52:1231(116)CA - U.S. BORDER PATROL, TUCSON SECTOR, TUCSON, ARIZONA and AFGE, LOCAL 2544, AFL-CIO,NATIONAL BORDER PATROL COUNCIL and INS, WESTERN REGIONAL OFFICE, LAGUNA NIGUEL, CALIFORNIA and AFGE, LOCAL 2544, AFL-CIO -- 1992 FLRAdec CA



[ v52 p1231 ]
52:1231(116)CA
The decision of the Authority follows:


 52 FLRA No. 116                   
 
              FEDERAL LABOR RELATIONS AUTHORITY
                       WASHINGTON, D.C.
                               
                            _____
                               
                      U.S. BORDER PATROL
                        TUCSON SECTOR
                       TUCSON, ARIZONA
                         (Respondent)
                               
                             and
                               
         AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                     LOCAL 2544, AFL-CIO
                NATIONAL BORDER PATROL COUNCIL
                       (Charging Party)
                               
                             and
                               
            IMMIGRATION AND NATURALIZATION SERVICE
                   WESTERN REGIONAL OFFICE
                  LAGUNA NIGUEL, CALIFORNIA
                         (Respondent)
                               
                             and
                               
         AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                     LOCAL 2544, AFL-CIO
                       (Charging Party)
                               
                         SA-CA-20236
                         SF-CA-30308
                         SF-CA-31679
                               
                            _____
                               
                               
                      DECISION AND ORDER
                               
                        March 14, 1997
                               
                            _____
                               
 Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz
                       and Donald S. Wasserman, Members.
 
 I.   Statement of the Case
 
      This consolidated unfair labor practice case is before the
 Authority on exceptions filed by the Respondent to the Judge's
 recommended Decision and Order.  The General Counsel and the
 Union filed oppositions to the Respondent's exceptions.  
 
      The complaints allege that the Respondent violated section
 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute) by refusing to furnish the Union
 with information about certain disciplinary actions.  The Judge
 concluded that the Respondent violated the Statute, as alleged in
 the complaints.  On consideration of the Judge's Decision and the
 entire record in this case, and for the reasons expressed below,
 we conclude that the Respondent did not violate the Statute. 
 Accordingly, we dismiss the complaints.  
      
 II.  Background and Judge's Decision
 
      The complaint in Case No. SF-CA-20236 results from the
 Union's request that the Respondent furnish it disciplinary
 letters given to employees charged with certain infractions in the
 Western Region during the preceding 5 years.  The Union
 specifically requested the following:
 
           1.  A copy of all proposal and final decision letters
      relating to the charge of NON-COMPLIANCE WITH STANDARDS,
      POLICIES, REGULATIONS OR INSTRUCTIONS ISSUED BY THE
      SERVICE, for the past five years, within the Western
      Region;
 
           2.  A copy of all proposal and final decision letters
      relating to disciplinary or adverse action resulting from
      the escape of an alien in custody, for the past five years,
      within the Western Region[.]
 
 G.C. Exh. 7.  With regard to the reason the Union needed the
 information, the Union representative making the request stated
 that the Union had "invoked [its] right to arbitrate the matter of
 the suspension given to [a particular] Border Patrol Agent" and
 that the representative would be "presenting the Union's case in
 this matter."  Id.  The Respondent denied the Union's information
 request on the grounds that it was "overbroad in scope" and that,
 insofar as the request concerned information regarding the escape
 of an alien, it was irrelevant to the employee's suspension. 
 G.C. Exh. 9.  
 
      The complaints in Case Nos. SF-CA-30308 and SF-CA-31679
 result from two other requests for information.  With regard to
 SF-CA-30308, the Respondent had proposed to reprimand an employee
 for disruptive and disrespectful conduct.  The Union
 representative requested a copy of "all proposal and final
 decision letters relating to like or similar charges for the past
 two years within the Western Region," stating, as relevant here,
 that the requested information was "required in order to carry out
 [the representative's] duties and responsibilities in 5 U.S.C.
 Chapter 71."  G.C. Exh. 17.   With regard to SF-CA-31679, the
 Respondent had proposed to reprimand an employee for making a
 false statement to his supervisor.  The Union requested "[c]opies
 of any and all proposals and/or final decisions for like or
 similar disciplinary actions issued within the Western
 Region . . . for the past three (3) years," asserting, as relevant
 here, that the information was requested under section 7114(b)(4)
 "in order to carry out [the representative's] duties and
 responsibilities."  G.C. Exh. 26.  The Respondent denied both
 requests, stating that its policy was not to release region-wide
 information.  G.C. Exhs. 18, 29.  Although the Respondent provided
 the Union with certain information, including sanitized proposal
 and decision letters for two other Tucson Sector employees, it
 refused to release any information from any other sectors in the
 Western Region.
 
      The Judge found, based on testimony at the hearing, that
 the Union had asked for the information in all three cases in
 order to compare the disciplinary actions proposed or taken
 against the three employees with actions against similarly
 situated employees who worked in other sectors of the Western
 Region.  He also found that the Union had no obligation to
 establish a "particularized need" for the information because the
 Respondent did not assert that the information constituted
 intramanagement advice, guidance, counsel, or training, within the
 meaning of section 7114(b)(4)(C) of the Statute.  Id. at 14.  As
 relevant here, the Judge concluded that the Union's requests
 satisfied all the requirements of section 7114(b)(4) of the
 Statute, and that the Respondent violated the Statute by failing
 to furnish the information.  Therefore, he recommended an order
 directing it to release the information requested by the Union.
 
 III. Positions of the Parties
 
      A.  Respondent
 
      The Respondent argues that the particularized need standard
 applies to all requests for information under section 7114(b)(4)
 of the Statute and not just to requests for information involving
 intramanagement guidance.  In addition, as to the complaint in
 Case No. SA-CA-20236, the Respondent argues that Merit Systems
 Protection Board (MSPB) precedent should be applied to conclude
 that the only information relevant to an assertion of disparate
 treatment is information relating to actions taken in an
 employee's own work unit.  In this case, according to the
 Respondent, the work unit is the Tucson sector, not the Western
 Region.   As to the complaints in Case Nos. SF-CA-30308 and SF-CA-
 31679, which concern proposed -- not final -- disciplinary
 actions, the Respondent argues that the Union had no obligation to
 represent the employees and therefore no right under the Statute
 to request the information.  
 
               B.  General Counsel
 
      The General Counsel argues that the Union in this case has
 demonstrated a particularized need for the requested information. 
 According to the General Counsel, the Union specified "why it
 needed the requested information, including the uses to which [it]
 would put the information."  Opposition at 12.  The General
 Counsel asserts that the Union's information requests "were
 sufficient to permit [the Respondent] the opportunity to make a
 reasoned judgment as to whether the information must be disclosed
 under the Statute."  Id. at 13.  
 
      C.  Union
 
      The Union asserts that the Respondent "was aware of
 precisely why the Union wanted the information, and the uses to
 which such information would be put."  Opposition at 7.  According
 to the Union:
 
           In each case, Respondent was aware that the employee
      was facing disciplinary action, and had elected to be
      represented by the Union.  The information requested
      would have enabled the Union to determine whether the
      grievant had been treated in a disparate manner
      compared to other employees in the same Region.
   
 Id.  
             
 IV.  Analysis and Conclusions
 
               A.  The Union Was Required to Establish and Articulate a
          Particularized Need for the Information
 
      Subsequent to the Judge's decision and the filing of
 exceptions, the Authority decided Internal Revenue Service,
 Washington, D.C. and Internal Revenue Service, Kansas City Service
 Center, Kansas City, Missouri, 50 FLRA 661 (1995) (IRS, Kansas
 City).  In IRS, Kansas City, the Authority stated that, in order
 to effectuate the purposes of the Statute, it would apply the
 "particularized need" standard discussed by the court in National
 Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) to
 all requests for information under section 7114(b)(4) "whether or
 not the information request involves intramanagement guidance." 
 50 FLRA at 669.  As a result, the Union in this case was required
 to establish and articulate a particularized need for the
 information it requested without regard to whether that
 information constituted advice, guidance, counsel, or training for
 management officials.
 
      IRS, Kansas City holds that a union requesting information
 under section 7114(b)(4) of the Statute must articulate, with
 specificity, why it needs that information, including the uses to
 which the information will be put and the connection between those
 uses and the union's representational responsibilities under the
 Statute.  A union will not satisfy this burden merely by showing
 that the  information is or would be relevant or useful, but must
 show that it requires the information in order to adequately
 discharge its representational functions.  This showing demands
 more than conclusory or bare assertions.  Although a union's
 request for information need not be so specific as to reveal its
 strategies or the identity of potential grievants, its request
 must nevertheless be sufficient to permit the agency to make a
 reasoned judgment about whether the Statute requires disclosure. 
 See id. at 669-70.  In addition, subsequent decisions applying
 IRS, Kansas City have made it clear that a union must articulate
 its interests in disclosure of the information at or near the time
 of the request -- not for the first time at an unfair labor
 practice hearing.  See, e.g., 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 1391, 1396 (1996).
 
               B.  The Union Has Not Articulated or Established a
          Particularized Need for the Requested
          Information
 
             1.   Relevant Authority Precedent
 
      The sufficiency of requests for employee disciplinary
 information has been examined in four decisions issued by the
 Authority since IRS, Kansas City:  U.S. Department of Justice,
 Washington, D.C. and U.S. Immigration and Naturalization Service,
 Northern Region, Twin Cities, Minnesota and Office of Inspector
 General, Washington, D.C., 51 FLRA 1467 (1996) (Twin Cities);
 Internal Revenue Service, Austin District Office, Austin, Texas,
 51 FLRA 1166 (1996) (IRS, Austin); Scott II; and Department of
 Labor, Washington, D.C., 51 FLRA 462 (1995) (Labor).  The
 Authority found that the unions articulated and established
 particularized need for requested information in Twin Cities, IRS,
 Austin, and Scott II.  In Labor, the Authority concluded that
 particularized need had not been established. 
 
      In Labor, the union asked for employee disciplinary
 suspension records covering a 5-year period "to prepare for
 arbitration proceedings involving suspensions of five unit
 employees [and to] ensure that the [agency] had been 'consistent
 in its disciplinary actions of all employees.'" 51 FLRA at 476
 (citation omitted).  The Authority concluded that, although the
 union had articulated a general need for some disciplinary
 records, it had not explained why it needed the exact information
 it had requested or the particular uses to which it would put that
 information.  The Authority also concluded that the union had not
 shown why it needed disciplinary records covering a period of 5
 years, pointing out that the union testified at the hearing that
 it had specified 5 years in its request only "because it believed
 that the [a]gency maintained such records for that time period." 
 Id. 
 
      In Scott II, the union requested a copy of any disciplinary
 action taken against a particular supervisor for using physical
 force against a unit employee.  The union had filed a grievance
 over the matter seeking appropriate discipline against the
 supervisor and, in response to the grievance, the respondent
 asserted that "'[a]ppropriate action ha[d] been taken regarding
 the supervisor.'"  51 FLRA at 677 (citation omitted).  In its
 request for the information and a subsequent clarification of that
 request, the union stated, among other things, that the
 information was needed to prepare for arbitration and "to
 determine if the requested remedy of disciplinary action against
 the supervisor was in fact taken, and what that action was."  Id.
 (citation omitted).  The union added:
 
           Upon our review of this information, we may well
      conclude that no further action i[s] warranted . . .
      .  In other words, we need this to assess the need to
      pursue arbitration.  
 
 Id.  The Authority concluded that these statements clearly
 articulated the union's need for the information and satisfied the
 particularized need standard set forth in IRS, Kansas City.  51
 FLRA at 682-84.
      
      In IRS, Austin, as relevant here, the union was
 representing an employee facing a proposed adverse action for
 having allegedly violated the respondent's standards of conduct. 
 The union requested, among other things, proposed and final
 disciplinary and adverse action letters issued to employees in a
 particular geographic area during a 3-year period.   The union
 claimed that the information was a "factor relied on in
 determining adequacy and appropriateness of the proposed action"
 and informed the agency that it needed the information "to analyze
 the propriety of the proposed action with respect to similar
 allegations of misconduct on the issue of disparate treatment." 
 51 FLRA at 1167-8.  The Authority concluded that the union had
 demonstrated a particularized need for the requested information
 because:
 
           The Union has explained why it needs the information
      (to ascertain whether there was disparate treatment
      of an employee), the uses to which the information
      will be put (to determine the appropriateness of the
      proposed penalty)[,] and the connection between the
      uses and the Union's representational
      responsibilities under the Statute (to represent an
      employee against whom an adverse action was
      proposed). 
 
 Id. at 1178. 
 
      Finally, in Twin Cities, the union requested three
 categories of information to prepare for representation of a unit
 employee in an oral reply to a proposed removal:  (1) disciplinary
 and adverse action letters issued within a particular geographic
 area during a 5-year period for offenses similar to those for
 which the employee was charged; (2) exhibits to an inspector
 general report mentioned in the notice of proposed removal; and
 (3) copies of the regulatory and statutory authority for the
 inspector general to investigate the employee.  The Authority
 concluded that the union's expressed reason for the latter two
 categories of information -- "to properly respond to the
 allegations" in the notice -- lacked sufficient specificity to
 satisfy the standard set forth in IRS, Kansas City and, as such,
 the union did not establish a particularized need for that
 information.  51 FLRA at 1481, 1482.  In reaching this conclusion,
 the Authority found it inappropriate to consider the additional
 reasons for requesting the information that were offered by the
 union for the first time at the unfair labor practice hearing,
 because these reasons were not communicated to the respondent "'at
 a time when it reasonably could have assessed the necessity [of]
 the information.'"  Id. at 1481 (quoting U.S. Equal Employment
 Opportunity Commission, 51 FLRA 248, 258 (1995) (EEOC).  
 
      The Authority reached a different conclusion about the
 first category of information requested by the Union in Twin
 Cities:  proposed and final disciplinary and adverse action
 letters.  As to this category, the Authority held that
 particularized need had been established by the Union.  Although
 the reason stated by the Union in its written request for this
 category of information was identical to that stated for the other
 categories, which the Authority found insufficient to establish
 particularized need, additional explanation was provided by the
 Union prior to the agency's decision to deny the request.  In this
 regard, unlike the other categories of information, the parties
 met shortly after the request to discuss the reasons the union
 requested the letters.  At that meeting, the union stated that it
 needed the letters "to compare the discipline the [r]espondent had
 proposed [to the employee] with that given to other employees who
 had committed similar offenses."  Twin Cities, 51 FLRA at 1473-74. 
 The parties also discussed the respondent's concerns about the
 privacy of such other employees, and the union clarified that it
 was requesting sanitized information.  
 
      Taking into account both the reasons offered at the meeting
 and those contained in the written request for the disciplinary
 and adverse action letters, the Authority concluded that the union
 had "clearly explained why the requested . . . letters were
 [necessary]."  Id. at 1475.  The Authority also found that, in the
 circumstances presented, it was appropriate to consider reasons
 offered by the union for the first time in testimony at the unfair
 labor practice hearing concerning the scope -- temporal and
 geographic -- of the request.  The Authority pointed out that no
 questions regarding the scope of the request had been raised at
 the parties' meeting, and concluded that refusing to consider the
 testimony would give "undue weight to whether the [respondent]
 asked or the union answered questions about matters that, unlike
 other matters that were discussed at the [parties'] meeting,
 neither party appeared concerned about at the time of the
 request."  Id. at 1476.  In this connection, the Authority
 distinguished Labor, where, as noted previously, the Authority
 concluded that reasons offered by the union for the first time at
 the unfair labor practice meeting did not establish particularized
 need.  Id. at 1475-76.
 
                              2.   Consistent with this Precedent,
                  the Union Did Not Establish
                  Particularized Need in These
                  Cases 
 
      In these cases, there is no evidence that the Union ever
 explained to the Respondent, with sufficient particularity,  why
 it needed the requested information, what it intended to do with
 it, or how it related to the Union's representational
 responsibilities.  The Union never expanded on its initial
 requests, the Respondent never requested clarification of the
 requests, and the parties never discussed them.  
 
      The Judge's finding in this case that the Union wanted to
 compare disciplinary actions proposed or taken against similarly
 situated employees and supervisors elsewhere in the Western Region
 is based exclusively on the Union's testimony at the hearing.  The
 evidence nowhere indicates that the Union communicated anything
 about this to the Respondent when it asked for the information, or
 at any other time prior to the hearing.  More particularly, in SF-
 CA-30308 and SF-CA-31679, the Union described the proposed and
 final letters it was requesting as ones involving "like or
 similar" charges to those involved in the two disciplinary actions
 for which it was providing representation.  However, unlike cases
 in which the Authority found that unions had articulated
 particularized need for information for comparison purposes, the
 Union here did not adequately explain why it needed the requested
 disciplinary information.  As such, this case is distinguishable
 from U.S. Department of Transportation, Federal Aviation
 Administration, New England Region, Bradley Air Traffic Control
 Tower, Windsor Locks, Connecticut, 51 FLRA 1054, 1067-68 (1996),
 where the union requested certain information concerning awards
 "to determine whether unit employees had been treated differently"
 under the awards program, and further explained at the hearing
 that the information was needed "for comparison purposes, to
 determine whether bargaining unit and non-bargaining unit
 employees were being recognized in the same manner for the same
 performance." It also is distinguishable from IRS, Kansas City, 50
 FLRA at 671, where the union requested a performance appraisal for
 the particular purpose of making a "comparison" between that
 appraisal and the appraisal of a grievant it was representing. 
 
      Although Union testified at the hearing that it requested
 the information in Case No. SF-CA-31679 "to see if there was a
 possibility of any [racial] discrimination[,]" transcript at 55,
 the Union did not articulate this reason for requesting the
 information at any time prior to the hearing.  Accordingly, it
 cannot be considered herein.  See, e.g., EEOC, 51 FLRA at 258.  As
 to SA-CA-20236, the Union stated only that it had "invoked [its]
 right to arbitrate the matter of suspension" given a particular
 Border Patrol agent.  G.C. Exh. 7.  Moreover, even though the
 Respondent had explained to the Union when it initially denied the
 request, in Case No. SA-CA-20236, that information requests
 covering the entire Western Region (as opposed to the Tucson
 Sector) were overbroad and that certain of the information sought
 by the Union was irrelevant, the Union's only response was to
 reduce the period covered by its request from 5 to 4 years.
 
      As the Authority stated in IRS, Kansas City, "a request for
 information must be sufficient to permit an agency to make a
 reasoned judgment as to whether information must be disclosed
 under the Statute."  50 FLRA at 670 (footnote omitted).  At no
 time did the Union explain to the agency with requisite
 specificity why it needed the disciplinary information it
 requested, what it planned to do with that information, or how it
 related to the union's representation of bargaining unit
 employees.  Accordingly, this case is distinguishable from Scott
 II, IRS, Austin, and Twin Cities, where, as set forth above, the
 unions provided specific reasons for their information requests. 
 Indeed, even in Labor, where the Authority concluded that the
 union had not established particularized need, the union
 demonstrated a need for some, but not all, of the requested
 disciplinary records by asserting, in its request, that the
 records were needed to "ensure that the [agency] had been
 'consistent in its  disciplinary actions of all employees.'" 
 Labor, 51 FLRA at 476 (citation omitted).  In this case, the
 Union's requests contain no such statement of need beyond the
 general assertion, in SF-CA-30308 and SF-CA-31679, that the
 information was required for the Union to carry out its
 representational duties and the statement, in SF-CA-20236, that
 the Union had "invoked [its] right to arbitrate" a particular
 suspension.  G.C. Exh. 7. 
 
      Because the Union's requests, standing alone, were
 insufficient to permit the Respondent to make a reasoned judgment
 about its obligation to disclose the requested information, we
 conclude that the Union failed to establish and articulate a
 particularized need for that information  under section
 7114(b)(4).  Accordingly, and without addressing the Respondent's
 other argument, we conclude that the complaints must be
 dismissed.
 
 V.   Order
 
      The complaints are dismissed.
 
                      UNITED STATES OF AMERICA
                FEDERAL LABOR RELATIONS AUTHORITY
               OFFICE OF ADMINISTRATIVE LAW JUDGES
                   WASHINGTON, D.C.  20424-0001
 
 
 
 
 
 
 
 UNITED STATES BORDER PATROL      
 TUCSON SECTOR
 TUCSON, ARIZONA
 
                Respondent
 
 
 
 
 
 
 
 
      and
 
 NATIONAL BORDER PATROL COUNCIL   
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2544, AFL-CIO
 
                Charging Party
 
      and
 
 IMMIGRATION AND NATURALIZATION
 SERVICE WESTERN REGIONAL OFFICE
 LAGUNA NIGUEL, CALIFORNIA
 
                Respondent
 
      and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2544, AFL-CIO
  
                Charging Party
 
 
 
 
 
 
 
 
 
 
                    Case Nos. SA-CA-20236
                              SF-CA-30308
                              SF-CA-31679
                               
                               
                               
                        James LoSasso
                 Thomas Michael O'Leary, Esq.
                          For the Respondent
                               
                    John R. Pannozzo, Jr.
                        For the General Counsel
                               
                               
                    Before:  ELI NASH, JR.
                       Administrative Law Judge
                               
                               
                               
                               
                               
                               
                             DECISION
 
                      Statement of the Case
      
      On May 27, 1992, the Regional Director for the 
 San Francisco Region of the Federal Labor Relations Authority
 (herein called the Authority), pursuant to a charge filed on
 January 23, 1992, by the National Border Patrol Council, American
 Federation of Government Employees, Local 2544,
 AFL-CIO (herein called the Union), issued a Complaint and Notice
 of Hearing in Case No. SA-CA-20236 which alleged that the United
 States Border Patrol, Tucson Sector, Tucson, Arizona (herein
 called Respondent USBP), committed an unfair labor practice within
 the meaning of section 7116(a)(1), (5) and (8) of the Federal
 Service Labor-Management Relations Statute (herein called the
 Statute).  The Complaint alleges that on December 30, 1991 and
 January 14, 1992, Respondent USBP, through its acting chief patrol
 agent and chief patrol agent refused to furnish the Union with
 certain region wide data that was maintained at the Western
 Regional Office in Laguna Niguel, California and a proposed
 decision letter regarding a senior border patrol agent in the
 Tucson Sector.
 
      On November 12, 1992, the parties stipulated the case to
 the Authority.  In the Stipulation of Facts, the parties agreed
 that disciplinary and adverse actions are normally maintained at
 the Western Regional Office in Laguna Niguel, California for
 periods of two and four years, respectively; the disciplinary and
 adverse actions were not maintained at the individual facilities
 after completion; that the information can be retrieved and that
 it does not constitute guidance, advice, counsel or training for
 management officials.  Based on the stipulated record, the
 Authority issued its decision in United States Border Patrol,
 Tucson Sector, Tucson, Arizona, 47 FLRA 684 (1993).  The Authority
 determined that the Union was entitled to a single proposed
 decision letter involving one agent.  On June 3, 1993, the General
 Counsel filed a Motion for Reconsideration on the basis that the
 Authority improperly limited its decision to a single proposed
 disciplinary letter and inadvertently failed to address the
 Union's broader request for region wide data, which was maintained
 at the Western Regional Office in Laguna Niguel.  The proposed
 decision letter concerning the agent which was addressed by the
 Authority was provided by Respondent USBP to the Union after the
 Authority's initial decision.  Thereafter, on August 27, 1993, the
 Authority,
 in 48 FLRA 391 granted the Motion for Reconsideration 
 and remanded the case to the Regional Director of the 
 San Francisco Region for further processing.
 
      On July 15, 1994, the Regional Director for the 
 San Francisco Region of the Authority, pursuant to a charge filed
 by the Union on December 15, 1992, issued a Complaint and Notice
 of Hearing in Case No. SF-CA-30308 alleging that Respondent USBP
 committed an unfair labor practice within the meaning of
 section 7116(a)(1), (5) and (8) of the Statute by  refusing to
 furnish the Union with certain region wide data that was
 maintained at the Western Regional Office in Laguna Niguel.
 
      Also on July 15, 1994, the Regional Director for the 
 San Francisco Region of the Authority, pursuant to a charge filed
 by the Union on September 20, 1993, issued a Complaint and Notice
 of Hearing in Case No. SF-CA-31679 alleging that the Immigration
 and Naturalization Service, Western Regional Office, Laguna
 Niguel, California (herein called Respondent INS) committed an
 unfair labor practice within the meaning of section 7116(a)(1),
 (5) and (8) of the Statute by refusing to furnish the Union with
 certain region wide data that was maintained at the Western
 Regional Office in Laguna Niguel.
 
      On July 22, 1994, the Acting Regional Director for the San
 Francisco Region of the Authority issued an Order Consolidating
 Cases in the above-matters.
 
      A hearing on the Consolidated Complaint was held before the
 undersigned in Los Angeles, California.  All parties were
 represented and afforded full opportunity to be heard, to examine
 and cross-examine witnesses, to introduce evidence and to argue
 orally.  Post hearing briefs were filed and have been duly
 considered.
 
      Upon consideration of the entire record in this case,
 including my observation of the witnesses and their demeanor, I
 make the following findings of fact, conclusions of law and
 recommendations.
 
                         Findings of Fact
 
      The Union is the exclusive representative of a nationwide
 consolidated unit of employees appropriate for collective
 bargaining, including employees at Respondent USBP's Tucson,
 Arizona facilities.  The Union is an agent of American Federation
 of Government Employees for the purpose of representing unit
 employees who work for the United States Border Patrol. 
 Respondent's INS's Western Regional Office consists of the five
 Border Patrol sectors, which are as follows:  Tucson, Yuma, El
 Centro, San Diego and Livermore, and INS District Offices located
 in the states of Nevada, Arizona and California.  The Union
 represents the bargaining unit employees within the five Border
 Patrol sectors and the American Federation of Government Employees
 INS Council represents the employees located in the states of
 Nevada, Arizona and California.
 
      Four of the five Border Patrol sectors maintain facilities
 along the United States-Mexico border.  They are:  Tucson, Yuma,
 El Centro and San Diego.  The Tucson Sector border facilities are
 as follows:  Douglas, Naco, Senoita, Nogales, Tucson and Ajo. 
 Agent Robert Speer worked at the Douglas, Arizona facility.  The
 Yuma Sector border facility is Yuma.  The El Centro, California
 Sector border facility is in Calexico.  The San Diego Sector
 border facilities are Imperial Beach, Brownfield and Chula
 Vista.
 
      Michael Albon served as the local president from 1990 to
 January 1994 representing bargaining unit employees in grievance,
 arbitration and Merit Systems Protection Board (herein called
 MSPB) proceedings.  The Union sought region wide data covering the
 five Border Patrol sectors in order to represent three employees
 Robert Speer, Donna LaRue and Mark E. Miller in proposed
 disciplinary actions against the.  The Union responded to
 Respondent USBP's proposed adverse action and represented Speer at
 arbitration.  With regard to both LaRue and Miller, the Union
 responded to Respondent USBP and INS's respective proposed
 disciplinary action, and filed second and third step grievances on
 their behalf.  In all three cases, the Union was chosen by the
 respective employee as their representative.  LaRue submitted
 written notification to Coffin that Albon was representing her in
 connection with the proposed reprimand.  The Union would have
 accepted the requested data for all three matters in sanitized
 form.  
 
 A.  Case No. SA-CA-20236
 
      On October 18, 1991, Respondent USBP, through Coffin, 
 issued a proposed ninety (90) day suspension, without pay, to
 Border Patrol Agent Robert Speer based on a noncompliance with
 standards, policies, regulations or instructions issued by the
 service and conduct unbecoming an officer.  Speer allegedly
 failed to prepare the proper immigration paperwork concerning two
 illegal, juvenile, female aliens prior to releasing them near the
 United States-Mexican border.   Specifically, Speer failed to
 complete the Form 1-213 (record of deportable alien), Form 1-274
 (request for voluntary departure to Mexico) and the Perez-Funez
 Advisement (State of Arizona injunction form).  Furthermore, Speer
 allegedly failed to follow the Administrative Manual and the
 Border Patrol Handbook, used profanity and made suggestive sexual
 remarks toward the illegal, female aliens.  The conduct that Speer
 was charged with could have occurred within any of the five Border
 Patrol sectors.  It was therefore, possible for the Union to
 compare disciplinary and adverse actions taken against employees
 in other sectors, particularly, those sectors with border
 facilities.
 
      On November 6, 1991, Union Station Steward Kevin Nix,
 submitted a written reply to the proposed adverse action relating
 to Speer.  The written reply stated, in part, that the two
 juveniles, illegal, female aliens escaped from Speer's custody,
 and therefore, the two aliens were not denied their rights to due
 process by Speer's inability to properly execute Forms 1-213, 1-
 274 and the Perez-Funez Advisement.
 
      On December 10, 1991, Respondent, through Coffin, suspended
 Speer for thirty (30) calendars days, without pay, from December
 23, 1991 to January 21, 1992.  The suspension letter noted that
 Speer had not complied with standards, policies, regulations or
 instructions issued by the agency.   The allegation relating to
 conduct unbecoming an officer was not sustained by the evidence. 
 On December 16, 1991, the Union submitted an expedited arbitration
 request in connection with the thirty-day suspension pursuant to
 the negotiated agreement.
 
      On December 28, 1991, acting as Speer's representative, the
 Union requested certain data from Respondent USBP, including the
 following region wide data:
 
 
      1.  A copy of all proposal and final decision letters
      relating to the charge of Non-Compliance with
      Standards, Policies, Regulations or Instructions issued
      by the Service, for the past five years, within the
      Western Region.
      
      2.  A copy of all proposal and final decision letters
      relating to disciplinary or adverse action resulting
      from the escape of an alien in custody, for the past
      five years, within the Western Region.
 
      The Union requested the data in Item 1 because it wanted to
 determine whether Speer had been disparately treated in terms of
 the charge alleged and the penalty imposed by Respondent USBP. 
 The Union wanted to compare the charges assessed and penalties
 imposed upon similarly situated employees and supervisors in other
 sectors.  The proposal letters, it seems, provides more factual
 information regarding an alleged incident than do final decision
 letters.  Thus,  proposal letters could have assisted the Union in
 under-tanding the circumstances associated with the noncompliance
 charge.
 
      The Union requested the data in Item 2 because it wanted to
 determine whether Speer had been disparately treated in terms of
 the charge alleged and the penalty imposed by Respondent USBP. 
 Once again, the Union desired to compare
 the charges assessed and penalties imposed upon similarly situated
 employees and supervisors in other sectors.  Further, the Union
 hoped to find out whether employees and supervi-sors, who allowed
 aliens to escape, were also charged with
 a noncompliance like Speer or was there some other charge assessed
 by Respondent USBP.  Without the requested data, when it took the
 case to arbitration, the Union argued disparate treatment before
 the arbitrator, but lost.
 
      The charge assessed by Respondent USBP against Speer, is
 significant because different charges contain a different range of
 penalties under the Department of Justice's Standard Schedule of
 Disciplinary Offenses and Penalties for Employees of the U.S.
 Department of Justice.
 
      On December 30, 1991, Respondent USBP, through Coffin,
 denied the Union's data request on the basis that it was over
 broad in scope as to Items 1 and 2 and also irrelevant with regard
 to Item 2.  Respondent USBP stated that "actions taken by other
 Sectors or Districts within Western Region are not material to the
 action under arbitration."  On January 2, 1992, in response to the
 Union's data request Respondent USBP, through Sector Counsel
 Thomas Michael O'Leary, furnished the Union with one unsanitized,
 final decision letter that had been issued to Senior Border Patrol
 Agent Rodolfo Greene in the Tucson Sector involving noncompliance
 with policies and instructions issued by INS.  Respondent USBP did
 not provide the Union with the notice of proposed disciplinary
 action, dated November 30, 1988.  The final decision letter did
 not state the circumstances that led to the noncompliance charge.
 
      On January 5, 1992, the Union submitted another data
 request seeking the same information as the December 28, 1991 data
 request, except for the past four years instead of five.  On
 January 14, 1992, Respondent USBP denied the Union's January 5,
 1992 data request, stating, in part, as follows: 
 
      Your reduction in the time periods in request numbered
      2 is noted.  However, since the time period was not the
      sole basis of the denial of your requests, the
      decisions outlined in my December 30, 1991 letter
      remain.
 
      Thereafter, on January 18, 1992, the Union, requested the
 November 30, 1988, proposed disciplinary letter issued to Greene. 
 In addition, the Union noted that the information was relevant and
 necessary to the presentation of the Speer case at arbitration. 
 On January 21, 1992, Chief Patrol Agent Ronald J. Dowdy denied the
 Union's request for the proposal letter in the Greene matter,
 stating that the proposal letter was not relevant to arbitration
 or other third party review.   Dowdy also noted that the decision
 letter decides the facts as well as the appropriate penalty.  As
 noted previously, the Greene proposal letter was provided by
 Respondent USBP to the Union after the Authority's decision in
 that case.
 
 B.  Case No. SF-CA-30308
 
      Sometime around, November 24, 1992, a proposal of
 disciplinary action was issued to Radio Operator Donna LaRue. 
 LaRue, a member of the bargaining unit, was charged with conduct
 that was disruptive to the workplace, and disrespect-ful conduct
 through the use of insulting and abusive language to or about
 others.  LaRue's offense was allegedly placing derogatory remarks
 into the official radio log book and harassing a fellow employee
 through the use of vulgar language and remarks about his religion. 
 The official radio log book is a daily record of the radio traffic
 and other events occurring within a sector during the normal
 workday.  Each sector maintains an official radio log book.  The
 conduct which LaRue was charged could have occurred within any of
 the five Border Patrol sectors.  Furthermore, the Union hoped it
 could compare disciplinary actions taken against similarly
 situated employees, who worked in other sectors, with that of
 LaRue.   
 
       Around November 24, 1992, LaRue designated Albon as her
 representative in the matter.  On November 25, 1992, the Union
 submitted a data request to Respondent USBP seeking "a copy of all
 proposal and final decision letters relating to like or similar
 charges for the past two years within the Western Region."  The
 data request noted that the Union needed the information in order
 to carry out its representational responsibilities in responding
 to the proposed action.  The Union requested the region wide data
 because it wanted to determine whether LaRue had been disparately
 treated by Respondent USBP in terms of the charge alleged and the
 penalties imposed in comparison to similarly situated employees. 
 The Union again desired to see the proposal letters in hope that
 they would provide greater detail regarding the conduct leading up
 to the disciplinary action.
 
      On December 4, 1992, Respondent USBP, responded to the data
 request by providing two sanitized proposed and two sanitized
 final decision letters concerning two Tucson Sector employees.  In
 response to the region wide request,  Respondent USBP stated in
 pertinent part that, "The Western Regional Office, ROLMR, policy
 is to furnish information pertaining to sector actions only. . .
 ."  The Union's need to respond to the proposed disciplinary
 action, was never mentioned by Respondent USBP as a basis for
 denying the data request.
 
      On December 10, 1992, the Union submitted a written reply
 to the proposed reprimand on behalf of LaRue.  A final decision
 letter sustaining the reprimand issued on January 12, 1993.  On
 February 15, 1993, the Union filed a step two grievance on behalf
 of LaRue which was denied by Respondent  on March 3, 1993.  A step
 three grievance on behalf of LaRue filed on March 13, 1993 was
 denied on April 5, 1993, by Respondent USBP.  The official
 reprimand remains in LaRue's personnel file.
 
 C.  Case No. SF-CA-31679
 
      On August 6, 1993, a proposal to officially reprimand was
 issued by Respondent USBP to Border Patrol Agent Mark E. Miller. 
 Miller was charged with making false statements to his
 supervisors.  In this regard, Miller allegedly twice went to his
 residence during a day in which he was scheduled to make a court
 appearance, but told his supervisor that he only went once. 
 Miller later admitted to his supervisor that he had in fact gone
 to his residence on two separate occasions.  Miller was
 represented by a Union steward from Phoenix, Arizona, Francis M.
 Moyer.  The conduct with which Miller was charged could have
 occurred within any of the five Border Patrol sectors. 
 Furthermore, the Union could have compared the disciplinary
 actions taken against similarly situated employees, who worked in
 other sectors, with Miller's own.
 
      The Union, submitted a data request to Respondent USBP,
 on August 12, 1993, seeking the following data: 
 
      "Copies of any and all proposals and/or final decisions
      for like or similar disciplinary actions issued within
      the Western Region of the Immigration and
      Naturalization Service for the past three (3) years."  
 
      The data request noted that the Union needed the
 information in order to carry out its representational
 responsibilities in responding to the proposed action.  Albon, who
 spoke with Moyer prior to the submission of the data request,
 provided his input into the matter, instructed Moyer on how to
 request data and possibly forwarded to Moyer a copy of an
 information request.  The Union requested the region wide data
 because it wanted to determine whether Miller had been disparately
 treated by Respondent USBP in terms of the charge alleged and the
 penalties imposed in comparison to similarly situated employees. 
 Further, the Union wanted to see if there was possible racial
 discrimination against Miller, who is black.  The Union again
 wished to see the proposal letters because they provided greater
 detail regarding the conduct which led to the disciplinary action.
 
      On August 16, 1993, Respondent USBP, answered the Union's
 data request with regard to some items, but forwarded the region
 wide portion of the data request to Respondent INS's Western
 Region Labor Relations Specialist for a response.  Respondents'
 August 16, 1993 letter also acknowledged that the Union was
 Miller's designated representative in the matter.  The Union's
 need to respond to the proposed disciplinary action, was never
 mentioned by Respondent USBP as a basis for denying the data
 request.  On August 17, 1993, the Union, submitted a written reply
 to the proposed reprimand on behalf of Miller.
 
      On August 18, 1993, Respondent INS, through Labor Relations
 Specialist James P. LoSasso, denied the Union's data request with
 regard to Item 5.  The information request was denied based on the
 following:
 
      Western Regional Office, and each of the districts and
      sectors within, have a long standing policy and
      practice of not expanding the scope of disciplinary
      actions beyond the level from which these actions would
      be honored by providing cases from that Sector only. .
      . .  In summary, Western Region does not release region
      wide disciplinary cases to the various Sectors.  
 
 No other reason was provided by Respondent INS for denying the
 data request, including the Union's need to respond to the
 proposed disciplinary action.
 
      Thereafter, on September 1, 1993, Respondent USBP,  issued
 a final decision letter that sustained the reprimand.  On
 September 17, 1993, the Union filed a step two grievance on behalf
 of Miller and on the same day, amended the step two grievance. 
 Respondent USBP denied the step two grievance on October 4, 1993. 
 On October 13, 1993, the Union filed a step three grievance on
 behalf of Miller which was denied by Respondent on November 10,
 1993.  The Union invoked arbitration on behalf of Miller on
 November 24, 1993.
 
 
 
 
 D.  Decision-Making Process
 
      The data requests in all three cases were made pursuant to
 section 7114(b)(4) of the Statute.  The employees within the five
 Border Patrol sectors are all subject to the same penalties
 associated with violative conduct, disciplinary actions, adverse
 actions, Administrative Manual provisions, Border Patrol Manual,
 negotiated agreement, Federal Personnel Manual, Justice Department
 Standards of Conduct, Central and Regional Office policy memoranda
 and immigration forms.
 
      Albon could represent employees in other sectors if
 designated by the National Border Patrol Council.  Further, Albon
 has represented employees at all stages of disciplinary
 proceedings.  All three employees in this consolidated matter
 designated the Union as their representative.
 
      Western Region maintains all of the disciplinary and
 adverse action files for the regional employees.  The files are
 kept in alphabetical order and the labor relations staff has
 access to all proposed and final decision letters within the five
 Border Patrol sectors.  The Western Regional Office policy, for
 the six years preceding this hearing, has been not to provide
 region wide data to the Union in disciplinary matters.  Respondent
 INS's rationale for not providing region wide data is predicated
 on EEOC and MSPB case law, which supposedly states that for
 purposes of analyzing disparate treatment claims only comparisons
 between employees who share common supervision are required.
 
      In normal situations for the respective sectors, the deputy
 patrol agent proposes employee discipline, and the chief patrol
 agent serves as the deciding officials except for reprimands.  The
 chief patrol agent is completely autonomous within his sector and
 has final decision authority with regard to discipline.  The
 proposing and deciding sector officials can exercise their
 discretion regarding application of Justice Department standard
 schedule of disciplinary offenses and penalties.  There is a wide
 range of penalties that can be assessed in connection with a
 particular type of conduct.  The same offense in the respective
 sectors could result in a different charge or penalty depending on
 the facts, the seriousness of the offense, the range of penalties,
 whether it is repeat conduct and if there are mitigating factors. 
 Similar types of violative conduct within the respective sectors
 could lead to different charges being made against an employee, a
 different application of mitigating factors thereby, resulting in
 the imposition of a different penalty.  
 
      A regional labor relations staff member reviews
 disciplinary actions. The Labor Relations Office at Western Region
 conducts a technical review of draft proposal letters.  If the
 proposal letter is procedurally and technically correct, the labor
 relations specialist will return the letter to the sector with a
 recommendation that it be issued.  Prior to the issuance of a
 final decision letter, the case is discussed with the labor
 relations specialist from the Western Regional Office, who serves
 as an advisor. 
 
      The labor relations specialist is supposed to ensure that
 there is consistency in discipline throughout the Western Region. 
 However, the sectors are not required to accept the disciplinary
 recommendations from the Western Regional Office.  Frequently, the
 Western Regional Office is forced to defend a sector decision at
 arbitration or MSPB that it recommended against.  There are
 differences of opinion between sector management and the Western
 Regional Office regarding the nature of the charge and the
 appropriate penalty to be assessed.  Moreover, there are
 differences of opinion among the respective sectors in terms of
 charges, mitigating factors and assessed penalties.
      
      This subjective decision-making process is further
 complicated by the fact that certain offenses can result in a
 charge that was outside the Department of Justice standard
 schedule of disciplinary offenses and penalties.  For example,
 various types of criminal conduct, such as murder, rape and abuse
 of an alien, are so unique in nature that they can only be
 explained through a narrative proposal.  Respondents' witness,
 Thomas Feeney, equated mental and sexual abuse in the context of
 on-the-job criminal behavior.  Thus, while Speer, who was
 originally accused of making obscene gestures and suggestive
 sexual remarks to the illegal female aliens, was not charged
 criminally in connection with the performance of his duties, it
 has been suggested that he could have been.  
 
      The conduct of which Speer was accused, could have taken
 place in any of the border facilities.  The misconduct of which
 LaRue and Miller were accused, could also have taken place within
 any of the five Border Patrol sectors.  Even though the respective
 sectors are autonomous, they are all required to observe the same
 statutory, regulatory and collective bargaining procedures in
 connection with disciplinary actions.  Despite the autonomy, it is
 my view that the use of region wide evidence could be valuable in
 swaying a deciding official in a third party proceeding. 
 Furthermore, it would undoubtably assist an exclusive
 representative in assessing its response to proposed disciplinary
 actions for obviously, if there is a certain consistency amongst
 the sectors, it might be persuaded by the data received to proceed
 no further with the matter.
 
      The data requests that were submitted by the Union in the
 three cases all contained the following language:  "If this
 request is denied, in whole or in part, please inform me, in
 writing, of the . . . specific statutory, regulatory, or
 contractual citations on which that decision is based."
 
                    Discussion and Conclusions
      These three cases were consolidated for hearing because the
 Union sought in each case to obtain region wide data concerning
 employee disciplinary and adverse action proposals and final
 decision letters in connection with the respective disciplinary
 matters.  The data was requested solely to represent three
 employees who had designated the Union to represent them in their
 respective disciplinary matters. Thus, the issue in each case is
 the same with only the nature of the action differing.
 
      In 48 FLRA NO. 35, the Authority remanded SA-CA-20236 to
 the San Francisco Regional Director for resolution of the issues
 surrounding "whether the requested information is necessary within
 the meaning of section 7114(b)(4)."  Finding that the parties'
 stipulation on which it based its decision in 47 FLRA 684 was
 insufficient to make a determination in the case  "because the
 parties do not agree, and the record does not disclose, what
 information is in dispute."  In that matter, the record now
 discloses that the Union sought region wide data from Respondent
 as follows:
     
      1.  A copy of all proposal and final decision letters
      relating to the charge of Non-Compliance with
      Standards, Policies, Regulations or Instructions issued
      by the Service, for the past five years, within the
      Western Region.
      
      2.  A copy of all proposal and final decision letters
      relating to disciplinary or adverse action resulting
      from the escape of an alien in custody, for the past
      five years, within the Western Region. 
 
      The data requested by the exclusive representative in  the
 Speer case, as well as in the other cases, herein exists in the
 disciplinary and adverse action files maintained by the Western
 Region.  In addition, the requests were not, as Respondent seems
 to conclude in its brief, for the entire disciplinary file of any
 Western Region employee.  It is also clear from the record that
 the Union sought only the action and proposal letters involving
 disciplinary action for employee conduct similar to that for which
 action letters issued to the three individuals it represented. 
 Finally, it is noted that the requested information was maintained
 by the Respondent in the regular course of business.  In this
 regard, Respondents' admitted that copies of disciplinary and
 adverse action letters are maintained by the Western Region. 
 These letters, as well as counseling letters, closed without
 action letters, clearance letters and letters of reprimand are
 kept in individual employee files.  In this case, the documents
 are normally maintained and reasonably available.  Moreover, no
 evidence was presented to show that it would have been unduly
 burdensome for the Respondent to provide the Union with all the
 requested data. 
 
      In SF-CA-30308 the Union requested, "A copy of all proposal
 and final decision letters relating to like or similar charges for
 the past two years within the Western Region."  The Union
 submitted that the information was needed to carry out its
 representational responsibilities in responding to the proposed
 action against employee LaRue who was issued a proposed reprimand
 on November 24, 1992.  The Union's request for information was
 submitted on November 25, 1992.  A decision letter was issued in
 the matter on 
 January 12, 1993. 
 
      In SF-CA-31679 the Union requested, "Copies of any and all
 proposals and/or final decision for like or similar disciplinary
 action issued within the Western Region of the Immigration and
 Naturalization Service for the past three (3) years."  The Union
 noted that it needed the requested data in order to carry out its
 representational responsibilities in responding to a proposed
 action.  A proposal to reprimand employee Mark Miller was issued
 on August 6, 1993, and the Union's request for information was
 submitted on August 12, 1993.  Respondents' decision letter was
 issued on September 1, 1993.
 
      In all three cases, the Union clearly had grievable matters
 covering the data.  In fact, there is no question that all of the
 employees involved in the data requests had "grievances" as
 broadly defined.  Additionally, the Union had a contractual and
 statutory obligation to represent these three employees.
 
      Section 7114(b)(4) of the Statute obligates an agency to
 furnish to the union, to the extent not prohibited by law, data
 which is normally maintained by the agency 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, and; which does not
 constitute guidance, counsel or training for management officials
 or supervisors, relating to collective bargaining.  Respondent
 admits that the requested data does not constitute guidance,
 advice, counsel, or training provided for management officials or
 supervisors relating to collective bargaining.  Accordingly, the
 requested data met all the Statutory criteria and, therefore an
 obligation to provide the requested data exists.    
 
      Here again, an agency challenges the exclusive
 representative's need for certain information contending, no 
 "particularized need" for the information was established for the
 requested data.  In its remand of 20206, the Authority at least
 examined the stipulation of the parties and sought only to clarify
 "whether the requested information is necessary within the meaning
 of section 7114(b)(4)."  After its review of the record there it
 made no mention of "particularized need," nor did it remand the
 matter for a determination in that regard.  It seems reasonable to
 assume that it did not intend to apply such a standard in the
 case, where adverse action and discipline data was the only
 information sought.  In any event, it is abundantly clear that the
 "particularized need" standard is applied only when certain
 conditions are present, which do not exist in this case.  Thus,
 there is no hint, even by Respondent, that the requested documents
 represented intra management communications.  Since intra
 management documents, as described in 7114(C), was not a part of
 the data requested, the undersigned rejects Respondents' argument
 concerning the necessity to show a "particularized need".  In
 these circumstances, it is found that the Union was not required
 to state a particularized need for the informa-tion that it sought
 in this matter, at any stage of the proceedings. 
 
      The General Counsel argues that the Union is entitled to
 the requested data region wide and that Respondents should be
 estopped from making certain arguments.  The General Counsel also
 maintains that Respondent's claim that the data requests should be
 judged by MSPB or EEOC standards are erroneous.  Furthermore, it
 contends that the particularized need standard asserted by
 Respondent applies only to information requests which constitute
 guidance, advice, counsel or training provided for management or
 supervisors related to collective bargaining and that is
 admittedly not the case here.);   In a sum, the General Counsel
 argues that Respondent should be collaterally estopped from
 raising the Privacy Act, "particularized need" or the MSPB-EEOC
 case law defenses.  
 
      With respect to the General Counsel's collateral estoppel
 approach to the case, it is noted that there is no mutuality of
 parties or issues, and therefore, it must be found that collateral
 estoppel is not applicable here.  What is obvious, however, is
 that many of the issues raised by Respondents' here have been
 already considered and resolved, on more than one occasion, by the
 Authority.  Clearly, the issue of whether information requested to
 assist an exclusive representative in responding to proposed
 disciplinary actions has been found necessary under section
 7114(b)(4) in at least one of Respondent's regional offices. 
 Similarly, a review of the case law in the area reveals that the
 Authority has required agencies to provide region wide data the
 exclusive represen-tative.  The rationale of those cases being,
 such data is necessary for the Union to carry out its
 representational functions under the Statute.  Respondents' do not
 distinguish this matter either factually or legally from those
 previous decisions in which the Authority has already decided that
 the agency should supply the data.  This failure to differentiate,
 leaves me with little choice, after studying existing case law to
 apply it to these matters.  Furthermore, the Authority has found
 it appropriate, in cases where disparate treatment is at issue,
 for the exclusive representative to seek such region wide data to
 determine whether a proposed or final decision is consistent with
 penalties imposed on other employees for similar misconduct.  I am
 bound to follow existing Authority precedent, therefore, I am
 constrained to find that the defenses offered by Respondent in
 this case, lack merit.  
   
      Accordingly, it is found that Respondent's failure
 to provide data on a region wide basis, concerning action proposal
 and final decision letters relating to disciplinary actions which
 were necessary for the exclusive representative to carry out its
 representational functions in each of three cases each constituted
 separate violations of section 7116(a)(1), (5) and (8) of the
 Statute.  Therefore, it is recommended that the Authority adopt
 the following:
 
                              ORDER
 
      Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute,
 it is hereby ordered that the United States Border Patrol, Tucson
 Sector, Tucson, Arizona and Immigration and Naturalization
 Service, Western Regional Office, Laguna Niguel, shall:
 
      1.  Cease and desist from:
 
          (a)  Failing and refusing to furnish the National
 Border Patrol Council, American Federation of Government
 Employees, Local 2544, AFL-CIO, the exclusive representative of
 its employees, necessary and relevant information which was
 requested in connection with the processing of certain grievances.
 
          (b)  In any like or related manner, interfering with,
 restraining or coercing its employees in the exercise of their
 rights assured by the Federal Service Labor-Management Relations
 Statute.
 
      2.  Take the following affirmative action in order to
 effectuate the purposes and policies of the Federal Service Labor-
 Management Relations Statute:
 
          (a)  Upon request, furnish to the National Border
 Patrol Council, American Federation of Government Employees, Local
 2544, AFL-CIO, sanitized copies of all proposal and final decision
 letters relating to the charge of Non-Compliance with Standards,
 Policies, Regulations or Instructions; all proposal and final
 decision letters relating to disciplinary or adverse action
 resulting from the escape of an alien in custody; copies of any
 and all proposals and/or final decision for like or similar
 disciplinary action issued with the Western Region; copies of all
 proposal and final decision letters relating to like or similar
 charges for the past two years within the Western Region.
 
          (b)  Upon request, furnish to the National Border
 Patrol Council, American Federation of Government Employees, Local
 2544, AFL-CIO copies of any and all region wide, proposed and
 final decision letters on discipline involving specifically
 identified infractions for the last three years within the Western
 Region, which information is necessary and relevant to the Union's
 representation of a unit employee in a proposed reprimand or
 grievance under the negotiated grievance procedure.
 
          (c)  Post at its facilities in the Immigration and
 Naturalization Service, Western Regional Office, Laguna Niguel,
 California, copies of the attached notice regarding Case No. SF-
 CA-31679 on forms to be furnished by the Authority.  Upon receipt
 of such forms, they shall be signed by the Director of the
 Administrative Center 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.
       
          (d)  Post at all its facilities in the United States
 Border Patrol, Tucson Sector, Tucson, Arizona copies of
 the attached notice regarding Case Nos. SA-CA-20236 and 
 SF-CA-30308 on forms to be furnished by the Authority.  Upon
 receipt of such forms, they shall be signed by the Chief Patrol
 Agent, Tucson Sector 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.
 
          (e)  Pursuant to section 2423.30 of the Authority's
 Rules and Regulations, notify the Regional Director, 
 San Francisco Region, Federal Labor Relations Authority, in
 writing, within 30 days from the date of this Order, as to what
 steps have been taken to comply herewith.
 
 Issued, Washington, DC, June 28, 1995 
 
 
 
 
                      
                      ELI NASH, JR.
                      Administrative Law Judge                        (Attachment A)
                               
                   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 refuse to furnish, upon request of the National Border
 Patrol Council, American Federation of Government Employees, Local
 2544, AFL-CIO, the exclusive representative of certain of our
 employees, Non-Complaince with Standards, Policies, Regulations or
 Instructions and all proposal and final decision letters relating
 to disciplinary or adverse action resulting from the escape of an
 alien in custody; copies of any and all proposals and/or final
 decision for like or similar disciplinary action issued with the
 Western Region;  copy of all proposal and final decision letters
 relating to like or similar charges for the past two years within
 the Western Region.
 
 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, upon request of the National Border Patrol Council,
 American Federation of Government Employees, Local 2544,
 AFL-CIO, the exclusive representative of certain of our employees,
 furnish it with Non-Complaince with Standards, Policies,
 Regulations or Instructions and all proposal and final decision
 letters relating to disciplinary or adverse action resulting from
 the escape of an alien in custody; copies of any and all proposals
 and/or final decision for like or similar disciplinary action
 issued with the Western Region; copy of all proposal and final
 decision letters relating to like or similar charges for the past
 two years within the Western Region. 
 
 
 
 
                      
                                 (Activity)
 
 
 
 Date:                       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 of the Federal Labor Relations
 Authority, San Francisco Region, 901 Market Street, Suite 220, San
 Francisco, California 94103-1791, and whose telephone number is
 (415) 744-4000.
 
                                 
          
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                          (Attachment B)
                                 
                     NOTICE TO ALL EMPLOYEES
 
                           PURSUANT TO
 
                   A DECISION AND ORDER OF THE
 
                FEDERAL LABOR RELATIONS AUTHORITY
 
            AND IN ORDER TO EFFECTUATE THE POLICIES OF
 
                   CHAPTER 71 OF TITLE 5 OF THE
 
                        UNITED STATES CODE
 
            FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
               WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT fail or refuse to furnish to the National Border
 Patrol Council, American Federation of Government Employees, Local
 2544, AFL-CIO the agent of the exclusive represen-tative, the
 National Border Patrol Council, American Federation of Government
 Employees, AFL-CIO, copies of any and all region wide, proposed
 and final decision letters on discipline which information is
 necessary and relevant to unit employees in a proposed reprimands
 or grievances under the negotiated grievance procedure.
 
 WE WILL NOT in any like or related manner interfere with, restrain
 or coerce our employees in the exercise of right assured by the
 Federal Service Labor-Management Relations Statute.
 
 
 
 
 
                      
                                 (Activity)
 
 
 
 Date:                       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.
 
 
 
 
                               -2-
 
 If employees have any questions concerning this Notice or
 compliance with any of its provisions, they may communicate
 directly with the Regional Director of the Federal Labor Relations
 Authority, San Francisco Region, 901 Market Street, Suite 220, San
 Francisco, California 94103-1791, and whose telephone number is
 (415) 744-4000.



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

1. Following the Authority's remand of the complaint in Case No. SA-CA-20236 in United States Border Patrol, Tucson Sector, Tucson, Arizona, 48 FLRA 391 (1993), the San Francisco Regional Director consolidated it for hearing with the complaints in Case Nos. SF-CA-30308 and SF-CA-31679.

2. The Union later amended its request to cover 4, rather than 5, years. The Respondent adhered to its initial decision to deny the request. The Respondent ultimately furnished the Union with one unsanitized decision letter given one other employee in the Tucson Sector, but refused to release either the proposal on which that decision was based or any other disciplinary information for any other employees in the Western Region.

3. The request also stated that the information was requested under 5 U.S.C. § 7513(e). However, as that statutory provision is not asserted to be relevant to disposition of the complaint now before us, we do not address it further.

4. The Judge concluded that it was not necessary to determine whether disclosure of the requested information was prohibited by the Privacy Act because, based on hearing testimony, he found that the Union would have accepted the information in sanitized form. In view of the decision herein, we do not address this finding.

5. The Respondent relies on the court's decision in Department of the Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992), remanding Department of the Air Force, Scott Air Force Base, Illinois, 38 FLRA 410 (1990) (Scott I). Subsequent to the filing of the exceptions, the Authority issued its decision on remand from the court, Department of the Air Force, Scott Air Force Base, Illinois, 51 FLRA 675 (1995) (Scott II), concluding that the respondent violated the Statute by failing to furnish the union the requested information. The Authority's decision on remand was enforced by the U.S. Court of Appeals for the D.C. Circuit in Department of the Air Force, Scott Air Force Base, Illinois v. Federal Labor Relations Authority, 104 F.3d 1396 (D.C. Cir. 1997).

6. We note that, in Bureau of Indian Affairs, Uintah & Ouray Area Office, Ft. Duchesne, Utah, 52 FLRA 629 (1996) (Chair Segal dissenting) (BIA), the Authority concluded that the union had established a particularized need for information it requested inconnection with its representation of an employee who had been terminated for particular offenses. Unlike the case now before us, the request in BIA was not for disciplinary records; the union requested the dates of birth of certain employees for the purpose of making a subsequent request for state driver license records.

7. In Labor, the Authority also concluded that disclosure of the requested information was prohibited by the Privacy Act. The Authority went on to consider the question of particularized need to comply with the order of the court in United States Department of Labor v. FLRA, No. 91-1174 (D.C. Cir. Jan. 7, 1992) (mem.), remanding U.S. Department of Labor, Washington, D.C., 39 FLRA 531 (1991).

8. Our decision that the Respondent did not violate the Statute in these cases should not be taken as approval of its failure to engage the Union in any meaningful discussion of the Union's requests. We encourage all parties to follow the example set in Twin Cities by meeting to discuss their respective interests in the disclosure of information and attempting to accommodate those interests without resorting to litigation.



FOOTNOTES FOR ALJ:
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1. The Tucson Sector has a reputation for drug smuggling at border crossings. The San Diego Sector has a reputation for drug smuggling and severe alien crossing problems. The Livermore Sector is primarily concerned with problems associated with rural agriculture - farming and ranching. However, these various problems, which are experienced by the respective sectors, could occur in any of the five Border Patrol sectors. For example, alien crossings could take place anywhere along the United States-Mexico border, and four out of the five sectors have border facilities.

2. Disciplinary actions include suspensions of fourteen (14) days or any lesser penalty, and adverse actions, include suspensions of fifteen (15) days or any greater penalty.

3. In its brief, Respondent argues that it had no duty to provide the information in Case Nos. 30308 and 31679, since at the time those requests were made the Union was not the exclusive representative of either LaRue or Miller. This concern was resolved long ago by the Authority in National Treasury Employees Unions, Chapter 237, 32 FLRA 62 (1988) where it found that a union is entitled to information concerning disciplinary and adverse actions even where it is only designated as the personal representative of the employees involved as its representational function is in the public interest. Here the Union, at the time of the data requests, had been designated to represent both LaRue and Miller. Consequently, Respondents' speculation that there was "no vested separate entitlement" allowing the Union to obtain the requested data, is rejected.

4. It has never been disputed that the requested information was "normally maintained by and reasonably available" or that it "does not constitute guidance, advice, counsel, or training for management officials or supervisors relating to collective bargaining." In fact, it appears that the parties stipulated the above. Furthermore, Respondent did not challenge the above in its answer or at the hearing. However, it appears not to have initially challenged that the disclosure of the information is prohibited by law, an issue it now seeks to raise, either.

5. See, Article 31, Section B and Article 32, and Article 33 of the collective bargaining agreement, all of which deal with representation and the grievance and arbitration procedures established by the parties.

6. The Authority's position on the issue of whether precedent of MSPB and EEOC are governing in proceedings before it is clearly set out in several cases. See Twin Cities, infra; Salt Lake City, infra. Based on those holdings, Respondents' position is rejected.

7. In agreement with the General Counsel, it is found that the particularized need standard is not applicable to the instant matter. See, National Park Service, National Capitol Region, United States Park Police, 48 FLRA 1151, 1161-1164 (1993); ); United States Customs Service, Region IV, Miami, Florida, 48 FLRA 1239, 1242-1243 (1993).

8. It is worthy of note that in this case, the Union has not made a request for unsanitized data, but has indicated that the data could be provided in a sanitized format. When the request is for data in the sanitized format i.e. without identifiers such as names, addresses, social security or employee numbers, it is unnecessary to reach the Privacy Act issue raised here. See, U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310 (1990); Maxwell Air Force Base, Georgia, 36 FLRA 110 (1990). Accordingly, it is unnecessary for the undersigned to address whether the disclosure of the information requested is prohibited by law.