48:0391(35)CA - - U.S. Border Patrol, Tucson Sector, Tucson, AZ and National Border Patrol Council, AFGE, Local 2544, AFL-CIO - - 1993 FLRAdec CA - - v48 p391

[ v48 p391 ]
The decision of the Authority follows:

48 FLRA No. 35











(Charging Party/Union)


(47 FLRA 684 (1993))




August 27, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the General Counsel's motion for reconsideration of our decision in 47 FLRA 684 (1993). The Respondent filed a response to the motion and the General Counsel filed a motion to strike the Respondent's response.(1)

For the reasons discussed below, we grant the General Counsel's motion and we will remand the case to the Regional Director for further processing.

II. Background

This unfair labor practice case was transferred to the Authority by the Regional Director pursuant to a stipulation of facts under section 2429.1(a) of the Authority's Rules and Regulations. The complaint alleges 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 under section 7114(b)(4) of the Statute.

III. Our Decision in 47 FLRA 684

As is discussed in more detail in 47 FLRA 684, the Respondent proposed to suspend a unit employee for 90 days for failing to comply with Immigration and Naturalization Service policies and for conduct unbecoming an officer. After consideration of the Union's written reply, the Respondent decided to suspend the employee for 30 days. The Union timely invoked arbitration over the 30-day suspension under the parties' collective bargaining agreement. Subsequently, the Union requested the Respondent to provide the following information:

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.

47 FLRA at 685 (quoting Stip., Exh. 7 (emphasis omitted)).

The Respondent provided the Union with one final decision letter regarding a 60-day suspension issued to a different employee. The Union then requested a copy of the proposal letter which preceded that final decision letter. The Respondent denied the Union's request on the grounds that "'this type of proposal letter is not relevant to arbitration or other third party review.'" Id. (quoting Stip., Exh. 13).(2)

Our decision addressed only this one proposal letter. We noted that:

There is no contention that any documents other than this one disputed proposal letter are involved here. In this regard, the Respondent asserts, and the General Counsel does not dispute, that '[t]he sole issue in this case is the relevance of a proposal letter . . . .' Respondent's Brief at 1.

Id. at n.2.

We concluded that the requested proposal letter was necessary, within the meaning of section 7114(b)(4), to enable the Union to prepare for the grievant's arbitration hearing. Therefore, we found that the Respondent was required to supply the proposal letter to the Union and its failure to do so violated section 7116(a)(1), (5) and (8) of the Statute.

VI. General Counsel's Motion for Reconsideration and Respondent's Response

The General Counsel asserts that reconsideration of the decision in 47 FLRA 684 is warranted because the Authority limited its decision in the case to a single proposed disciplinary letter and "inadvertently failed to address the main issues in this case, which . . . concern the Union's attempt to obtain data covering the entire Western Region of the United States Border Patrol . . . ." Motion at 2. The General Counsel notes the parties' stipulation that the Union requested "all proposal and final decision letters . . . for the past five years, within the Western Region." Id. (emphasis in original). The General Counsel contends that the Respondent's brief "mischaracterized the issues in this case" and that the Respondent's arguments are "inconsistent with the Complaint, Stipulation of Facts, Exhibits and Counsel for the General Counsel's Brief to the Authority." Id.

The Respondent argues that the General Counsel's motion for reconsideration should be denied because the Authority correctly determined the issue in the case. The Respondent maintains that "[t]he intent of both parties was to limit the issue to whether a particular proposal letter had to be released." Response at 1 (emphasis omitted).

V. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations provides that a party that can establish "extraordinary circumstances" may move for reconsideration of an Authority decision. We find that the General Counsel has established extraordinary circumstances in this case.

In 47 FLRA 684, we found that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the Union with certain information requested under section 7114(b)(4). We relied on the parties' stipulation of facts, exhibits, and briefs to conclude that only one proposal letter was at issue in the case. It is now apparent, from the General Counsel's motion for reconsideration and the Respondent's response thereto, that the parties disagree over the scope of the Union's information request and the issues to be resolved in this case.

Determining whether the Respondent violated the Statute in this case requires resolution of such issues as whether the requested information is necessary, within the meaning of section 7114(b)(4). Resolution of this issue, in turn, depends on, among other things, what information the Respondent is charged with unlawfully failing to provide to the Union. The parties' stipul