27:0983(110)CA AFGE, LOCAL 2805 VS JUSTICE, INS, SAN DIEGO DISTRI -- 1987 FLRAdec CA


[ v27 p983 ]
27:0983(110)CA
The decision of the Authority follows:


27 FLRA NO. 110

UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE, SAN DIEGO
DISTRICT, SAN DIEGO, CALIFORNIA

                    Respondent

         and

NATIONAL IMMIGRATION AND NATURALIZATION
SERVICE COUNCIL, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2805, AFL-CIO

                    Charging Party

Case No. 8-CA-60398

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, granting the General Counsel's motion for summary judgment and recommending that the Respondent be ordered to take appropriate remedial action. The Respondent filed exceptions to the Judge's decision.

Pursuant to section 2423.29 of the Authority's Rules and Regulations 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. 1 

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 Immigration and Naturalization Service, San Diego District, San Diego, California shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request, of the National Immigration and Naturalization Service Council, AFGE Local 2805, AFL - CIO, the exclusive representative of a bargaining unit of its employees, the names and home addresses of all employees in the 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) Furnish the National Immigration and Naturalization Service Council, AFGE Local 2805, AFL - CIO, the exclusive representative of a bargaining unit of its employees, the names and home addresses of all employees in the unit.

(b) Post at the Immigration and Naturalization Service, San Diego District, San Diego, California facility 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 District Director of the Immigration and Naturalization Service, San Diego District, 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 VIII, Federal Labor Relations Authority, 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 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

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 or fail to furnish, upon request, to the National Immigration and Naturalization Service Council, American Federation of Government Employees, Local 2805, AFL - CIO, the exclusive representative of a bargaining unit 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 them by the Federal Service Labor - Management Relations Statute.

WE WILL furnish the National Immigration and Naturalization Service Council, American Federation of Government Employees, Local 2805, AFL - CIO, the exclusive representative of a bar-gaining unit of our employees, the names and home addresses of all employees in the unit.

                             ______________________________
                                        (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 of the Federal Labor Relations Authority, Region VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, and whose telephone number is: (213) 894-3805. 

UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE
SAN DIEGO DISTRICT
SAN DIEGO, CALIFORNIA

               Respondent

     and

NATIONAL IMMIGRATION AND
NATURALIZATION SERVICE COUNCIL
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2805, AFL-CIO

               Charging Party

Case No.: 8-CA-60398

Kenneth P. Russell, Esquire
    For the General counsel

Ms. Louise Fillmann
     For the Respondent

Before: BURTON S. STERNBURG
        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 U.S.C. section 7101, et seq., and the Rules and Regulations issued thereunder.

Pursuant to a charge filed on June 24, 1986, by Local 2805, National Immigration and Naturalization Service Council, American Federation of Government Employees, AFL - CIO, (hereinafter called the Union), a Complaint and Notice of Hearing was issued on September 30, 1986, by the Regional Director for Region VIII, Federal Labor Relations  Authority, Los Angeles, California. The complaint alleges that the United States Immigration and Naturalization Service, San Diego District, San Diego, California (hereinafter called the Respondent), violated sections 7116(a) (1), (5) and (8) of the Federal Service Labor - Management Relations Statute, (hereinafter called the Statute), by failing and refusing to furnish the union the names and home addresses of bargaining unit members within the San Diego District bargaining unit.

On November 24, 1986, Respondent filed its Answer denying the commission of any unfair practices but admitting all the material factual allegations of the Complaint.

On November 28, 1986, the chief Administrative Law Judge issued an order indefinitely postponing the scheduled hearing. Thereafter, Counsel for the General Counsel filed with the Regional Director for Region VIII a Motion For Summary Judgement along with a "Brief and Memorandum of Points and Authorities In Support of the Motion". On January 15, 1987, the Regional Director for Region VIII, pursuant to Section 2423.22(b)(1) of the Federal Labor Relations AUthority's Rules and Regulations, transferred the General Counsel's Motion for Summary Judgement to the Chief Administrative Law Judge for decision. The matter was subsequently assigned to the undersigned Administrative Law Judge, who, on January 21, 1987, issued an order to Show Cause why the General Counsel's Motion for Summary Judgement should not be granted. On January 30, 1987, the Respondent filed a Cross-motion for Summary Judgement and Brief in support thereof.

Having read the Complaint and Respondent's Answer thereto, as well as the respective motions and briefs in support thereof, I am convinced that a hearing in the instant matter is not necessary since there is no material fact in dispute.

Accordingly, upon the basis of the above described record, and after consideration of the parties briefs, 2 I make the following findings of fact, conclusions and recommendations. 

Findings of Fact

In 1968 American Federation of Government Employees, National Immigration and Naturalization Service Council (hereinafter called the AFGE), was recognized by the United States Immigration and Naturalization Service, Washington, D.C., (hereinafter called INS) as the exclusive representative of a service-wide unit composed of all personnel of INS, Washington, D.C., except those assigned to Border Patrol Sectors and those excluded from coverage by the civil Service Reform Act. The employees working at Respondent's facilities in the San Diego District, San Diego, California, are included in the aforementioned unit.

AFGE and INS have been parties to a number of collective bargaining agreement its covering the above described unit employees, the most recent of which is effective from September 21, 1984 to September 21, 1986.

The Union is a constituent local of the AFGE.

At all times material herein Mr. James Turnage and Mr. Clifton Rogers have occupied the positions of District Director and Acting District Director, respectively, at Respondent's San Diego District, San Diego, California facility, and have been, and are now, management officials, supervisors and agents of the Respondent.

By letter dated April 29, 1986, the Union requested that Respondent furnish to the Union "necessary and relevant information consisting of the names and home addresses of all bargaining unit employees within the San Diego, California District." Such information is normally maintained by Respondent in the regular course of business, is reasonably available, and does not constitute guidance, counsel or training provided for management officials or supervisors relating to collective bargaining.

Since on or about May 14, 1986, and continuing to date, Respondent, through Mr. Rogers, has refused, and continues to refuse, to provide the Union with the home addresses of the unit employees.

Discussion and Conclusions

The General Counsel takes the position that the Authority's decision in Farmers Home Administration, Finance Office, St. Louis, Missouri, 23 FLRA No. 101, is dispositive of the matter and that summary judgement in its favor is in order.

Respondent on the other hand takes the position that the Privacy Act of 1974, 5 U.S.C. 552a, prohibits the release of the requested information and, accordingly, urges that summary judgement be entered in its favor.

In agreement with the General Counsel I find that the Authority's decision in Farmers Home Administration, Finance Office, St. Louis, Missouri, supra, is dispositive of all Respondent's contentions and/or defenses. Thus, the Authority held that release of the names and home addresses of unit employees is not prohibited by the Privacy Act, that regardless of the existence of alternative means of communication the names and home addresses of unit employees should be supplied to the Union on request, and, finally, that the exclusive representative need not offer any explanation as to the reasons it seeks such information since the union's need "is so apparent and essentially related to the nature of exclusive representation itself. . .".

Accordingly, based upon the Authority's holdings set forth above, I find that the Respondent's refusal to furnish the Union with the names and home addresses of bargaining unit employees constituted a violation of sections 7116(a)(1), (5) and (8) of the Statute. In such circumstances, I hereby grant the General Counsel's motion for summary Judgement.

Having found that Respondent violated the Statute by refusing to supply the union the names and home addresses of the bargaining unit employees, it is hereby recommended that the Authority adopt the following order designed to effectuate the purposes and policies of the Statute.

ORDER

Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Federal Service Labor - Management Relations Statute, 5 U.S.C. Section 7118, it is ordered that the San Diego District Office of the United States Immigration and Naturalization Service shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request, to the National Immigration and Naturalizatio Service Council, American Federation of Government Employees, Local 2805, AFL - CIO, the exclusive representative of its employees, the names and home addresses of all bargaining unit employees.

(b) In any like or related manner interfering with, restraining, or coercing its 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) Furnish the names and home addresses of all bargaining unit employees as requested by the National Immigration and Naturalization Service Council, American Federation of Government Employees, Local 2805, AFL - CIO.

(b) Post at United States Immigration and Naturalization Service, San Diego District, San Diego, California facility 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 responsible official of the United States Immigration and Naturalization Service, San Diego District, San Diego, California and shall be posted and maintained 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 notify the Regional Director of Region VIII, Federal Labor Relations Authority, 350 South Figueroa street, 10th Floor, Los Angeles, CA 90071, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

BURTON S. STERNBURG Administrative Law Judge

Dated: March 4, 1987
       Washington, D.C.

                      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, to the National Immigration and Naturalization Service Council, American Federation of Government Employees, Local 2805, AFL - CIO, the exclusive representative of our employees, the names and home addresses of all bargaining unit employees in the United States Immigration and Naturalization Service, San Diego District, San Diego, California

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL furnish the names and home addresses of all bargaining unit employees as requested by the National Immigration and Naturalization Service council, American Federation of Government Employees, Local 2805, AFL - CIO.

                              _________________________________
                                     (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 Director of the Federal Labor Relations Authority, Region VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, CA 90071, and whose telephone number is: (213) 894-3805.

FOOTNOTES

Footnote 1 The Respondent argues in its exceptions, among other things, that certain bargaining unit employees in law enforcement-related positi