27:0823(90)CA AFGE, LOCAL 1824 VS ENERGY, WESTERN AREA POWER ADM -- 1987 FLRAdec CA


[ v27 p823 ]
27:0823(90)CA
The decision of the Authority follows:


27 FLRA NO. 90
DEPARTMENT OF ENERGY
WESTERN AREA POWER ADMINISTRATION
GOLDEN, COLORADO

                    Respondent

             and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1824, AFL-CIO

                    Charging Party

Case No. 7-CA-60618

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 Energy, Western Area Power Administration, Golden, Colorado, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request by the American Federation of Government Employees, AFL - CIO, Local 1824, the exclusive representative of its employees, the home addresses of all employees in the bargaining unit.

(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 American Federation of Government Employees, AFL - CIO, Local 1824, the exclusive representative of its employees, furnish American Federation of Government Employees, AFL - CIO, Local 1824 with the home addresses of employees of the bargaining unit it represents.

(b) Post at facilities in the Western Area Power Administration 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 Administrator, Western Area Power Administration, 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, Suite 310, 535 16th Street, Denver, Colorado 80202, 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 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 of the American Federation of Government Employees, AFL - CIO, Local 1824, the exclusive representative of our employees, the home addresses of all employees in its bargaining unit.

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 furnish to the American Federation of Government Employees, AFL - CIO, Local 1824, upon its request, the home addresses of employees of the bargaining unit it represents.

                                ___________________________
                                    (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.

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. 

DEPARTMENT OF ENERGY
WESTERN AREA POWER
ADMINISTRATION
GOLDEN, COLORADO

               Respondent

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3824

               Charging Party

Case No. 7-CA-60618

Joseph Swerdzewski, Esquire
    For the General Counsel

Mr. B. B. Boatman
    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, 5 U.S.C. 7101, et seq., and the Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq., which concerns a request for home addresses, is before me on the motion of the General Counsel for summary judgment.

This proceeding was initiated by a charge filed on August 28, 1986 (G.C. Exh. 1(a)); which alleged violations of 7116(a)(1), (3), (5), (7) and (8) of the Statute; by an amended charge filed on October 3, 1986 (G.C. Exh. 1(b)), which alleged violations of 7116(a)(1), (5) and (8) of the Statute; and the Complaint and Notice of Hearing issued on October 9, 1986 (G.C. Exh. 1(c)), alleged violations of 7116(a)(1), (5) and (8) of the Statute and set the  hearing for January 7, 1987. By Order dated November 3, 1986, the hearing was rescheduled to January 5, 1987. On December 24, 1986, General Counsel filed with the Regional Director for Region VII a Motion For Summary Judgment. By Order dated December 24, 1986, the Regional Director transferred General Counsel's Motion For Summary Judgment, pursuant to 2423.22(b)(1) of the Regulations, 5 C.F.R 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 29, 1986, and was duly assigned to the undersigned. On January 7, 1987, Respondent mailed "Agency Response to Motion For Summary Judgment", received on January 12, 1987.

Findings and Conclusions

A. Union's Request and Respondent's Denial.

American Federation of Government Employees, AFL - CIO, is the certified exclusive representative of the following units of Respondent's employees:

"Unit 1:

INCLUDED: All professional employees of the Western Area Power Administration.

EXCLUDED: Wage Board employees, temporary employees with less than ninety (90) days appointments, non-professional GS employees, employees engaged in Federal personnel work in other than a purely clerical capacity; management officials, confidential employees and supervisors as defined in the Federal Service Labor - Management Relations Statute, and;

"Unit 2:

INCLUDED: All non professional GS employees of the Western Area Power Administration. 

EXCLUDED: All Wage Board employees, temporary employees with less that ninety (90) days appointments, employees engaged in Federal personnel work in other than a purely clerical capacity, management officials, confidential employees, supervisors, and professional employees as defined in the Federal Service Labor - Management Relations Statute."

(Complaint, G.C. Exh. 1(c); Par. 4; admitted, Answer, G.C. Exh. 1(d), Par. 4).

By letter dated June 2, 1986, Mr. Carl W. Atchley, Chief Steward, Local 3821 (hereinafter referred to as the "Union") and Designated Union Representative for Unit Affairs for American Federation of Government Employees, AFL - CIO, requested Respondent to furnish the names and home addresses of all bargaining unit employees (Complaint, G.C. Exh. 1(c), Par. 8(a)); admitted, Answer, G.C. Exh. 1(d)), Par. 8(a); G.C. Exh. 2). By letter dated August 19, 1986 (G.C. Exh. 3), Respondent refused to furnish the Union the names and home addresses of bargaining unit employees requested by the Union on June 2, 1986 (Complaint, G.C. Exh. 1(c), Par. 9; admitted, Answer, G.C. Exh. 1(d), Par. 9).

B. Home Addresses normally maintained in regular course of business; are available; and does not constitute guidance, advice, counsel or training provided for management officials or supervisors relation to collective bargaining.

The Complaint alleged that home addresses of all bargaining unit employees were normally maintained by Respondent in the regular course of business (Complaint, G.C. Exh. 1(c), Par. 8(b)) which Respondent admitted (Answer, G.C. Exh. 1(d), Par. 8(b)). The Complaint alleged that the home addresses were reasonably available (Complaint, G.C. Exh 1(c)) and Respondent stated that ". . . bargaining unit employee names and home addresses are available . . . ." (Answer, G.C. Exh. 1(d)), Par. 8(c)). The Complaint alleged (Complaint, G.C. Exh. 1(c), Par. 8(d) and Respondent admits (Answer, G.C. Exh. 1(d), Par. 8(d)), that the names and home addresses do not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. 

In its request of June 2, 1986, the Union did set forth reasons, within the scope of collective bargaining, for its need for home addresses (G.C. Exh. 2) and while Respondent in its Answer asserted, ". . . AFGE has not asserted, and Western denies, that the information is necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" (Answer, G.C. Exh. 1(d), Par. 8(c)), the Authority, in Farmers Home Administration, Finance Office, St. Louis, Missouri, 23 FLRA No. 101, 23 FLRA 788 (1986) (hereinafter referred to as "Farmers Home Administration") has held 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 . . . 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 . . . 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).

Paragraph 8(e) of the Complaint alleged that "Release of the information (names and home addresses) . . . is not prohibited by law" (Complaint, G.C. Exh. 1(c), Par. 8(e)), which Respondent denied (Answer, G.C. Exh. 1(d), Par. 8(e)). Nevertheless, Respondent's only denial of the allegations of Paragraph 8 of the Complaint, i.e., that portion of Paragraph 8(c) which alleged, pursuant to 7114(b)(4)(B), ". . . necessary for full and proper discussion . . ." and Paragraph 8(e) which alleged, pursuant to 7114(b)(4), ". . . not prohibited by law . . .", raise questions of law, not questions of fact.

C. General Counsel's Motion For Summary Judgment Must be - Granted.

For reasons set forth above, there are no material facts in dispute. Moreover, General Counsel in his Motion For Summary Judgment, after setting forth the facts, specifically asserted that there are ". . . no material facts in dispute" (Motion of General Counsel, p. 4), and Respondent, in its Response to Motion For Summary Judgment, neither denied or controverted any fact asserted by General Counsel in his motion nor denied or controverted General Counsel's assertion that there are no material facts in dispute. Indeed, Respondent stated its only objection to the motion for summary judgment as follows:

"Thus, our objection to the motion for summary judgment, and to compliance with any finding of violation and order to disclose, is one of timing. Compliance with any decision giving force and effect to a ruling of the Authority while that decision is pending on appeal before the judiciary is premature. Should Western comply with an FLRA Order to disclose and later learn that the Authority did not prevail in the judicial appeal of 23 FLRA 101, 1 we would be left without any remedy. . . ." (Agency Response to Motion For Summary Judgment).

Respondent's assertion, that if it complied with an Authority order which was later reversed in a different case it would be left without any remedy, may be true; but this is an inherent characteristic of our judicial system. Public policy dictates that the decisions of the Authority must be enforced unless and until they are reversed by appropriate authority. Respondent is wholly incorrect in its implied assertion that it is without any remedy in this case. To the contrary, it has a full and adequate remedy, first, from any adverse ruling by the undersigned, to the Authority; and second, from any final order of the Authority, judicial review by a United States Court of Appeals.

The Authority, in Farmers Home Administration, supra, and in numerous like decisions, including: Philadelphia Naval Shipyard, 24 FLRA No. 4, 24 FLRA 37 (1986); Defense Mapping Agency, Aerospace Center, St. Louis Missouri, 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. 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 Administration Field Operations, New York Region, 24 FLRA No. 62 24 FLRA 583 (1986); and Department of the Treasury, Financial Management Service, 25 FLRA No. 42, 25 FLRA 560 (1987), has held that the release of names and home addresses to the exclusive representative is not prohibited by law, is necessary for the Union to fulfill its duties under the Statute, and meets all other requirements of Section 7114(b)(4) of the Statute. Accordingly, the Motion of the General Counsel For Summary Judgment is granted. Respondent, by its failure and refusal to furnish the names and addresses requested by the Union pursuant to 7114(b)(4) of the Statute, thereby violated 7116(a)(1), (5) and (8) of the Statute. Having found that Respondent violated 7116(a)(1), (5) and (8) of the Statute, it is recommended that the Authority adopt the following:

ORDER

Pursuant to 2423.29 of the Authority's Rules and Regulations, 5 C.F.R. 2423.29, and 18 of the Statute, 5 U.S.C. 7118, the Authority hereby Orders that the Department of Energy, Western Area Power Administration, Golden, Colorado, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request by the American Federation of Government Employees, AFL - CIO, Local 3824, the exclusive representative of its employees, the home addresses of all employees in the bargaining unit.

(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 American Federation of Government Employees, AFL - CIO, Local 3824, 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 in the Western Area Power Administration, 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 Administrator, Western Area Power Administration, 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 2423.30 of the Authority's Rules and Regulations, 5 C.F.R. 2423.30, notify the Regional Director, Region VII, Federal Labor Relations Authority, Suite 310, 535 16th Street, Denver, Colorado 80202, 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: April 15, 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 to furnish, upon request by the American Federation of Government Employees, AFL - CIO, Local 3824, 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 American Federation of Government Employees, AFL - CIO, Local 3824, the exclusive representative of our employees,