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 rev iew 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 Manageme nt 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

co nfuses the term with "useful." Second, given the extraordinary number of document s and t he

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

Duri ng t he late 1980's, the United States Border Patrol employed Robert J. Marren as a

border patrol agent at the Fabens Stati on in El Paso. Marren was also the executive vice president1 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 "). 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 unio n,

notified the B o rder 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 act ivit ies as a union officer. To

evaluate at the o ut set 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 o ne-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 inseveral 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 fel lo w 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 spe cifically 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") cha rge. Based on that ULP charge, the FLRA General Counsel

prosecuted the ULP complaint now before us.

II

T h e 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 burden som erequests 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 i t

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

subj ect s wit hin 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

info rmat ion would not be unduly burdensome. Finally, the ALJ found that, although the Border

Patrol presented credible evidence, the Border Patrol had not presented sufficie nt 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 co ncluded that the

information was reasonably available because t he 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,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.") 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 outcom e. P owell 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, 82 8, 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. S ee United States

Dept. of Justice v. FLRA, 727 F.2d 481 (5th Cir.1984); A FGE, 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 deat h o f 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. I d. We agree with the D.C. Circuit's

reas o ning. 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 u nion was enti tl ed to theinformation 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); s ee 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. S ee 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 represe nt at ive 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

statut e'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. S ee, e.g., Soule Glass and Glazing Co. v. NLRB,

6 52 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,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. Congress chose a much higher standard to regulate the producti on of information in order to prom ote

efficient government action. N LRB, 952 F.2d at 531. Indeed, the FSLMRS instructs the FLRA—and

u s for that m atter—to interpret the statute in a "manner consistent with the require ment 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 nece ssary. Information that is only relevant may be useful, but it does not fall

under the category o f 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

limit ed, the union should be able to meet its representational o bligat ion with less extensive

information

t han if t he 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 e valuat io n for one employee. The union could have reasonably

determined the fairness of the Borde r Pat ro l's evaluation with far less information than it actually

demanded and the FLRA has ordered. 34 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)). 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. B order

Patrol II, 40 FLRA at 805.

The FLRA, we think, is off the mark in its fashioning of a "re asonably available" standard;

it pract ically ignores the "reasonableness" quotient that the statute requires. 4 If, for example, the

availabilit y of documents were considered along a continuum, wit h do cuments 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 nea rer 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 nt rary to Congress's stated goal of promoting efficient government. S ee 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 severa l weeks t o search for, collect, collate, and redact thousands of

pages of documents in vari o us locations around the world. By any objective standard, thisinformation was not reasonably available.

In this case, we do not, no r do we t hink that we should, establish a bright line rule for

determining when information is "reasonably available." It i s up to the FLRA to determ i ne, 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 distinc t 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 app ro priate 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 availabilit y 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 maint aining 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 F LRA's decision and DENY the FLRA

enforcement of its order.

REVERSED and ENFORCEMENT DENIED.