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43 FLRA No. 58

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF JUSTICE

UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE

UNITED STATES BORDER PATROL

EL PASO, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

NATIONAL BORDER PATROL COUNCIL

(Charging Party/Union)

6-CA-80655

DECISION AND ORDER

December 20, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel's untimely opposition to the Respondent's exceptions has not been considered.

The complaint alleged that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish information requested by the Union which the Union needed in order to fulfill its representational responsibilities under the Statute. The complaint further alleged that the Respondent failed and refused to bargain in good faith, in violation of section 7116(a)(1) and (5) of the Statute, by unreasonably delaying the processing of the Union's request for information.

The Judge found that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing and refusing to furnish the data requested by the Union. The Judge also found that the Respondent's delay in processing the request violated section 7116(a)(5) of the Statute.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and, finding that no prejudicial error was committed, we affirm the rulings. As to those rulings to which the Respondent has taken specific exception, we affirm those rulings for the reasons set forth below. On consideration of the exceptions and the entire record, we adopt the Judge's findings and conclusions. However, we modify the Judge's recommended Order to require that the Respondent provide to the Union sanitized copies of the requested data as it relates to individuals who are not employees.

II. Background

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

During the period giving rise to the events in this case, Robert J. Marren was the executive vice president of the Union and a border patrol agent at the Fabens Station, a substation of the Respondent's El Paso, Texas Sector Office. Marren received an overall performance rating of "fully successful" in his performance appraisal for the year that ended in April 1988. In his capacity as executive vice president of the Union, Marren notified the Respondent by letter of May 18, 1988, that he was contemplating filing a grievance over his performance appraisal on the basis of disparate treatment. Under section 7114(b)(4) of the Statute, Marren requested the following unsanitized data pertaining to all 10 journeymen bargaining unit employees of the Fabens Station, including Marren:

1. performance appraisals for the period 04/01/87 through 04/08/88 or the period of time covering the 1987/88 rating period;

2. all documents contained in the Employee Performance Files maintained on the above referenced employees (including Mr. Marren's);

3. all documents contained in the Supervisory Work Folders maintained on the above referenced employees (including Mr. Marren's);

4. copies of any and all documents and reports completed during the 1987/88 rating period (ex. I-213 [Record of Deportable Alien], I-50 [Daily Activity and Time Report], DJ 296 [Time and Attendance Report], I-44 [Border Patrol Report of Apprehension or Seizure], G-166 [Report of Investigation], G-170 [Alien Smuggler Data Input Sheet], memoranda, vehicle maintenance reports, G-205, all documents related to WA/OCS's and criminal prosecutions, etc.)

Judge's Decision at 4.

The Respondent replied to the May 18 request by letter dated July 26, 1988. The Respondent requested that the Union provide it "with 'specifics' about the alleged disparate treatment" so that it could determine whether the requested data was relevant and necessary. Id. at 6. The Respondent included in its reply a list of job elements and overall ratings given to each of the 10 journeymen agents. The employees were coded by letter, and no names were given.

Marren replied to the Respondent by letter dated August 2, 1988. In the letter, Marren explained that the Union needed all of the requested data "to properly carry out its representational obligation to conduct a full and impartial investigation." Id. at 7. Marren rejected the Respondent's demand for specifics concerning the grievance. Marren stated that management had already been provided with justification for the requested data and that specifics would be provided if, after review of the data, the Union determined that a grievance was warranted. Marren also modified the request as follows:

Also, if management intends to supply the data requested in an anonymous form, it will be necessary for management to cross identify every document so that the Union can readily identify documents, or employee entries on documents, with a given performance appraisal. . . . Therefore, the Union's data request of May 18, 1988 is resubmitted as clarified herein.

Id. at 7.

On September 13, 1988, the Respondent replied to Marren's letter of August 2. The Respondent stated that as Marren had failed to specify why the list of employee ratings that had been provided by the Respondent was inadequate, the Respondent believed that the list that it had furnished the Union did provide "relevant data from which [the Union] could determine whether any disparate treatment in the ratings was tendered." Id. The Respondent also stated that Marren could schedule an appointment at the Fabens station to review the documents listed in paragraph 4 of Marren's original request and could then request copies of those documents relevant to his needs.

Subsequently, the Union filed an unfair labor practice charge contesting the Respondent's refusal to furnish the requested information.

III. Administrative Law Judge's Decision

The Judge concluded that the Union was entitled to the requested information under section 7114(b)(4) of the Statute because the requested information was normally maintained, reasonably available, and necessary for the Union to fulfill its representational responsibilities. The Judge noted that there was no assertion that any of the requested data constituted guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining, under section 7114(b)(4)(C) of the Statute. The Judge also noted that the Respondent did not contend that either the information furnished to the Union or the offer to let Marren review certain documents satisfied the Respondent's statutory duty to provide the requested information. Therefore, the Judge concluded that the Respondent's refusal to furnish the information constituted noncompliance with section 7114(b)(4) and a violation of section 7116(a)(1), (5), and (8) of the Statute. Finally, the Judge concluded that the Respondent also violated section 7116(a)(5) of the Statute by its unreasonable delay in processing the Union's request.

Specifically, the Judge found that the requested information was necessary because "the Union ha[d] demonstrated a need to examine the relationship between the appraisals' narrative descriptions of employee performance and the individual and overall ratings given to employees other than the potential grievant." Judge's Decision at 9-10. The Judge found that, because the Union admitted that it "did not need 'unsanitized' copies [of the performance appraisals] if each 'sanitized' appraisal was cross-referenced with the other documents that pertained to the appraised employee," only "cross-referenced 'sanitized' copies of the appraisals [were] necessary" for the Union to determine whether the Respondent had engaged in disparate treatment. Id. at 10.

With regard to the employee performance files, the Judge found that because they contained, in addition to the performance appraisals, documents used by supervisors in personnel actions during the appraisal year and supporting memoranda, they were "presumptively relevant to the performance being appraised" and "relevant to the Union's investigation of possible disparate treatment." Id. The Judge rejected the Respondent's attempt to establish which documents Marren's supervisor considered in preparing Marren's appraisal. The Judge found that "in evaluating or presenting a grievance, the Union need not be limited to second-guessing [Marren's supervisor's] review of the documents he considered or said he considered." Id. The Judge found that "[t]he Union should be free to argue that [Marren's supervisor] unfairly ignored documents in the files that would have placed Marren in a relatively more favorable light." Id. The Judge concluded that, as with the case of the performance appraisals, the Union needed only sanitized, cross-referenced information.

At the hearing before the Judge, there was a dispute over the contents of the requested supervisory work folders. The Respondent asserted that the only documents contained in the supervisory work folders were the employees' prior performance work plans. The Judge found that while there was no direct evidence supporting Marren's claim that the contents of the folders contained examples of employees' work performance, documentation of written complaints or commendations, and informal notes about employees' activities, Marren's position was supported by the Immigration and Naturalization Service Administrative Manual (INS Manual). Section 2230.12 c. of the INS Manual provides:

Supervisory Work Folder. Rating officials are entitled to maintain a work folder on each employee at the work site for the purpose of documenting employee performance, any discussions relating to performance, and to retain other data that can be considered performance-related. Examples of documents/records rating officials are authorized to retain include informal notes or comments concerning employee performance, production/activities/work records or reports, work samples, and quality control records or similar records used to track employee performance during the rating period.

Id. at 6.

The Judge stated that he did not need to "resolve the dispute regarding the contents" of the supervisory work folders "in order to determine that the kinds of documents the retention of which is sanctioned by the [INS] Manual . . . are necessary for the Union's investigation." Id. at 10-11. The Judge found that they were "necessary for the same reason as the documents in the Employee Performance Files [were]." Id. at 11. The Judge's conclusion "applie[d] to copies of any documents of the kinds described in the [INS] Manual that [were] actually maintained in the Supervisory Work Folders (sanitized but cross-referenced) unless duplicative of other furnished documents." Id.

The Judge found that the requested documents described in paragraph 4, comprising each employee's written work product during the appraisal period, were relevant to the Union's inquiry into the fairness of the ratings. The Judge concluded that "it is hard to dispute the legitimate usefulness of the Union's opportunity to conduct its own review of the appraisal process, using the same raw materials as the supervisor used." Id. Again, the Judge concluded that sanitized documents would be adequate so long as there was a cross-reference linking the work product to the other requested documents.

The Judge stated that because sanitized copies were sufficient for the Union's needs, he had "difficulty in appreciating how there [was] any substantial privacy interest involved here at all." Id. Nevertheless, the Judge noted that if there was a substantial privacy interest, "the Authority's approach has been to apply the balancing test required by the Privacy Act's exception for information required to be released under the Freedom of Information Act [FOIA]." Id. at 11-12.

The Judge found that the Union's need for the appraisals "to perform its representative obligations, coupled with the minimal intrusion on the privacy of other employees, precludes a finding that disclosure would constitute a clearly unwarranted invasion of their privacy." Id. at 12. In addition, the Judge concluded that disclosure "serve[s] two important public interests" by ensuring that the Government fairly follows its own merit promotion procedures and encouraging the use of nondisruptive grievance procedures. Id. Accordingly, the Judge concluded "that the appraisals fall within the Freedom of Information Act exception to the Privacy Act, 5 U.S.C. § 552a(b)(2)." Id.

The Judge further found that routine use exception of 5 U.S.C. § 552a(b)(3) was applicable and that the release of the appraisals was not prohibited by law. The Judge stated that the performance appraisals at issue were maintained as part of the INS Employee Performance Files. The Judge found that one of the routine uses prescribed by the Office of Personnel Management for records within this system was:

e. To disclose information to an arbitrator to resolve disputes under a negotiated grievance procedure or to officials of labor organizations recognized under 5 U.S.C. Chapter 71 when relevant and necessary to their duties of exclusive representation.

Id. at 13 (quoting 49 Fed. Reg. 36,949, 36,960 (1984)).

The Judge further rejected the Respondent's arguments that the requested data was not reasonably available and that production of the data was unduly burdensome. The Judge found that the record did not support the Respondent's contentions. The Judge noted that the Respondent conducted an experiment as to how much time and effort it would take to search for and retrieve form I-213's. The Judge found that the Respondent's experiment did not provide enough evidence to determine that the production of the data was "unduly burdensome." Id. at 14.

The Judge also determined that there was no factual showing or argument on which to base a conclusion that the Respondent maintained the completed forms as part of a "'system of records' (as defined in the Privacy Act) and therefore subject to the Act's restrictions on disclosure. 5 U.S.C. § 552a(a)(5) and (b)." Id. The Judge noted that even if the forms became part of a "'system of records,'" he was "not convinced that persons other than those to whom the files pertain have a cognizable interest under the Privacy Act." Id. at n.9 (citation omitted).

The Judge also considered whether there was any nonstatutory privacy interest of persons mentioned in the I-213's, or any related issue of confidentiality. The Judge concluded "that no unwarranted invasion of privacy would result from disclosure to the Union." Id. at 15. The Judge asserted that because the forms would "probably be" read by Marren or the other border patrol agents who prepare them, there would be "no substantial additional risk of leakage of any sensitive information." Id. The Judge concluded that the Respondent had not established any legal requirement that it sanitize the I-213's as to information about individuals who were not employees. The Judge concluded that the Respondent had "not made its case that furnishing the data would be unduly burdensome," and found "that the data [was] 'reasonably available' within the meaning of section 7114(b)(4)(B)." Id.

Before the Judge, the Respondent argued that Marren's request for the information was not made in good faith. The Respondent argued that Marren's request was "personally motivated by animosity toward the Immigration and Naturalization Service." Id. The Judge found that the Respondent had not established that the request was made in bad faith. He found that none of the Respondent's evidence "provides a convincing basis for negating Marren's representation that the particular data request at issue here was intended for the purpose of investigating a potential grievance." Id. at 15-16.

Finally, the Judge found that the Respondent committed an unfair labor practice by unreasonably delaying the processing of the Union's request. The Judge stated that an unwarranted delay in responding to a legitimate data request violates that aspect of the duty to negotiate in good faith described in section 7114(b)(4) of the Statute. The Judge concluded that the Respondent's "failure to respond to the Union's August 2 request until September 13 was unwarranted in view of the fact that it had already taken two months to respond to the May 18 request, of which the August 2 request was only a slight modification." Id. at 16. The Judge concluded that the Respondent "did not need an additional 42 days to ascertain what its response would be. Greater diligence in fulfilling bargaining obligations is required by section 7114(b), and the [Respondent's] failure to exercise it further violated section 7116(a)(5)." Id.

IV. Respondent's Exceptions

A. Whether the Requested Information Was Necessary

The Respondent excepts to the Judge's conclusion that the requested information was necessary, within the meaning of section 7114(b)(4) of the Statute, for the Union to carry out its representational functions in determining whether to grieve Marren's performance appraisal.

The Respondent argues that the information which was actually necessary within the meaning of section 7114(b)(4) was limited to documents concerning Marren's own performance. According to the Respondent, "the law forbids the comparison of an employee's performance with the performance of his or her coworkers, and instead requires a comparison of each employee's performance against his or her own pre-established standards." Exceptions at 16. The Respondent asserts that "either an employee's appraisal is accurate or it is not." Id. at 18. According to the Respondent, "[i]f it is not accurate, this can and must be demonstrated without reference to the performance and the appraisals of others." Id. (emphasis deleted).

Further, the Respondent argues that the Judge erred in ruling that the requested information was necessary "to determine whether there was 'disparate treatment.'" Id. at 28. The Respondent asserts that a comparison of performance "would simply not be relevant in any grievance contesting the accuracy of a performance appraisal." Id. at 16-17. The Respondent maintains that "[r]egardless of what was contained in the requested documents, the information could not have helped the Union determine whether there was a basis for Marren to grieve his appraisal." Id. at 19.

The Respondent also asserts that because Marren already had a copy of his performance appraisal, and was given the opportunity to review and make copies of relevant portions of his work product as well as those of his coworkers, the Respondent "satisfied the requirement to provide him with 'necessary' information." Id. at 29.

The Respondent further argues that, even assuming that disparate treatment could have been raised by Marren, the information submitted or offered by the Respondent would have been sufficient to establish that Marren "was not treated disparately." Id. at 31 (emphasis deleted).

B. Whether the Judge Erred by Precluding the Introduction of Testimony

The Respondent contends that the Judge erred by precluding the Respondent from introducing evidence that would have proven that much of the requested information was not necessary. The Respondent argues that the Judge rejected testimony by Marren's supervisor that "would have shown that much of what the Union requested was beyond the scope of [the materials used for the appraisal]." Id. at 32.

C. Whether the Judge Erred in Not Admitting Evidence

The Respondent argues that the Judge erred in not admitting statistical evidence concerning Marren's pattern of harassing the Respondent with "frivolous ULP's, grievances, and information requests." Id. at 35 (emphasis deleted). The Respondent asserts that "the pattern of continued harassment of the [Respondent] simply serves to confirm the obvious bad faith nature of the information request in this case." Id. at 36. According to the Respondent, because Marren's request for information was made in bad faith, it had "no obligation to respond to the request even to the extent of indicating that it would not do so." Id. at 38.

D. Whether the Respondent Satisfied Its Obligation to Timely Respond to the Request

The Respondent also disagrees with the Judge's determination that it committed an unfair labor practice by waiting until September 13, 1988, to respond to Marren's letter of August 2. The Respondent contends that its "earlier letter of July 26, satisfied the [Respondent's] obligation to respond to the request." Id. at 39. Additionally, the Respondent argues that, in the alternative, if the Authority were to rule that proof of bad faith would not be a defense to a valid information request, "it is very probative evidence of the lack of necessity for the information." Id.

E. Whether the Judge Erred in Determining the Request Was Not Burdensome

The Respondent contends that "the request [for information] was so burdensome that release was not required under [section] 7114(b)(4) regardless of how relevant the information was." Id. at 40. The Respondent claims that the request was burdensome because the request would require the retrieval of between 5,000 and 6,000 documents maintained at the Respondent's substation, sector, or regional office. The Respondent argues that not only does the Respondent have the burden to produce the documents, it also has to copy and send the documents from wherever they were maintained to the Fabens Substation so that Marren could obtain them.

The Respondent claims that although the Union amended its request to accept coded information, "the necessity of redacting it with respect to the names of Marren's coworkers was still relevant in terms of determining how burdensome the request was." Id. at 44. The Respondent argues that although "it may not have been terribly burdensome to redact the appraisals themselves, it would have been terribly burdensome to redact the accompanying work product[.]" Id.

F. Whether Disclosure of the Requested Information Is Inconsistent with the Privacy Act

The Respondent also argues that in determining whether the requested information "must be sanitized because of the Privacy Act, the interest of the union must be equated with that of the general public, that is in whether the agency was properly appraising employee performance." Id. at 48. The Respondent claims that the "interest of Marren's coworkers in maintaining the privacy of their performance appraisals outweighs the public's general interest in knowing whether the [Respondent] is accurately appraising employee performance." Id.

Furthermore, the Respondent asserts that some of the requested data contains private and sensitive information about aliens and citizens and includes criminal records and social security numbers. The Respondent contends that the Judge is wrong that information can be released "if the privacy sensitive information happens to be about somebody other than the person whose name or identifier is how the file is retrieved[.]" Id. at 51. The Respondent argues that "the privacy exemption from the disclosure requirements of FOIA, § 552(b)(6), covers all information which applies to a particular individual, regardless of the type of file in which the information is contained." Id. (citation omitted).

The Respondent also asserts that the requested records concerning aliens are maintained for law enforcement purposes and are exempted from the disclosure requirements of 5 U.S.C. §§ 552(b)(7) and 552a(j)(2) and (k)(2). The Respondent contends that section 7114(b)(4) of the Statute cannot take away the government's discretion "in determining whether to release this type of information." Id. at 52. Citing United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), the Respondent argues that "the government does not actually have discretion, and that it could not release the information compiled in law enforcement records even if it wished to." Id. at 53 (emphasis deleted).

V. Analysis and Conclusions

The issues in this case are whether the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing and refusing to furnish the Union with requested information that it needed to determine whether to file a grievance and whether the Respondent violated section 7116(a)(1) and (5) of the Statute by unreasonably delaying the processing of the Union's request for the information. For the following reasons, we conclude that the Respondent committed the unfair labor practices as alleged.

A. The Respondent Failed to Furnish the Union with Requested Information That It Needed to Determine Whether to File a Grievance

In U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310 (1990) (Border Patrol I) and Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 40 FLRA 792 (Border Patrol II), motion for reconsideration denied, 41 FLRA 259 (1991), which involved the same type of information request made by the same individual as in this case, but covering different time periods, the Authority found that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to provide the requested information.

The Respondent raises two of the same exceptions in this case that it argued in Border Patrol I. In Border Patrol I, the Respondent argued, among other things, that the requested information was not necessary or reasonably available. For the same reasons stated by the Authority in Border Patrol I, we reject those exceptions in this case and adopt the Judge's findings and conclusions.

The Respondent argues that because it provided the Union with an unsolicited sanitized list of performance ratings and allowed the Union an opportunity to review and make copies of part of the requested information, it satisfied its obligation to provide the Union with necessary information. We find that all of the requested information was necessary within the meaning of section 7114(b)(4) of the Statute for the Union to determine whether the Respondent had engaged in disparate treatment and whether the Union should file a grievance. The Respondent has not established that, by providing the Union with unrequested information and the opportunity to make copies of part of the requested information, it satisfied its obligation under section 7114(b)(4) to provide information that was necessary for the Union to carry out its representational responsibilities under the Statute. Therefore, in agreement with the Judge, we find that the Respondent was required to provide all of the requested information in order to satisfy its obligation under section 7114(b)(4) of the Statute. See, for example, Border Patrol I; Border Patrol II.

Furthermore, we find, for the reasons stated by the Judge in this case and by the Authority in Border Patrol I and consistent with the Union's position that it does not object to sanitized data, that the requested information may be sanitized as to employees' names. We also find, for the reasons found by the Authority in Border Patrol II, that the sanitization of the names of aliens and citizens named in certain requested documents that are subject to 5 U.S.C. § 552(b)(7)(C) would be proper. Accordingly, we conclude, as found in Border Patrol I and Border Patrol II, that the release of the requested information in a sanitized form will safeguard against the invasion of the privacy of employees, citizens, and aliens named in the requested data. Inasmuch as the Judge only ordered that the requested information be sanitized as to employees' names, we will modify the Judge's order to also provide that the requested information be sanitized as to the names of aliens and citizens who are not employees.

Additionally, the Respondent raises issues in its exceptions in this case not raised or addressed in Border Patrol I and Border Patrol II. We will consider those issues below.

B. The Judge's Rulings as to Testimony and Evidence Were Not Improper

The Respondent argues that the Judge erred by precluding the testimony of its witness concerning the necessity for all of the information requested by the Union. The Authority's Rules and Regulations "grant wide discretion to Administrative Law Judges to determine who may testify or participate in a hearing, as well as the extent of such participation." United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Houston District, 25 FLRA 843, 850 (1987), enforced as to other matters sub nom. National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990). The Respondent's argument presents no basis on which to conclude that the Judge abused his discretion in precluding the testimony of the Respondent's witness. See section 2423.16 of our Rules and Regulations, relating to the "Rights of parties" at hearings, and section 2423.19(h), concerning the "Duties and powers of the Administrative Law Judge" with respect to limiting the lines of questioning or testimony.

Further, the Respondent argues that the Judge erred by not admitting statistical evidence concerning unfair labor practices, grievances, and information requests filed by the Union that would have shown that the Union's request for information was made in bad faith. The Respondent claims that the Union's bad faith request relieved the Respondent of an obligation to respond to the request. We find no basis for reversing the Judge's decision. The Judge concluded that the information requested by the Union was necessary for evaluating or presenting its grievance and that "[n]one of [the] admitted or rejected evidence provides a convincing basis for negating [the Union's] representation that the particular data request at issue here was intended for the purpose of investigating a potential grievance." Judge's Decision at 15-16. Therefore, the Judge concluded that the Respondent had not established that the request was made in bad faith. Whether additional evidence or arguments should be allowed in a record is within the discretion of the Administrative Law Judge under section 2423.19(g) of the Authority's Rules and Regulations. The Respondent has not established that the Judge abused his discretion by excluding evidence that the Judge found was immaterial or irrelevant. See section 2423.17 relating to "Rules of evidence." Therefore, there is no basis on which to sustain the Respondent's exception that the Judge erred by not admitting statistical evidence.

C. The Respondent Failed to Make a Timely Reply to the Union's Request for Data

The Judge found that the Respondent's "failure to respond to the Union's August 2 request until September 13 was unwarranted in view of the fact that it had already taken two months to respond to the May 18 request, of which the August 2 request was only a slight modification." Judge's Decision at 16. The Judge stated that "[g]reater diligence in fulfilling bargaining obligations is required by section 7114(b), and the [Respondent's] failure to exercise it further violated section 7116(a)(5)" of the Statute. Id. We agree with the Judge, for the reasons he stated, that the Respondent violated section 7116(a)(5) of the Statute by failing to respond timely to the Union's request for information. See Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Region, 19 FLRA 790, 791 (1985) (DODDS), remanded as to other matters sub nom. North Germany Area Council, Overseas Education Association v. FLRA, 805 F.2d 1044 (D.C. Cir. 1986), decision on remand, 28 FLRA 202 (1987) (respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing to provide requested information for over 2 months). The complaint also alleged that the Respondent's failure to respond timely to the Union's request for information violated section 7116(a)(1) of the Statute. As alleged in the complaint and consistent with DODDS, we find that the Respondent's failure to respond timely to the Union's request for information also violated section 7116(a)(1) of the Statute.

VI. Summary

The information requested by the Union is normally maintained by the Respondent in the regular course of business; is reasonably available and necessary for the Union to determine whether to fulfill its representational responsibilities; and does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining. Therefore, we find, in agreement with the Judge, that the Respondent was required, by section 7114(b)(4) of the Statute, to supply the requested information to the Union and its failure to do so violated section 7116(a)(1), (5), and (8) of the Statute, as alleged. We also find that the Respondent violated section 7116(a)(1) and (5) of the Statute by its failure to make a timely reply to the request for data. Accordingly, we will direct the Respondent to cease and desist from its violations of the Statute and to supply the requested data, in a sanitized and correlated form.

VII. Remedy

We modify the Judge's Order to require that the Respondent provide to the Union sanitized copies of the requested data as it relates to individuals who are not employees. See Border Patrol II. Because sanitized copies of the requested data would satisfy the Union's request, it is unnecessary to decide, in this case, whether disclosure of unsanitized information would be prohibited by law within the meaning of section 7114(b)(4). See Border Patrol I.^(*)

VIII. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, the exclusive representative of its nonprofessional employees assigned to the Border Patrol Sectors, the available copies of the data requested in the Union's letter dated May 18, 1988, as clarified in a letter dated August 2, 1988, for the purpose of enabling the Union to perform its representational duties relating to the evaluation and processing of a grievance.

(b) Failing to respond timely to a request for information from the American Federation of Government Employees, AFL-CIO, National Border Patrol Council.

(c) In any like or related manner interfering with, restraining or coercing its employees in the exercise of the 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 American Federation of Government Employees, AFL-CIO, National Border Patrol Council, the available copies of the data requested in the Union's letter dated May 18, 1988, as clarified in a letter dated August 2, 1988, for the purpose of enabling the Union to perform its representational duties relating to the evaluation and processing of a grievance. The data may be sanitized as necessary under the Privacy Act, 5 U.S.C. § 552a, to protect the privacy of individuals who are not employees.

(b) Respond without unreasonable delay to requests for information made by the American Federation of Government Employees, AFL-CIO, National Border Patrol Council.

(c) Post at its Fabens and El Paso, Texas, facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Regional Commissioner, 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) Pursuant to section 2423.30 of the Authority's

Rules and Regulations, notify the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to furnish the American Federation

of Government Employees, AFL-CIO, National Border Patrol Council, the exclusive representative of our nonprofessional employees assigned to the Border Patrol Sectors, the available copies of the data requested in the Union's letter dated May 18, 1988, as clarified in a letter dated August 2, 1988, for the purpose of enabling the Union to perform its representational duties relating to the evaluation and processing of a grievance.

WE WILL NOT fail to respond timely to a request for information made by the American Federation of Government Employees, AFL-CIO, National Border Patrol Council.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL upon request, furnish to the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, the available copies of the data requested in the Union's letter dated May 18, 1988, as clarified in a letter dated August 2, 1988, for the purpose of enabling the Union to perform its representational duties relating to the evaluation and processing of a grievance. The data may be sanitized as necessary under the Privacy Act, 5 U.S.C. § 552a, to protect the privacy of individuals who are not employees.

WE WILL respond without unreasonable delay to requests for information made by the American Federation of Government Employees, AFL-CIO, National Border Patrol Council.

________________________
(Activity)

Dated:________ By:_______________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, whose address is: 525 Griffin Street, Suite 926, LB 107, Dallas, Texas 75202 and whose telephone number is: (214) 767-4996.

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

*/ As noted in Border Patrol II, 40 FLRA at 262 n.*, Marren is no longer employed by the Respondent. We find in this case, as we did in Border Patrol II, that this fact does not render moot the Union's need for the information. We find that the requested information, although specifically related to Marren, is necessary for the Union to fulfill the full range of its obligations as exclusive bargaining representative. Therefore, we find that the remedy imposed in this case remains appropriate. However, in the compliance stage of this proceeding the parties are free to reach an agreed-upon accommodation regarding the provision of the data in view of the fact that the potential grievant no longer is an employee.

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