27:0785(85)CA - Navy, Naval Submarine Base, New London (New London, CT) and NAGE Local R1- 100 -- 1987 FLRAdec CA



[ v27 p785 ]
27:0785(85)CA
The decision of the Authority follows:


 27 FLRA No. 85
 
 DEPARTMENT OF THE NAVY 
 NAVAL SUBMARINE BASE,
 NEW LONDON (NEW LONDON, 
 CONNECTICUT)
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R1-100
 Charging Party
 
                                            Case No. 1-CA-60304
 
                            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 it
 be ordered to cease and desist from the unfair labor practices and take
 appropriate remedial action.  Thereafter, the Respondent and the General
 Counsel each filed exceptions to the Judge's Decision and Order, and the
 General Counsel filed a statement in response to the Respondent's
 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 the Navy, Naval Submarine Base New London,
 New London, Connecticut, shall:
 
    1.  Cease and desist from:
 
          (a) Refusing to furnish, upon request by the National
       Association of Government Employees, Local R1-100, the exclusive
       representative of its employees, the names and 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 Association of Government
       Employees, Local R1-100, the exclusive representative of its
       employees, furnish it with the names and home addresses of
       employees in the bargaining unit it represents.
 
          (b) Post at its facilities at the Naval Submarine Base New
       London, 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 Commanding Officer 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 to furnish, upon request by the National
 Association of Government Employees, Local R1-100, 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
 Statute.
 
    WE WILL, upon request by the National Association of Government
 Employees, Local R1-100, the exclusive representative of our employees,
 furnish it with the names and home addresses of 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 I, Federal Labor Relations Authority, whose address is:
  10 Causeway Street, Room 1017, Boston, MA 02222-1046 and whose
 telephone number is:  (617) 565-7280.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 1-CA-60304
 
    DEPARTMENT OF THE NAVY, NAVAL SUBMARINE BASE
    NEW LONDON (NEW LONDON, CONNECTICUT) /1/
    Respondent
 
                                    and
 
    NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
    LOCAL R1-100
    Charging Party
 
    Richard H. Greenberg, Esquire
    For the Respondent
 
    Danny R. Veilleaux, Esquire
    For the Charging Party
 
    Marilyn H. Zuckerman, Esquire
    For the General Counsel
 
    Before:  WILLIAM B. DEVANEY
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, 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., /2/ and the Final Rules and Regulations issued
 thereunder, 5 C.F.R. Section 2423.1, et seq., concerns a request for the
 names and home addresses of bargaining unit employees.  It was initiated
 by a charge, filed on June 23, 1986 (G.C. Exh. 1 A), which alleged
 violations of Sections 16(a)(1) and (5) of the Statute;  and a first
 Amended charge, filed on July 9, 1986 (G.C. Exh. 1 C), which alleged
 violations of Sections 16(a)(1), (5) and (8) of the Statute.  The
 Complaint and Notice of Hearing issued on August 22, 1986 (G.C. Exh. 1
 E), alleged violations of Sections 16(a)(1), (5) and (8) and set the
 hearing for October 10, 1986, at a place to be designated later;  and by
 Notice dated September 26, 1986 (G.C. Exh. 1 G), the place of hearing
 was designated, pursuant to which a hearing was duly held on October 10,
 1986, in New London, Connecticut, before the undersigned.
 
    All parties were represented at the hearing, were afforded full
 opportunity to be heard, to introduce evidence bearing on the issues
 presented, to examine and cross-examine witnesses, and were afforded the
 opportunity to present oral argument.  At the conclusion of the hearing,
 November 10, 1986, was fixed as the date for mailing post-hearing
 briefs.  General Counsel by timely motion, joined in by counsel for the
 Charging Party and to which counsel for Respondent did not object, for
 good cause shown, requested an extension of time to December 12, 1986,
 within which to mail briefs.  By Order dated November 4, 1986, General
 Counsel's motion was granted, in part;  attention of all parties was
 directed to:  Farmers Home Administration Finance Office, St. Louis,
 Missouri and American Federation of Government Employees, AFL-CIO, Local
 3354, 23 FLRA No. 101, which had been decided by the Authority on
 October 31, 1986;  and the time for filing post-hearing briefs was
 extended to December 1, 1986.  Respondent and General Counsel each
 timely mailed a brief, received on, or before, December 2, 1986, which
 have been carefully considered.  Upon the basis of the entire record, I
 make the following findings and conclusions:
 
                                 Findings
 
    1.  At all times material, National Association of Government
 Employees, Local R1-100 (hereinafter referred to as the "Union") has
 been the exclusive representative of all employees at Naval Submarine
 Base New London, the Branch Commissary Store, New London, Naval
 Submarine School, Personnel Support Activity New London and Naval
 Submarine Support Facility New London, with certain exceptions more
 fully set forth in Paragraph 5 of the Complaint (G.C. Exh. 1 E) and in
 Article I of the Agreement of the parties (G.C. Exh. 2, Art. I, p. 2).
 
    2.  By letter dated April 24, 1986 (G.C. Exh. 3), Mr. Kevin J.
 McGill, President of the Union, pursuant to "AFGE Local 1760 v. FLRA
 USCA 2nd, No. 85-4144" formally requested the names and home addresses,
 "of all bargaining unit employees" (G.C. Exh. 3, Tr. 13-15).  There are
 approximately 550 employees in the bargaining unit, of whom about 150
 are members of the Union (Tr. 13).
 
    3.  By letter dated April 30, 1986 (G.C. Exh. 4), Respondent
 requested information as to the Union's purpose in seeking the names and
 addresses.  Although Respondent stated it was "advised to refrain from
 furnishing such information . . . ," Respondent further stated,
 
          " . . . you should also be aware that the addresses maintained
       in our computer are probably out of date and/or incomplete as
       employees are not required to furnish and/or provide updated
       information to this office." (G.C. Exh. 4).
 
    Respondent never offered the home addresses it had available (Tr.
 69), nor was the Union interested in obtaining any but current home
 addresses.
 
    4.  Mr. McGill met with Mr. Robert S. Knowles, then Head,
 Labor/Employee Relations, subsequently acting Civilian Personnel Officer
 (Tr. 46), and discussed the Union's request.  Although Mr. McGill
 asserted that Mr. Knowles told him that the Base Comptroller had the
 home addresses (Tr. 23, 43) which Mr. Knowles denied (Tr. 56), it is
 unnecessary to resolve the conflict, if there were a conflict, since Mr.
 Knowles, in his subsequent letter of May 7, 1986, specifically informed
 Mr. McGill,
 
          "2.  You are further advised that the base Comptroller does not
       maintain a listing of addresses.  All such information is
       maintained by the servicing disbursing center." (G.C. Exh. 6).
 
    As Mr. Knowles testified, Respondent does have in its personnel data
 system computer the addresses of employees as of January, 1985, and
 addresses of new employees at date of hire (Tr. 56) but does not
 maintain current home addresses (Tr. 55).  Current home addresses are
 maintained only by the Fleet Accounting Office in Norfolk, Virginia, for
 payroll purposes, for all employees except the commissary store.
 Commissary store employees are paid out of the Navy Finance Office in
 Great Lakes, Illinois, which maintains home addresses, for payroll
 purposes, for commissary store employees (Tr. 56-57).
 
    5.  By letter dated May 1, 1986 (G.C. Exh. 5), the Union set forth
 its purpose in seeking the names and home addresses and Respondent, by
 letter dated May 7, 1986 (G.C. Exh. 6), refused to provide the requested
 names and home addresses, asserting that the employee's right to privacy
 of their home addresses outweighed the Union's right to have the
 information and further stated that the names and home addresses were
 not maintained locally.  /3/
 
    6.  Respondent did provide the Union with a list of bargaining unit
 employees by work address and by organization (Tr. 35-36) and the record
 shows, as General Counsel states, " . . . detailed testimony at trial as
 to alternative access . . . ," including use of the internal mail
 system.
 
                                Conclusions
 
    After the hearing in this case, the Authority, on October 31, 1986,
 issued its decision in Farmers Home Administration Finance Office, St.
 Louis, Missouri, 23 FLRA No. 101, 23 FLRA 788 (1986) (hereinafter
 referred to as "Farmers Home Administration"), to which the parties were
 specifically directed by the Order granting an extension of time within
 which to file post-hearing briefs.  Farmers Home Administration, supra,
 and numerous subsequent like decisions, including:  Philadelphia Naval
 Shipyard, 24 FLRA No. 4, 24 FLRA 37 (1986);  Defense Mapping Agency
 Aerospace Center, St. Louis, Missouri, 24 FLRA No. 5, 24 FLRA 43 (1986);
  Social Security Administration, Northeastern Program Service Center, 24
 FLRA No. 13, 24 FLRA 108 (1986);  Department of the Air Force, Scott Air
 Force Base, Illinois, 24 FLRA No. 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), are
 controlling and are dispositive of all issues raised by Respondent.
 
    First, Respondent asserts, "The information requested by the Union is
 not relevant and necessary as contemplated by 5 U.S.C. 7116(b)(4)"
 (Respondent's Brief;  pages are not numbered, but, excluding the cover
 sheet, this is the third page) and that, "It is Respondent's position
 that the General Counsel has failed to sustain its burden of proving
 that the data was necessary to a legitimate collective bargaining need
 of the Union." (Respondent's Brief, sixth page).  Although it is quite
 true that the Union in its letter of May 1, 1986, stated that its, " . .
 . interest in acquiring the home address of bargaining Unit Employees
 will be confined to mailed information concerning the local and the
 National Unions activities and for the solicitation of new members"
 (G.C. Exh. 5), Respondent made no inquiry as to what Mr. McGill meant by
 "local and the National Union activities" which, as Mr. McGill
 testified, directly related to collective bargaining and specifically to
 a survey form which Mr. McGill had prepared (Tr. 30-31).  But, in any
 event, the Authority in Farmers Home Administration, supra, stated in
 this regard,
 
          " . . . we find that the statutory requirement concerning
       sufficiency of a request under section 7114(b)(4) is satisfied . .
       . when a general written request for the information is made.  A
       precise explication of the reasons for the request involved here
       is not necessary . . .  In our view, 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 unlike requests for certain types of other
       information, an agency's duty to supply names and home addresses
       information does not depend upon any separate explanation by the
       union of its reasons for seeking the information." (23 FLRA at
       795).
 
    Second, Respondent asserts that, "The Union has other adequate means
 of communicating with employees" (Respondent's Brief, eighth page).
 With regard to this contention, the Authority has stated,
 
          "We will not review the adequacy of alternative methods of
       communication on a case-by-case base.  Consistent with the view of
       the Court of Appeals for the Second Circuit . . . 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 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).
 
    Third, Respondent asserts that it, " . . . is prohibited by law from
 releasing the information requested by the Union" (Respondent's Brief,
 tenth page).  With regard to this contention, the Authority has stated,
 
          "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 individual employees 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 to 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 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.  Consistent with
       that conclusion, we find that disclosure of the information sought
       here 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).
 
          "Release of the requested information is therefore not
       prohibited by law.  It may be released pursuant to exceptions
       (b)(2) and (3) of the Privacy Act." (23 FLRA at 793-794).
 
    Fourth, Respondent asserts that, " . . . the information is not
 'reasonably available' either at the local activity or elsewhere.  A new
 computer program would have to be written in order to extract only the
 names and addresses of bargaining unit employees.  This is different
 from the facts in FHA (Farmers Home Administration), supra, where the
 names and addresses were readily available." (Respondent's Brief,
 seventh page).
 
    Section 14(b)(4) imposes on an agency the duty to furnish data to the
 exclusive representative,
 
          "(B) which is reasonably available and necessary . . . ."
       (Emphasis supplied).
 
    Even though such data is "normally maintained" in the regular
 Respondent does maintain home addresses in the regular course of
 business for payroll purposes, and even though such data is necessary
 within the meaning of Section 14(b)(4)(B), nevertheless, such data must
 also be "reasonably available." While the evidence and testimony at the
 hearing suggested a question as to whether the Union's request for
 current names and home addresses constituted data" which is reasonably
 available," pursuant to Section 14(b)(4)(B), Respondent largely skirted
 the issue at the hearing, /4/ and the only testimony or evidence offered
 was:  a) everyone's home address is maintained regardless of the method
 of payment (Tr. 61-62);  b) that to furnish current home addresses the
 computer programs would have to be re-programmed (Tr. 57, 61);  and c)
 that there is a two to three month backlog on programming (Tr. 57).
 Although Mr. Knowles stated, " . . . the office that does their
 programming for them was behind and they had a significant problem with
 the payroll as a result" (Tr. 57-58), the only conclusion, or inference,
 that can be drawn is that a significant problem resulted because
 programming had not been done -- not because of re-programming.  Indeed,
 Mr. Knowles perceived no problem in providing names and home addresses,
 but only that "It would require a program and to write a program to
 specifically extract that information." (Tr. 61).
 
    There is no evidence or testimony as to the cost of the necessary
 re-programming and no evidence or testimony of any problem or difficulty
 in furnishing the names and addresses for bargaining unit employees,
 beyond having to " . . . write a program to specifically extract that
 information." As Counsel for General Counsel stated in her closing
 remarks, " . . . He (Mr. Knowles) said that they could, if they wished,
 that they could distinguish bargaining unit from non-bargaining unit . .
 . So that it is maintained and it is reasonably available.  Now, how
 much time it would take and exactly what it would require, there is no
 testimony and they didn't go so far as to find out." (Tr. 94).  It is
 true that in Farmers Home Administration, supra, that home addresses " .
 . . retained by the Respondent in official personnel files, in a card
 index system, and in a computer file" (19 FLRA No. 21, 19 FLRA 195, 202
 n. 2;  23 FLRA at 795, were found in the Authority's decision on remand
 to be "reasonably available . . . ." (23 FLRA at 795);  but it is not
 true, as Respondent asserts, that the facts in Farmers Home
 Administration were essentially different.  In Farmers Home
 Administration, as here, it was necessary to extract the data from
 records maintained by the agency -- there, from official personnel files
 (OPFs), a card index, or a computer -- and here from a computer file.
 Although preparation of the data requested was not explored in Farmers
 Home Administration, it has been specifically considered in Defense
 Mapping Agency Aerospace Center, St. Louis, Missouri (hereinafter
 referred to as "Defense Mapping," supra;  and in Social Security
 Administration, Northeastern Program Service Center, hereinafter
 referred to as "Northeastern Program"), supra.  In Defense Mapping,
 supra, the cost of preparing names and addresses, "taking into
 consideration labor costs and the time of the computer and the
 keypunching" was estimated to be $736 and the cost of each run
 thereafter was estimated to be $21, for 1500 employees.  (19 FLRA No.
 85, 19 FLRA 675, 688-689).  In its decision on remand, in response to
 the agency's assertion that to retreive the information from either its
 personnel records or its computerized payroll system would be
 unnecessarily costly and time consuming (24 FLRA at 44), the Authority
 held,
 
          " . . . 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 names and home addresses of the employees in the
       bargaining unit.  Further in that regard, we find that the names
       and home addresses of the unit employees are reasonably available
       to the Respondent and that it would not place an undue burden on
       the Respondent to provide the Union with the information
       requested." (24 FLRA at 46) (Emphasis supplied).
 
    In Northeastern Program, supra, the cost was less explicitly
 estimated but it was asserted, inter alia, " . . . the addresses must be
 extracted manually from each personnel locator card, and it would take
 about 40 man hours to accomplish . . . Since the Personnel Branch was
 short staffed, the burden so thrust upon Respondent . . . would be
 onerous." (19 FLRA No. 108, 19 FLRA 913, 925).  In its decision on
 remand, in response to the agency's assertion, inter alia, that the
 information was not readily available because it would require the
 compilation of addresses from many sources (24 FLRA at 109), the
 Authority, again, held that,
 
          " . . . we find that the home addresses of the unit employees
       are reasonably available to the Respondent and that it would not
       place an undue burden on the Respondent to provide the Union with
       the information requested." (24 FLRA at 112).
 
    Here, employees names and addresses, maintained in computerized
 payroll systems, are reasonably available to Respondent by writing a
 program to extract the names and addresses of bargaining unit employees
 and, as Respondent has offered no evidence or testimony whatever that
 re-programming would be unnecessarily costly, time consuming, or
 difficult, I conclude that it would not place an undue burden on
 Respondent to provide the Union with the information requested.
 Respondent's refusal to furnish the requested information in this case
 constituted a violation of Sections 16(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 the
 Navy, Naval Submarine Base New London, New London, Connecticut, shall:
 
    1.  Cease and desist from:
 
          (a) Refusing to furnish, upon request by the National
       Association of Government Employees, Local R1-100, 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 active in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Upon request by the National Association of Government
       Employees, Local R1-100, the exclusive representative of its
       employees, furnish it with the home addresses of employees in the
       bargaining unit it represents.
 
          (b) Post at its facilities at the Naval Submarine Base New
       London 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 Commanding Office 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, 5 C.F.R., Section 2423.30, notify the Regional
       Director, Region I, Federal Labor Relations Authority, Room 1017,
       10 Causeway Street, Boston, Massachusetts, 02222-1046, in writing,
       within 30 days from the date of this Order, as to what steps have
       been taken to comply herewith.
 
                                       WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
    Dated:  March 30,