Department of Justice v. Federal Labor Relations Authority , 991 F.2d 285 ( 1993 )

United States Court of Appeals,
Fifth Circuit.
No. 92-4149.
DEPARTMENT OF JUSTICE, United States Immigration and Naturalization Service, United
States Border Patrol, El Paso, TX, Petitioner-Cross-Respondent,
v.
FEDERAL LABOR RELATIONS AUTHORITY, Respondent-Cross-Petitioner.
May 26, 1993.
Petitions for Review of Order of the Federal Labor Relations Authority.
Before JOLLY, DAVIS, and JONES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
We review a Federal Labor Relations Authority ("FLRA") decision concerning a union's
demand for documents from a government agency. The FLRA argues that the United States Border
Patrol committed an unfair labor practice ("ULP") when it refused to produce a mountain of material
relating to a member-officer's claim that he was unfairly given a low performance rating.
The Federal Service Labor Management Relations Statute ("FSLMRS") requires a
government agency to furnish the union with information if the data is 1) reasonably available, and
2) necessary for the union to represent its members. The administrative law judge held that the
documents were both necessary and reasonably available, and that the Border Patrol had, therefore,
committed a ULP when it refused to produce the requested data. The FLRA affirmed. We now
reverse. First, we hold that the FLRA's interpretation of "necessary" is not supportable because it
confuses the term with "useful." Second, given the extraordinary number of document and t he
s
burdens of compiling, collating, and redacting the documents, we hold that the documents were not
reasonably available. We, therefore, reverse the FLRA's decision, and deny the FLRA enforcement
of its order.
I
During the late 1980's, the United States Border Patrol employed Robert J. Marren as a
border patrol agent at the Fabens Station in El Paso. Marren was also the executive vice president
of his local union. The Border Patrol used the following rat ing system in evaluating its agents:
outstanding, excellent, fully successful, minimally satisfactory, and unacceptable. At the end of the
Border Patrol's fiscal year ending in April 1988, the Border Patrol gave Marren an overall rating of
fully successful. The Border Patrol also rated seven of Marren's fellow agents fully successful. The
Border Patrol rated the other two agents as excellent.
In May of 1988, Marren, acting in his capacity as executive vice president of the union,
notified the Border Patrol that he was considering filing a grievance over his own performance
appraisal on the basis of disparate treatment. Marren said that he suspected that the Border Patrol
gave him a lower rating than he deserved in retaliation for his activities as a union officer. To
evaluate at the outset the propriety of filing a grievance, Marren requested the four following
categories of information on himself and his fellow employees:
1. All of the performance appraisals for all of the employees during the period April 1, 1987
through April 8, 1988.
2. All documents contained in the Employee Performance Files that the Border Patrol
maintains on Marren and his fellow employees.
3. All documents contained in the Supervisory Work Folders the Border Patrol maintains on
Marren and his fellow employees.
4. Copies of any and all documents and reports Marren and his fellow employees completed
during the 1987/1988 rating period.
The fourth category of information that Marren requested included all of the written work produced
by ten Border Patrol agents over a one-year period.1 Border Patrol agents like Marren regularly
complete various forms, and prepare memoranda, reports, and other documents. Marren's request
encompassed between 5,000 and 6,000 documents. The Border Patrol keeps these documents in
1
This is the third time that Marren has requested this kind of information from the Border
Patrol. In prior information requests, Marren asked for the same information for different ratings
periods. The FLRA ordered the Border Patrol to release the information Marren requested in all
three information requests. In the prior information requests, however, the Border Patrol did not
challenge the FLRA's orders. See Department of Justice, United States Immigration and
Naturalization Service, United States Border Patrol, El Paso, Texas and American Federation of
Government Employees, AFL-CIO, National Border Patrol Council, 37 FLRA (No. 110) 1310
(1990) (hereinafter "Border Patrol I "); Department of Justice, United States Immigration and
Naturalization Service, United States Border Patrol, El Paso, Texas and American Federation of
Government Employees, AFL-CIO, National Border Patrol Council, 40 FLRA (No. 64) 792
(1991) (hereinafter "Border Patrol II ").
several locations in the United States and in other countries. Moreover, the Border Patrol organizes
many of these documents according to the alien involved and not the agent.
In response to this request, the Border Patrol asked the union for specifics about the alleged
disparate treatment so that it could determine whether the information was relevant and necessary.
The Border Patrol also voluntarily complied with part of Marren's request by providing the union with
the ratings it gave Marren's fellow employees. Marren found the information inadequate, and
informed the Border Patrol that the union needed all of the information that it had requested to
perform its "representational obligation to conduct a full and impartial investigation." Marren
indicated that the Border Patrol could supply the information in a sanitized form that would not reveal
confidential information. Marren, however, rejected the Border Patrol's request for specifics to
support his request.
In September of 1988, the Border Patrol denied Marren's request for information on the
grounds that 1) the information it had already provided was sufficient to demonstrate that no
disparate treatment existed and 2) the union had not specifically explained why it needed more
information. Nevertheless, the Border Patrol informed Marren that he could personally review the
agency's files and that the agency would provide copies of any specific documents that Marren found
the union needed. Concluding that the Border Patrol's actions were unsatisfactory, the union filed
an unfair labor practice ("ULP") charge. Based on that ULP charge, the FLRA General Counsel
prosecuted the ULP complaint now before us.
II
The Border Patrol presented evidence before the administrative law judge ("ALJ") that
Marren did not request the information for legitimate purposes. The Border Patrol contended that
Marren requested the information to harass management because of his animosity toward the Border
Patrol. One witness testified that Marren had said that "he was out to screw the government and he
had 13.5 years to do it." Another witness testified that Marren had admitted he was conducting a
"war on management." To show a pattern of bad faith, the Border Patrol also offered evidence to
show that Marren had filed numerous ULP charges, and that Marren had made other burdensome
requests for information.
The Border Patrol also presented evidence that it would be burdensome for it to find, collect,
duplicate, and sanitize the information that the union wanted. The Border Patrol showed that it
would take one employee two days just to find all the Form 312's prepared by one agent during one
month. The two days did not include the time it would take the Border Patrol to redact confidential
information and make final copies for the union. Marren's actual request for information included
fifteen different forms prepared by ten agents over twelve months. As noted above, the information
request included thousands of documents stored in several locations in the United States and in other
countries, filed under various classifications and categories.
After hearing all of the evidence, the ALJ determined that the Border Patrol had violated
section 7114(b)(4) of the Federal Service Labor Management Relations Statute ("FSLMRS"). 5
U.S.C. § 7101 et seq. Pursuant to section 7114(b)(4), t he union has a right to information that is
"reasonably available and necessary for full and proper discussion, understanding, and negotiation of
subjects within the scope of collective bargaining." The ALJ found that the information was
necessary because the information was relevant to the dispute between the union and the Border
Patrol. Similarly, the ALJ found that the information was reasonably available because producing the
information would not be unduly burdensome. Finally, the ALJ found that, although the Border
Patrol presented credible evidence, the Border Patrol had not presented sufficient evidence to
convince him that the union was acting in bad faith.
The Federal Labor Relations Authority ("FLRA") affirmed the ALJ's decision. The FLRA
found that the information the union requested was necessary because is was "useful to the union in
the investigation and/or representation of a potential grievance." The FLRA concluded that the
information was reasonably available because the Border Patrol had not shown that it would be
extremely or excessively burdensome for the Border Patrol to produce the documents. The FLRA
also agreed with the ALJ that the Border Patrol had not established that the union had requested the
information in bad faith. After the time for filing a motion to reconsider had passed, the D.C. Circuit
decided NLRB v. FLRA, 952 F.2d 523 (1992). Arguing that there were extraordinary circumstances,
the Border Patrol moved to file an untimely motion to reconsider, but the FLRA denied the motion.
The Border Patrol appeals.
III
We must first determine whether this dispute is moot because Marren no longer works for
the Border Patrol. A case becomes moot when the parties no longer have a legally cognizable interest
in the outcome. Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491
(1969). ULP cases, however, generally do not become moot when the individual parties resolve the
specific matter that gave rise to the dispute because the "Board is entitled to have the resumption of
the unfair practice barred by an enforcement decree." NLRB v. Raytheon Co., 398 U.S. 25, 27, 90
S. Ct. 1547, 1549, 26 L. Ed. 2d 21 (1970) (quoting NLRB v. Mexia Textile Mills, 339 U.S. 563, 568,
70 S. Ct. 826, 828, 94 L. Ed. 1067 (1950)).2 The FSLMRS is modeled after the National Labor
Relations Act, and courts treat the issue of mootness the same under both statutes. See United States
Dept. of Justice v. FLRA, 727 F.2d 481 (5th Cir.1984); AFGE, Local 3090 v. FLRA, 777 F.2d 751,
753 n. 13 (D.C.Cir.1985).
In a case very similar to the case before us, the D.C. Circuit held that the death of an
employee allegedly harmed by an agency's ULP did not moot the controversy. AFGE, Local 1941
v. FLRA, 837 F.2d 495, 497 n. 2 (D.C.Cir.1988). The court held that the FLRA had an interest in
vindicating the employee's rights and preventing future violations. The court also noted that, even
after the employee's death, the FSLMRS provided the FLRA with remedies, including a cease and
desist order and the posting of an unfair labor practice notice. Id. We agree with the D.C. Circuit's
reasoning. Thus, the case before us is not moot because the FLRA still has an interest in the
controversy and because the FSLMRS provides remedies that are still available to the FLRA.
IV
We now turn to the merits of this case. The sole question before us is whether the FLRA
properly determined that, pursuant to 5 U.S.C. § 7114(b)(4), the union was entitled to the
2
See also N.L.R.B. v. Great Atlantic & Pacific Tea Co., 407 F.2d 387, 388 (5th Cir.1969)
(We found that the "Board is entitled to judicial enforcement of its orders even in cases where the
offending parties have already complied with the orders.")
information it requested from the Border Patrol. We review the FLRA's order to ensure it was not
"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C.
§ 706(2)(A); see also 5 U.S.C. § 7123. We will affirm the FLRA's factual findings if they are
supported by substantial evidence, and we will defer to the FLRA's legal conclusions as long as they
are reasonable and supportable. See 5 U.S.C. § 7123(c); United States Dept. of Justice v. FLRA,
955 F.2d 998, 1001 (5th Cir.1992).
This dispute turns on the proper interpretation of 5 U.S.C. § 7114(b), which provides:
The duty of an agency and an exclusive representative to negotiate in good faith under
subsection (a) of this section shall include the obligation * * *
(4) in the case of an agency, to furnish to the exclusive representative involved, or its
authorized representative, upon request and, to the extent not prohibited by law, data * * *
(B) which is reasonably available and necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of collective bargaining.
Thus, under this section the Border Patrol must furnish information if the information is 1) reasonably
available, and 2) necessary for the union to represent its members. Both parties agree that the union
is entitled to the information it has requested if the information meets each prong of this two-part test.
The parties differ only on their interpretation of this test.
Beginning with the first part of the test, the FLRA contends that information is necessary if
it is useful to the union in processing a grievance. The FLRA correctly notes that federal agencies
have a broad obligation to disclose information to the unions with which they negotiate. Am. Fed.
of Gov. Employees, AFL-CIO v. FLRA, 793 F.2d 1360, 1363 (D.C.Cir.1986).
Although the FLRA's argument that the documents will be "useful" may be plausible, when
we focus on the specific language in the controlling statute, we are convinced that the FLRA's order
in this case should not be enforced. In the first place, we find that the FLRA's interpretation of the
statute's necessity requirement simply is not reasonable or supportable. The FLRA seems to have
taken the standard that the National Labor Relations Board uses in the private sector, i.e., useful and
relevant, and appropriated it for the public sector. See, e.g., Soule Glass and Glazing Co. v. NLRB,
652 F.2d 1055, 1092 (1st Cir.1981). The relationship between a union and a federal agency,
however, is not governed by the same statute that governs the private sector. In the FSLMRS,
Congress chose a much higher standard to regulate the production of information in order to promote
efficient government action. NLRB, 952 F.2d at 531. Indeed, the FSLMRS instructs the FLRA—and
us for that matter—to interpret the statute in a "manner consistent with the requirement of an
effective and efficient government." 5 U.S.C. § 7101(b).
Under the FSLMRS, unlike the NLRA, unions are entitled only to necessary information.
There is a significant qualitative and quantitative difference between information that is relevant and
information that is necessary. Information that is only relevant may be useful, but it does not fall
under the category of necessary. The information becomes necessary only if the information is
required in order for the union adequately to represent its members.
Furthermore, necessity may often be a matter of degree. If, for example, the grievance is
simple, or the stakes for the union members are minimal, or the number of affected employees is very
limited, the union should be able to meet its representational obligation with less extensive
information than if the grievance involves a large number of employees or presents a question of
major significance. Contrary to the FLRA's approach in this case, it is not necessary, nor is it
realistic, to investigate every grievance to the nth degree. The question is not whether the
information permits a perfect answer to every question possibly raised by the grievance, but whether
the information is adequate to resolve reasonably the grievance at hand. Consideration of the relative
significance of the grievance involved is particularly appropriate in this case because the only issue
was the individual fairness of one evaluation for one employee. The union could have reasonably
determined the fairness of the Border Pat rol's evaluation with far less information than it actually
demanded and the FLRA has ordered.3
3
We are not the only court to conclude that the FLRA has been using the wrong standard to
determine whether an agency must furnish information under 5 U.S.C. § 7114(b)(4). In three
recent cases, the D.C. Circuit held that the FLRA misinterpreted the FSLMRS's necessity
requirement when it equated relevant information with necessary information. Department of Air
Force v. FLRA, 956 F.2d 1223 (D.C.Cir.1992); NLRB, 952 F.2d at 523; Department of Justice,
Bureau of Prisons v. FLRA, 988 F.2d 1267 (D.C.Cir.1993). The D.C.Circuit held that, under the
necessity standard, an agency must furnish information relating to the guidance, advice, counsel or
training of management officials if the union can demonstrate some particularized need for the
information. In addition, the court found that the necessity standard "implicitly recognizes
countervailing interests because a "need,' by definition, is an interest of particular strength and
urgency." NLRB, 952 F.2d at 531. We agree with the D.C.Circuit in these particulars.
We now turn to the question whether this information was reasonably available. In this case,
the FLRA held that the information was reasonably available because the Border Patrol had "failed
to establish that the requested information was available only through extreme or excessive means."
Furthermore, in one of Marren's previous information requests, the FLRA found that the information
was reasonably available because the Border Patrol had not shown that its "primary mission or budget
were adversely affected" by its efforts to retrieve the documents that the union had requested. Border
Patrol II, 40 FLRA at 805.
The FLRA, we think, is off the mark in its fashioning of a "reasonably available" standard;
it practically ignores the "reasonableness" quotient that the statute requires.4 If, for example, the
availability of documents were considered along a continuum, with documents that are readily
available at one end, and documents that are available only through "extreme or excessive means" at
the other end, the FLRA has fashioned a standard that places "reasonably available" at the far end of
that spectrum. We think that the "reasonably available" standard certainly implies something more
moderate—something nearer t he middle of the spectrum. Furthermore, the FLRA's previous
articulation of a standard—"primary mission or budget not affected"—is no better. It suggests that
documents are reasonably available as long as the documents can be provided without additional
funds from Congress to carry out the agency's primary mission. Both of these interpretations of the
statute are co ntrary to Congress's stated goal of promoting efficient government. See 5 U.S.C. §
7101(b). In the case before us, the Border Patrol would have to remove several employees from their
regularly assigned duties for several weeks t o search for, collect, collate, and redact thousands of
pages of documents in various locations around the world. By any objective standard, this
4
The FLRA suggests that we should defer to its interpretation of the statute because the FLRA
has particular expertise in this area. As noted above, we find that the FLRA's interpretation of the
statute is neither reasonable nor supportable. Furthermore, the FLRA's interpretation of the
statute conflicts with its own regulations. The FLRA's regulations provide that the party charging
a federal agency with committing a ULP has "the burden of proving the allegations in the
complaint by a preponderance of the evidence." 5 C.F.R. § 2423.18 (1991). In its interpretation
of the reasonably available standard, however, the FLRA shifts the burden of proof to the party
defending the ULP charge. We have long held that federal agencies must abide by their own
regulations. See Chevron Oil Co. v. Andrus, 588 F.2d 1383, 1386 (5th Cir.1979) (citing Service
v. Dulles, 354 U.S. 363, 372, 77 S. Ct. 1152, 1157, 1 L. Ed. 2d 1403 (1957)).
information was not reasonably available.
In this case, we do not, nor do we t hink that we should, establish a bright line rule for
determining when information is "reasonably available." It is up to the FLRA to determ ine, on a
case-by-case basis, whether information is reasonably available. We do think, however, that the
requirement that documents be reasonably available is a separate and distinct requirement from a
determination of whether data is "necessary," and that it must be considered separately and
independently when evaluating a union's demand for data. We acknowledge that it may sometimes
be appropriate to consider the importance of the purpose of the documents in order to weigh the
reasonableness of the effort required to provide the requested information. Nevertheless, in
evaluating the reasonable availability of documents, the FLRA should focus primarily on the efforts
required to make the documents available, including costs and displacement of the agency's
workforce. Finally, we think that when evaluating the workforce requirements and the other related
costs needed to produce the data, the FLRA should at all times keep in mind Congress's stated goal
of maintaining effective and efficient governmental operations; otherwise the FLRA is unfaithful to
this express congressional directive.
V
For all of the forgoing reasons, we REVERSE the FLRA's decision and DENY the FLRA
enforcement of its order.
REVERSED and ENFORCEMENT DENIED.