25:0560(42)CA - Treasury, Financial Management Service and NTEU -- 1987 FLRAdec CA
[ v25 p560 ]
The decision of the Authority follows:
25 FLRA No. 42 DEPARTMENT OF THE TREASURY FINANCIAL MANAGEMENT SERVICE Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 3-CA-60380 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, granting the General Counsel's motion for summary judgment and finding that the Respondent had engaged in the unfair labor practices alleged in the complaint and recommending that Respondent be ordered to take appropriate remedial action. Thereafter, the Respondent filed exceptions to the Judge's Decision and a supporting brief. No opposition to the exceptions was filed. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions and recommended Order. Issued, Washington, D.C., February 5, 1987.. Jerry L. Calhoun, Chairman Henry B. Frazier, III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 3-CA-60380 DEPARTMENT OF THE TREASURY FINANCIAL MANAGEMENT SERVICE Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Authur S. Rosenzweig, Esquire For the Respondent Ira Sandron, Esquire For the General Counsel Bryan W. Mellor, Esquire For the Charging Party Before: WILLIAM B. DEVANEY Administrative Law Judge DECISION Statement of the Case This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. Section 7101, et seq., /*/ and the Final Rules and Regulations issued thereunder, 5 C.F.R. Section 2423.1, et seq., concerns a request for the names and home addresses of bargaining unit employees. This case was initiated by a charge filed on June 12, 1986 (G.C. Exh. 1(a)), which alleged violations of Sections 16(a) (1) and (8) of the Statute and a first ammended charge filed on August 15, 1986 (G.C. Exh. 1(b)), which alleged violations of Sections 16(a)(1), (5) and (8) of the Statute. The Complaint and Notice of Hearing issued on August 26, 1986 (G.C. Exh. 1(c)), alleged violations of Sections 16(a)(1), (5) and (8) of the Statute, and set the hearing for November 5, 1986, pursuant to which a hearing was duly held on November 5, 1986, in Washington, D.C., before the undersigned. At the conclusion of the testimony and evidence, I granted the motion of General Counsel for summary judgment. All parties were given leave to mail briefs, in support of the granting of summary judgment or in opposition thereto, on or before November 19, 1986. No post-hearing briefs were filed. On the basis of the entire record, I make the following findings and conclusions: Findings 1. The National Treasury Employees Union (NTEU) is the exclusive representative of Respondent's employees in a nation-wide consolidated unit consisting of all of Respondent's nonprofessional General Schedule and Wage Grade employees. NTUE'S Chapter 202 (hereinafter referred to as the "Union") is the agent of NTEU acting upon its behalf in representing bargaining unit employees. 2. On, or about April 29, 1986, the Union requested that Respondent furnish it with the names and home addresses of ". . . all bargaining unit employees in FMS" (G.C. Exh. 3), and stated that, "The purpose of this request is for the Union to have an opportunity to reach all of our employees regardless of restricted or security areas they may work in." (G.C. Exh. 3). 3. By letter dated May 5, 1986, Respondent refused to furnish the Union the names and home addresses requested stating, "this is in response to your April 29, 1986 letter asking for the names and mailing addresses of all bargaining unit employees. A recent FLRA decision on this very issue held that the Unions are not normally entitled to this information. The Authority balanced the rights of the exclusive bargaining representative and the privacy rights of the employees. It concluded that as long as there were other reasonably effective means of contacting the employees, the Unions were not entitled to this information. Accordingly, I must deny your request. "Management is interested in cooperating with NTEU to the extent permitted by law. Therefore, if you are unable to contact any FMS employee bargaining unit employee because that person is either assigned to a remote work site or absent for an extended period, please contact a Labor Relations Specialist for assistance in either locating that employee or forwarding documents to that person." (G.C. Exh. 4). 4. The parties stipulated as follows: "The information requested by the Union, described in Paragraph 6 of the Complaint, is normally maintained by Respondent, based on information supplied by bargaining unit employees, in the regular course of business, is reasonably available and does not constitute guidance, advice, counsel, or training for management officials, or supervisors relating to collective bargaining." (Tr. 8; see, also, Respondent's Answer, G.C. Exh. 1(e)). 5. Mr. Clinton Weems, President of Chapter 202 and who made the request for names and home addresses, testified there was no correspondence between the Union and Respondent other than General Counsel Exhibits 3 and 4 (Tr. 7); that he had no conversations bearing on the purpose of his request with Respondent (Tr. 17-18); and that Respondent never asked why he wanted the information (Tr. 18). 6. Ms. Virginia Gaye Cook, Labor Relations Officer for the Financial Management Service (Tr. 23), testified that the Financial Management Service consists of Headquarters and seven regional financial centers; that there is a single nationwide bargaining unit represented by NTEU; that in the headquarters area in Washington there are six different locations, including the Treasury Annex, Hyattsville, Maryland (where most of its employees are located), the Shoreham Building, the Premier Building, and supplies at the Ford plant in Alexandria, Virginia (Tr. 38); and that there are about 2400 employees in Financial Management Service, not all of whom are in the bargaining unit (Tr. 29). Ms. Cook testified that, to her knowledge, no Union official had ever complained about trouble in contacting bargaining unit employees (Tr. 28). General Counsel's objection to questions directed to Ms. Cook concerning what methods the Union had employed to communicate with bargaining unit employees was sustained; Respondent was permitted to make a proffer of proof, to the effect that the contract of the parties provides various methods of contact, including official time for Union officials to meet with employees, permitting use of bulletin boards, desk drops, "take-one" distribution in the cafeteria area, that Respondent has provided names, location and office telephone numbers of employees, and that these methods are reasonable and effective (Tr. 31-32, 33). General Counsel objected to Respondent's proffers of proof and they were rejected. Conclusion Respondent concedes that the facts are not in dispute and stated, ". . . The operative facts concerning the complaint are not in issue, the Union submitted a formal request for the names and home addresses of FMS employees and management refusal to provide it to them." (Tr. 22). Respondent's position is, as quite succinctly stated by Mr. Rosenzweig, ". . . the information requested by the Union was not necessary for a full and proper discussion understanding and negotiation of subjects within the scope of collective bargaining . . . that NTEU has represented FMS for several years and has never complained to management about difficulty with contacting employees, or about being constrained in the type of contacts it has . . . that reasonable and effective alternative means exist to contact employees without invading their privacy . . . We urge the Authority to consider the alternative means available to the Union and then apply the appropriate balancing test." (Tr. 22-23). The Authority's decision in Farmers Home Administration, Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (October 31, 1986) (G.C. Exh. 2) is both controlling and dispositive of Respondent's contentions. Thus, the Authority held, in part, as follows: "On balance, we find that the public interest to be furthered by providing the Union with an efficient method to communicate with unit employees it must represent far outweighs the privacy interests of individual employees in their names and home addresses. Disclosure of the requested information would not constitute a clearly unwarranted invasion of personal privacy and does not fall within the (b)(6) exemption to the FOIA. Since the information does not fall within the exemption, its disclosure is required under the FOIA and, under exception (b)(2) to the Privacy Act, its release is not prohibited by law. (23 FLRA No. 101 at p.6). ". . . we conclude that the disclosure of the names and home addresses of bargaining unit employees to the Union is necessary within the meaning of Section 7114(b)(4) of the Statute for the Union to discharge its statutory obligations. Consistent with that conclusion, we find that the disclosure of the information sought here falls within the routine use established by OPM, and its disclosure is therefore a routine use under exception (b)(3) of the Privacy Act. Therefore, even if the disclosure was not authorized under exception (b)(2) of the Privacy Act, relating to the FOIA, it is authorized under exception (b)(3). "Release of the requested information is therefore not prohibited by law. It may be released pursuant to exceptions (b)(2) and (3) of the Privacy Act. (23 FLRA No. 101 p. 7). ". . . We find that the statutory requirement concerning sufficiency of a request under section 7114(b)(4) is satisfied for requests such as that involved here when a general written request for the information is made. A precise explication of the reasons for the request involved here is not necessary . . . an exclusive representative's need for the names and home addresses of the bargaining unit employees it is required to represent is so apparent and essentially related to the nature of exclusive representation itself, that unlike requests for certain types of other information, an agency's duty to supply names and home addresses information does not depend upon any separate explanation by the union, of its reasons for seeking the information. (23 FLRA No. 101, at p. 8). "We will not review the adequacy of alternative methods of communication on a case-by-case basis . . . we find that the mere existance of alternative means of communication is insufficient to justify a refusal to release the information. Further, we find that it is not necessary for us to examine the adequacy of alternative means in cases involving requests for names and home addresses because the communication between the unit employees and their exclusive representative which would be facilitated by the release of names and home addresses information is fundamentally different from other communication through alternative means which are controlled in whole or in part by the agency. When using direct mailings, the content, timing, and frequency of the communication completely within the discretion of the union and there is no possibility of agency interference in the distribution of the message. Further, direct mailings reach unit employees in circumstances where those employees may consider the union's communication without regard to the time constraints inherent in their work environments, and in which any restraint the employee may feel as a result of the presence of agency management in the workplace is not present. We find the names and home addresses of unit employees are necessary and should be provided whether or not alternative means of communication are available." (23 FLRA No. 101, at pp. 9-10). Respondent was required to furnish the names and home addresses requested by the Union, which were normally maintained by Respondent in the regular course of business and were reasonably available, without regard to whether alternative means of communication were available or adequate. Respondent's refusal to furnish the requested information violated Sections 16(a)(1), (5) and (8) of the Statutes; the granting of General Counsel's motion for summary judgment at the conclusion of the hearing is affirmed; and it is recommended that the Authority adopt the following: ORDER Pursuant to Section 2423.29 of the Authority's Rules and Regulations, 5 C.F.R. Section 2423.29, and Section 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders that Department of the Treasury, Financial Management Service shall: 1. Cease and desist from: (a) Refusing to furnish, upon request of National Treasury Employees Union, the exclusive representative of its employees, and its Chapter 202, the names and home addresses of all bargaining unit employees in Financial Management Service. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Furnish the names and home addresses as requested by the National Treasury Employees Union's Chapter 202 by its letter of April 29, 1986. (b) Post at all of its facilities where bargaining unit employees represented the National Treasury Employees Union, including its National Headquarters and Financial Center, Washington, D.C. and at its Regional Financial Centers, 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 a senior official of the Financial Management Service and shall be posted and maintained for 60 consectutive 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 Athority's Rules and Regulations, notify the Regional Director of Region III, Federal Labor Relations Authority, 1111 18th Street, N.W., P.O. Box 33758, Washington, D.C. 20033-0758, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. WILLIAM B. DEVANEY Administrative Law Judge Dated: November 26, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (*) For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, e.g., Section 7114(b)(4) will be referred to, simply, as "Section 14(b)(4)". 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 to furnish, upon request of the National Treasury Employees Union, the exclusive representative of our employees, the names and home addresses of all bargaining unit employees in the Financial Management Service. 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 furnish the names and home addresses as requested by the National Treasury Employees Union's Chapter 202 by its letter of April 29, 1986. (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 III, whose address is: 1111 18th Street, N.W., Suite 700, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500.