27:0422(59)CA - HHS Region VII, Kansas City, MO and NTEU and NTEU Chapter 217 -- 1987 FLRAdec CA



[ v27 p422 ]
27:0422(59)CA
The decision of the Authority follows:


 27 FLRA No. 59
 
 DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, REGION VII 
 KANSAS CITY, MISSOURI
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION 
 AND NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 217
 Charging Party
 
                                            Case No. 7-CA-60472
 
                            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.
 The General Counsel filed an opposition to the exceptions.
 
    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 findings and conclusions of the Judge and find that
 no prejudicial error was committed.  The findings 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 VII, Kansas
 City, Missouri, shall:
 
    1.  Cease and desist from:
 
          (a) Refusing to furnish, upon request of the National Treasury
       Employees Union, and National Treasury Employees Union, Chapter
       217, the exclusive representative of its employees, the names and
       home addresses of all bargaining unit employees located at its
       Region VII offices in the greater Kansas City metropolitan area.
 
          (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, and
       National Treasury Employees Union, Chapter 217, the exclusive
       representative of its employees, furnish it with the names and
       home addresses of all bargaining unit employees located at its
       Region VII offices in the greater Kansas City metropolitan area.
 
          (b) Post at all its facilities of its Region VII offices in the
       greater Kansas City metropolitan area, where bargaining unit
       employees represented by the National Treasury Employees Union and
       National Treasury Employees Union, Chapter 217 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 Regional Director, Region VII, Department of
       Health and Human Services, Kansas City, Missouri, 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 VII, 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., June 16, 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
 
                   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 217, the
 exclusive representative of our employees, the names and home addresses
 of all bargaining unit employees located in our Region VII offices in
 the greater Kansas City metropolitan area.
 
    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, and
 National Treasury Employees Union, Chapter 217, the exclusive
 representative of our employees, furnish it with the names and addresses
 of all bargaining unit employees located at our Region VII offices, in
 the greater Kansas City metropolitan area.
                                       (Activity)
                                       By:  (Signature) (Title)
 
    Dated:
 
    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 VII, Federal Labor Relations Authority, whose address
 is:  535 16th Street, Suite 310, Denver, Colorado 80202 and whose
 telephone number is:  (303) 837-5224.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 7-CA-60472
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES, 
 REGION VII KANSAS CITY, MISSOURI
    Respondent
 
                                    and
 
 NATIONAL TREASURY EMPLOYEES UNION
                                    and
 NATIONAL TREASURY EMPLOYEES UNION, 
 CHAPTER 217
    Charging Party
 
    Joseph Swerdzewski, Esquire
    For the General Counsel
 
    Paul P. Cacioppo, Esquire
    Kristi A. Schmidt, Esquire
    For the Respondent
 
    Before:  WILLIAM B. DEVANEY
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This matter, 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 the refusal of
 Respondent to furnish, pursuant to Section 7114(b)(4) of the Statute, a
 list of bargaining unit employees and their home addresses, and is
 before me on the cross motions of the parties for summary judgment.
 
    This proceeding was initiated by a charge filed on June 23, 1986
 (G.C. Exh. 1(a));  the Complaint and Notice of Hearing issued on August
 27, 1986 (G.C. Exh. 1(b)), alleged violations of Sections 7116(a)(1),
 (5) and (8) as the result of Respondent's failure and refusal to provide
 the requested names and home addresses, and set the hearing for November
 19, 1986.  By Order dated September 12, 1986, the date of hearing was
 rescheduled for December 9, 1986.  On December 2, 1986, General Counsel
 filed with the Regional Director for Region VII a Motion For Summary
 Judgment which, by Order dated December 2, 1986, was transferred,
 pursuant to Section 2423.22(b)(1) of the Regulations, 5 C.F.R. Section
 2423.22(b)(1), to this Office for disposition.  The Regional Director's
 Order Transferring Motion For Summary Judgment was received by this
 Office on December 5, 1986, and duly assigned to the undersigned.  In
 the meantime, by Order dated December 4, 1986 the hearing, scheduled for
 December 9, 1986, was indefinitely postponed.
 
    By Order dated December 8, 1986, Respondent having filed a timely
 motion for extension of time to respond to General Counsel's Motion For
 Summary Judgment, the time for Respondent to respond was extended to
 December 19, 1986, and General Counsel and the Charging Party were given
 leave to file a reply to any timely response filed by Respondent on, or
 before, December 30, 1986.  Respondent timely mailed its Motion For
 Summary Judgment on December 19, 1986, received on December 24, 1986;
 and General Counsel timely mailed an Opposition To Cross Motion For
 Summary Judgment on December 30, 1986, received on January 5, 1987.
 
                         Findings and Conclusions
 
    A.  Union's Request and Respondent's Denial
 
    National Treasury Employees Union, Chapter 217 (hereinafter referred
 to as "NTEU") is the certified exclusive representative for the
 following unit:
 
          ". . . all GS and WG professional and nonprofessional employees
       of the Department of Health and Human Services, Region VII, in the
       greater Kansas City metropolitan area and excludes all employees
       of the SSA Office of Central Operations, all employees of the SSA
       Office of Field Assessment, all HHS Audit Agency employees, all
       employees of the SSA Office of Appeals, all employees of SSA Field
       Offices and all employees of the Food and Drug Administration,
       employees engaged in federal personnel work in other than a purely
       clerical capacity, temporary employees with an expected employment
       of 90 days or less, and confidential employees, management
       officials, and supervisors." (Complaint, G.C. Exh. 1(b), Par. 4;
       admitted, Answer, G.C. Exh. 1(c)).
 
    By letter dated May 28, 1986, NTEU requested the names and home
 addresses of all bargaining unit employees stating, in part, as follows:
 
          ". . . Consequently for the purpose of surveying bargaining
       unit employees for these upcoming negotiations, NTEU requests the
       names and home addresses of all HHS Region VII bargaining unit
       employees. . ." (G.C. Exh. 2).  (See, also NTEU's letter dated
       June 2, 1986, G.C. Exh. 3).
 
    By letter dated June 12, 1986 (G.C. Exh. 4), Respondent denied NTEU's
 request for home addresses of unit employees.  Respondent conceded,
 however, that home addresses are normally maintained in the regular
 course of business in each employee's Official Personnel Folder (OPF),
 although, it asserted, ". . . there is no requirement (by employees) to
 supply this information or to update the record when an address changes.
 . . ." (G.C. Exh. 4);  and in its central payroll system, although it
 asserted that there was no assurance that central payroll, because of
 staff shortages, could timely respond to a request for home addresses
 (G.C. Exh. 4).  There are 221 employees in the bargaining unit, 93 of
 whom are dues paying members of the Union (Memorandum In Support of
 Respondents' Motion For Summary Judgment And In Reply To The General
 Counsel's Motion For Summary Judgment, p. 8) (hereinafter referred to
 "Res. Mem." or "Memorandum").  In its letter of June 12, 1986,
 Respondent asserted it would require ". . . an estimated 12-15 days of
 staff time" to retrieve the home addresses from the OPFs.  /*/
 
    B.  No Dispute As To Any Material Fact
 
    Although Respondent in its Answer to the Complaint denied the
 allegations of Paragraph 6(b), "The information . . . is normally
 maintained by Respondent in the regular course of business" (G.C. Exh.
 1(c)) it is clear from Respondent's reply to NTEU that it does in fact
 maintain home addresses in the regular course of business.  In like
 manner, Respondent in its Answer denied the allegation of Paragraph 6(c)
 of the Complaint, "The information . . . is readily available. . . ."
 (G.C. Exh. 1(c));  but it is also clear from Respondent's reply to NTEU
 that the information is, in fact, readily available from either the OPFs
 or from its Central Payroll System, notwithstanding that, as Respondent
 asserted to NTEU, and General Counsel does not deny, retrieval from OPFs
 would require staff time and there was no assurance that Central Payroll
 could timely supply home addresses.
 
    Moreover, General Counsel in his Motion For Summary Judgment
 specifically stated that,
 
          "10.  The names and home addresses of bargaining unit employees
       are maintained by Respondent in the bargaining unit employees'
       official personnel files and in the Respondent's Central Payroll
       System.  (Exhibit 4)"
 
    Respondent, in its Memorandum neither disputed General Counsel's
 statement that the names and home addresses are maintained in employee
 personnel files and the Central Payroll System nor did it even assert
 that such data was not normally maintained by it in the regular course
 of business or that it was not reasonably available.
 
    Finally, Respondent by filing a Cross Motion For Summary Judgment
 necessarily represents that there are no disputed material facts.  This
 is underscored by Respondent's statement that it accepts, ". . . the
 General Counsel's statement of the case . . . with respect to the
 chronology of events leading to the filing. . . ." of the unfair labor
 practice charge.  (Res. Mem., p. 1).
 
    As there are no material facts in dispute, this matter is appropriate
 for decision by summary judgment.
 
    C.  General Counsel's Motion For Summary Judgment Must Be Granted and
 Respondent's Motion For Summary Judgment Must Be Denied.
 
    Section 7114(b)(4) of the Statute imposes a duty on an agency to
 furnish the exclusive 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 reasonably available and necessary for full and
       proper discussion, understanding, 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. . . ." (5 U.S.C. Section
       7114(b)(4)(A), (B) and (C)).
 
    Respondent normally maintains the home addresses of bargaining unit
 employees in the regular course of business;  Respondent admits that
 such data does not constitute guidance, advice, counsel or training
 provided for management officials or supervisors, relating to collective
 bargaining (G.C. Exh. 1(c), Par. 6(d));  and, even though Respondent in
 its Reply to General Counsel's Motion For Summary Judgment does not
 assert or deny that the home addresses are "reasonably available", in
 any event, the Authority has held that home addresses are reasonably
 available even if they must be extracted, inter alia, from official
 personnel files (OPFs), as could be true here, or from a computer file,
 as also could be true here.  Farmers Home Administration Finance Office,
 St. Louis, Missouri, 23 FLRA No. 101, 23 FLRA 788 (1986) (hereinafter
 referred to as "Farmers Home Administration");  Defense Mapping Agency
 Aerospace Center, St. Louis, Missouri, 24 FLRA No. 5, 24 FLRA 43 (1986)
 (hereinafter referred to as "Defense Mapping");  Social Security
 Administration, Northeastern Program Service Center, 24 FLRA No. 13, 24
 FLRA 108 (1986) (hereinafter referred to as "Northeastern Program").
 
    Of course, as Respondent concedes the Authority in Farmers Home
 Administration, supra, held that Section 7114(b)(4), ". . . requires
 disclosure of bargaining unit employees' names and home addresses."
 (Res. Mem., p. 2).  In Farmers Home Administration, supra, and in
 numerous subsequent like decisions, including:  Philadelphia Naval
 Shipyard, 24 FLRA No. 4, 24 FLRA 37 (1986);  Defense Mapping, supra;
 Northeastern Program, supra;  Department of the Air Force, Scott Air
 Force Base, Illinois, 24 FLRA No. 28, 24 FLRA 226 (1986);  Department of
 Health and Human Services, Social Security Administration, 24 FLRA No.
 60, 24 FLRA 543 (1986);  Department of Health and Human Services, Social
 Security Administration and Social Security Administration Field
 Operations, New York Region, 24 FLRA No. 62, 24 FLRA 583 (1986), the
 Authority held that disclosure of home addresses was not prohibited by
 law and was necessary for full and proper discussion, understanding, and
 negotiation of subjects within the scope of collective bargaining.  The
 Authority held that, ". . . the mere existence of alternative means of
 communication is insufficient to justify a refusal to release the
 information";  that ". . . the communication between unit employees and
 their exclusive representative which would be facilitated by release of
 names and home address information is fundamentally different from other
 communication through alternative means which are controlled in whole or
 in part by the agency . . . we find that 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 at 796-797).
  The Authority further held that, "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 individuals in their names and home addresses.
 Disclosure . . . would not constitute a clearly unwarranted invasion of
 personal privacy and does not fall within the (b)(6) exemption of 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 . . . we conclude that the
 disclosure of the names and home addresses . . . 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 disclosure . . . 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)" (23 FLRA at 793-794).
 
    Respondent's argument that disclosure of home addresses is prohibited
 by the Privacy Act (Res. Mem., p. 2) rejected by the Court of Appeals
 for the Second Circuit, American Federation of Government Employees,
 Local 1760 v. Federal Labor Relations Authority, 786 F.2d 554 (2d Cir.
 1986), (hereinafter referred to as "Local 1760") has been considered at
 length by the Authority and rejected.  The Authority, as set forth
 above, further concluded, inter alia, ". . . 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 individuals in their names and home addresses";
 and that ". . . the communication between unit employees and their
 exclusive representative which would be facilitated by release of names
 and home address information is fundamentally different from other
 communication through alternative means which are controlled in whole or
 in part by the agency . . . that the names and home addresses of unit
 employees are necessary and should be provided whether or not
 alternative means of communication are available." In so concluding, the
 Authority acted consistently with relevant case law.  Respondent's
 argument that the routine use exception to the Privacy Act does not
 allow disclosure of home addresses (Res. Mem. p. 11) was considered at
 length by the Authority in Farmers Home Administration and was rejected.
  Moreover, while the Court of Appeals in Local 1760, supra, did not
 reach the "routine use" exemption (5 U.S.C. Section 552a(b)(3), it held
 that exception (b)(2) of the Privacy Act authorizes release of
 information obtainable under the Freedom of Information Act;  that
 section (b)(6) of the FOIA does not permit release of data contained in
 personnel files if release "would constitute a clearly unwarranted
 invasion of personal privacy";  that disclosure of home addresses was
 not a "clearly unwarranted" invasion of personal privacy;  that the
 "release of the employees' addresses is not 'prohibited by law' within
 the meaning of the Statute, 5 U.S.C. Section 7114(b)(4)." (786 F.2d at
 557).  Consequently, it would avail Respondent nought even if disclosure
 were not authorized under exception (b)(2) of the Privacy Act, because,
 as the Authority has held, names and addresses may be released pursuant
 to either exception (b)(2) or (b)(3) of the Privacy Act.  Finally,
 Respondent's argument that even if the Privacy Act does not prohibit
 disclosure of home addresses, disclosure is not required by 5 U.S.C.
 7114(b)(4) (Res. Mem. p. 12) has been rejected by the Authority which
 held that ". . . 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." (23 FLRA at 794).
 
    Therefore, Respondent's Motion For Summary Judgment is denied and
 General Counsel's Motion For Summary Judgment is granted.  Respondent's
 refusal to furnish the requested information constituted a violation of
 Sections 7116(a)(1), (5) and (8) of the Statute.  Accordingly, 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.
 Section 7118, the Authority hereby orders that the Department of Health
 and Human Services, Region VII, Kansas City, Missouri, shall:
 
    1.  Cease and desist from:
 
          (a) Refusing to furnish, upon request by the National Treasury
       Employees Union, Chapter 217, the exclusive representative of its
       employees, the 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) Upon request by the National Treasury Employees Union,
       Chapter 217, the exclusive representative of its employees,
       furnish it with the home addresses of all employees in the
       bargaining unit it represents.
 
          (b) Post at its facilities at Kansas City, Missouri, 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, Department of Health and Human Services,
       Region VII 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, 5 C.F.R. Section 2423.30, notify the Regional
       Director, Region VII, Federal Labor Relations Authority, 533 16th
       Street, Suite 310, Denver, CO 80202, in writing, within 30 days
       from the date of this Order, as to what steps have been taken to
       comply herewith.
 
                                       /s/ WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
 
    Dated:  March 31, 1987
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) I am fully aware that this estimate of staff time also
 encompassed the time for 112 Food and Drug, Region VII, employees for
 whom the Union had also requested home addresses, i.e., the time
 estimate covered a total of 333 OPFs.
 
 
 
 
 
 
 
                                 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 by the National Treasury
 Employees Union, Chapter 217, the exclusive representative of our
 employees, the 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,
 Chapter 217, the exclusive representative of our employees, furnish it
 with the home addresses of all employees in the bargaining unit it
 represents.
 
                           (Agency or Activity)
 
                             By:  (Signature)
 
    Dated:
 
    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 Di