27:0119(23)CA - HHS Region IX, San Francisco, CA and NTEU -- 1987 FLRAdec CA



[ v27 p119 ]
27:0119(23)CA
The decision of the Authority follows:


 27 FLRA No. 23
 
 DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, REGION IX, 
 SAN FRANCISCO, CALIFORNIA
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES 
 UNION
 Charging Party
 
                                            Case No. 9-CA-60369
 
                            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.
 /1/ The General Counsel and Charging party filed oppositions to the
 exceptions.  /2/
 
    Pursuant to section 2423.29 of the Authority's Rules 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.
 
                                   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 IX, San
 Francisco, California, shall:
 
    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 located at its
 Region IX offices in San Francisco, California.
 
    (b) In any like or related manner, interfering with, restraining, or
 coercing its employees in the exercise of 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 its employees, furnish it with the names and
 home addresses of all bargaining unit employees located at its Region IX
 offices in San Francisco, California.
 
    (b) Post at all its facilities of its Region IX offices in San
 Francisco, California, 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 a senior
 official of the Department of Health and Human Services, Region IX, San
 Francisco, California, 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 IX, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply with this Order.
 
    Issued, Washington, D.C., May 29, 1987.
 
                                       /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 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 located at our
 Region IX offices in San Francisco, California.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of 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 our employees, furnish it with the names and
 home addresses of all bargaining unit employees located at our Region IX
 offices in San Francisco, California.
                                       (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 IX, Federal Labor Relations Authority, whose address
 is:  901 Market Street, Suite 220, San Francisco, California 94103, and
 whose telephone number is:  (415) 995-5000.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 9-CA-60369
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES, 
 REGION IX SAN FRANCISCO, CALIFORNIA
    Respondent
 
                                    and
 
    NATIONAL TREASURY EMPLOYEES UNION
    Charging Party
 
    Judith E. Scherr, Esq.
    For the Respondent
 
    Andrew R. Krakoff, Esq.
    For the Charging Party
 
    James Sable, Esq.
    For the General Counsel, FLRA
 
    Before:  GARVIN LEE OLIVER
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region IX, Federal Labor Relations Authority, San
 Francisco, California against the Department of Health and Human
 Services, Region IX, San Francisco, California (Respondent), based on a
 charge filed by the National Treasury Employees Union (NTEU 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. (the Statute).  The
 complaint alleged that Respondent failed to comply with the provisions
 of section 7114(b)(4) by refusing to provide the Union the names and
 home addresses of all employees in the unit.
 
    Respondent's answer admitted the jurisdictional allegations as to
 Respondent, the Union, and the charge, and that it had refused to
 furnish the names and addresses, but denied that the data fell within
 the provisions of section 7114(b)(4) and that it had violated the
 Statute.
 
    A hearing was held in San Francisco, California.  The Respondent,
 Charging Party, and the General Counsel were represented by counsel and
 afforded full opportunity to be heard.  The parties agreed to a
 stipulation of fact, and exhibits of the General Counsel and Joint
 Exhibits were also received without objection.  Counsel for the General
 Counsel moved for summary judgment.  The parties argued the motion.  It
 appearing that there were no issues of material fact and that the
 General Counsel was entitled to summary judgment as a matter of law, the
 motion was granted with appropriate written findings and conclusions to
 follow in this decision.
 
    Based on the entire record, I make the following findings of fact,
 conclusions of law, and recommendations.
 
                             Findings of Fact
 
    The following facts are found as stipulated by the parties:
 
          1.  That at all times material herein, the Union has been
       certified as the exclusive representative of an appropriate unit
       within the meaning of Section 7112 of the Statute, herein called
       the Unit, of the following employees of Respondent:
 
          Included:  All professional/nonprofessional employees of the
       Department of Health and Human Services, Region IX, located in San
       Francisco, California.
 
          Excluded:  All Field or District Office employees, Social
       Security Administration employees under the Assistant Commissioner
       for Field Operations, employees in the 'Stay in School' Program,
       Commissioned Officers of the Public Health Service, Social
       Security Administration employees under the Assistant Regional
       Commissioner for Field Assessment, guards, management officials,
       employees engaged in federal personnel work in other than a purely
       clerical capacity, and supervisors.
 
          2.  At all times material herein, Judith E. Scherr has occupied
       the position of Respondent's Labor Relations Officer, and is now,
       and has been at all times material herein, a supervisor and/or
       management official of Respondent within the meaning of Section
       7103(a)(10) and/or (11) of the Statute, respectively, and has been
       an agent of Respondent.
 
          3.  At all times material herein, Andrew R. Krakoff has
       occupied the position of the Union's National Counsel and is now,
       and has been at all times material herein, an agent of the Union.
 
          4.  That by letter dated July 16, 1986, which is Joint Exhibit
       No. 1 in the instant matter, the Union requested the names and
       home addresses of all employees in the unit.
 
          5.  That by letter dated July 23, 1986, the Respondent, by
       Judith Scherr in Joint Exhibit No. 2, furnished the Union with a
       list of employees in the unit, but refused to furnish the Union
       with the home addresses of employees in the unit.
 
          6.  That since July 23, 1986, and continuing to date,
       Respondent has failed and refused to provide the Union with the
       home addresses which it requested, as described previously.
 
          7.  The information requested by the Union in Joint Exhibit No.
       1 constitutes data within the meaning of Section 7114(b)(4) of the
       Statute.  It is normally maintained by Respondent in the regular
       course of its business, and is reasonably available within the
       meaning of Section 7114(b)(4) of the Statute, and it does not
       constitute guidance, advice, counsel or training provided to
       management officials or supervisors relating to collective
       bargaining.
 
          8.  The parties agree that the formal documents and the
       stipulations of fact in the instant matter constitute the entire
       record in this case, and no oral testimony is necessary or desired
       by any of the parties.
 
          9.  This stipulation is made without any prejudice to any
       objection that any party may have as to the relevance or
       materiality of any facts stated herein.
 
    The Union's request of July 16, 1986, Joint Exhibit 1, stated, in
 part, that the names and home addresses of all bargaining unit employees
 "is necessary to both prepare for and better communicate with bargaining
 unit pending the negotiation of the NTEU-Region IX collective bargaining
 agreement.  It is imperative that both before and during the important
 event that we be able to communicate directly with our bargaining unit
 members."
 
    Respondent's reply of July 23, 1986, Joint Exhibit 2, stated, in
 part, that "a balancing of the rights of the Union and the individual
 employees is necessary to determine whether the release of home
 addresses would constitute a clearly unwarranted invasion of privacy."
 Respondent also asserted that the Union's stated reasons did not
 establish that home addresses are necessary in order for the Union to
 fulfill its representational responsibilities in negotiations.
 Respondent also questioned whether release of such data is prohibited by
 law.
 
                            Conclusions of Law
 
    The General Counsel takes the position that the Authority's decision
 in Farmers Home Administration Finance Office, St. Louis, Missouri, 23
 FLRA No. 101 (1986), (FHAFO), appeal docketed sub nom. U.S. Department
 of Agriculture and the Farmers Home Administration Finance Office, St.
 Louis, Missouri v. FLRA, No. 86-2579 (8th Cir., Dec. 23, 1986) is
 dispositive of Respondent's defenses.
 
    Respondent's position is that the release of the home addresses would
 constitute a violation of the Privacy Act;  the information is not
 necessary and relevant;  and it must respectfully decline to follow the
 Authority's FHAFO decision dealing with these issues pending disposition
 of the appeal.
 
    In agreement with the General Counsel, I find that the Authority's
 decision in FHAFO is dispositive of all of Respondent's contention and
 defenses.  The Authority concluded 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).  Accordingly, consistent with the
 Authority's decision in FHAFO, Respondent's refusal to provide the Union
 with the home addresses sought in this case 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 IX, San Francisco, California shall:
 
    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 employees in the bargaining
       unit it represents.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing 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 by the National Treasury Employees Union, 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 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
       Authority.  Upon receipt of such forms, they shall be signed by a
       senior official of the Department of Health and Human Services,
       Region IX, San Francisco, California 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 IX, Federal Labor
       Relations Authority, San Francisco, California, in writing, within
       30 days from the date of this order, as to what steps have been
       taken to comply herewith.
 
                                       /s/ GARVIN LEE OLIVER
                                       Administrative Law Judge
 
    Dated:  March 24, 1987
    Washington, D.C.
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Respondent also submitted a "Reply Memorandum Supporting
 Respondent's Exceptions." There is no provision in our Rules for such a
 document and Respondent made no attempt to seek permission for filing
 its memorandum under Section 2429.26 of our Rules.  The reply was not
 considered.
 
    (2) The General Counsel sought dismissal of the exceptions for
 failure to comply with section 2423.27(a)(3) of our Rules, which
 requires precise citation of the page(s) in the record relied on.  We
 have determined that the exceptions raised by the Respondent do not
 require specific reference to the record, and thus citation of page
 numbers is not necessary.  Accordingly, the General Counsel's opposition
 does not preclude consideration of the Respondent's exceptions.
 
 
 
 
 
 
 
                          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 employees in the bargaining unit it
 represents.
 
    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 by