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45:1355(135)CA - - Justice, Office of the Inspector General, Washington, DC and INS, Border Patrol, El Paso, TX and AFGE, National Border Patrol Council - - 1992 FLRAdec CA - - v45 p1355

Other Files: 

[ v45 p1355 ]
The decision of the Authority follows:

45 FLRA No. 135














(Charging Party/Union)




September 30, 1992


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 Respondent Immigration and Naturalization Service (INS) to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondent's exceptions. The Respondent filed a motion to strike certain portions of the General Counsel's opposition and the General Counsel filed a response to the Respondent's motion.(1)

The complaint alleges that the Respondents violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to furnish the Union with information requested under section 7114(b)(4) of the Statute. The Judge found that Respondent INS violated the Statute by failing and refusing to request that the appropriate components of the Department of Justice (DOJ) make available to the Union the requested information. The Judge dismissed the complaint against Respondent Office of Inspector General (OIG).(2)

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. For the reasons which follow, we conclude, contrary to the Judge, that Respondent INS did not violate section 7115(a)(1), (5), and (8) of the Statute.

II. Background

The facts, which are fully set forth in the Judge's decision, are summarized here.

In December 1989, Robert J. Marren, a Field Service Coordinator for the Union, requested Respondent INS to furnish him with: (1) a copy of an investigative file concerning his allegations that he had been assaulted by a coworker; (2) copies of other investigative files involving incidents of agency employees assaulting other agency employees during the past two years; and (3) copies of investigative files concerning allegations Marren had made against three management officials. In January 1990, Marren requested Respondent INS to furnish a copy of an additional investigative file pertaining to allegations made by another Union officer against a management official.

Respondent INS advised Marren that his requests for information had been forwarded to OIG. On February 8, 1990, OIG informed Marren that it had received his requests for information under the Freedom of Information Act and intended to respond to the request as quickly as possible. There was no further communication from OIG or Respondent INS and no information was provided to the Union.

III. Judge's Decision

The Judge found that the requested information was in the custody of Respondent OIG and the Office of Professional Responsibility (OPR). The Judge found that where allegations such as those involved in the requested documents were investigated and were not substantiated, "no information" about the investigation was "made available to INS or anybody else." Judge's Decision at 13. However, the Judge found that when allegations were substantiated, "the investigators' [r]eport, sometimes with attachments, is furnished routinely to INS." Id.

The Judge found that none of the requested files involved substantiated allegations. Nevertheless, the Judge concluded that the documents were normally maintained by, or reasonably available to, Respondent INS because "INS could effectively request OPR or OIG . . . to furnish the documents covered by the request[.]" Id. With respect to documents concerning unsubstantiated allegations, the Judge stated that although testimony indicated that "they are never made available under any circumstances, no law or regulation [was] proferred as the reason for such a stance." Id. at 14.

The Judge also concluded that the requested information was necessary for the Union to determine whether there was "a double standard as between union officials and others in misconduct investigations/discipline." Id. at 13. Finally, the Judge determined that the requested information did not constitute guidance, advice, or counsel relating to collective bargaining and was not barred from disclosure by law because it could be sanitized to protect the identity of complainants and witnesses.

Based on the foregoing, the Judge found that Respondent INS failed to comply with section 7114(b)(4) of the Statute by "failing and refusing to request that the appropriate DOJ components, i.e. OIG and OPR make available to the Union the data it requested." Id. at 14 (footnote omitted).

IV. Respondent's Exceptions

Respondent INS argues, among other things, that the Judge erred in finding that "[it] violated the Statute by not requesting the appropriate DOJ component to supply the requested data." Exceptions at 17 (emphasis omitted). Respondent INS contends that the Judge's conclusion is inconsistent with the Judge's factual finding that "INS did, in fact, forward the request to OIG on January 12, 1990[.]" Id. at 18 (emphasis omitted). Respondent INS also argues that a violation of the statute based on a failure to request that the information be made available was not alleged in the charge or the complaint and was not litigated at the hearing. Therefore, Respondent INS contends that the Judge's finding must be set aside.

V. General Counsel's Opposition

The General Counsel contends that the Judge's finding that Respondent INS violated the Statute is supported by the evidence. The General Counsel argues that Respondent INS "failed and refused to take the necessary steps to obtain the data for the Union, i.e. request its co-components . . . to make it available to the Union." Opposition at 3. According to the General Counsel, the fact that Respondent OIG treated the request as a Freedom of Information Act request "shows that INS failed to communicate the nature of the request and the obligations the DOJ component had with respect to its response." Id. at 3-4 (footnote omitted).

VI. Analysis and Conclusions

We disagree with the Judge's conclusion that Respondent INS committed an unfair labor practice by failing to comply with section 7114(b)(4) of the Statute.

First we conclude that the requested information was not normally maintained by, or reasonably available to, Respondent INS. In determining whether information is "normally maintained" by an agency the Authority examines whether the information is within the control of the agency. The physical location of requested information is not relevant, provided the information is subject to the agency's control or can be retrieved and provided to the agency at its request. See U.S. Department of Transportation, Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191, 197 (1991).

In this case, there is no question that Respondent INS does not control access to OIG files. Moreover, there also is no question that the requested information involved unsubstantiated allegations and that OIG files involving such allegations are not available to Respondent "INS or anybody else." Judge Decision at 13. In view of these undisputed findings, we conclude that the requested information is not normally maintained by, or reasonably available to, Respondent INS. In this regard, we reject as unsupported the Judge's apparent finding that, even though Respondent INS did not have control over or access to the requested information, it could be found to be within the Respondent's control because the Respondent failed to cite a law or regulation prohibiting such control or access.

Second, Respondent INS referred the Union's information request to the OIG for disposition and sent a letter to Marren notifying him of the referral. In particular, the letter notified Marren that "[t]he custodian of [the requested information] remains the Office of the Inspector General." G.C. Exh. 8. In our view, by notifying Marren that OIG was in custody of the requested information, Respondent INS effectively informed Marren that it was not in possession of the information. Compare Social Security Administration, Baltimore, Maryland and Social Security Administration, Area II, Boston Region, Boston, Massachusetts, 39 FLRA 650, 656 (1991) (respondent violated the Statute by failing to inform union that it did not maintain requested information).

As the requested information is not normally maintained by, or reasonably available to, Respondent INS, we find that the Respondent did not violate the Statute by failing to furnish the Union with the requested information. Moreover, in view of the Respondent's actions in forwarding the Union's request to OIG and so informing the Union, as well as the fact that Respondent INS had no control over the information and no effective means of gaining access to it, we reject the Judge's conclusion that Respondent INS violated the Statute by failing to request OIG to provide the Union the requested information. Accordingly, without addressing the other arguments raised by Respondent INS, we will dismiss the complaint.

VII. Order

The complaint is dismissed.


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

1. We conclude that Respondent's motion, claiming that portions of the General Counsel's opposition fail to conform to the Authority's Rules and Regulations, constitutes a response to the opposition. As the Authority's regulations do not provide for the filing of such response, neither it, nor the General Counsel's reply to it, has been considered.

2.  The Judge dismissed Respondent OIG as a party to the case because it was not charged and served with the charge or complaint. As no exceptions were filed to the dismissal, we will also dismiss this complaint as to Respondent OIG.