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24:0600(63)CA
The decision of the Authority follows:
24 FLRA No. 63
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 2-CA-50188
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent (Agency). The General Counsel filed an
opposition to the exceptions. The issue is whether it is an unfair
labor practice under the Federal Service Labor-Management Relations
Statute (the Statute) for the Respondent (Agency) to refuse a request,
made pursuant to section 7114(b)(4) of the Statute, to provide the
Charging Party (Union) with the names and home addresses of employees of
the Respondent's Office of Assessment (Field) (FAO) who are included in
a national exclusive unit represented by the Union.
In a recent Decision and Order on Remand, Farmers Home Administration
Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986) (FHAFO), we
reviewed the Authority's previous decision concerning the release of the
names and home addresses of bargaining unit employees to exclusive
representatives. We concluded that the release of the information is
not prohibited by law, is necessary for unions to fulfill their duties
under the Statute, and meets all of the other requirements established
by section 7114(b)(4). We also determined that the release of the
information is generally required without regard to whether alternative
means of communication are available. Consistent with our decision on
remand in FHAFO, we conclude that the Respondent's refusal to provide
the Union with the home addresses of bargaining unit employees sought in
this case violated section 7116(a)(1), (5) and (8) of the Statute.
II. Facts
The Union is the exclusive representative for many of the
Respondent's employees, who are grouped in various nationwide bargaining
units. The Union requested the names and home addresses of all of the
bargaining unit employees who are represented by the Union's FAO
Council. The FAO Council acts as an agent for the Union in representing
FAO employees. The request was made during the course of midterm
negotiations between FAO and the AFGE FAO Council concerning the impact
and implementation of a proposed realignment of the FAOs. The
Respondent denied the request on the grounds that it would be "virtually
impossible" for it to furnish the information within the time provided
for negotiations, that the information was not relevant or necessary to
the outcome of the negotiations, and that the request was an impediment
to good faith bargaining.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondent failed to comply with the
requirements of section 7114(b)(4) of the Statute in violation of
section 7116(a)(1), (5) and (8) when it refused to provide the Union,
upon request, with the names and home addresses of the unit employees
which it had sought. In reaching that conclusion, the Judge found that
disclosure of the names and home addresses of the unit employees to the
Union was not prohibited by law, that the information was reasonably
available, and that the information was necessary in order for the Union
to effectively communicate with and represent all the employees in the
unit.
IV. Positions of the Parties
The parties' positions were set forth in the Respondent's exceptions
and the General Counsel's opposition. /*/
In its exceptions, the Respondent essentially disagrees with the
Judge's findings and conclusions and asserts that it was not obligated
to furnish the requested information to the Union. In its opposition,
the General Counsel argues that the Judge's findings and conclusions are
supported by a preponderance of the evidence and are consistent with
law. The General Counsel therefore urges the Authority to adopt the
Judge's decision in its entirety.
V. Analysis and Conclusion
As noted above, in our decision on remand in FHAFO we concluded that
the release of home addresses of bargaining unit employees to the
exclusive representatives of those employees is not prohibited by law,
is necessary for unions to fulfill their duties under the Statute, and
meets the other requirements of section 7114(b)(4). We also determined
that agencies are required to furnish such information without regard to
whether alternative means of communication are available. Based on our
decision on remand in the FHAFO case and in agreement with the Judge in
this case, we find that the Respondent was required to furnish the Union
with the names and home addresses of the unit employees sought herein.
Thus, we conclude that the Respondent's refusal to furnish the requested
information in this case was in violation of section 7116(a)(1), (5) and
(8) of the Statute.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, it is ordered that the Department of Health and Human Services,
Social Security Administration, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the American Federation of
Government Employees, AFL-CIO, the exclusive representative of its
employees, and its agent, the National Council of SSA Field Assessment
Locals, the names and home addresses of all Field Assessment Office
employees in the bargaining unit represented by the National Council of
SSA Field Assessment Locals.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights assured them by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request by the American Federation of Government Employees,
AFL-CIO, the exclusive representative of its employees, and its agent,
the National Council of SSA Field Assessment Locals, furnish them with
the names and home addresses of all Field Assessment Office employees in
the bargaining unit represented by the National Council of SSA Field
Assessment Locals.
(b) Post at all its field Assessment Office facilities where
bargaining unit employees represented by the American Federation of
Government Employees, AFL-CIO, National Council of SSA Field Assessment
Locals are located, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Deputy Commissioner for
Assessment and Management, Social Security Administration, Department of
Health and Human Services, 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 insure that such
Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., December 18, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request by the American
Federation of Government Employees, AFL-CIO, the exclusive
representative or our employees, and its agent, the National Council of
SSA Field Assessment Locals, the names and home addresses of all Field
Assessment Office employees in the bargaining unit represented by the
National Council of SSA Field Assessment Locals.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL, upon request by the American Federation of Government
Employees, AFL-CIO, the exclusive representative of our employees, and
its agent, the National Council of SSA Field Assessment Locals, furnish
them with the names and home addresses of all Field Assessment Office
employees in the bargaining unit represented by the National Council of
SSA Field Assessment Locals.
(Activity)
Dated:
By: (Signature) (Title)
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, Region II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 3700, New York, N.Y. 10278 and whose
telephone number is: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CA-50188
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party/Union
Irving L. Becker,
For the Respondent
Barry Nelson,
For the Charging Party/Union
Joel Hornstein and
E. A. Jones,
For the General Counsel,
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 5 U.S.C. Section 7101 et
seq. (1982), commonly known as the Federal Service Labor-Management
Relations Statute, and hereinafter referred to as the Statute, and the
rules and regulations issued thereunder and published at 5 CFR 2411 et
seq.
Pursuant to a charge filed by the Union on March 8, 1985 and amended
on April 25, the Regional Director of Region II, Federal Labor Relations
Authority (hereinafter, Authority), investigated and, on May 29, 1985
served the complaint initiating this proceeding.
The complaint alleges that Respondent (also referred to hereinafter
as SSA) violated Section 7116(a)(1), (5) and (8) of the Statute by
refusing to provide the Union with the names and home addresses of
bargaining unit employees and, thereby, to comply with Section
7114(b)(4) of the Statute. /1/
Respondent denies that it has committed any violations of the
Statute.
On July 15, 1985, in New York City a hearing was held at which the
parties appeared, adduced documentary evidence, and examined witnesses.
Briefs were filed by Respondent, on August 28, and by the General
Counsel, on September 3, pursuant to an order dated August 2, which
extended the briefing time until September 3, for good cause shown.
On September 4, 1985, Respondent filed a Motion for Summary Judgment
To Dismiss based upon three recent Authority decisions -- Farmers Home
Administration Finance Office, St. Louis, Missouri, 19 FLRA No. 21, 19
FLRA 195 (July 22, 1985), Defense Mapping Agency, Aerospace Center, St.
Louis, Missouri, 19 FLRA No. 85, 19 FLRA 675 (August 12, 1985); and
Social Security Administration, Northeastern Program Service Center, 19
FLRA No. 108, 19 FLRA 913 (August 22, 1985). Respondent alleges that
all of the legal issues in this case are resolved in the cited cases,
which present essentially identical factual situations. The General
Counsel and the Charging Party/Union filed their separate oppositions to
the motion on September 16. Since there are some disputed issues of
fact which bear upon the issues to be decided herein, it is
inappropriate to decide this case upon a motion for summary judgment.
Accordingly, it is denied.
Based upon the record made in this case, my observation of the
demeanor of the witnesses, and the briefs, I enter the following
findings of fact and conclusions of law and recommend the entry of the
following order.
Findings of Fact /2/
1. At all times material herein, the Charging Party/Union has been,
and is now, a labor organization within the meaning of Section
7103(a)(4) of the Statute.
2. At all times material herein, Respondent SSA has been, and is
now, an agency within the meaning of Section 7103(a)(3) of the Statute.
3. At all times material herein, the following named persons
occupied the positions set forth below, opposite their names:
Richard Matthews -- Labor Relations Advisor, Social Security
Administration, Baltimore, Maryland; and
Vivian Bromley -- Labor Relations Specialist, Social Security
Security Administration, New York, New York.
4. At all times material herein, the individuals named above have
been, and are now, supervisors or management officials as defined in
Section 7103(a)(10) and (11), respectively, of the Statute and have
been, and are now, agents of Respondent acting on its behalf.
5.(a) At all times material herein, the Charging Party/Union has
been, and is now, the certified exclusive representative of a
consolidated nationwide unit of certain employees of Respondent,
including all employees employed in the various offices of the
Respondent's Office of Assessment (Field), hereinafter FAO, excluding
all management personnel, professional employees, federal employees
engaged in personnel work in other than a purely clerical capacity,
guards and supervisors.
(b) On July 11, 1982, SSA and the Charging Party/Union signed a
National Agreement.
(c) At all times material herein, the Charging Party/Union has
delegated to the National Council of Field Assessment Locals (FAO
Council) authority to act as its representative for the purposes of
collective bargaining for certain of Respondent's employees including
those employed in the various offices of the Respondent's FAO. The FAO
Council's delegation has been recognized by Respondent.
6. The size of the bargaining unit is unclear. It was estimated as
being not more than 500 by FAO Council representatives (TR. 15, 21, 52,
56 and 129). Their uncertainty as to the size of the unit they
represent may be attributed to the fact that there is no contractual
requirement that Respondent furnish the Council, periodically, with the
names of those in the unit. See Jt. Exh. 1. Respondent's senior labor
relations specialist dealing with the FAO component, Mr. Matthews,
estimated that there are at least 1000 in the unit, less about 100
supervisors. See TR. 209. Mr. Matthews seemed quite positive of his
estimate and is in a better position to know these facts than the
Council representatives. Accordingly, I credit his estimate of about
900 as being closest to the mark. The unit is a nationwide one, with
members located in 10 regions and "roughly 40" satellite offices (TR.
54). The unit is composed mostly of analysts, some of whom travel on a
regular basis.
7. By letter dated November 23, 1984, Respondent notified the FAO
Council of a proposed realignment of the FAO. The realignment would
eliminate positions in each of the 10 FAO regions and affect four to
five staffs in each region. It would change the structure of the FAO by
eliminating two branches and combining their positions into new branches
along program, rather than job lines. Satellite offices would remain
internally unchanged. About 90 employees would have their jobs
abolished and might need retraining. Under the proposed realignment, it
appeared that several of the regions' employees, in order to keep their
jobs, would be subject to relocations, either from one building to
another, as in the Chicago region; from one city to another, as in the
San Francisco region; from one State to another, as in the Atlanta
region; and from Manhattan to Queens in the New York City area. /3/
The realignment created four new bargaining-unit jobs and affected,
either directly or indirectly, approximately 300-400 unit employees.
The realignment did "not alter any FAO responsibilities or workloads."
See paragraph 4 on page 2 of G.C. Exh. 2.
8. By letter dated December 3, 1984, the FAO Council, inter alia,
asked certain questions about the proposed realignment, demanded
bargaining, and designated Barry Nelson as its chief negotiator. Mr.
Nelson holds various positions on the Council, including that of
Executive Vice President.
9. By letter dated December 6, 1984, the FAO Council, pursuant to
Section 7114(b)(4) of the Statute, made a request for information which
included the following:
Name, home address, type of appointment,
organization/office/branch, work schedule, position number,
position title, grade and region for each bargaining unit position
in the Office of Assessment (field) as of October 1, 1983 and
April 30, 1984 . . . .
See G.C. Exh. 4. The letter stated that the information requested
would "assist (the FAO Council) in responding to (Respondent's) proposal
to reorganize the (FAO) dated November 23, 1984." See G.C. Exh.4.
10. By letter dated January 3, 1985, Respondent responded to both
the letters of the FAO Council (see findings 8 and 9, above). Inter
alia, Respondent's letter stated that:
We fail to understand the relevancy of the requested
information in relation to this realignment. In addition, based
on existing guidance from the Office of Personnel Management, we
are not able to provide you with the names and home addresses of
bargaining unit employees (OALJ-83-85).
See G.C. Exh. 5, page 2. "OALJ-83-85" is a reference to Defense
Mapping Agency Aerospace Center, St. Louis, Missouri, Case No.
7-CA-20482, in which the Authority has subsequently ruled that the
Privacy Act foreclosed the disclosure to a union of home addresses of
its bargaining-unit members by the agency, under the particular facts of
that case. See 19 FLRA No. 85 (August 12, 1985).
11. In January 1985, the FAO Council filed an unfair labor practice
charge based upon the negative response of Respondent to the request for
information made on December 6, 1984 (see findings 9 and 10, above).
The charge was subsequently withdrawn, on or about February 19, 1985,
based on the advice of an Authority agent that the request was too
broad, in that it sought the information for 1983 and 1984, and that a
less broad request should be made.
12.(a) In the meanwhile, the negotiations demanded by the FAO Council
in December 1984, were taking place in New York City. Karen Reynolds
substituted for Barry Nelson as the chief negotiator for the union.
Stanley Kroman and Shraga Rice were the other members of the union
negotiation team. The management team consisted of Vivian Bromley, as
chief negotiator, Richard Matthews, and William Foreman. A one-day
briefing, on Tuesday, February 12, 1985, preceded the negotiations which
began on Wednesday, February 13.
(b) The parties signed off on ground rules on February 12, 1985, the
day of the briefing. Deleted, without prejudice, was the following:
It is understood by the parties that the standards of 5 USC
7114(b)(4) will apply with respects to the Administration
providing the Union with copies of all necessary and relevant
information concerning negotiations of this issue.
See R. Exh. 1, page 2, paragraph C. The Union "felt that, to some
degree, we already by statute had the protection for information request
and there was no need to have it in there" (TR. 183). During the
negotiations of the ground rules, the Union made no requests for the
names and home addresses of unit employees. Ms. Bromley conceded that,
in other negotiations in which she had participated, the union had not
made information requests during ground rules negotiations. At the time
the negotiations began, the Union's information request for the names,
offices and home addresses of unit employees was the subject of the
outstanding unfair labor practice charge described in finding 11, above.
13. On Wednesday, February 13, 1985, bargaining began. The parties
spent the better part of this day clarifying the leave status of the
Union's chief negotiator and determining whether she would receive
official time for the negotiations.
14. The period of Thursday through Friday, February 14 and 15, 1985,
was spent by the parties on housekeeping details and non-controversial
aspects of negotiation of items that go into a memorandum of
understanding (MOU), including posting of a copy of the MOU and its
becoming effective upon signature.
15. The period of February 16-17, 1985, was a weekend and Monday,
February 18 was a holiday. On or about February 19, and as already
found, the Union determined to withdraw its charge of an unfair labor
practice based upon Respondent's refusal of January 3 to furnish the
names, office locations and home addresses of unit employees and to file
a narrower request, that is for a more limited period of time. See
finding 11, above. In a memorandum dated February 19, the chief
negotiator for the FAO Council gave a written request for information to
Respondent's chief negotiator. The request reads as follows:
Pursuant to 5 USC 7114(b)(4), this constitutes our request for
relevant and necessary information in order to continue to
formulate proposals and to otherwise carry out our
representational functions. We are hereby requesting that you
provide us with the names and home addresses of employees
represented by the FAO Council as of this date. Please provide
this information as soon as possible.
See G.C. Exh. 6. This request was given to Respondent's chief
negotiator on the afternoon of February 19 or the morning of February
20. See TR. 164, 205, 206 and 247. No one on the Council's negotiating
team orally amplified upon the need for the information. Respondent's
negotiators looked at the request and indicated that the Council would
not get the information. See TR. 165 and 270. Although the written
request stated the need for the information, Respondent's negotiators
asked the Union's chief negotiator why she needed it, to which question
the Council's chief negotiator replied merely that she had been told to
request the information and asked for a written reply. /4/ Respondent's
negotiators told the Council's chief negotiator that "it would be
virtually impossible" for Respondent to furnish the information sought
(TR. 228-229), apparently meaning within the period set for bargaining
by the parties' contract, which is 10 working days, but can be extended
by mutual consent of the parties. See Jt. Exh. 1, pages 7 and 8.
16. By memorandum dated Feburary 20, 1985, Respondent's chief
negotiator wrote to the Union's chief negotiator as follows:
This is in reply to your information request of February 19,
1985 regarding your being provided the names and home addresses of
employees represented by the Field Assessment Office Council.
At this point in the negotiation process I do not find your
request to be relevant or necessary to the outcome of these
negotiations. The fact is that we have already had four days of
negotiations during which we have exchanged information and
poroposals (sic.) concerning the implementation and impact of
placement procedures to be utilized for placement of employees
under the FAO realignment.
Nothing in either the union's nor management's proposals for
procedures to place employees is dependent on the union having the
names and home addresses of these employees. All proposals
properly address the situation from a national prospective, ie.
placing the employees based on positions and current component.
Your February 20, 1985 request for the number of positions to
be filled in the realigned (sic.) FAO components is a duplicate of
your request of January 10, 1985. Management responded to this
request January 28, 1985.
Your requests, in my view represents an impediment to good
faith bargaining and I am not furnishing the requested
information.
See G.C. Exh. 13. The FAO Council has never received the requested
information.
17. At the hearing, the FAO Council's need for the names and home
addresses was stated to be as follows:
a. They would assist the FAO Council in formulating proposals and to
carry out its representational functions, as stated in the written
request (see finding 15 above) and "to be able to adequately represent
bargaining unit members in terms of the issues that were at the table"
(TR. 135).
b. The FAO Council wanted to be able to identify the training needs
of unit employees. As a result of the realignment, as many as 90
employees would be reassigned to new positions that would have duties
different from their area of past work experience. The Council wanted
to contact employees prior to the realignment to ascertain their work
experience, so it could have some idea of the amount of training that
would be needed and, after the realignment, to determine whether the
employees received adequate training.
c. The Council believed that certain employees would have to
relocate as a result of the realignment and change commuting and carpool
arrangements. See finding 7, above. The Council wanted to get feedback
concerning such a change in their working conditions.
d. The FAO Council wanted to contact employees to ascertain how many
would be eligible for discontinued service retirement, which permits an
employee whose position has been abolished to retire earlier than he or
she would have under regular civil service retirement rules. A union
concern during negotiations was the question of whether it would want to
incorporate into its proposals something to encourage employees to take
advantage of this, and thus limit the number of employees impacted by
the realignment.
e. The FAO Council wanted to determine how many employees would be
eligible for the hardship exception to automatic reassignment. This
exception permits employees, subject to automatic reassignment under the
realignment, to request an exemption. Also, the negotiating team of the
Council had some idea of the impact the reassignment would have on the
employees in the New York area where the negotiations were being
conducted; but it was not sure of the impact on employees in the other
nine regions. Some of the unit employees might look forward to the
change; but the FAO Council had no idea whether this was so or not.
f. Shortly after the negotiations over the realignment began,
Respondent notified the FAO Council that it intended to close certain
satellite offices in 1985. The Council knew that it would want to
bargain over these office closings. The negotiations over the office
closings followed soon after the conclusion of the negotiations over the
realignment. It would have been helpful to the Council, in representing
the employees affected by the office closings, to have been able to
contact them through their home addresses. The Council's negotiating
team never advised the Respondent that this was a reason it wanted the
information.
g. Finally, the Council wanted the names and home addresses of unit
employees in order to police the MOU. Apparently, the Council never
explicitly advised Respondent that it wanted the information for this
reason. See TR. 109-111 and 221.
h. Although the negotiations over the realignment of the FAO have
been concluded, the FAO Council still wants the names and home addresses
of unit employees for the following reasons. The information would
enable the Council to ascertain whether employees received training as
provided for in the MOU and whether there were any ongoing problems
associated with training. The parties discussed that at the bargaining
table. Additionally, the Council wanted the information to get feedback
from employees concerning the application of the MOU. Finally, the
information will be helpful in connection with the impending
negotiations concerning the closing of certain satellite offices.
18. The FAO Council did not request the names and home addresses of
unit employees for the purpose of mailing out its newspaper, The
Government Standard, or to expand its mailing lists.
19.(a) The negotiations over the realignment concluded on February
27, 1985 with the signing of the NOU. It included provisions on the
placement of employees; hardship exceptions; 30 days written, advance
notice of reassignments; furnishing copies of changed, modified, or
newly developed position descriptions or performance standards to
employees within 10 days of placement; training; relocation allowances
for employees reassigned outside their commuting area; honoring
outstanding leave requests; and posting copies of the MOU. Hardship
exceptions, training, and relocation of employees were discussion topics
from the outset of negotiations.
(b) The MOU also provided that management would provide the Council
with a list of employee preferences (concerning placement in FAO
offices) and service computation dates, and a list of planned placement
for all employees made pursuant to the FAO realignment. The Council
intended to use this information to police the MOU, e.g., to determine
whether management had taken seniority into consideration in placing
employees under the realignment. A member of the management negotiation
team commented, during the negotiations, that giving this information
"takes care somewhat of your names and addresses" (TR. 219 and see also
TR. 220 and 232). But the Council never agreed that this information
was to take the place of the names and home addresses sought.
20. Respondent has access to the names and home addresses of unit
employees in several documents.
a. The first is the Employee Record Card, Standard Form 7-B. The
Employee Record Card contains such information as the employee's name,
home address, telephone number and emergency address. Employees are
supposed to fill out this card when they go on duty or to a new office,
and to notify the timekeeper, administrative aide, or manager if their
address changes. The immediate supervisor of each employee maintains
Standard Form 7-B in the employees' SF-7B file within each FAO office.
The SF-7B file itself is supposed to be retained in a secure location
(e.g., lockable desk or cabinet) at the immediate supervisory level.
b. Respondent also maintains the names and home addresses of unit
employees on Form SSA-4033, the Employee Locator Card. The Employee
Locator Card is maintained by the administrative aide or timekeeper in
each office. Employees are responsible for keeping the data up to date.
The SSA Administrative Directive System Guide for this document
provides, inter alia, that one of the uses made of the Employee Locator
Record Card is the preparation of "Special listings" for use by "the
Union." See G.C. Exh. 10, page 3, paragraph VI C.
c. The names and home addresses of unit employees are also found on
their payroll stubs, which are also coded with a "Union-Code" (G.C. Exh.
11). The Department of Health and Human Services (HHS) Central Payroll
Office in Washington, D.C. generates the information on payroll stubs
for SSA. The timekeeper or administrative aide in each office maintains
a copy of the payroll stubs. Additionally, computerized payroll data is
accessible via the HHS Central Payroll Office.
d. Finally, the names and home addresses of unit employees are
contained in the SF 171 (Personal Qualification Statement) of each
employee which is located in each employees' official personnel folder.
The latter is usually maintained in the regional city office in each FAO
region.
21.(a) In addition to the printed formats described in finding 20,
above, Respondent has an electronic teletype system, called SSADAR,
which it uses to communicate with its offices, usually on matters that
must go out to the field on an expedited basis. SSADAR is not in
Respondent's satellite offices or field stations. Clearance from
Respondent's central office is required to activate the SSADAR system.
Respondent's Deputy Commissioner for Operations could have given the
necessary approval based on a telephone request.
(b) Respondent claims that using SSADAR to recover the information
sought here would not be "practical" and that it would take less time
just to call "everybody up on phone" (TR. 279). The evidence was not
convincing that SSADAR could not be accessed quickly, once necessary
approval to access was obtained, or that approval would be difficult or
time consuming to obtain.
22.(a) In order to obtain the names and home addresses of the FAO
bargaining unit represented by the FAO Council, immediately after the
February 19 or 20, 1985, request, Mr. Matthews believes that he would
have had to go to "each individual supervisor and probably 7-B files"
(TR. 209). At the time of the February 1985 request, Respondent had
"maybe 100, 125 individual supervisors out there" (TR. 210 and see also
TR. 211). In order to get the information, Respondent would have first
had to contact the ten regional commissioners. Mr. Matthews estimated
that this task could not have been completed before June or July 1985.
It was not shown that Mr. Matthews made any study or analysis of the
logistics involved in retrieving names and home addresses of bargaining-
unit employees; or that he talked to any supervisors to determine the
difficulties involved; or that he talked to anyone in the Payroll
Office to determine how soon the computer could process the information;
or that he talked to the management official necessary to obtain
permission to use the SSADAR system. No monetary costs for retrieval
were "looked at" by Respondent (TR. 214). Mr. Matthews "presume(d)"
that the retrieval process itself would have been "quite burdensome"
(TR. 214). This presumption is based upon too little factual bases to
be given credence.
(b) Mr. Matthews considered going to HHS's Central Payroll Office for
the information; but he ended up not making any request to it, because
past experience has shown that it takes "an enormous amount of time,"
perhaps "months" to get information from this source. (TR. 216).
(c) Because the closing of offices is "a continuous thing that will
probably take place over the next couple of years . . ." with "people in
the closed offices moving to other regional offices in other locations,"
Respondent does not believe that it "could come up with a list (of names
and home addresses) that would be exact in terms of saying that (it)
could pinpoint everybody even today and right now" (TR. 221-222).
23. The FAO Council has the home addresses of its members, which
apparently number about 150. (The Council estimated that union
membership at 30 percent of a 500-size unit). See finding 6, above.
The Council established the following present methods of communicating
with the non-member, unit employees and difficulties therewith, where
applicable.
a. The use of union officials on official time. The collective
bargaining agreement provides for two national level officers, a local
president or regional vice-president for each region, and a steward at
each installation, plus an assistant steward at those installations with
more than 100 unit employees. See Jt. Exh. 1, page 82. All these
officials get a certain amount of official time to perform
representation duties. Some are out of the office and in a travel
status, on a regular basis, for several days out of a month, during
which time they are unable to perform representational duties for the
Council. Additionally, the Council has experienced difficulty in
recruiting unit employees to serve as stewards because some do not
believe that they can successfully combine their official and
representational duties. Also, in some instances, only a few unit
employees in an office belong to the Council. As a result, the Council
has had to designate off-site stewards to represent unit employees in
some offices. For example, the FAO office in Miami has only four unit
employees and the steward for that office works in the Atlanta FAO
office.
b. Distributing union literature off Respondent's property. Unit
employees in the FAO offices have flextime hours; are not clearly
identifiable as unit employees; work in buildings with non-unit
employees; and the buildings have more than one entrance and exit.
These circumstances make distribution of union literature at building
entrances and exits difficult. The Council considered use of its
steward system to hand out leaflets to unit employees coming to and
leaving work, but decided that it was "just impractical" (TR. 114).
c. Distributing union literature on Respondent's property. Under
the parties' collective bargaining agreement, the Council has the right
to distribute union publications on Respondent's property. The
contractual provision requires that both the Council representatives
distributing the material, and the employees receiving it, be on
non-duty time. In view of the flextime hours being kept, the Council
representative would have to drop off the material very early or late in
the working day, to assure that everyone receives it.
d. Use of Respondent's internal mail service. By contrast, the
Council has access to Respondent's internal mail service, but not for
"mass mailings." See Jt. Exh. 1, page 22.
e. Use of bulletin boards. The Council has access to bulletin
boards in all of Respondent's facilities. Since they are in pbulic
areas, management is privy to any union materials placed on them.
Additionally, in the Dallas FAO office, the Council experienced one
instance of difficulty in management removing union materials from a
bulletin board. It led to the filing of an unfair labor practice dharge
which was settled.
f. Union newsletters. The Council does not have a newsletter. AFGE
distributes one entitled The Government Standard. The Council can use
the newsletter of locals which, except at Boston, have both unit and
non-unit employees in them. However, the Council is dependent upon
their publication schedules. It takes two or three weeks to prepare and
publish a newsletter.
g. Use of the Federal Telecommunications System (FTS). The Council
may use the FTS for the conduct of labor-management relations, under the
parties' contract. However, when Council locals have tried to call 5,
10, 15 or 20 unit employees, at one time, local management has stopped
the usage as being "just too disruptive" (TR. 116). During the period
of the FAO negotiations over the realignment here at issue, the Council
negotiators were able to contact a maximum of 27 unit employees, to
obtain feedback concerning what employees knew about changes planned in
their offices, how relocation might affect them, and the extent to which
they might need retraining. The Council's negotiators were limited to
contacting only those unit employees known to them.
h. Use of Respondent's photo copy equipment. The parties' contract
allows the Council use of this equipment.
i. Use of Respondent's shuttle. The parties' contract allows union
representatives to use this mode of transportation.
j. Use of the public address system. The parties' contract allows
continued usage of this system at those facilities where it was so used
prior to June 10, 1980.
k. Non-duty use of meeting facilities. The parties' contract allows
such usage with sufficient advance notice and where available and not
already committed.
l. Use of office space for confidential discussions between a
bargaining unit member and a designated union representative. The
parties' contract provides that Respondent will make reasonable efforts
to provide such space, as available.
m. Flash bulletins. The FAO Council President once sent out "a type
of flash bulletin" to bargaining unit employees, but only about half the
unit employees ever saw it, because of distribution difficulties (TR.
73-75 and 84).
n. Introductions. Under the collective bargaining agreement, new
employees are either introduced to their union representative or given a
written statement that the name of their union representative is on the
union bulletin board. In the Atlanta regional office, at least, a union
representative is allowed to address new employees at orientation
meetings held every two weeks.
Discussion and Conclusions
The General Counsel has established, by the preponderance of the
evidence, /5/ that Respondent violated Section 7114(b)(4) of the Statute
when during bargaining on a management proposal to realign the offices
of unit employees, it refused to produce the names and home addresses of
the Charging Party's bargaining unit on the ground that it did not find
the request to be "relevant or necessary to the outcome of these
negotiations." See finding 16, above.
Under Section 7114(b)(4), an agency has the duty to furnish "data"
that is: (1) not prohibited by law; (2) is normally maintained by the
agency in the regular course of business; (3) is reasonably available;
(4) is necessary for full and proper discussion, understanding, and
negotiation of subjects within the scope of collective bargaining; and
(5) does not constitute guidance, advice, counsel, or training provided
for management officials or supervisors relating to collective
bargaining.
It is undisputed, and clearly established, on this record, that the
information sought here is "data;" that it is regularly maintained in
the regular course of Respondent's business; and that it does not
pertain to training given to supervisors relating to collective
bargaining. See findings 15 and 20, above. Whether disclosure of the
information is prohibited by law and is reasonably available and
necessary are the disputed issues of law; and a discussion of each
follows.
1. The disclosure of the names and home addresses of bargaining-unit
employees is not prohibited by law, in this case.
Since the complaint in this case was filed, the Authority has issued
five decisions holding that agencies did not commit unfair labor
practices when they declined to produce the home addresses of
bargaining-unit employees sought by their exclusive representatives
under Section 7114(b)(4) of the Statute, because the Privacy Act of 1947
prohibited such disclosure. See Farmers Home Administration Finance
Office, St. Louis, Missouri, 19 FLRA No. 21, 19 FLRA 195 (July 22, 1985,
hereinafter Farmers), petition for review filed sub nom. American
Federation of Government Employees, AFL-CIO, Local 3354 v. FLRA, No.
85-1493 (D.C. Cir., August 6, 1985); Defense Mapping Agency Aerospace
Center, St. Louis, Missouri, 19 FLRA No. 85, 19 FLRA 675 (August 12,
1985, hereinafter, Defense Mapping); Philadelphia Naval Shipyard, 19
FLRA No. 107, 19 FLRA 899, (August 22, 1985); Social Security
Administration Northeastern Program Service Center, 19 FLRA No. 108, 19
FLRA 913 (August 22, 1985, hereinafter SSA NEPSC); and Department of
Defense, Department of the Navy, Norfolk Naval Shipyard, Norfolk,
Virginia, 20 FLRA No.44 (September 30, 1985, hereinafter Norfolk Naval
Shipyard.
The Privacy Act of 1947, Pub. L. No. 89-487, 80 Stat. 256 (codified
as amended in 5 U.S.C. Section 552 (1982)), regulates the disclosure of
information contained in an agency's records within a system of records
that is retrieved by reference to an individual's name or personal
identifier. It is undisputed, and clear that the names and home
addresses sought here are in such a system. See finding 20, above. The
Privacy Act permits disclosure of information "required" to be released
under the Freedom of Information Act (FOIA) Pub. L. No. 89-487, 80 Stat.
256 (codified as amended at 5 U.S.C. Section 552 (1982)). As explicated
by the Authority in Farmers:
In general, the theory of the FOIA is that Federal government
records should be disclosed in order to enable the public to
review the actions of the government. However, there are also
exemptions to the general disclosure requirements of the FOIA.
Under exemption (b)(6) of the FOIA, an agency is allowed, e.g., to
withhold personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of privacy. In determining whether material may be
properly withheld in accordance with exemption (b)(6) of the FOIA,
the Federal courts have struck a balance between the individual's
privacy interest and the possible adverse or harmful effects on
the individual which could result from disclosure, on the one
hand, against the importance of the public's interest in having
the information made available. (citing Department of the Air
Force v. Rose, 425 U.S. 352 (1976)). /6/
See 19 FLRA at 197.
The Authority has announced that it will use the same test applied by
the courts in evaluating FOIA request, "i.e., balancing the necessity of
the data for the union's purposes against the degree of intrusion on the
individual's privacy interests caused by disclosure of the data"
(Farmers, 19 FLRA at 197; and see also Defense Mapping, 19 FLRA at 677;
Philadelphia Naval Shipyard, 19 FLRA at 900; SSA NEPSC, 19 FLRA at
915; and Norfolk Naval Shipyard, 19 FLRA No. 44, at page 3.
The Authority has further announced that it would be guided by a
decision of the U.S. Court of Appeals for the Fourth Circuit in which a
union sought the home addresses of unit employees under FOIA. In this
decision, American Federation of Government Employees, AFL-CIO, Local
1923 v. United States Department of Health and Human Services, 712 F.2d
931 (1983, hereinafter AFGE v. HHS), the Fourth Circuit struck the
balance and ruled against disclosure. The language guide used by the
Authority is found at 712 F.2d at 932 and is as follows:
Employees have a strong privacy interest in their home
addresses. Disclosure could subject the employees to an unchecked
barrage of mailings and perhaps personal solicitations, for no
effective restraints could be placed on the range of uses to which
the information, once revealed, might be put. Further, even
granting that collective bargaining is a matter of grave public
concern, any benefits flowing from disclosure of the information
sought would inure primarily to the union, in a proprietary sense,
rather than to the public at large. Finally, as the District
Court noted, alternative means of communication are available to
the union, such as its bulletin board and indirect distribution
through the employer. (footnote omitted).
See Farmers, 19 FLRA at 197-198; and see also Defense Mapping, 19
FLRA at 677; Philadelphia Naval Shipyard, 19 FLRA at 901; SSA NEPSC,
19 FLRA at 915; and Norfolk Naval Shipyard, 20 FLRA No. 44, at page 4.
In each of the above-cited Authority decisions, the Authority struck
the balance in favor of nondisclosure, and noted that the unions in each
had alternative means of communications with members of the bargaining
unit. These means are set forth in footnote 7 to Farmers, as follows:
In this regard, the Union could have communicated with unit
employees through "desk drops" of information as authorized by the
parties' collective bargaining agreement; direct distributions at
entrances; meetings in conference rooms provided by management
under the negotiated agreement; bulletin boards; and union
stewards who had access to unit employees at their workplace.
They are set forth in footnote 6 to Defense Mapping, as follows:
In this regard, the Union could have communicated with unit
employees, e.g., through the use of bulletin boards; the
Respondent's bulletins and newspaper; meeting space during
non-duty hours; Union newspapers distributed in non-security
areas; semi-annual membership drives; and a network of Union
officers and stewards with access to employees in non-security
areas. The extent to which some of these means of communication
were subject to restrictions, such as the Union's obligation to
submit advance requests, does not in our opinion detract from our
finding that the Union had alternative means of communication
available, expecially as we note the long bargaining history of
the parties, including matters with regard to means of
communication.
They are set forth in footnote 5 to Philadelphia Naval Shipyard, as
follows:
In this regard, the Union could have communicated with unit
employees, e.g., through the use of its right, pursuant to the
parties' collective bargaining agreement, to one steward for every
85 employees; through access to one-half of all unofficial
bulletin boards, which are placed in accordance with Union
recommendations; through access to the Respondent's weekly
newspaper; through its own monthly newspaper and other literature
which is distributed throughout the Shipyard; and through its
holding of monthly meetings on and off the base. The extent to
which some of these means of communication were subject to
restrictions, such as the Respondent's right to approve Union
entries in the Respondent's newspaper, or the times during which
distributions may be made, does not in our opinion detract from
our finding that the Union had alternative means of communication
available, expecially as we note the established bargaining
history of the parties, including matters with regard to means of
communication.
They are set forth in footnote 6 to SSA NEPSC, as follows:
In this regard, the Union could have communicated with unit
employees, e.g., through the use of open bulletin boards on each
floor of the Respondent's facilities; through the distribution of
its newsletter which is given out on a desk-to-desk basis four
times a year by the Respondent; through additional on-site
distributions of its own material; and through the use of its
network of officers and stewards with access to unit employees.
The extent to which some of these means of communication were
subject to restrictions, such as the use of the internal mail
system for mass mailings and the times during which publications
may be distributed, does not in our opinion detract from our
finding that the Union had alternative means of communication
available, especially as we note the established bargaining
history of the parties, including matters with regard to means of
communication.
They are set forth in footnote 6 to Norfolk Naval Shipyard, as
follows:
In this regard, the Union could have communicated with unit
employees, e.g., through the use of its right, pursuant to the
parties' collective bargaining agreement: to meet with new
employees; to space for regular meetings; to Union office space;
to a steward system; to exclusive use of bulletin boards located
in each shop; and to access to the Respondent's newsletter.
Further, the record indicates that the Union also has access to
unit employees through the distribution of its own newsletter to
each shop at the Respondent's facilities. The extent to which
some of these means of communication were subject to restrictions,
such as the Union's obligation to submit advance requests for
meeting times, does not in our opinion detract from our finding
that the Union had alternative means of communication available,
expecially as we note the long bargaining history of the parties,
including matters with regard to means of communication.
The similarities between the "alternative means of communication"
cited in the above footnotes and those in this case are marked. Compare
the facts recited in the above footnotes to finding 23, above.
However, the distinctions between the five, above-cited Authority
cases and this case are also marked. First of all, the request here was
made while the exclusive representative of the unit employees was at the
bargaining table and trying to formulate proposals over a management
decision to realign their offices. The realignment could result in unit
employees being reassigned to a different job. It could also result in
some being relocated, even to a different State, and thus having to
change their home address. Nothing strikes closer to an employee's
heart than where he or she must work and what job he or she must
perform. Under these circumstances, most if not all employees would
gladly yield their privacy interests in their present home addresses to
their exclusive representative, so that their representative could
strike the best possible bargain on retraining them for their new jobs
and obtaining maximum relocation allowances for those forced to relocate
and obtain new home addresses -- items which the Council was bargaining
about when the Council made the request for the names and home addresses
of unit employees. See finding 19, above. Paraphrasing the guide which
the Authority intends to follow in weighing disclosure versus
nondisclosure (AFGE v. HHS), the benefits flowing from disclosure of the
information sought would inure primarily to the unit employees, and only
to the Council in that it would allow the Council to represent the
interests of the unit in a more intelligent and effective manner. In
its Norfolk Naval Shipyard decision, the Authority expressly noted that
the request there was "not in connection with a grievance or any
specific bargaining proposals." See page 2 of 20 FLRA No.44, emphasis
supplied.
Secondly, most unit employees are not members of the Council; and
their names are apparently unknown to the Council, which thinks the unit
size is about 500, whereas it is, in fact, about 900 or more. See
finding 6, above. In all but the Norfolk Naval Shipyard decision, it
was established in each of the Authority decisions ruling in favor of
nondisclosure that the unions had, at least, been given the names of
those in the unit. (In Norfolk Naval Shipyard the union must have had
the names; and, in any event it sought only the home addresses).
Lacking the names of all unit employees severely restricts the Council's
use of the alternative means of communication available to it, such as
the use of the FTS and internal mail service, in seeking to represent
non-members.
And, thirdly, the bargaining-unit employees here involved were
dispersed throughout the country, rather than in one metropolitan area
or a single shipyard as was the situation in the five, above-cited
Authority decisions wherein the Authority found that the balancing test
favored nondisclosure. Working in one metropolitan area or a single
shipyard, a union's network of officers and stewards can much more
readily reach the unit employees than in the situation here. Here, the
short-handed network of stewards, not even knowing the names of all the
unit employees, would be hard pressed to reach all, to ascertain their
preferences and needs on bargaining proposals currently under
negotiation at the time the request for names and home addresses was
made.
Since the Authority has announced that it will "use a balancing test"
in each case to weigh disclosure versus nondisclosure, it must intend to
favor disclosure, under appropriate circumstances. This case, in my
judgment, presents that set of circumstances. /7/
2. The information sought is reasonably available.
See finding 20, above. Respondent protests otherwise, and points to
two facts -- that the request was made "at the mid-point of the
negotiations;" and that the requests could not be satisfied "practically
overnight" (R. BR. 13-14). It is true that the request was so timed;
that it would take a while to compile the information; and that Article
4 of the parties' collective bargaining agreement provides for
completion of bargaining within 10 days. However, the contract also
provides that all time frames under Article 4 may be modified by mutual
consent.
Although a witness for Respondent testified to the logistical problem
of obtaining the names and home addresses of the unit employees, he had
not undertaken any study or analysis of the logistics involved. Nor had
he made any actual attempts to contact supervisory personnel to
determine the difficulties involved in extracting the information from
files held by them. Nor had he contacted the Central Payroll Office to
determine how soon that office's computer could generate the names and
home addresses sought. Since the payroll stubs generated by the
computer bear a "Union Code" (see finding 20 c, above), the computer
might have been able to accomplish this in a short time. The Authority
has just ruled that evidence showing data is not reasonably available
"falls within the purview of (an agency's) special knowledge relating to
the data sought," under Section 7114(b)(4). See U.S. Nuclear Regulatory
Commission, 20 FLRA No. 35 (1985) and footnote 26 to Administrative Law
Judge Louis Scalzo's decision, which the Authority adopted. An agency's
burden of proff that data is not reasonable available is not met by the
type of speculative evidence adduced in this case.
3. The information sought is necessary for full and proper
discussion, understanding, and negotiation of subjects within the scope
of collective bargaining.
It is manifest that, in order to frame intelligent bargaining
proposals, a union must be able to communicate effectively with the
employees in the unit it represents -- to obtain their views on
bargaining priorities; to ascertain their concerns; and to obtain
information. See Internal Revenue Service, Office of the District
Director, Jacksonville District, Jacksonville, Florida, FLRC No. 72A-50,
2 FLRC 106, 109 (1974), a decision under Executive Order 11491, the
precursor of the Statute. And see also a decision under the National
Labor Relations Act, Prudential Insurance Co. of America v. N.L.R.B.,
412 F.2d 77, 84 (2d Cir., 1969), cert. denied, 396 U.S. 928 (1969).
This, and other private sector cases involving labor relations have
recognized that the names and home addresses of bargaining unit
employees are necessary for this purpose. See e.g., United Aircraft
Corp. v. National Labor Relations Board, 434 F.2d 1198 1204 (2d Cir.
1970), cert. denied, 401 U.S. 993 (1971) and Magma Copper Co., 208 NLRB
329 (1974).
In the instant case, the Council was at the bargaining table
negotiating over a proposed realignment affecting offices where unit
employees work. The realignment could have resulted in the forced
relocation of unit employees to perform new assignments. The Council
requested the names and home addresses of the unit employees in order to
identify their training needs; to ascertain their work experience so
that the Council would have some idea of the amount of training needed;
to obtain feedback on their commuting and carpool arrangements and how a
relocation would affect them; to ascertain how many would be eligible
for discontinued service retirement so that the Council would know
whether to seek some agreement to encourage such retirements, and thus
limit the number of employees impacted by the realignment; and to
determine how many would be eligible for the hardship exception to
automatic reassignments. This information was necessary to assist the
Council in continuing to formulate proposals and to set bargaining
priorities. While the Council's negotiation team had been able to
contact 27 employees personally known to members of the team, it had no
idea of what the other unit employees faced or wanted. Alternative
means of communicating with unit employees were ineffective for this
type of confidential exchange between unit employees and their exclusive
representative, particularly since the Council could not even identify
just who the unit employees were, other than those who were Council
members. See findings 6 and 23, above.
Under Section 7114(a)(1) of the Statute, the Council has a statutory
duty to represent and bargain for non-members as well as members. In
the case at bar, the Council estimated that only about thirty percent of
the unit employees belonged to the Council. Acutally, the percentage
may be considerably smaller, because the Council's estimate was based
upon a belief that the unit was only approximately 500 in number, and I
have credited the testimony of Respondent's witness that, in fact, it
was about 900 in number. See finding 6, above. Private sector cases
have compelled production of names and home addresses where the
percentage of union membership far exceeded that percent. See, e.g.,
Magma Copper Co., 208 NLRB at 330 where the membership was 60 percent of
bargaining unit. With such a low percentage of members, it was
necessary for the Council to be able to contact non-members in order to
assess the needs and interests of the bargaining unit as a whole.
Moreover, the necessity for the data has not ceased merely because
the realignment negotiations have concluded. The Council still needs
the names and home addresses to police the agreement reached and to
prepare for additional negotiations concerning the closing of certain
FAO satellite offices also impacting upon unit employees, and as to
which the Council has requested bargaining.
Respondent does not really argue that the information sought was not
necessary. Rather, it argues that the Council "just refused or was not
interested in providing any explanation to the Respondent at any time
prior to the hearing as to why the information was necessary or
relevant" (R. BR. 10-11). Such an explanation is required of a
requesting union, if only to enable the agency to determine whether the
Privacy Act prohibits disclosure. However, a union is not required to
state, and then restate the obvious. Here, the parties were in
negotiations over a management proposal to realign 10 regional offices
and had already discussed, but not reached agreement on such topics as
training for reassigned employees, hardship exceptions to relocations
and reassignments, and discontinued service retirements. The Council
made a written request for the information in order "to continue to
formulate proposals" (see finding 15, above). What more emplicit reason
did Respondent really need? /8/ The fact that the Council's negotiating
team gave no further, oral explanation does not "bar it" from
entitlement, as Respondent ultimately agreed to give the Council
certain, different information, in order to police the agreement. See
R. BR. 13 and finding 19 b, above. This information would come to the
Council too late for the purpose of formulating proposals and setting
bargaining priorities.
Ultimate Findings and Recommended Order
Respondent has committed the unfair labor practice alleged in the
complaint and thereby violated Sections 7116(a)(1), (5) and (8) of the
Statute.
Accordingly, and pursuant to 5 CFR Section 2423.29 and 5 U.S.C.
Section 7118 of the Statute, it is hereby ordered that the Department of
Health and Human Services, Social Security Administration, shall:
1. Cease and desist from:
(a) Refusing and failing to furnish, upon request of American
Federation of Government Employees, AFL-CIO, or its agent, the
National Council of SSA Field Assessment Locals, the names and
home addresses of all Field Assessment Office employees
represented by it.
(b) In any like or related amnner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative actions in order to effectuate the
pruposes and policies of the Statute:
(a) Upon request of the American Federation of Government
Employees, AFL-CIO, or its agent, the National Council of SSA
Field Assessment Locals, furnish the names and home addresses of
all Field Assessment Office employees represented by it.
(b) Post at its facilities, in each regional office employing
Field Assessment Office employees constituting the bargaining unit
represented by the National Counsel of SSA Field Assessment
Locals, copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the head of the Field Assessment
Office component of the Social Security Administration, and shall
be posted and maintained for 60 consecutive days thereafter in
conspicuous places, including bulletin boards and other places
where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to 5 CFR Section 2423.30, notify the Regional
Director, Region II, Federal Labor Relations Authority, 26 Federal
Plaza, Room 2237, New York, New York 10278, in writing, within 30
days from the date of this Order as to what steps have been taken
to comply herewith.
/s/ ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: October 9, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) When the Authority decided, for reasons discussed more fully in
FHAFO, to review the entire issue of the release of employees' names and
home addresses and invited agencies, unions, and interested persons to
submit amicus briefs addressing the issue, this case was one of those
listed as being under consideration. The Union and the Respondent filed
amicus briefs in response to the Authority's invitation. The Union
contends that the Respondent's submission should not be accepted because
it was filed one day late. The Authority accepted and considered some
amicus submissions that were received shortly after the date set in the
Authority's Federal Register notice, including the Respondent's amicus
brief. However, we note that there is nothing in the disputed
submission that would alter our decision in this matter.
(1) These statutory provisions are as follows:
Section 7114(b) provides that:
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 --
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonable available and necessary for full and
proper discussion, understnading, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining . . . .
Section 7116 provides, in pertinent part, that:
(a) For the purposes of this chapter, it shall be an unfair
labor practice for an agency --
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter . . . or
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
(2) The following abbreviations will be used. "TR" refers to the
transcript. "G.C. Exh." refers to the exhibits of the General Counsel,
"R. Exh." to those the Respondent, and "Jt. Exh." to the Joint Exhibit.
"G.C. BR." refers to the brief of the General Counsel and "R. BR." to
that of Respondent. Corrections to the transcript are appended hereto,
and are made pursuant to 5 CFR 2423.19(r) and the unopposed motion of
the General Counsel, which is granted, with a few corrections and
exceptions as shown in the appendix.
(3) The Council's chief negotiator so testified. See TR. 131, 141
and 138. Mr. Matthews, testified that "(b)asically nobody was going to
move" (TR. 237). However, it is undisputed that the memorandum of
agreement negotiated provided for relocation allowances for employees
reassigned outside their commuting area. See G.C. Exh. 13, page 3,
para. 6. So some relocations must have been expected. Accordingly, I
credit the testimony of the Council's witness.
(4) Ms. Reynolds could not recollect this. See TR. 271-277 and 280.
However, Ms. Bromley and Mr. Matthews both so testified and appeared
positive and truthful. See TR. 206-208, 217-218, 235, and 279-280. I
credit their testimony on this point.
(5) This is statutory burden of proof. See 5 U.S.C. Section 7118 (7)
and (8).
(6) In this case, the Supreme Court also emphasized that "disclosure,
not secrecy, is the dominant objective of the (FOIA) . . . and
(exemptions to it) must be narrowly construed" (425 U.S. at 361).
(7) Administrative Law Judge William B. Devaney, in Department of
Health and Human Services, Social Security Administration, Case No.
5-CA-50187 (OALJ-85-136) held, on September 18, 1985, that the recent
Authority decisions, above cited, constrained him to find that the
Privacy Act prohibited the disclosure of home addresses of unit
employees. In that case, the unit was dispersed throughout Northeastern
Ohio, but not nationwide, as here. And the request did not come in the
middle of negotiations over a matter of such strong employee interest,
as here. Thus, that case is distinguishable from this, on its own
particular facts.
(8) To the extent that Council witnesses testified at the hearing
that they needed the information to police the agreement, I would agree
that Respondent was not given this reason in time for it to perform the
balancing test required for Privacy Act considerations.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse or fail to furnish, upon request of the American
Federation of Government Employees, AFL-CIO, or its agent, the National
Council of SSA Field Assessment Locals, the names and home addresses of
all unit employees represented by it.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request of the American Federation of Government
Employees, AFL-CIO, or its agent, the National Council of SSA Field
Assessment Locals, furnish the names and home addresses of all unit
employees represented by it.
(Agency or Activity)
Dated:
By: (Signature)
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region II,
whose address is: 26 Federal Plaza, Room 2237, New York, New York 10278
and whose telephone number is: (212) 264-4934.