequent to its first and second requests, on December 6, 1990, the Respondent met with the Union. At that meeting, the Union was provided a copy of the OIG's report of investigation, which was all the Respondent had been given by the OIG; no other information was transmitted. According to the letter of transmittal accompanying the report: (1) the Union was entitled only to information relied upon in preparing the proposed action, and (2) the Union's reference to section 7114(b)(4) of the Statute was "not appropriate." DOJ/INS, 46 FLRA at 1558.
Also during the December 6 meeting, the Union and Respondent discussed the Union's reasons for requesting the disciplinary and adverse action letters. The Union advised the Respondent that the disciplinary records had been requested in order to ensure that Wood received fair and equitable discipline as compared with other employees who had committed similar offenses. In addition, the Respondent raised concerns that disclosure of those letters would violate affected employees' privacy rights. In response, the Union stated that it would accept the requested disciplinary and adverse action records in a sanitized form.
Shortly after the meeting, on December 13, 1990, the Union submitted its third information request, seeking, as relevant here, copies of Wood's personal bank records. The Union stated in this request that the bank records had not been provided in connection with the OIG report of investigation and were in the possession of the Respondent, but the Union provided no reason for requesting the records. See G.C. Exh. 8.
The Respondent subsequently stated that it would not release any further information. A complaint issued alleging, as relevant here, that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute when it refused to furnish the Union the aforementioned four categories of information. A hearing was held before an Administrative Law Judge, following which exceptions were filed with the Authority to the Judge's recommended decision.
On review of the exceptions, the Authority concluded that the Respondent violated the Statute by failing to provide the Union with sanitized disciplinary and adverse action records and other requested information. In so concluding, the Authority found, in agreement with the Judge, that the information was necessary, within the meaning of section 7114(b)(4) of the Statute. The Authority agreed with the Judge's finding that the Union requested the information "'to assist [Wood] in responding to the proposed removal action[,]' including assistance and representation following the decision [of the INS] regarding the action." DOJ/INS, 46 FLRA at 1536 (citation omitted). The Authority also found that the Union's stated reason for requesting the information satisfied the standard of "particularized need" set forth by the court in NLRB v. FLRA. The Authority determined that the Respondent did not assert or show any "countervailing anti-disclosure interest." DOJ/INS, 46 FLRA at 1536.
The D.C. Circuit remanded to the Authority the aspects of the case concerning the Union's information request "so that [the Authority] may analyze [the request] anew . . . under the principles of NLRB v. FLRA." DOJ v. FLRA, 39 F.3d at 361, 370. Despite the Authority's reference in DOJ/INS to NLRB v. FLRA, the court held that the record contained "no explanation on behalf of the union regarding the 'necessity' of its receiving each of the requested items, as NLRB v. FLRA interpreted the term, and . . . nothing on behalf of the [Respondent] explaining what 'countervailing interests' it had in refusing to disclose any of them." Id. The court left to the Authority the determination whether the parties could supplement the record in this case.(6)
III. Positions of the Parties
The positions of the parties are fully set forth in DOJ/INS, 46 FLRA at 1532-34, and will not be repeated herein. Those of Respondent's arguments to the court in DOJ v. FLRA that are relevant to our decision in this case are addressed in section IV.B. of this decision.
IV. Analysis and Conclusions
A. Analytic Approach for Determining Whether the Information at Issue Is Necessary
Subsequent to the court's remand, the Authority issued Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (Member Talkin concurring) (IRS, Kansas City), which set forth the approach for determining whether and how information must be disclosed under section 7114(b)(4) of the Statute. In IRS, Kansas City, the Authority directly addressed the court's decision in NLRB v. FLRA. The Authority held that "a union requesting information under that section must establish a particularized need for the information by articulating, with specificity, why it needs the requested information, including the uses to which the union will put the information, and the connection between those uses and the union's representational responsibilities under the Statute." Id. at 669. The Authority also stated that a union's burdens will not be satisfied merely by showing that requested information is or would be relevant or useful, but that the union must demonstrate that the information is "'required in order for the union adequately to represent its members.'" Id. at 670 (quoting Department of Justice v. FLRA, 991 F.2d 285, 290 (5th Cir. 1993)).
A union's burdens under IRS, Kansas City extend to articulating and establishing the necessity of the particular information it has requested, including the scope of a request. E.g., U.S. Department of Labor, Washington, D.C., 51 FLRA 462, 476 (1995) (DOL). Satisfying its burden requires more than a conclusory or bare assertion; among other things, the union's request for information must be sufficient to permit an agency to make a reasoned judgment as to whether the information must be disclosed under the Statute. IRS, Kansas City, 50 FLRA at 670. To accomplish this, a union must articulate its disclosure interests at or near the time of the request--not for the first time at the unfair labor practice hearing. E.g., Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Dallas, Texas, 51 FLRA 545, 551 (1995) (INS, Dallas); U.S. Equal Employment Opportunity Commission, 51 FLRA 248, 258 (1995) (EEOC).
With regard to an agency's responsibilities in responding to a request for information, the Authority stated in IRS, Kansas City that an agency's "burden extends beyond simply saying 'no.'" 50 FLRA at 670. In particular, the agency "must assert and establish any countervailing anti-disclosure interests." Id. The agency will not satisfy its burden by making conclusory or bare assertions. In addition, for the same reasons that we expect a union to articulate its disclosure interests at or near the time of a request, we expect an agency to timely communicate its interests as well.
Where the parties are unable to agree on whether, or to what extent, requested information must be provided and the matter is presented for adjudication, each party must establish its reasons for requesting, or denying a request for, information. E.g., U.S. Immigration and Naturalization Service, U.S. Border Patrol, Del Rio, Texas, 51 FLRA 768, 774 (1995); Department of the Air Force, Scott Air Force Base, Illinois, 51 FLRA 675, 681 (1996). We will find an unfair labor practice if a union has established a particularized need for the information and either: (1) the agency has not established a countervailing interest; or (2) the agency has established such an interest but it does not outweigh the union's demonstration of particularized need. In determining whether and/or how disclosure is required, the parties should consider alternative forms or means of disclosure that may satisfy both a union's information needs and an agency's interests in information. IRS, Kansas City, 50 FLRA at 671 (citing Detroit Edison Co. v. NLRB, 440 U.S. 301, 302 (1979) (Court concluded that employer's "willingness to disclose" requested information in a manner other than that requested by the union "satisfied [its] statutory obligations.").
B. The Requested Disciplinary and Adverse Action Records are Necessary
1. The Union Articulated and Established a Particularized Need for these Requested Records
The Respondent proposed the removal of Wood 2 days before the Union made its November 21, 1990, request for disciplinary and adverse action records. In that request, the Union explicitly connected its request with the adverse action the Respondent proposed to take against Wood by stating that the requested information was needed to "properly respond to the allegations" set forth in the notice. DOJ/INS, 46 FLRA at 1556. Approximately 2 weeks thereafter, at the meeting held on December 6, 1990, the Union and the Respondent specifically discussed the reasons the Union had requested these records. The Union stated that it needed the records in order to compare the discipline the Respondent had proposed for Wood with that given to other employees who had committed similar offenses.(7) The Union and the Respondent also discussed the Respondent's concerns about the privacy of such other employees, and the Respondent inquired whether the Union "could accept the proposed actions in a sanitized version." Tr. 1 at 141. The Union responded that it could "take them in a sanitized version . . . because . . . all [the Union] needed to know was that the disciplinary action was proposed and what the outcome of it was." Id. There is no assertion that the Respondent was unclear at that meeting about the Union's reasons for requesting the records, or that, thereafter, the Respondent ever requested further clarification of those reasons.
At the hearing, the Union was questioned as to why it had requested records spanning 5 years and covering a geographic region. In response, the Union stated that it did so because so few disciplinary actions had been taken and "[i]t was important that the [U]nion have more data to compare . . . ." Id. at 123. The Union further stated that it was aware "that in 1985 there were some officers that had been given suspension notices and termination notices, and [it] wanted to make sure that these people--the evidence or their proposals and what was mitigated down would have been comparable to what Mr. Wood should have received or could receive." Id. at 124. These statements explain why the scope of the information was considered necessary to determine whether Wood was treated fairly.
Because the hearing testimony is the first time the record shows that the Union was asked about, and specifically addressed, the 5-year and region-wide scope of its request for disciplinary and adverse action letters, the question arises whether it is proper to consider this testimonial evidence in assessing the adequacy of the Union's assertion of need. Where testimony at the hearing amounts to explaining previously stated reasons for needing the requested information, it has been taken into consideration. See U.S. Department of Transportation, Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut, 51 FLRA 1054, 1067 (1996) (FAA); cf. INS, Dallas, 51 FLRA at 550 (even assuming that reason articulated by union at ULP hearing was timely, the union did not establish particularized need). However, in EEOC, 51 FLRA at 258, the Authority refused to consider reasons for requesting information that had not previously been articulated by the union and that were offered by the union for the first time at the ULP hearing because this was considered too late for the respondent to make a reasoned judgment in responding to the information request. See also U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and U.S. Department of the Treasury, Internal Revenue Service, Oklahoma City District, Oklahoma City, Oklahoma, 51 FLRA No. 113, slip op. at 6-7 (1996) (IRS, Oklahoma City) (Authority refused to consider reasons for requesting information offered by union for the first time at the hearing where respondent previously sought and union refused to provide clarification of its request).
The facts in the case now before us are distinguishable from those in IRS, Oklahoma City and EEOC. In particular, the Union responded soon after the request to the questions and concerns that were raised by the Respondent. In contrast, in IRS, Oklahoma City and EEOC, the unions failed to respond to the agencies' requests for clarification of the reasons the unions needed the requested information. IRS, Kansas City, 51 FLRA No. 113, slip op. at 6; EEOC, 51 FLRA at 257-58. In addition, in the case now before the Authority, the reasons offered at the time of the request and at the subsequent December 6th meeting clearly explained why the requested disciplinary and adverse action letters were needed. In EEOC, on the other hand, after the agency furnished some of the requested information, the union advanced no explanation for still needing the remaining information. Id.
There is no indication in the record that, at the time of the November 21 request or during the December 6 meeting, the Respondent raised concerns about, or requested clarification concerning, the scope of the Union's request. When the Union was asked about the scope of the request at the ULP hearing, the Union witness testified quite specifically as to why the request encompassed a 5-year, region-wide scope. As such, this case also is distinguishable from DOL, where the Authority concluded that the union's testimony at the ULP hearing, that it requested 5 years' of records because it believed the respondent maintained records for that period, did not establish particularized need. 51 FLRA at 476 (the fact "that disciplinary . . . records covering a period of 5 years are available does not establish that those records are necessary.").
In these circumstances, we will take into account the Union's testimony about the scope of its request at the hearing in assessing whether the Union satisfied its burden to establish particularized need. To do otherwise would give undue weight to whether the agency asked or the union answered questions about matters that, unlike other matters that were discussed at the December 6 meeting, neither party appeared concerned about at the time of the request. This we are unwilling to do, especially since the Respondent continued to maintain that none of the requested disciplinary and adverse action letters were necessary even after the Union clarified the reasons it needed the records. The Respondent's response to the Union's clarification effectively terminated meaningful discussions on the issue of the scope of the Union's request. As such, we find it appropriate to consider the Union's explanation of the scope of the request at the hearing.
To guide these parties and others involved in future information requests, we emphasize, as the Authority did in IRS, Kansas City, 50 FLRA at 670, that "applying a standard which requires parties to articulate and exchange their respective interests in disclosing information serves several important purposes." These purposes include facilitating the amicable settlement of disputes, and enhancing the parties' "abilities to effectively and timely discharge their . . . responsibilities under the Statute . . . ." The purposes are not served when either party fails to fully communicate its interests and concerns prior to litigation. Litigating a ULP charge should not be a substitute for practicing good labor relations.
For the foregoing reasons, we conclude that the Union satisfied its burden to articulate and establish a particularized need for the requested disciplinary and adverse action letters.
2. The Respondent's Arguments Do Not Demonstrate that the Disciplinary and Adverse Action Letters Are Not Necessary
In its briefs to the court, the Respondent raised two arguments countering the Union's need for the requested disciplinary and adverse action letters. Specifically, the Respondent argued that: (1) the Union did not need the information because it would not be admissible in a Merit Systems Protection Board (MSPB) appeal proceeding; and (2) the Union did not request the information in its capacity as exclusive representative and, even if it did, the requested disciplinary records are not relevant to preparing for an oral reply(8) to a proposed adverse action because they concern defenses that would be raised in a grievance.
Neither argument persuades us that the requested information is not necessary. With regard to the first argument, the Authority has consistently held that MSPB rules concerning the admissibility of evidence do not govern determinations of necessity under section 7114(b)(4). E.g., Internal Revenue Service, Austin District Office, Austin, Texas, 51 FLRA 1166, 1179-80 (1996) (IRS, Austin District); U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City, Utah, 40 FLRA 303, 310-11 (1991). Moreover, the Union requested the disciplinary and adverse action letters to prepare for an oral reply to Wood's proposed adverse action. Even assuming the relevance in some circumstances of MSPB rules governing the admissibility of evidence, such rules are not appropriate to consider here because there was no proceeding before the MSPB when the Union sought the information.(9) See IRS, Austin District, 51 FLRA at 1179-80. We note, in this regard, that unless a removal action is excluded from the scope of a negotiated grievance procedure, a union may elect to arbitrate a removal in lieu of appealing the removal to the MSPB. 5 U.S.C. § 7121(e)(1). If arbitration is elected, an arbitrator is not bound by MSPB rules concerning the admissibility of evidence. See U.S. Department of the Treasury, Internal Revenue Service, Phoenix District and National Treasury Employees Union, Chapter 33, 43 FLRA 686, 689-90 (1991); cf. Local 2578, American Federation of Government Employees v. GSA, 711 F.2d 261, 264 (D.C. Cir. 1983) ("nothing in the Civil Service Reform Act requires that arbitration and MSPB actions always adhere to the same standards and procedures, or produce the same results in like cases").
The Respondent's second argument blurs the distinction between a union's duty of fair representation and a union's rights as an exclusive representative. In this regard, the Respondent correctly asserts that, under the Statute, an exclusive representative is not required to represent unit employees in an oral reply to a proposed adverse action. Cf. National Treasury Employees Union v. FLRA, 800 F.2d 1165, 1168 (D.C. Cir. 1986) (union not required to represent unit employee in appeal to the MSPB). However, that a union lawfully could refuse representation does not mean that, if the union undertakes representation, the union is not acting as the exclusive representative and, as such, may not avail itself of its rights under the Statute. Cf. Antilles Consolidated Education Association, (OEA/NEA), San Juan, Puerto Rico, 36 FLRA 776, 789-96 (1990) (union activities to administer certain insurance plans were undertaken in capacity as exclusive representative). Indeed, a union is entitled to information regarding removals of unit employees even in situations where the union does not represent those employees. See American Federation of Government Employees, Local 1345 v. FLRA, 793 F.2d 1360, 1364-65 (D.C. Cir. 1986).
In this case, Wood sought the Union's assistance in connection with preparing an oral reply to a proposed adverse action, and the Union agreed to provide assistance. The matter for which representation was sought was directly related to Wood's conditions of employment and, ultimately, ripened into a matter that is grievable and arbitrable. We find no basis to conclude, in these circumstances, that in undertaking representation of Wood, the Union was not permitted to invoke its rights under the Statute.
We also find the Respondent's second argument unpersuasive because it draws a false line between preparation for an oral reply and preparation for grievance proceedings. The Respondent does not dispute that its action could be (and was) challenged in a grievance on the ground of alleged disparate treatment. No authority is provided, or apparent, for the argument that information establishing such disparate treatment would not also be relevant in an oral reply. In this regard, nothing in 5 U.S.C. § 7513 circumscribes the "affidavits and other documentary evidence" that an employee is entitled to submit in support of the oral or written reply. The Respondent presumably would have an interest in being informed, as early as possible in the proceedings, of any alleged disparate treatment so as to either explain any disparity, thereby reducing the likelihood of further litigation, or eliminate the disparity by mitigating the proposed discipline.(10)
3. The Respondent Violated the Statute by Refusing to Disclose the Disciplinary and Adverse Action Letters
Based on the foregoing, we conclude that, by its initial request and the clarification that was provided during the parties' discussion at the December 6 meeting, which was further explained in response to questions at the hearing, the Union established a particularized need for the requested disciplinary and adverse action records. The Respondent has established no countervailing, anti-disclosure interests.(11) Accordingly, we conclude that the information is necessary, within the meaning of section 7114(b)(4) of the Statute.(12)
C. The Remaining Information Is Not Necessary
1. The Union Did Not Articulate and Establish a Particularized Need for Exhibits to the OIG Report of Investigation Mentioned in the Notice of Proposed Removal
As previously stated, in response to the Union's request for the entire OIG investigative file, the Respondent, at the December 6 meeting, furnished the Union with the OIG report of investigation and a list of the 31 exhibits to the report that the OIG had not disclosed. There is no evidence or assertion that the parties discussed the exhibits at the meeting. Moreover, after receiving the information, the Union requested, as relevant here, only Wood's bank records, and the Union provided no reason for requesting those records. Not until the ULP charge was filed by the Union did it become clear that, in addition to the bank records, four other exhibits were considered necessary by the Union: two memoranda concerning initiation of the investigation; and two complaint forms containing allegations against Wood. At the hearing, the Union stated for the first time that the memoranda and complaint forms were necessary in order to discover the basis for the OIG investigation of Wood. The Union also stated for the first time that Wood's bank records were necessary because the proposed removal alleged that Wood was indebted and it needed to examine the records that the OIG had obtained on this matter. DOJ/INS, 46 FLRA at 1563; Tr. 1 at 147-48.
We find that this communication is insufficient to satisfy the Union's burden to articulate and establish that the requested exhibits are necessary for it to adequately represent its members. The broad reason initially stated in the Union's November 21, 1990, request for the entire OIG file--"to properly respond to the allegations set forth in the notice"--is too conclusory to permit the Respondent to make a reasoned judgment as to whether the exhibits are necessary and, as such, does not satisfy the standard set forth in IRS, Kansas City. See Federal Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania, 51 FLRA 650, 655 (1995. As was the case in EEOC, the record discloses that, prior to the hearing, nothing further was said about the Union's reasons for still needing the remaining information that had not been provided. In particular, no clarification was provided about the exhibits at the December 6 meeting. Indeed, the Union never specifically requested four of the five exhibits prior to filing the ULP charge.
In sum, unlike the request for disciplinary and adverse action records discussed above, the Union never articulated, until the ULP hearing, its reasons for needing the five exhibits. The original conclusory assertion in the Union's November 21, request -- the Union's sole prior communication stating its reason for needing this category of documents -- perhaps could be read to encompass the reasons stated at the hearing; indeed the assertion is sufficiently broad to encompass almost any reasons. However, this lack of specificity in the Union's initial request is not an adequate basis for concluding, as we did in FAA, 51 FLRA at 1067, that the hearing testimony merely "further explained the Union's previously stated reasons for the request . . . ." As such, we are unable to find that the Union's reasons for needing the exhibits were communicated to the Respondent "at a time when it reasonably could have assessed the necessity for the information." EEOC, 51 FLRA at 258.
In these circumstances, we conclude that the Union has not satisfied its burden of articulating and establishing, with the required specificity, why it needed the requested exhibits, the uses to which they would be put, and the connection between those uses and the Union's representational responsibilities under the Statute. Accordingly, the record does not establish that the exhibits are necessary, within the meaning of section 7114(b), and the Respondent's failure to furnish the exhibits did not violate the Statute.(13)
2. The Union Did Not Articulate and Establish a Particularized Need for OIG Authority and Investigative Manual
Other than the Union's conclusory assertion, in its November 26, 1990, information request, that it needed copies of the statutory and regulatory authority for the OIG to investigate Wood in order to properly respond to the allegations set forth in the notice of proposed removal, the Union offered no explanation why it needed this particular information until the time of the ULP hearing. At the hearing, the Union stated, for the first time, that it needed the OIG authority in order to determine whether the investigation of Wood was legitimate. Judge's Decision at 29. The Union also stated, for the first time, that it needed the manual in order to determine whether the OIG investigator had violated established investigative procedures, thereby providing the Union with a basis upon which to challenge the proposed removal of Wood. Id.
The Union's conclusory statement of need--"to properly respond to the allegations set forth in the notice"--lacks sufficient specificity to meet the standard set forth in IRS Kansas City. As was the case with the exhibits to the OIG file discussed above, the reasons for needing the OIG manual and materials offered by the Union at the ULP hearing were not communicated to the Respondent "at a time when it reasonably could have assessed the necessity [of] the information." EEOC, 51 FLRA at 258.
Based on the foregoing, we conclude that the Union has not satisfied its burden of articulating and establishing, with the required specificity, why it needed the requested OIG manual and related materials, the uses to which this information would be put, and the connection between those uses and the Union's representational responsibilities under the Statute. Accordingly, the record does not establish that this information is necessary, within the meaning of section 7114(b), and the Respondent's failure to furnish it did not violate the Statute.
Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the Union with the proposed and final disciplinary and adverse action notices issued after November 1987, requested on November 21, 1990, in a sanitized form. (14)
(b) Failing and refusing to inform the Union that certain data requested on November 21, 1990, did not exist.
(c) In any like or related manner, failing or refusing to furnish to the Union, upon request, data which is normally maintained in the regular course of business, which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining, which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining, and which is not prohibited by law from release.
(d) In any like or related manner, interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Furnish the Union with the proposed and final disciplinary and adverse action notices issued after November 1987, requested on November 21, 1990, in a sanitized form.
(b) Otherwise furnish to the Union, upon request, data which is normally maintained in the regular course of business, which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining, which does not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining, and which is not prohibited by law from release.
(c) 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 Regional Commissioner, Northern Region, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employee are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director, Denver 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 allegations against the U.S. Department of Justice and Immigration and Naturalization Service in 7-CA-00683 and 7-CA-10291 are dismissed.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the U.S. Department of Justice, Immigration and Naturalization Service violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
WE WILL NOT fail and refuse to furnish the Union with the proposed and final disciplinary and adverse action notices issued after November 1987, requested on November 21, 26, and December 13, 1990, in a sanitized form.
WE WILL NOT fail and refuse to inform the Union that certain data requested on November 21, 26, and December 13, 1990, did not exist.
WE WILL NOT in any like or related manner, fail or refuse to furnish to the Union, upon request, data which is normally maintained in the regular course of business, which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining, which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining, and which is not prohibited by law from release.
WE WILL furnish the Union with the proposed and final disciplinary and adverse action notices issued after November 1987, requested on November 21, 26, and December 13, 1990, in a sanitized form.
(Agency or Activity)
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, Denver Regional Office, whose address is: 1244 Speer Boulevard, Suite 100 Denver, CO 80204, and whose telephone number is: (303) 844-5224.
(If blank, the decision does not have footnotes.)
1. This case initially encompassed three consolidated complaints: 7-CA-683, 7-CA-10291, and 7-CA-10373. In DOJ v. FLRA, the court reversed the portions of the Authority's decision in DOJ/INS pertaining to 7-CA-683 and 7-CA-10271, and remanded only 7-CA-10373 for further consideration. Accordingly, 7-CA-683 and 7-CA-10271 will not be addressed further.
2. In DOJ/INS, the Authority also concluded that the Respondent: (1) did not violate the Statute by refusing to provide certain other information, specifically, documents in the Office of Inspector General (OIG) file that were not made exhibits to the OIG's report of investigation, and (2) violated the Statute by failing to notify the Union that requested memoranda and/or agreements between the OIG and the Respondent did not exist. A petition for judicial review was not sought concerning these portions of the Authority's initial decision. Accordingly, we will not consider these matters further, except in connection with our Order and Notice.
3. Prior to April 1989, investigations of Respondent's employees were conducted by the Office of Professional Responsibility (OPR) within INS (INS/OPR). In April 1989, the Inspector General Act of 1978 was amended and, as a result, the INS/OPR was eliminated and its former responsibilities were transferred by Congress to two separate components within DOJ: the OPR and OIG. See 46 FLRA at 1550 (citing 5 U.S.C. Appendix 3). This legislation also vested in OPR the authority to investigate law enforcement personnel. See 5 U.S.C. § 8D(b)(2). Pursuant to a memorandum of understanding between OPR and OIG, the OIG was given the authority to conduct investigations for the OPR.
4. As fully explained in the Judge's decision, an OIG investigative file is divided into two sides. On one side is the investigator's report of investigation, which contains a synopsis of the facts as well as the documents that are exhibits to the report. All other documents gathered by the investigator are placed on the other side of the case file and are not considered exhibits.
5. The first two categories of information were requested in the Union's November 21 letter. G.C. Exh. 4. The second two categories of information were requested in the November 26 letter. G.C. Exh. 5. The same reason, "to properly respond to the allegations set forth in the notice," was stated in both requests.
6. Following the remand, no party requested to supplement the record. In addition, as discussed in more detail infra, we have concluded that the record is sufficient to address the issues presented herein. Accordingly, the parties have not been directed to provide supplemental submissions.
7. The record on this point is clear and contradicts the Respondent's assertion, in its reply brief to the court in DOJ v. FLRA, that the Union stated for the first time at the ULP hearing that it needed the disciplinary and adverse action letters to determine whether Wood had been treated disparately. The Union expressed this reason at the December 6 meeting. See DOJ/INS, 46 FLRA at 1557 (Judge's Decision); Tr. 1 at 140-41. Although we note the court's statement that the record before it in DOJ v. FLRA contained "no explanation on behalf of the union regarding the 'necessity' of . . . the requested items[,]" 39 F.3d at 370, we do not view the court to have questioned the probative value of record evidence regarding the December 6 meeting. That the Authority did not advert to this meeting in its decision in DOJ/INS may explain the court's statement.
8. An employee's right to make an oral reply to a proposed adverse action is set forth in 5 U.S.C. § 7513(b), which provides that an employee against whom a removal is proposed is entitled to the following, as relevant here:
(1) at least 30 days' advance written notice . . . ; [and]
(2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support . . . .
9. Although the Respondent initially proposed a removal action against Wood, it ultimately decided to impose a 5-day suspension. The Union filed a grievance and invoked arbitration over the suspension. The arbitration was pending at the time of the unfair labor practice (ULP) hearing in this case. See DOJ/INS, 46 FLRA at 1530. The MSPB has no jurisdiction to review a 5-day suspension. See 5 U.S.C. §§ 7512, 7513(d), 7701(a).
10. As noted previously, the Respondent mitigated the proposed removal to a 5-day suspension following the oral reply.
11. The Respondent has never indicated, or even inferred, what its countervailing interests are. In view of the Union's expressed willingness to accept, and the Judge's Order to provide, this information in sanitized form, it is difficult to envision what countervailing interests the Respondent would be able to reasonably posit. In any event, if the Respondent believed that the Authority's sua sponte consideration of the principles enunciated in NLRB v. FLRA deprived the agency of the opportunity to articulate such interests, the Respondent could and should have sought reconsideration of the Authority's decision pursuant to 5 C.F.R. § 2429.17. United States Department of Commerce v. FLRA, 7 F.3d 243, 244-45 (D.C. Cir. 1993). Moreover, although in its briefs to the court in DOJ v. FLRA, the Respondent argued that it had not been provided an opportunity to articulate its unnamed countervailing interests, subsequent to the court's remand, the Respondent has not "sought leave to file additional materials or to amend their briefs before the Authority." U.S. Office of Personnel Management v. FLRA, 905 F.2d 430, 434 (D.C. Cir. 1990).
12. There is no dispute in the record that the other requirements in section 7114(b)(4) have been satisfied as to the requested disciplinary and adverse action letters.
13. In view of our decision regarding the exhibits to the OIG file, as well as our decision concerning the remaining category of requested information (OIG authority and investigative manual), we do not address the extent, if any, to which the court's decision regarding the rights and responsibilities of the OIG in DOJ v. FLRA would be relevant to determining whether disclosure of this information could be compelled under the Statute.
14. As previously set forth, the Union requested disciplinary records from January 1, 1985, to November 1990. See section II., supra. However, the Judge found, and it is not disputed, that the Respondent only maintained such records after November 1987. Accordingly, we direct the Respondent to provide co