26:0460(56)CA - HHS, Region V, Chicago, Ill., and NTEU and NTEU, Chapter 230 -- 1987 FLRAdec CA



[ v26 p460 ]
26:0460(56)CA
The decision of the Authority follows:


 26 FLRA No. 56
 
 DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, REGION V, 
 CHICAGO, ILLINOIS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION AND 
 NATIONAL TREASURY EMPLOYEES UNION, 
 CHAPTER 230
 Charging Party
 
                                            Case No. 5-CA-60271
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 the unfair labor practices alleged in the complaint and recommending
 that the Respondent be ordered to take appropriate remedial action.
 Thereafter, the Respondent filed exceptions to the Judge's Decision and
 a supporting brief.  The General Counsel and the Charging Party filed
 oppositions to the exceptions.
 
    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.  We deny the Respondent's
 request for a remand as without basis.  We also deny the General
 Counsel's motion to strike, noting that we have considered only the
 record evidence properly before us.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute, the Department of Health and Human Services, Region V, Chicago,
 Illinois shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to furnish, upon request of the National Treasury
 Employees Union, and National Treasury Employees Union, Chapter 230, the
 exclusive representative of its employees, the names and home addresses
 of all employees in the bargaining unit it represents.
 
    (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) Furnish the National Treasury Employees Union and National
 Treasury Employees Union, Chapter 230, the exclusive representative of
 its employees, the names and home addresses of all employees in the
 bargaining unit it represents.
 
    (b) Post at its facilities in Region V where bargaining unit
 employees represented by National Treasury Employees Union and National
 Treasury Employees Union, Chapter 230, 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
 Respondent's Regional Director and shall be posted and maintained for 60
 consecutive days thereafter, in conspicuous places, including all
 bulletin boards and other places where notices to employees are
 customarily posted.  Reasonable steps shall be taken to ensure that 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 V, Federal Labor
 Relations Authority, Chicago, Illinois, in writing, within 30 days from
 the date of this order, as to what steps have been taken to comply.
 
    Issued, Washington, D.C., March 31, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
 EFFECTUATE
 THE POLICIES OF THE 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 and National Treasury Employees Union, Chapter 230, the
 exclusive representative of our employees, the names and home addresses
 of all employees in the bargaining unit it represents.
 
    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 National Treasury Employees Union and
 National Treasury Employees Union, Chapter 230, the exclusive
 representative of our employees, furnish it with the names and home
 addresses of all employees in the bargaining unit it represents.
                                       (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 V, Federal Labor Relations Authority, whose address is:
  175 West Jackson Blvd., Suite 1359-A, Chicago, Illinois 60604 and whose
 telephone number is:  (312) 353-6306.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 5-CA-60271
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES, 
 REGION V CHICAGO, ILLINOIS
    Respondent
 
                                    and
 
 NATIONAL TREASURY EMPLOYEES UNION AND 
 NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 230
    Charging Party
 
    Judith Ramey, Esq.
    For the General Counsel
 
    Edward L. Koven, Esq.
    For the Respondent
 
    Angela C. Thomas, Esq.
    For the Charging Party
 
    Before:  ELI NASH, JR.
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision involves an unfair labor practice complaint issued by
 the Regional Director, Region V, Federal Labor Relations Authority,
 Chicago, Illinois, against the Department of Health and Human Services,
 Region V, Chicago, Illinois (herein called Respondent), based on a
 charge filed by the National Treasury Employees Union and National
 Treasury Employees Union, Chapter 230 (herein called Charging Party or
 Union).  The Complaint alleged, in substance, that Respondent violated
 section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute, 5 U.S.C. Section 7101, et seq., (herein called the
 Statute) by refusing to furnish the Union with the names and home
 addresses of all employees within the bargaining unit pursuant to
 section 7114(b)(4) of the Statute.
 
    Respondent's Answer denied any violation of the Statute.
 
    A hearing was held in Chicago, Illinois.  /1/ The Respondent,
 Charging Party, and the General Counsel were afforded full opportunity
 to be heard, adduce relevant evidence, examine and cross-examine
 witnesses, and file post-hearing briefs.  The Respondent and General
 Counsel filed timely briefs.  Based on the entire record, including my
 observation of the witnesses and their demeanor, I make the following
 findings of fact, conclusions of law, and recommendations.
 
                             Findings of Fact
 
    1.  At all times material, the Union has been and remains the
 exclusive representative of Respondent's employees in an appropriate
 bargaining unit.
 
    2.  The bulk of bargaining unit employees are situated in four
 buildings located in downtown Chicago.  A few other employees are
 scattered in other buildings in downtown Chicago, possibly six others
 are spread in different locations throughout a six-state area, one in
 each state capital.
 
    3.  On April 22, 1986, the parties entered a collective bargaining
 agreement with a duration of three years.  The agreement included an
 article entitled "Hours of Work/Alternate Work Schedules" (AWS).  Under
 Article 37, section 14 the AWS provided that either party may reopen the
 article effective May 1, 1987.  Assistant Counsel for the Union,
 Jefferson D. Friday, testified that it intended to re-open section 14 to
 "fine tune" the Article.  Consistent with this desire Mr. Friday, on May
 19, 1986 wrote Ms. Cindy Soltes, Respondent's Labor Relations Officer,
 requesting that Respondent "provide us with a list of the names and
 corresponding home addresses for bargaining unit employees. . . ." /2/
 
    4.  On May 31, 1986, Ms. Soltes responded to the above-mentioned
 correspondence denying the request for home addresses of unit employees
 represented by the Union.  Respondent's letter relied on the Authority's
 holding in Department of Defense, Department of the Navy, Norfolk Naval
 Shipyard, Portsmouth, Virginia, 20 FLRA 425 (1985).  Respondent also
 noted "two conflicting opinions" from circuit court's on the issue.
 Further, Respondent contended that the data requested "is not normally
 maintained and is not reasonably available";  that a search for the data
 would be "burdensome" to it;  that the release of the data was
 prohibited by law;  and, finally that the Union had "other means" of
 communication available.
 
    5.  The names and home addresses requested by the Union are
 maintained in Respondent's Regional Personnel Office at 300 South Wacker
 Drive in Chicago.  The information is available from the Official
 Personnel Files (OPFs) of approximately 500 bargaining unit employees
 represented by the Union, with the exception of a dozen, or so, files
 kept at 600 West Madison in Chicago.  The above mentioned files contain
 a home address although it may not be the present address for each
 employee.  The files are maintained in mechanical (motorized) file
 cabinets in alphabetical order.  Ms. Soltes testified that it would take
 "maybe 20 minutes to locate the file, pull it and replace the file."
 Based on this estimate by Ms. Soltes, Respondent says that it probably
 would require one person "a good week or two weeks" full-time to
 retrieve the requested data from the personnel files.  However,
 Respondent is currently in the process of updating a computerized
 central payroll file with current home addresses of all employees
 because of a new requirement regarding distribution of payroll checks.
 
                                Conclusions
 
    Since the hearing in this matter, the Authority on October 31, 1986
 issued a decision in Farmers Home Administration Finance Office, St.
 Louis, Missouri, 23 FLRA No. 101, concluding that the release of names
 and home addresses is not prohibited by law, is necessary and meets the
 other requirements of section 7114(b)(4) of the Statute.  The briefing
 schedule was extended to allow the parties to consider its applicability
 to this case.  In my view, the above case totally disposes of all issues
 in this matter.  /3/
 
    The General Counsel contends that the information was properly
 requested by the Union;  that it was relevant and necessary within the
 meaning of section 7114(b)(4) of the Statute;  that the information
 requested was normally maintained by Respondent and reasonably
 available;  and, finally that the disclosure of the information was not
 prohibited by law.
 
    The record disclosed that the requested information which is kept by
 Respondent in OPFs in the Regional Office is normally maintained by
 Respondent in the regular course of business.  Therefore, no
 consideration is given to Respondent's contention to the contrary.  The
 requested data is also "reasonably available" despite Respondent's
 argument that it would take one employee about 20 minutes per file to
 find and record the name and home address for every bargaining unit
 employee.  Even if this were the case, the argument that it would be
 necessary to pull such personnel files and hand record names and home
 addresses has already been rejected by the Authority as creating an
 undue burden on an agency.  See Defense Mapping Agency Aerospace Center,
 St. Louis, Missouri, 19 FLRA No. 85 (1985);  Department of the Air
 Force, Scott Air Force Base, 24 FLRA No. 28 (1986).  Moreover, under
 Farmers Home Administration, supra, one apparently need not address the
 undue burden argument since the Authority held that information
 contained in OPFs is "reasonably available."
 
    Accordingly, it is found that the names and home address requested
 were normally maintained by Respondent and reasonably available.
 
    Respondent asserts that the Union failed to demonstrate the necessity
 of the names and home addresses herein.  The evidence shows that the
 Union's request for names and home addresses of May 19, 1986 offered a
 reason for needing the information, to prepare for contract
 negotiations.  Respondent's contention that the Union's motives are
 financial could also, in my view, establish a necessity for seeking the
 requested information, if one need be articulated.  Certainly seeking to
 retain membership and strengthening its financial situation re those
 members is a valid reason to seek communications with bargaining unit
 members it "must" represent.  In Farmers Home Administration, supra, the
 Authority stated that a written request for names and home addresses
 "need not contain an explanation of the reason for the request."
 According to the Authority the need is "so apparent and essentially
 related to the nature of exclusive representation itself" that the duty
 to disclose the information "does not depend upon any separate
 explanation by the union of its reasons for seeking the information."
 Since a precise explanation is not required, it is found that the
 request herein is sufficient to comply with section 7114(b)(4) of the
 Statute.
 
    Respondent devotes considerable effort to establishing that the Union
 has adequate alternate means of communicating with employees.  The
 Authority's conclusion in Farmers Home Administration, supra, on that
 issue, however, is plainly stated.  The Authority held as follows:
 
       . . . we find that the mere existence 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 unit employees and their exclusive representative which
       would be facilitated by 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.
 
    All Respondent's effort notwithstanding, I am compelled to find that
 the names and home addresses of the bargaining unit employees herein
 were necessary and should be provided whether or not the alternative
 means of communication, as carefully outlined by Respondent, were
 available.
 
    The General Counsel maintains that release of the requested
 information is not prohibited by law.  On the other hand, Respondent
 makes a laborious attempt to establish a substantial privacy, as well as
 a public interest against disclosure.  The Authority carefully addressed
 the provisions of the Privacy Act, the Freedom of Information Act and
 the "routine use" exception in Farmers Home Administration, supra,
 ultimately finding as follows:
 
       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 individuals 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 of
       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.
 
    Further, the Authority found that the disclosure of the names and
 home addresses falls within the "routine use" under exception (b)(3) of
 the Privacy Act.  Thus, even the disclosure was not authorized under
 exception (b)(4), it is authorized under exception (b)(3).  Based on
 these findings, Respondent's argument that disclosure is prohibited by
 law must be rejected.
 
    The Authority in Farmers Home Administration, supra, also stated that
 while the presumption favoring disclosure of names and home addresses is
 not irrebuttable, contrary evidence necessary to shift the burden of
 persuasion of relevancy of the names and home addresses must be
 substantial.  The Authority cited Shell Oil Co. v. NLRB, 457 F.2d 615
 (9th Cir. 1972), as an example of evidence needed to overcome the
 presumption.  There substantial evidence disclosed imminent danger in
 the form of harassment and violence by union sympathizers if the names
 and addresses were released.  Despite Respondent's vigorous argument to
 the contrary there is no evidence on this record forceful enough to
 counter the presumption of relevance.
 
    Accordingly, it is found that Respondent was required to furnish the
 names and home addresses requested by the Union, which were normally
 maintained by it 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 section 7116(a)(1), (5) and (8) of the
 Statute as alleged.
 
    Based on the foregoing findings and conclusions, it is recommended
 that the Authority issue the following Order:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the Department of Health and Human
 Services, Region V, Chicago, Illinois shall:
 
    1.  Cease and desist from:
 
          (a) Refusing to furnish, upon request of the National Treasury
       Employees Union and National Treasury Employees Union, Chapter
       230, the exclusive representative of its employees, the names and
       home addresses of all employees in the bargaining unit it
       represents.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing its employees in the exercise of the
       rights assured them by the Federal Service Labor-Management
       Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute.
 
          (a) Upon request by the National Treasury Employees Union and
       National Treasury Employees Union, Chapter 230, the exclusive
       representative of its employees, furnish it with the names and
       home addresses of all employees in the bargaining unit it
       represents.
 
          (b) Post at its facilities in Region V where bargaining unit
       employees represented by National Treasury Employees Union and
       National Treasury Employees Union, Chapter 230, are located,
       copies of the attached Notice on forms to be furnished by the
       Authority.  Upon receipt of such forms, they shall be signed by
       the Regional Director or equivelant official and shall be posted
       and maintained for 60 consecutive days thereafter, in conspicuous
       places, including all bulletin boards and other places where
       notices to employees are customarily posted.  Reasonable steps
       shall be taken to ensure that 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 V, Federal Labor
       Relations Authority, Chicago, Illinois, in writing, within 30 days
       from the date of this order, as to what steps have been taken to
       comply herewith.
 
                                       /s/ Eli Nash, Jr.
                                       Administrative Law Judge
 
    Dated:  January 12, 1987
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Respondent's uncontested Motion for Correction of Record is
 granted.
 
    (2) The correspondence also provided as follows:
 
       . . . This information is relevant and necessary in order for the
       unit to carry out the collective bargaining function.
       Specifically, we want to survey bargaining unit members on the
       effect of various provisions of the new agreement.  In particular
       the survey will be geared toward Alternate Work Schedules . . .
 
    (3) Respondent's brief is replete with arguments concerning its
 disagreement with Farmers Home Administration, supra, and also with
 American Federation of Government Employees, Local 1760 v. FLRA, 786
 F.2d 344 (2nd Cir. 1986).  Respondent would, of course, rather the
 Authority apply the rationale of American Federation of Government
 Employees, Local 1923, and United States Department of Health and Human
 Services, 712 F.2d 931 (4th Cir. 1983) to this case.  Respondent's
 disputation notwithstanding, an Administrative Law Judge is not endowed
 with power to disregard precedents and principles once established by
 the Authority.  While the Authority may, within its sound discretion and
 subject to review by the circuit courts, reexamine its policies and
 interpretations which it senses are no longer apposite or possibly
 erroneous, an Administrative Law Judge, no matter what his personal
 inclination might be, has no such power.  Where the Authority determines
 that it will reexamine and change a precedent, the Administrative Law
 Judge is obligated to give the resulting principles conscientious effect
 as the applicable law until abandoned or modified.  Any application
 otherwise would constitute a revision of statutory interpretation which
 is contrary to responsible administration of the Statute.  Moreover,
 this case is unlike, Department of the Air Force Headquarters, Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, 23 FLRA No. 54
 (1986) since in Farmers Home Administration, supra, the Authority noted
 that after full consideration of the issues raised in name and home
 address case submissions by interested parties pursuant to its notice in
 the Federal Register, 51 Fed. Reg. 21, 416 (1986), it intended to
 reverse the precedent and require release of the information.  The
 reversal is without question applicable to the instant case.
 
 
 
 
 
                          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