26:0479(58)CA - Treasury, Bureau of Engraving and Printing and NTEU -- 1987 FLRAdec CA



[ v26 p479 ]
26:0479(58)CA
The decision of the Authority follows:


 26 FLRA No. 58
 
 DEPARTMENT OF THE TREASURY 
 BUREAU OF ENGRAVING AND PRINTING
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 3-CA-60332
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 filed by the Respondent to the attached decision of the Administrative
 Law Judge.  The issue is whether it is an unfair labor practice under
 the Federal Service Labor-Management Relations Statute (the Statute) for
 the Respondent to refuse a request, made pursuant to section 7114(b)(4),
 to provide the Union with the home addresses of employees in the unit
 exclusively represented by the Union.
 
    In our Decision and Order on Remand in Farmers Home Administration
 Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986) (FHAFO),
 petition for review filed sub nom. U.S. Department of Agriculture and
 the Farmers Home Administration Finance Office, St. Louis, Missouri v.
 FLRA, No. 86-2779 (8th Cir. Dec. 23, 1986), we held that the release of
 the names and home addresses of bargaining unit employees to exclusive
 representatives 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, as alleged.
 
                                II.  Facts
 
    The Union is the exclusive representative of a unit of the
 Respondent's employees.  By letter dated April 16, 1986, the Union
 requested that the Respondent furnish it with the names and home
 addresses of all employees in the bargaining unit.  The Union claimed
 that the information was necessary "because of the stringent security
 measures within the Bureau's work sites which prohibits necessary
 contacts by NTEU representatives(.)"
 
    By letter dated May 6, 1986, the Respondent refused to furnish the
 names and home addresses to the Union, noting that there were
 conflicting courts of appeals decisions on the matter.
 
                 III.  Administrative Law Judge's Decision
 
    The Judge concluded that our decision on remand in FHAFO is
 dispositive of all issues in this case and after reviewing the facts,
 determined that the Respondent's refusal to furnish the information
 constituted a violation of section 7116(a)(1), (5) and (8) of the
 Statute, as alleged.  Thus, he found that (1) FHAFO established that
 release of the names and home addresses is not prohibited by law;  (2)
 the information is normally maintained in the regular course of
 business, is reasonably available, and does not constitute guidance
 relating to collective bargaining;  (3) the information was necessary
 for the Union to fulfill its obligation as exclusive representative;
 and (4) whether or not alternative means of communication were available
 was not dispositive.  In view of this disposition, he found it
 unnecessary to pass upon the General Counsel's motion for summary
 judgment.
 
                       IV.  Positions of the Parties
 
    In its exceptions, the Respondent takes issue with our decision on
 remand in FHAFO, arguing that disclosure is prohibited by law and that
 since an alternative means of communication is available, it is not
 necessary to disclose home addresses.  It also takes issue with our
 conclusion in FHAFO that the information was disclosable under the
 "routine use" exception of the Privacy Act.
 
    The General Counsel did not file a brief or cross exceptions.
 
                       V.  Analysis and Conclusions
 
    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, we find that the Respondent in
 this case was required to furnish the Union with the home addresses of
 the unit employees.  Thus, we conclude that the Respondent's refusal to
 furnish the requested information in this case constituted a 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, the Department of the Treasury, Bureau of Engraving and
 Printing, shall:
 
          1.  Cease and desist from:
 
          (a) Refusing to furnish, upon request by the National Treasury
       Employees Union, the exclusive representative of a unit of its
       employees, the names and home addresses of the employees in the
       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) Upon request by the National Treasury Employees Union, the
       exclusive representative of a unit of its employees, furnish it
       with the names and home addresses of all employees in the
       bargaining unit it represents.
 
          (b) Post at all its facilities where bargaining unit employees
       represented by the National Treasury Employees Union 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 Director of the Bureau of Engraving
       and Printing, 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 III, 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., 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 NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to furnish, upon request by the National Treasury
 Employees Union, the exclusive representative of a unit of our
 employees, the names and home addresses of the 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, the
 exclusive representative of a unit or 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 III, Federal Labor Relations Authority, whose address
 is:  1111 18th Street, N.W., Room 700, P.O. Box 33758, Washington, D.C.
 20033-0758, and whose telephone number is:  (202) 653-8500.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 3-CA-60332
 
 DEPARTMENT OF TREASURY BUREAU OF 
 ENGRAVING AND PRINTING
    Respondent
 
                                    and
 
 NATIONAL TREASURY EMPLOYEES UNION
    Charging Party
 
    David Scholl, Esq.
    For the General Counsel
 
    Brian Mellor
    For the Charging Party
 
    Suzanne Wilson, Esq.
    For the Respondent
 
    Before:  ELI NASH, JR.
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 section 7101, et seq., (hereinafter called the Statute) and the Rules
 and Regulations issued thereunder.  Pursuant to a charge originally
 filed on May 23, 1986 and amended on June 16, 1986 and again on August
 25, 1986 by the National Treasury Employees Union, (hereinafter called
 the Union or NTEU), a Complaint and Notice of Hearing was issued on
 August 29, 1986 by the Regional Director for Region III, Federal Labor
 Relations Authority, Washington, D.C.  The Complaint alleges that the
 Department of Treasury, Bureau of Engraving and Printing, (hereinafter
 called the Respondent or BEP) violated section 7116(a)(1), (5) and (8)
 of the Statute by failing and refusing to furnish the Union the names
 and home addresses of all employees within the appropriate bargaining
 unit.  /1/
 
    A hearing was held in the above-captioned matter on December 3, 1986,
 in Washington, D.C.  At the beginning of the hearing the General Counsel
 introduced formal documents consisting of the charge and amended
 charges;  the Complaint and Respondent's Answer thereto;  four Joint
 Exhibits consisting of the Union's request for the names and home
 addresses of bargaining unit employees;  Respondent's refusal to furnish
 same;  a request for information/General Schedule (GS) Positions which
 was a list of names of employees in General Schedule positions;  and, a
 circular concerning distribution of paychecks and U.S. Savings Bonds.
 On the basis of the foregoing documents and the Authority's recent
 decision in Farmer's Home Administration Finance Office, St. Louis,
 Missouri, 23 FLRA 101 (1986), the General Counsel moved for summary
 judgment.  The Union subsequently joined in the General Counsel's
 motion.  Prior to ruling on the motion, the undersigned requested
 Respondent's position on the motion.  Whereupon, Respondent's Counsel
 asserted that it was under no obligation to supply the names and home
 addresses of bargaining unit members because (1) the information as
 requested by the Union is not normally maintained by the agency and its
 extraction and presentation in the form requested by the Union would be
 unduly burdensome;  (2) the Union had adequate alternate means of
 communication with bargaining unit employees;  (3) the disclosure of the
 requested information would violate the provisions of the Privacy Act,
 and Freedom of Information Act;  and, (4) the names and home addresses
 may not be released under the Office of Personnel Management's "routine
 use" provision covering the release of information to labor
 organizations.  Since inquiry as to whether the requested information is
 normally maintained by the agency in the regular course of business is
 necessary to determine consistency with section 7114(b)(4), Respondent
 was permitted to present evidence on that issue.  However, Respondent's
 offer of proof as to adequate alternate means of communication was
 rejected because Farmers Home Administration, supra, made it clear that
 the mere existence of alternative means of communication is insufficient
 justification for denying a Union's request for the requested
 information.  Respondent offered no evidence concerning its remaining
 positions.  The motion for summary judgment was taken under advisement
 and a briefing date set.
 
    The General Counsel made a closing statement in lieu of a brief.
 Thereafter, Respondent and the Union submitted timely post-hearing
 briefs.
 
    Upon the basis of the described record, including my observation of
 the witness and her demeanor, I make the following findings of fact,
 conclusions, and recommendations.
 
                             Findings of Fact
 
    1.  The Union is the exclusive representative of Respondent's
 employees "in an appropriate bargaining unit consisting of all general
 schedule, non-supervisory employees . . . as certified by the Area
 Director of Labor Management Services Administration on May 25, 1977."
 
    2.  By letter dated April 16, 1986, the Union requested that
 Respondent furnish it with the names and home addresses of all unit
 employees within the bargaining unit.
 
    3.  The requested names of bargaining unit employees are normally
 maintained by Respondent in the regular course of business, is
 reasonably available, and does not constitute guidance, counsel or
 training provided for management officials or supervisors relating to
 collective bargaining.  The above information was contained in several
 sets of records, such as the Official Personnel Folder;  Computerized
 Personnel Information;  Treausry's Payroll System, and other automated
 data bases.  Respondent's witness Ms. Joanne Simms, Acting Manager of
 the Employee Relations Division, Office of Industrial Relations
 testified that a number of operations in several of the records systems
 would be required in order to extract the requested data and that she
 "had been told by BEP's data processing personnel that such a process
 would take two weeks time."
 
    4.  By letter dated May 6, 1986, Respondent refused to furnish the
 Union the names and home addresses of bargaining unit employees.
 
                                Conclusions
 
    In its brief, Respondent merely takes the position that the Authority
 "wrongly decided" Farmers Home Administration, supra, and that the
 original Farmers Home Administration, 19 FLRA No. 21 (1985), which
 supports its view should be applied in this matter.  In so doing
 Respondent argues that it rejects the findings of American Federation of
 Government Employees, Local 1760 v. FLRA, 786 F.2d 344 (2nd Cir. 1986),
 and relies on American Federation of Government Employees, Local 1923,
 United States Department of Health and Human Services, 712 F.2d 931 (4th
 Cir. 1983) as supporting its position herein.  As an Administrative Law
 Judge, I am constrained to follow existing agency precedent and
 consequently must apply case law as decided by the Authority.
 
    I find, in agreement with the General Counsel that Farmers Home
 Administration, supra, is dispositive of all Respondent's contentions
 and defenses raised in this matter.  Contrary to Respondent's arguments
 the Authority held in the above case that the release of the names and
 home addresses of bargaining unit employees is not prohibited by law and
 "even if the disclosure was not authorized by exception (b)(2) of the
 Privacy Act, relating to the FOIA, it is authorized under exception
 (b)(3)" which permits disclosure as a "routine use."
 
    With regard to whether or not the information sought was normally
 maintained by Respondent, the Authority found information contained in
 Official Personnel Files and Computer files, such as here, met the
 meaning of "normally maintained by the agency in the regular course of
 business" under section 7114(b)(4) of the Statute.  Further, information
 which was kept in a computer file was found by the Authority to be
 reasonably "available." While Respondent argues that obtaining the
 information would be "burdensome" the evidence offered by it does not
 establish burdensomeness.  Moreover, Farmers Home Administration case,
 supra, seemingly forecloses argument concerning the "burdensome" aspect
 as argued herein, see infra, p. 5.
 
    Concerning whether the information was necessary the Authority citing
 section 7114(a)(1) of the Statute stated that "a union's statutory
 responsibilities extends to all bargaining unit members.  It is obvious
 that a union must be able to identify and communicate with those
 bargaining unit members if it is to adequately represent them."
 
    With respect to Respondent's argument that adequate alternate means
 of communication must be considered, the Authority stated, "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." So different in fact that the Authority found they should be
 provided "whether or not alternative means of communication are
 available." Such language makes it quite plain that an evidentary
 excursion into what alternative means of communication are available
 would be unwarranted.
 
    The Authority's decision also makes it clear that in order to rebut
 the presumption of relevance of names and home addresses, strong
 evidence such as that leading to a conclusion that disclosure would
 result in imminent danger if the union knew where employees lived, would
 be necessary.  Such a finding places a heavy burden of persuasion on a
 respondent, which in my opinion, is not met by evidence presented here
 that it would take a few weeks to compile the names and home addresses.
 
    Accordingly, based on Farmers Home Administration, supra, it is found
 that the Respondent's refusal to furnish the Union with the names and
 home addresses of bargaining unit employees constituted a violation of
 section 7116(a)(1), (5) and (8) of the Statute.  /2/
 
    Having found that Respondent violated the Statute by refusing to
 supply the Union the names and home addresses of the bargaining unit
 employees, it is hereby recommended that the Authority adopt the
 following:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, 5 U.S.C. section 7118, it is
 ordered that the Department of Treasury, Bureau of Engraving and
 Printing:
 
    1.  Cease and desist from:
 
          (a) Refusing to furnish, upon request of the National Treasury
       Employees Union, the exclusive representative of its employees,
       the names and home addresses of all bargaining unit employees.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured 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, furnish the names and home addresses of all
       bargaining unit employees to the National Treasury Employees Union
       the exclusive representative or our employees.
 
          (b) Post at Department of Treasury, Bureau of Engraving and
       Printing, 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 responsible official of the
       Department of Treasury 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 of Region III, Federal
       Labor Relations Authority, 1111 - 18th Street, N.W., Suite 700,
       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.
 
                                       /s/ ELI NASH, JR.
                                       Administrative Law Judge
 
    Dated:  January 8, 1987
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) At the hearing the General Counsel amended the Complaint in
 paragraphs 1(b) and 5(a).
 
    (2) In view of this disposition it is unnecessary to pass on the
 General Counsel's and Charging Party's Motion For Summary Judgment.
 
 
 
 
 
 
                          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
 Department of Treasury, Bureau of Engraving and Printing.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their rights assured them by
 the Federal Service Labor-Management Relations Statute.
 
    WE WILL upon request furnish the names and home addresses of all
 bargaining unit employees to the National Treasury Employees Union the
 exclusive representative of our employees.
                                       (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,