27:0775(84)CA - VA (Washington, DC) and Edith Nourse Rogers Memorial VA Hospital (Bedford, MA) and NAGE Locals R-1-32 and 32A -- 1987 FLRAdec CA



[ v27 p775 ]
27:0775(84)CA
The decision of the Authority follows:


 27 FLRA No. 84
 
 VETERANS ADMINISTRATION 
 (WASHINGTON, D.C.) AND 
 EDITH NOURSE ROGERS MEMORIAL 
 VETERANS ADMINISTRATION HOSPITAL 
 (BEDFORD, MASSACHUSETTS)
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, LOCALS R-1-32 and 32A
 Charging Party
 
                                            Case No. 1-CA-60332
 
                            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 cease and desist from the unfair labor
 practices and take appropriate remedial action.  Thereafter, the
 Respondent filed exceptions to the Judge's Decision.
 
    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 of the Judge 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 Veterans Administration (Washington, D.C.) and Edith Nourse
 Rogers Memorial Veterans Administration Hospital (Bedford,
 Massachusetts), shall:
 
    1.  Cease and desist from:
 
          (a) Refusing or failing to furnish upon request of the National
       Association of Government Employees, Locals R-1-32 and 32A, the
       exclusive representative of its employees, the names and home
       addresses of all unit employees.
 
          (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 Association of Government
       Employees, Locals R-1-32 and 32A, the exclusive representative of
       its employees, furnish it with the names and home addresses of all
       unit employees.
 
          (b) Post at its facilities at the Edith Nourse Rogers Memorial
       Veterans Hospital, copies of the attached Notice on forms to be
       furnished by the Authority.  Upon receipt of such forms, they
       shall be signed by the Director, Edith Nourse Rogers Veterans
       Administration Memorial Hospital, 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 I, Federal Labor
       Relations Authority, Boston, Massachusetts, in writing, within 30
       days from the date of this Order,, as to what steps have been
       taken to comply herewith.
 
    Issued, Washington, D.C., June 26, 1987.
 
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       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 or fail to furnish upon request of the National
 Association of Government Employees, Locals R-1-32 and 32A, the
 exclusive representative of our employees, the names and home addresses
 of all unit employees.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request by the National Association of Government
 Employees, Locals R-1-32 and 32A, the exclusive representative of our
 employees, the names and home addresses of all unit employees.
                                       . . . (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 I, Federal Labor Relations Authority, whose address is:
  10 Causeway Street, Room 1017, Boston, Massachusetts 02222 and whose
 telephone number is:  (617) 565-7280.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 1-CA-60332
 
    VETERANS ADMINISTRATION (WASHINGTON, D.C.);  and
    EDITH NOURSE ROGERS MEMORIAL VETERANS HOSPITAL
    (BEDFORD, MASSACHUSETTS)
    Respondent
 
                                    and
 
    NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
    LOCALS R-1-32 and 32A
    Charging Party
 
    David F. Toomey, Esq.
    For the Respondent
 
    Marilyn H. Zucherman, Esq.
    For the General Counsel, FLRA
 
    Before:  SAMUEL A. CHAITOVITZ
    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 USC Section
 7101, et. seq., 92 Stat. 1191 (hereinafter referred to as the Statute)
 and the Rules and Regulations of the Federal Labor Relations Authority
 (FLRA), 5 C.F.R. Chapter XIV, Section 2410, et. seq.
 
    Pursuant to a charge filed on July 23, 1986 by the National
 Association of Government Employees, Locals R-1-32 and 32A, hereinafter
 called the Union, and a first amended charge filed on August 20, 1986
 against the Veterans Administration and the Edith Nurse Rogers Memorial
 Veterans Hospital, hereinafter called the Respondent, the General
 Counsel of the FLRA, by the Regional Director of Region I, issued a
 Complaint and Notice of Hearing on September 19, 1986, alleging that the
 Respondent violated Section 7116(a)(1), (5) and (8) of the Statute by
 failing to furnish to the Union, upon request, the names and home
 addresses for all bargaining unit employees in both the professional and
 nonprofessional units at the Veterans Hospital.
 
    A hearing was conducted before the undersigned in Boston,
 Massachusetts on December 18, 1986.  Respondent and the General Counsel
 of the FLRA were represented and afforded full opportunity to be heard,
 to examine and cross-examine witnesses, to introduce evidence and to
 argue orally.  Briefs, including proposed findings and conclusions, were
 filed and have been fully considered.
 
    Based upon the entire record in this matter I make the following:
 
                             Findings of Fact
 
    At all times material herein, the National Association of Government
 Employees, SEIU, AFL-CIO, has been and is now the exclusive collective
 bargaining representative in separate consolidated units of all
 nonprofessional employees and GS professional employees at the Edith
 Nourse Rogers Memorial Veterans Hospital in Bedford, Massachusetts.
 
    By letter dated July 8, 1986, the Union requested names and home
 addresses of all bargaining unit employees in both the professional and
 nonprofessional units.  Respondent replied by letter of July 11, 1986,
 that the Union would not be provided with the names and home addresses
 due to Privacy Act concerns.
 
    The names and home addresses of bargaining unit employees at the
 Veterans Hospital are maintained at that facility in their personnel
 files.  This data for both the professional and nonprofessional units is
 also available in the Veterans Administration centralized computer
 system in Austin, Texas.  The information can be requested by the
 Veterans Hospital and would be received hospital-wide tabulated by
 service and by employee zip code.
 
                     Discussion and Conclusions of Law
 
    The Federal Labor Relations Authority has issued its lead decision on
 the names and home addresses of bargaining unit employees holding that,
 upon request, management must provide this data to unions.  Farmers Home
 Administration, Finance Office, St. Louis, MO and American Federation of
 Government Employees, AFL-CIO, Local 3354, 23 FLRA No. 101, (October 31,
 1986).  There the Authority analyzed the interplay of the Statute, the
 Privacy Act, and the Freedom of Information Act, and concluded that "the
 release of names and home addresses to the Union is not prohibited by
 law, is necessary for the Union to fulfill its duties under the Statute,
 and meets the other requirements of Section 7114(b)(4)." Ibid., at page
 11.  The Authority found that a general written request for the
 information is sufficient, since,
 
          "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 . . . (the duty to supply the
       data) does depend upon any separate explanation by the union of
       its reasons for seeking the information." Ibid., at page 11.
 
    In the instant case, it is undisputed that the Union submitted a
 written request for the names and home addresses of all bargaining unit
 employees and that the request was denied.  The issues at trial were
 whether the sought after information is normally maintained by the
 Agency, whether it is necessary, and whether disclosure is prohibited by
 law.  These issues will be analyzed in terms of the decision in Farmers
 Home Administration as follows:
 
                   A.  Normally Maintained by the Agency
 
    There is no question that the home addresses of federal employees are
 in their personnel files.  Farmers Home Administration, ibid., at page
 7.  The names and home addresses of bargaining unit employees herein are
 maintained at the Veterans Hospital in their personnel files and in the
 Veterans Administration's centralized commputer system in Austin, Texas
 by hospital service and employee zip code.  The information is
 "reasonably available" despite the fact that Respondent would have to
 compile the information by reconciling computer data with separate lists
 maintained at the Veterans Hospital.  Air Force District of Washington
 and AFGE-GAIU Council of HQUSAF Locals, AFL-CIO, OALJ-87-15, Judge
 Garvin Lee Oliver, December 11, 1986.  In short, the names and home
 addresses of bargaining unit employees are normally maintained in the
 regular course of business by the Agency and reasonably available within
 the meaning of the Statute.
 
                               B.  Necessary
 
    The data is also necessary to collective bargaining and the "mere
 existence of alternative means of communication is insufficient to
 justify a refusal to release the information." Farmers Home
 Administration, ibid., at page 9.  There, the Authority found that it
 was not necessary to examine adequacy of alternative means,
 
          "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." Ibid. at page 9.
 
    The names and home addresses of bargaining unit employees is
 necessary information and should be provided to the Union whether or not
 alternative means of communication are available.
 
                           C.  Prohibited by Law
 
    The release of the names and home addresses is not prohibited by law
 since the provision of the data falls within the routine use exemption
 (b)(3) of the Privacy Act.  Farmers Home Administration, ibid., at page
 7.  The release of the information is also not a clearly unwarranted
 invasion of privacy within the meaning of exemption (b)(6) of the FOIA
 referenced by exemption (b)(2) of the Privacy Act.  Ibid., at page 5.
 In weighing individual privacy interests under these Statutes, the
 Authority tilts the balance in favor of disclosure, citing Getman v.
 NLRB., 450 F.2d 670, 674, (D.C. Cir. 1971), to enable the Union to
 identify bargaining unit employees and to communicate with them.  The
 release of the names and home addresses is not prohibited by law since
 disclosure comes within exemptions (b)(2) and (b)(3) of the Privacy Act.
 
    In light of the foregoing, I conclude that Respondent violated
 Section 7116(a)(1), (5) and (8) of the Statute by denying the Union's
 request pursuant to Section 7114(b)(4) for the names and home addresses
 of bargaining unit employees because this information is normally
 maintained by the Agency and is reasonably available and necessary for
 full and proper discussion, understanding and negotiation of subjects
 within the scope of collective bargaining and furnishing such data is
 not prohibited by law.  To remedy this violation, the Respondent should
 be ordered to provide the Union with the names and home addresses of all
 bargaining unit employees and to post a Notice as required by the
 Authority in Farmers Home Administration.
 
    Having concluded that Respondent violated Section 7116(a)(1)(5) and
 (8) of the Statute, I recommend that the Authority issue the following:
 
                                   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 Veterans Administration and the Edith
 Nourse Rogers Memorial Veterans Hospital, shall:
 
    1.  Cease and desist from:
 
          (a) Refusing or failing to furnish upon request of the National
       Association of Government Employees, Locals R-1-32 and 32A, the
       addresses of all unit employees.
 
          (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, furnish to the National Association of
       Government Employees, Locals R-1-32 and 32A, the names and
       addresses of all unit employees.
 
          (b) Post at its facilities at the Edith Nourse Rogers Memorial
       Veterans Hospital, copies of the attached Notice marked "Appendix"
       on forms to be furnished by the Authority.  Upon receipt of such
       forms, they shall be signed by the Director, Veterans Hospital,
       and shall be posted and maintained by him for 60 consecutive days
       thereafter, in conspicuous places, including all bulletin boards
       and other places where notices to employees are customarily
       posted.  The Director shall take reasonable steps to insure that
       such notices are not altered, defaced, or covered by any other
       material.
 
          (c) Pursuant to 5 C.F.R. Section 2423.30 notify the regional
       Director, Region 1, Federal Labor Relations Authority, Boston,
       Massachusetts, in writing, within 30 days from the date of this
       Order, as to what steps have been taken to comply herewith.
 
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  March 24, 1987
    Washington, D.C.
 
 
 
 
 
 
                                 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 or fail to furnish upon request of the National
 Association of Government Employees, Locals R-1-32 and 32A, the
 addresses of all unit employees.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request, furnish to the National Association of
 Government Employees, Locals R-1-32 and 32A, the names and addresses of
 all unit 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