46:0381(33)CA - - Justice, INS, El Paso, TX and AFGE, National Border Patrol Council - - 1992 FLRAdec CA - - v46 p381

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[ v46 p381 ]
The decision of the Authority follows:

46 FLRA No. 33












(Charging Party/Union)



October 28, 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 the General Counsel to the attached decision of the Administrative Law Judge. The Respondent did not file an opposition to the exceptions.

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 failing and refusing to furnish information requested by the Union pursuant to section 7114(b)(4) of the Statute. The Judge also concluded that the appropriate remedy for the violation is a cease and desist order. Therefore, his recommended Order does not direct the production of the requested information.

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. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions, except as discussed below, and the Judge's recommended Order.(*/)

Although we agree with the Judge that, in the circumstances of this case, the remedy should not include an order directing the production of the requested information, we disagree with his conclusion that F.E. Warren Air Force Base, Cheyenne, Wyoming, 44 FLRA 452 (1992) (F.E. Warren), signaled a change in Authority precedent in this area. In F.E. Warren, the Authority found that the respondent had violated the Statute by not releasing a requested report to the union. Nonetheless, the Authority concluded that the remedy should not require the production of the report, which pertained to alleged misconduct by one employee, because that individual was no longer an employee and had "disappeared" and because the report "could not have been used to otherwise further the Union's representational duties." 44 FLRA at 460. In reaching this conclusion, the Authority relied on two cases in which production of requested information was not ordered. In both of those cases, the charging party was no longer seeking the release of the information. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Detroit District, Detroit, Michigan, 43 FLRA 1378, 1388, 1391 (1992) (Authority adopted judge's decision, which found that the union acknowledged it no longer had a need for the information); U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241 (1991) (Authority noted that neither the General Counsel nor the charging party had expressed an interest in obtaining the requested information).

In contrast, the Authority will order the production of requested documents to remedy a failure to supply information pursuant to section 7114(b)(4) of the Statute, even if the grievant on whose behalf the request was originally made is no longer an employee, where the information remains necessary for the Union to fulfill the full range of its obligations as exclusive bargaining representative. See Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 43 FLRA 697, 711 n.* (1991) (INS II), petition for review filed, No. 92-4149 (5th Cir. Feb. 13, 1992); Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 41 FLRA 259, 262 (1991) (INS I), denying reconsideration to 40 FLRA 792 (1991). Nothing in F.E. Warren affected the Authority's remedial policy that production should be ordered where receipt of the requested information will enable the union to further its representational interests.

In this case, the Union requested various documents to determine whether to file a grievance alleging that the Respondent had supplied Texas authorities with information regarding an employee's ability to operate a motor vehicle. That individual is no longer employed by the Respondent. Unlike INS I and II, which involved, respectively, potential grievances over whether the respondent had discriminated against the former employee in his Officer Corps rating and his yearly performance appraisal, matters of continuing interest to the entire bargaining unit, this case concerns information that, like the report at issue in F.E. Warren, had significance only for the one individual affected by the Respondent's alleged conduct. As the employee is no longer part of the bargaining unit, the Union no longer has a representational interest in possessing the requested documents. Accordingly, we agree with the Judge's determination that, in the circumstances of this case, a cease and desist order is sufficient.

II. Order