United States, Department of Justice, Immigration and Naturalization, Service. Western Regional Office, Labor Management Relations, Laguna Niguel, California and United States, Department of Justice, Immigration and Naturalization Service U.S. Border Patrol, Tucson Sector, Tucson, Arizona (Respondents) and American Federation of Government Employees, National Border Patrol Council, Local 2544, AFL-CIO (Charging Party)

[ v58 p656 ]

58 FLRA No. 165

UNITED STATES
DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION
SERVICE. WESTERN REGIONAL OFFICE
LABOR MANAGEMENT RELATIONS
LAGUNA NIGUEL, CALIFORNIA

and

UNITED STATES
DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION
SERVICE U.S. BORDER PATROL
TUCSON SECTOR
TUCSON, ARIZONA
(Respondents) [n1] 

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
NATIONAL BORDER PATROL COUNCIL
LOCAL 2544, AFL-CIO
(Charging Party)

DE-CA-01-0497
DE-CA-01-0498

_____

DECISION AND ORDER

July 14, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n2] 

I.      Statement of the Case

      This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondents. The General Counsel (GC) filed an opposition and a cross-exception, to which the Respondents did not file an opposition.

      The amended, consolidated complaint alleges that the Respondents violated § 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish the Union with certain data. The Judge found that the Respondents violated the Statute with regard to certain items, but not others.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision. We set aside the portion of the Judge's Order directing that the Respondents respond in writing within ten days of data requests and conduct meetings or phone conferences with the Union when the requests are denied. Further, we direct that, to the extent that the arbitration proceeding regarding the employee's removal is not yet final, Respondent Tucson Sector (Respondent Sector) will permit the Union, within ten days after receiving the data, to reply in writing to the data and to request that the Arbitrator suspend the arbitration proceeding and consider the Union's written reply.

II.     Background and Judge's Decision

      The facts are set forth fully in the Judge's decision and are only briefly summarized here.

      In response to the proposed removal of an employee, the Union requested several categories of data from Respondent Sector, including items 1, 6, 7, and 9. Respondent Sector denied the Union's request with regard to items 1 and 7, and forwarded the request regarding items 6 and 9 to Respondent Western Region (Respondent Region). Respondent Region told the Union that it would respond after it considered whether it had any anti-disclosure interests, but did not respond further.

      The Union filed two charges alleging that Respondent Sector violated the Statute by (1) failing to furnish items 1 and 7 and (2) failing to "respond appropriately to items 6 and 9." GC Ex. 1(a). Later, the Union amended the second charge to name Respondent Region as the charged party with regard to items 6 and 9. On the same day, the GC issued a consolidated complaint naming both Respondent Region and Respondent Sector as Respondents with regard to all of the items, and identifying an individual (Aguilar) as the responsible Respondent Sector agent.

      At the hearing, the Judge granted the GC's pre-hearing motion to amend the complaint to clarify that Respondent Sector refused to furnish items 1 and 7, Respondent Region refused to furnish items 6 and 9, and [ v58 p657 ] a different individual (Pyeatt) was the responsible Respondent Region agent. In addition, the Judge ruled that he would not consider defenses that the data was not reasonably available or normally maintained in the regular course of business, because the Respondents failed to raise those arguments to the Union at or near the time of the Union's request.

      The Judge found that the Union had established particularized need for items 1 and 7, and that Respondent Sector violated the Statute by failing to furnish those items. Further, the Judge found that the Union had established particularized need for item 6 and that Respondent Region violated the Statute by both failing to provide that item, and by failing to respond to the Union's request. Moreover, the Judge found that, although the Union had not established particularized need for item 9 and that Respondent Region thus did not violate the Statute by failing to provide that item, Respondent Region violated the Statute by failing to respond to the Union's request for that item.

      The Judge directed that, if Respondent Sector's deciding official had not yet made a determination regarding the employee's proposed discipline, then that official must consider any reply filed by the Union within ten work days of receiving the requested data, without raising a timeliness argument. In addition, the Judge considered the Respondents' actions in the instant case and previous cases, and he found that the Respondents follow a practice of "stonewalling" the Union. Judge's Decision at 32. Modifying a remedy from one of those previous cases, he directed the Respondents, within ten work days after receiving future data requests, to respond by specifically addressing certain issues in writing and to meet or conduct a phone conference with the Union, at the Union's request, in cases where the Respondents refuse to provide the data.

III.      Positions of the Parties

A.      Respondents' Exceptions

      The Respondents contend that the issuance of the complaint failed to comply with: 5 C.F.R. § 2423.9 and Article 2.H of the Unfair Labor Practice Case Handling Manual (ULP Manual) because the GC could not have received the amended charge prior to issuing the complaint; 5 C.F.R. § 2423.6(d) because Respondent Region was not served with a charge "prior to the issuance of the Complaint[;]" and 5 C.F.R. § 2423.8(a), and Articles 2H-4 and 2H-6 of the ULP Manual, because Respondent Region was not given an opportunity to respond to the amended charge prior to issuance of the complaint. [n3]  Exceptions at 2.

      Further, the Respondents object to the Judge's decision to permit amendment of the complaint at the hearing. In this connection, the Respondents argue that the initial complaint discussed only Aguilar, a Respondent Sector agent, and only when the complaint was amended to name Pyeatt did the complaint list any actions taken by a Respondent Region agent. According to the Respondents, the amendment "created a new theory of violation . . . close to [the] hearing" and "prejudiced the ability of Respondent to present evidence/defenses and fully participate in the hearing." Id. at 6.

      In addition, the Respondents assert that the Judge erred by precluding Respondent Region from arguing that item 6 was not reasonably available or normally maintained in the regular course of business. [n4]  The Respondents contend that, although Respondent Region did not raise this argument at or near the time of the information request, doing so would have been futile.

      With respect to the merits, the Respondents argue that the Judge erred in finding particularized need for items 1 and 7. According to the Respondents, the Union did not need that data in order to argue, in another forum such as arbitration, that the Respondents' actions were improper. The Respondents cite United States DOJ, Fed. Bureau of Prisons, Fed. Corr. Inst., Forrest City, Ark., 57 FLRA 808, 813-14 (2002) (Forrest City) (Member Pope dissenting in pertinent part), petition for review withdrawn, No. 02-1239 (D.C. Cir. Feb. 24, 2003), and claim that United States Dep't of the Navy, Puget Sound Naval Shipyard, Bremerton, Wash., 38 FLRA 3, 6-7 (1990) (Puget Sound) -- relied on by the Judge -- is distinguishable from this case because the data requested there was specifically referenced in the management document that prompted the data request.

      [ v58 p658 ] Additionally, the Respondents claim that the Judge's particularized need findings effectively require them to perform legal research for the Union. The Respondents also claim that the Judge's decision puts them in a "catch 22" situation because it requires them to reveal whether they have authority for their actions, and that it requires them to "answer[] a query" rather than "respond[] to an information request." Resp't Exceptions at 8, 9. Moreover, according to the Respondents, the Judge stated that the Respondents spent more effort in denying the Union's request than in complying with it, and this statement indicates that the Judge is "less-th[a]n neutral" and suggests that the Respondents should "give in" to unreasonable information requests. Id. at 9.

      Finally, the Respondents claim that the Judge's direction that they respond within ten days of data requests, and meet or conduct phone conferences with the Union when they deny such requests, is unwarranted because the Respondents have prevailed in other cases and on some of the issues in the instant case.                                    

B.      GC's Opposition and Cross-Exception

      The GC argues that the Judge correctly found that it issued the amended charge and the complaint in compliance with 5 C.F.R. § 2423.9. The GC also argues that the Judge correctly precluded the Respondents from raising defenses, and that this was based not only on their failure to raise those defenses previously, but also on their failure to comply with the Judge's subpoenas. In addition, the GC argues that the Judge properly permitted amendment of the complaint because the Respondents had a full and fair opportunity to defend themselves at the hearing. The GC claims that the Judge properly evaluated items 1 and 7 and properly granted the challenged, nontraditional remedy.

      In the cross-exception, the GC states that Respondent Sector has decided to remove the employee, and that an arbitration hearing concerning the proposed removal was scheduled for November 2002. The GC requests that Respondent Sector "be directed to furnish the requested information for the Union's use at arbitration and, upon the Union's request (following its review of the information), allow the Union to seek postponement of the arbitration hearing to permit the use of such information at arbitration." GC Opp'n & Cross-Exception at 16.

V.      Analysis and Conclusions

A.     The alleged deficiencies in the issuance of the complaint against Respondent Region do not provide a basis for dismissing the complaint.

      The Respondents allege that the complaint was issued in a manner that violated three Regulations, specifically, 5 C.F.R. §§ § 2423.9, 2423.6(d) and 2423.8(a). [n5]  In order for procedural irregularities to provide a basis for dismissing a complaint, a respondent must show that it was prejudiced by those irregularities. See Dep't of the Army, Harry Diamond Labs., Adelphi, Md., 9 FLRA 575, 575 n.1 (1982). See also United States Penitentiary, Florence, Colo., 53 FLRA 1393, 1394, 1403 (1998) (adopting judge's decision); United States DOJ, Bureau of Prisons, Allenwood Fed. Prison Camp, Montgomery, Pa., 40 FLRA 449, 455 (1991), rev'd on other grounds sub nom. United States DOJ v. FLRA, 988 F.2d 1267 (D.C. Cir. 1993).

      The Respondents argue that the complaint was not issued in accordance with 5 C.F.R. § 2423.9, which provides that a charging party may amend the charge "[p]rior to the issuance of a complaint." The Judge determined that the charge was amended prior to the issuance of the complaint, as evidenced by the fact that the complaint "expressly refer[s] to the charge having already been amended." Judge's Decision at 12. As the Respondents provide no basis for finding that determination erroneous, we reject the Respondents' argument. [n6] 

      The Respondents also argue that the complaint was not issued in accordance with 5 C.F.R. § 2423.6(d) because Respondent Region was not served with a charge "prior to the issuance of the Complaint." Exceptions [ v58 p659 ] at 2. Section 2423.6(d) provides, in pertinent part, that the charging party "shall serve a copy of the charge" on the charged party, and that the Authority's Regional Office investigating the charge also "routinely serves a copy of the charge on the Charged Party[.]" Nothing in § 2423.6(d) requires that the charge be served prior to the complaint. Accordingly, we reject the Respondents' argument.

      With regard to 5 C.F.R. § 2423.8(a), that Regulation provides that "[d]uring the course of the investigation [of the charge], all parties involved are afforded an opportunity to present their evidence and views to the Regional Director." It is undisputed that Respondent Region did not have the opportunity to respond to the amended charge prior to issuance of the complaint. Thus, the Respondents have established that the GC did not follow the requirements of 5 C.F.R. § 2423.8(a).

      The Respondents do not explain how Respondent Region was prejudiced by the GC's failure to give Respondent Region an opportunity to respond prior to issuance of the complaint naming Respondent Region. Although Respondent Region was deprived of the opportunity to present evidence to the FLRA prior to being named in the amended charge, this in no way establishes that it was prejudiced by the fact that it fully presented its position after the issuance of the complaint, rather than before. In this connection, the Respondents do not assert that there is evidence or any other matter that Respondent Region would have introduced during the pre-complaint investigation that would have affected the course of the case. Thus, while we do not condone the GC's failure to follow the requirements of 5 C.F.R. § 2423.8(a), we find that Respondent Region was not prejudiced by that procedural irregularity.

B.     The Judge did not abuse his discretion by permitting amendment of the complaint.

      The Authority will reverse a judge's ruling on a motion to amend a complaint only where the judge abused his or her discretion. See Dep't of Transp., FAA, Fort Worth, Tex., 55 FLRA 951, 954 (1999). In resolving this issue, the Authority assesses whether the respondent had sufficient notice regarding the issue sought to be included in the complaint by the amendment, or whether the respondent was prejudiced by the amendment to the complaint. See id.

      The original complaint alleged that Respondent Region failed to furnish items 6 and 9, among other items. Consequently, the complaint put Respondent Region on notice that it would need to defend against its failure to furnish items 6 and 9. The amendment to the complaint, which was requested thirteen days before the hearing, narrowed the allegations to state that Respondent Region failed to furnish only items 6 and 9 and to add a responsible official, Pyeatt, from Respondent Region. As the Respondents were able to call Pyeatt as a witness and fully question him, see Tr. at 162-90, and do not in any way explain how they were prejudiced by the amendment narrowing the allegation against it, they have not demonstrated that the Judge abused his discretion by permitting that amendment.

C.     The Judge did nor err by declining to consider Respondent Region's defenses that item 6 was not reasonably available or normally maintained. [n7] 

      The Authority has held that an agency is responsible for raising, at or near the time of the union's data requests, any countervailing anti-disclosure interests. See Forrest City, 57 FLRA at 812.

      The Respondents argue that Respondent Region raised its anti-disclosure interests at the first reasonable opportunity, in its answer to the complaint. However, Respondent Region's first opportunity to raise those interests was not in the answer to the complaint, because it could have raised those interests at any time after receiving the data request. Instead, after informing the Union that it would consider whether it had anti-disclosure interests and respond further, Respondent Region waited more than three months before raising those interests in, and only in, its answer to the complaint. In these circumstances, we find that the Judge did not err by finding that Respondent Region failed to raise anti-disclosure interests at or near the time of the data request.

      In addition, we reject as unsupported the Respondents' argument that it would have been futile for Respondent Region to respond to the data request after the charge was filed against Respondent Sector. Instead, we find it reasonable to conclude that, if Respondent Region had articulated anti-disclosure interests to the Union, then the Union may have withdrawn the charge or the GC may have determined not to issue a complaint naming Respondent Region, thereby resolving the dispute. Further, as found by the Judge, the Union's need for the information continued after the filing of the charge against Respondent Sector because the action against the employee was going forward. [ v58 p660 ]

      In these circumstances, we conclude that the Judge did not err in finding that Respondent Region failed to timely raise anti-disclosure interests and thus could not rely on those interests in this case. [n8]  Therefore, we adopt the Judge's finding that the Respondent violated the Statute by failing to disclose item 6.

D.     The Union established particularized need for items 1 and 7.  [n9] 

      In order to demonstrate that requested information is "necessary" under § 7114(b)(4) of the Statute, a union "must establish a particularized need for the information by articulating, with specificity, why it needs the requested information, including the uses to which the union will put the information, and the connection between those uses and the union's representational responsibilities under the Statute." IRS, Wash., D.C., 50 FLRA 661, 669 (1995) (IRS). The union's responsibility for articulating its interests in the requested information requires more than a conclusory assertion and must permit an agency to make a reasoned judgment as to whether the disclosure of the information is required under the Statute. Id. at 670.

      In item 1, the Union requested the "statutory or regulatory basis" that permitted Respondent Sector to rescind two adverse actions and reissue a single, proposed removal. GC Ex. 5 at 1. The Union informed Respondent Sector that it needed the data to determine whether discipline of the employee was in accordance with the requested policies, and explained that it anticipated using the data in connection with its representational responsibilities under the Statute. In these circumstances, we conclude that, consistent with precedent, the Union established particularized need for item 1. See Forrest City, 57 FLRA at 812-13; United States Dep't of Justice, Wash., D.C., 46 FLRA 1526, 1534-35 (1993).

      In item 7, the Union requested "written policies and/or instructions in existence prior to October of 1998" that require employees to obtain supervisory permission before leaving their work areas. GC Ex. 5 at 3. The Union explained that it needed the information "in order to determine whether [the employee's] actions constitute a violation of policy or regulation[,]" and that it "anticipate[d] that this information will be used in the written and oral replies." Id. The Union also later elaborated that the employee was charged with failure to remain in his designated work area, the exact subject matter of the written policies and/or instructions it was seeking. In these circumstances, we conclude, consistent with precedent, that the Union established particularized need for item 7. See Forrest City, 57 FLRA at 812-13.

      We reject the Respondents' contention that the Union did not need the requested data in order to argue, in another forum such as arbitration, that the Respondents' actions were improper. In this connection, data concerning the Respondents' legal authority was necessary for the Union to evaluate whether arbitration was appropriate, and if it was appropriate, to prepare for that arbitration. We also reject the Respondents' reliance on Forrest City because, unlike the request in this case, the request involved in the portion of Forrest City relied on by the Respondents involved an overly-broad data request. [n10]  See id. at 813-14 (Member Pope dissenting). With regard to the Respondents' discussion of Puget Sound, 38 FLRA 3, the Authority has not held that a union is entitled to requested information only if management previously has cited that information as the basis for a management action. See, e.g., Forrest City, 57 FLRA 808. Accordingly, the Respondents do not demonstrate that the Union was not entitled to the data here.

      In addition, although the Respondents assert that the Judge effectively required them to perform legal research, the Judge explicitly stated that they are not required to do so and are only required to provide documents that they already possess. Further, although the Respondents contend that the Judge's decision puts them in a "catch 22" situation because it requires them to admit that they have no authority for the disciplinary action, the fact that the Respondents are required to state that they do not possess documents supporting the disciplinary action does not require them to state that they lack authority for that action. Resp't Exceptions at 8. [ v58 p661 ] Additionally, while the Respondents assert that the Judge's decision requires them to "answer[] a query" rather than "respond[] to an information request[,]" they do not explain why that is the case, or why that alleged distinction would excuse their failure to respond to the requests. Id. at 9.

      For the foregoing reasons, we adopt the Judge's finding that Respondent Sector violated the Statute with regard to items 1 and 7. [n11] 

E.     We set aside the portion of the remedy challenged by the Respondents and deny the Respondents' request to direct the Union to cease submitting requests for unnecessary information.

      In F.E. Warren Air Force Base, Cheyenne, Wyo., 52 FLRA 149 (1996), the Authority set forth the standard for assessing whether nontraditional remedies are appropriate in an individual case:

[A]ssuming that there exist no legal or public policy objections to a proposed, nontraditional remedy, the questions are whether the remedy is reasonably necessary and would be effective to recreate the conditions and relationships with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct.

Id. at 161 (citation and internal quotations omitted). Nontraditional remedies will be fashioned only where traditional remedies will not adequately redress the wrong incurred by the ULP. Fed. Bureau of Prisons, Wash., D.C., 55 FLRA 1250, 1259 (2000) (then-Member Cabaniss dissenting as to other matters). The Authority has found nontraditional remedies appropriate where, for example, a respondent has engaged in a pattern of statutory violations. See, e.g., United States Penitentiary, Leavenworth, Kan., 55 FLRA 704, 718 (1999).

      The Judge based the challenged remedy on his finding that the Respondents have engaged in a pattern of "stonewalling" the Union. Judge's Decision at 32. However, the Judge cited only one previous case -- United States INS, Border Patrol, Tucson, Ariz., Case

      Nos. DE-CA-60715 and DE-CA-60791 (July 16, 1997), an administrative law judge decision to which no exceptions were filed -- where Respondent Sector was found to have violated the Statute, and no cases where Respondent Region was found to have violated the Statute. See Judge's Decision at 3 and 31. In the other cited case -- United States Border Patrol, Tucson Sector, Tucson, Ariz., 52 FLRA 1231 (1997) -- the Authority found that the Respondents did not violate the Statute. Further, even in the instant case, the Judge found that the Respondents provided some of the requested information, did not violate the Statute in denying other requests, and noted that in a separate decision issued the same day, he had found that the Respondent did not violate the Statute, see Judge's Decision at 32 n.12. Thus, we find no basis for concluding that the Respondents have engaged in a pattern of statutory violations, such that the challenged remedy is reasonably necessary. Moreover, neither the Judge nor the GC explain why a traditional remedy will not adequately redress this aspect of the wrong incurred by the ULP. In these circumstances, we set aside the portion of the Judge's Order directing that the Respondents respond in writing within ten days of data requests and conduct meetings or phone conferences with the Union when the requests are denied.

      We reject the Respondents' request that the Authority direct the Union to no longer submit requests for information that is unnecessary for representational duties, because the Respondents have not demonstrated that the Union's requests for items 1 and 7 were unnecessary.

F.     We grant a modified version of the remedy requested in the GC's cross-exception.

      The Judge directed that, in the event the deciding official has not made a determination regarding the employee's proposed discipline, then that official must consider any written reply filed by the Union within ten work days of receiving the requested data, without an objection on timeliness grounds by the Respondents. The Respondents did not except to this portion of the remedy.

      The GC asserts that Respondent Sector has decided to remove the employee and that an arbitration hearing concerning the proposed removal was scheduled for November 2002. See id. at 16 n.3. Accordingly, the GC requests that this portion of the remedy be modified to provide that the Respondents be directed "to furnish the requested information for the Union's use at arbitration and, upon the Union's request (following its review of the information), allow the Union to seek postponement [ v58 p662 ] of the arbitration hearing to permit the use of such information at arbitration." GC's Opp'n and Cross-Exception at 16. The Respondents do not object to the GC's request.

      The record provides no basis for determining whether the arbitration hearing occurred as scheduled and/or whether a final and binding arbitration award has issued. If these events have occurred, then the GC's requested remedy cannot be effectuated and is moot. On the other hand, if the hearing has not occurred and/or if a final and binding arbitration award has not yet issued, then a modified version of the requested remedy would provide the Union with essentially the same relief as the unchallenged portion of the Judge's remedy described above; it would merely take into account the fact that circumstances have changed since the Judge's decision.

      We find that a modified version of the requested remedy would recreate the conditions and relationships with which the ULP interfered and would effectuate the policies of the Statute. See F.E. Warren, 52 FLRA at 161. Accordingly, we modify the Judge's proposed Order and direct that, to the extent that the arbitration proceeding is not yet final, Respondent Sector will permit the Union, within ten days after receiving the data, to reply in writing to the data and to request that the Arbitrator suspend the arbitration proceeding and consider the Union's written reply.

V.      Order

      Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that:

     A. The Immigration and Naturalization Service, United States Border Patrol, Tucson Sector, Tucson, Arizona shall:

      1. Cease and desist from:

           (a) Failing or refusing to furnish the American Federation of Government Employees, National Border Patrol Council (the Union), with Items 1 and 7 of the Union's data request of March 5, 2001, which information is necessary for the investigation and processing of the Union's response to the proposed discipline of employee Jason Wood and any grievance that may arise, or has arisen, therefrom;

           (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

      2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a) Furnish the Union with Items 1 and 7 of the Union's data request of March 5, 2001;

           (b) Reply in a timely and proper manner to requests for information made by the Union pursuant to the Statute.

           (c) To the extent that the arbitration proceeding regarding the employee's removal is not yet final, permit the Union, within ten days after receiving the data, to reply in writing to the data and to request that the Arbitrator suspend the arbitration proceeding and consider the Union's written reply.

           (d) Post at its facilities in the Tucson Sector used by bargaining unit employees represented by the Union, copies of the attached Notice (Appendix A), on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Chief Patrol Agent of the 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 these Notices are not altered, defaced, or covered by other material.

           (e) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Denver 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.

     B. The Immigration and Naturalization Service, Western Regional Office, Labor Management Relations, Laguna Niguel, California shall:

      1. Cease and desist from:

           (a) Failing or refusing to furnish the American Federation of Government Employees, National Border Patrol Council (the Union), with Item 6 of the Union's data request of March 5, 2001, which information is necessary for the investigation and processing of the Union's response to the proposed discipline of employee Jason Wood and any grievance that may arise, or has arisen, therefrom;

           (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

      2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: [ v58 p663 ]

           (a) Furnish the Union with Item 6 of the Union's data request of March 5, 2001;

           (b) Reply in a timely and proper manner to requests for information made by the Union pursuant to the Statute.

           (c) Post at its facilities in the Western Region of the Immigration and Naturalization Service used by bargaining unit employees represented by the Union, copies of the attached Notice (Appendix B), on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by an appropriate official of the Respondent 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 these Notices are not altered, defaced, or covered by other material.

           (d) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Denver Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.


Appendix A


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Immigration and Naturalization Service, United States Border Patrol, Tucson Sector, Tucson, Arizona, violated the Federal Service Labor-Management Relations Statute (the Statute) and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT fail or refuse to furnish the American Federation of Government Employees, National Border Patrol Council (the Union), with Items 1 and 7 of the Union's data request of March 5, 2001, which information is necessary for the Union to represent employee Jason Wood.

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 Statute.

WE WILL, upon request, furnish the Union with Items 1 and 7 of the Union's data request of March 5, 2001.

WE WILL reply in a timely and proper manner to requests for information made by the Union pursuant to the Statute.

WE WILL, to the extent that the arbitration proceeding regarding the employee's removal is not yet final, permit the Union, within ten days after receiving the data, to reply in writing to the data and to request that the Arbitrator suspend the arbitration proceedings and consider the Union's written reply.

Date:___________ By ____________________
      Chief Border Agent
      United States Border Patrol     
      Tucson Sector

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, Denver Regional Office, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204, and whose telephone number is: (303) 844-5226. [ v58 p664 ]


Appendix B


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Immigration and Naturalization Service, Western Regional Office, Labor Management Relations, Laguna Niguel, California, violated the Federal Service Labor-Management Relations Statute (the Statute) and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT fail or refuse to furnish the American Federation of Government Employees, National Border Patrol Council (the Union), with Item 6 of the Union's data request of March 5, 2001, which information is necessary for the Union to represent employee Jason Wood.

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 Statute.

WE WILL, upon request, furnish the Union with Item 6 of the Union's data request of March 5, 2001.

WE WILL reply in a timely and proper manner to requests for information made by the Union pursuant to the Statute.

Date:_______________ By:__________________

                                (Signature)                (Title)

                                Immigration and Naturalization Service

                                Western Regional Office

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, Denver Regional Office, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204, and whose telephone number is: (303) 844-5226.


Concurring Opinion of Chairman Cabaniss:

      Although I agree with the conclusions in this case, I write separately to point out that the scope of our review with regard to Item 1 of the Union's information request was limited to the Agency's argument that the information was not necessary. As noted in Footnote 9 of the majority opinion, the only issue presented to the Authority by the Agency was whether the data was necessary, or put another way, whether the Union had articulated a particularized need with sufficient clarity. Having determined that it did, the questions of whether the "data" was normally maintained in the regular course of business or was reasonably available were not before us. See, Fed. Bureau of Prisons, S. Cent. Region, Dallas, Tex., 55 FLRA 1250 (2000)(Member Cabaniss dissenting).

      More importantly, we do not view the data request as broadly as that alleged by the Agency and our finding the language of Item 1 to be a valid data request to which the Agency should have responded does not mean that a response consistent with the Agency's characterization of the request was required. In my view, the Agency could have fully complied with the request in Item 1 by providing a copy of the regulation(s) or statute(s) covering removal actions for that agency. As indicated in Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (IRS, Kansas City), the parties should articulate and exchange their respective interests in disclosing information and an Agency should not frustrate that purpose by viewing a request in the broadest terms possible and then using that interpretation as their basis for refusing to provide any response. Such an all or nothing approach does not facilitate the exchange of interests called for in IRS, Kansas City.


File 1: Authority's Decision in 58 FLRA No. 165 and Chairman Cabaniss' Opinion
File 2: Opinion of Member Armendariz
File 3: ALJ Decision


Footnote # 1 for 58 FLRA No. 165 - Authority's Decision

   We note that the functions and personnel of the Immigration and Naturalization Service have been transferred to the Department of Homeland Security. See, e.g., 6 U.S.C. § 251.


Footnote # 2 for 58 FLRA No. 165 - Authority's Decision

   The separate opinions of Chairman Cabaniss, concurring, and Member Armendariz, concurring in part and dissenting in part, are set forth at the end of this decision.


Footnote # 3 for 58 FLRA No. 165 - Authority's Decision

   Although the Respondents cite 5 C.F.R. § 2423.7(d), it is clear that they intended to cite § 2423.6(d). Pertinent portions of the Regulations and ULP Manual sections cited in this section are set forth infra, section IV.A.


Footnote # 4 for 58 FLRA No. 165 - Authority's Decision

   Although the Respondents also make this assertion with regard to item 9, it is not necessary to consider the assertion in connection with that item. In this regard, arguments that requested data are not reasonably available or normally maintained are relevant to determining whether the data must be disclosed. In this case, the Judge found that Respondent Region was not obligated to disclose item 9 because the Union failed to establish particularized need for that item. The Judge's finding of a violation regarding item 9 was based solely on Respondent Region's failure to respond to the data request. As the parties do not except to these findings regarding item 9, we adopt them, without precedential significance under § 2423.41 of the Authority's Regulations, and conclude that item 9 is no longer at issue. See, e.g., United States Dep't of HHS, Pub. Health Serv., Indian Health Serv., Quentin N. Burdick Mem'l Health Care Facility, Belcourt, N.D., 57 FLRA 903, 908 n.5 (2002).


Footnote # 5