28:0055(15)CA - Army and Air Force Exchange Service, Dallas, TX and Army and Air Force Exchange Service, Fort Riley, KS -- 1987 FLRAdec CA



[ v28 p55 ]
28:0055(15)CA
The decision of the Authority follows:


28 FLRA No. 15

ARMY AND AIR FORCE EXCHANGE
SERVICE, DALLAS, TEXAS

            and

ARMY AND AIR FORCE EXCHANGE
SERVICE, FORT RILEY, KANSAS

                 Respondents

            and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2324

                 Charging Party

Case No. 7-CA-70202

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondents had engaged in the unfair labor practices alleged in the complaint, granting the General Counsel's motion for summary judgment and recommending that the Respondents be ordered to take appropriate remedial action. The Respondents filed exceptions to the Judge's Decision and the General Counsel filed an opposition to the Respondents' exceptions.

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 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- [PAGE] Management Relations Statute, the Army and Air Force Exchange Service, Dallas, Texas and the Army and Air Force Exchange Service, Fort Riley, Kansas shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, AFL - CIO, Local 2324, the exclusive representative of certain of its employees, the names and 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) Furnish the American Federation of Government Employees, AFL - CIO, Local 2324, the exclusive representative of certain of its employees, the names and home addresses of all employees in the bargaining unit it represents.

(b) Post at all facilities where bargaining unit employees represented by the American Federation of Government Employees, AFL - CIO, Local 2324 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 Exchange Manager of the Army and Air Force Exchange Service, Fort Riley, Kansas and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. 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 [ v28 p2 ] writing, within 30 days from the date of this Order as to what steps have been taken to comply herewith.

Issued, Washington, D.C.,JULY 23, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v28 p3 ]

                      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 American Federation of Government Employees, AFL - CIO, Local 2324, the exclusive representative of certain 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 their rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL furnish the American Federation of Government Employees, AFL - CIO, Local 2324, the exclusive representative of certain of our employees, the names and home addresses of all 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 VII, Federal Labor Relations Authority, whose address is: 535 16th Street, Suite 310, Denver, CO 80202, and whose telephone number is: (303) 837-5224. [PAGE]

ARMY AND AIR FORCE EXCHANGE
SERVICE, DALLAS, TEXAS

    and

ARMY AND AIR FORCE EXCHANGE
SERVICE, FORT RILEY, KANSAS

               Respondents

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2324

               Charging Party

Case No. 7-CA-70202

Robert E.  Edwards, Esq.
    For the Respondents

Michael Farley, Esq.
    For the General Counsel

Before:  SALVATORE J. ARRIGO
         Administrative Law Judge

DECISION

Statement of the Case

This case arose under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq. (herein the Statute).

Upon an unfair labor practice charge having been filed by the captioned Charging Party against the captioned Respondents, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for Region VII, issued a Complaint and Notice of Hearing alleging Respondents violated section 7116(a)(1), (5) and (8) of the Statute when Respondents refused to furnish the American Federation of Government Employees, AFL - CIO, [PAGE] Local 2324, the names and home addresses of all bargaining unit employees, which data had previously been requested by Local 2324. Respondents filed an Answer to Complaint in which some of the allegations of the Complaint were admitted and others denied.

Subsequently, counsel for the General Counsel filed a Motion for Summary Judgment with supporting documents. Thereupon counsel for Respondents filed a Motion To Dismiss counsel for the General Counsel's Motion for Summary Judgment and a Cross - Motion for Summary Judgment to which counsel for the General Counsel filed an opposition. Both counsel for the General Counsel and counsel for Respondents filed briefs in support of their respective positions. The matter has been transferred to the Office of Administrative Law Judges for ruling pursuant to section 2423.22(b)(1) of the Rules and Regulations of the Authority and based upon my review and evaluation of the entire record before me, I make the following:

Findings of Fact

The General Counsel alleges and Respondents admit the following:

l(a). The original charge in this proceeding was filed by the American Federation of Government Employees, AFL - CIO, Local 2324 (herein the Union) on January 9, 1987, and was served upon Respondent Fort Riley on or about the same date.

(b). An amended charge in this proceeding was filed by the Union on February 18, 1987, and was served upon Respondents on or about the same date.

2. On February 25, 1987, the General Counsel of the Authority, by the Regional Director of Region 7, acting pursuant to Chapter 71 of Title 5 of the United States Code and the Rules and Regulations of the Authority, issued a Complaint and Notice of Hearing alleging Respondents violated section 7116(a)(1), (5) and (8) of the Statute by failing and refusing, and by continuing to fail and refuse, to furnish the Union with a complete list of bargaining unit employees' names and home addresses. True copies of the aforesaid Complaint were duly served by certified mail upon Respondents and the Union.

3. Respondents subsequently served an Answer upon the Union and the Regional Director of Region 7 on or about March 11, 1987 admitting all the factual allegations of the [ v28 p2 ] Complaint, with the exception of two paragraphs of the Complaint. Thereafter the General Counsel adopted portions of Respondents' Answer and incorporated them into the Motion For Summary Judgment.

4. At all times material herein the Union is, and has been, a labor organization within the meaning of section 7103(a)(4) of the Statute.

5. At all times material herein Respondents are, and have been, agencies within the meaning of section 7103(a)(3) of the Statute.

6(a). At all times material herein the American Federation of Government Employees, AFL - CIO (herein AFGE), has been certified as the exclusive representative of a national consolidated unit consisting of, among other units, the following unit:

INCLUDED: All regular full-time and regular part-time employees intermittent regularly scheduled, intermittent on call and intermittent casual employees, and temporary employees employed continuously for more than 180 days, including off-duty military personnel in any of the foregoing categories, employed by the Army and Air Force Exchange service.

EXCLUDED: Temporary employees employed continuously for 180 days or less, management trainees, exchange detectives and security employees, not guards or watchmen, professional employees, management officials, supervisors and employees described in section 7112(b)(2), (3), (4), (6) and (7) of the Statute.

(b). The unit described in paragraph 6(a), above, includes employees located at Respondents' facility in Fort Riley, Kansas.

7. At all times material herein Respondents and the Union have been parties to a collective bargaining agreement covering the employees in the unit described in paragraph 6, above. [ v28 p3 ]

8. At all times material herein the Union has been an affiliate and agent of AFGE.

9. At all times material herein Ben Earnest (herein Earnest) has occupied the position of Exchange Manager at Respondents' facility in Fort Riley, Kansas, and has been, and is now, a management official or supervisor within the meaning of section 7103(a)(10) and/or (11) of the Statute, and an agent of Respondents.

10. At all times material herein Maria Martin (herein Martin) has occupied the position of Exchange Personnel Manager at Respondents' facility in Fort Riley, Kansas, and has been, and is now, a management official or supervisor within the meaning of section 7103(a)(10) and/or (11) of the Statute and an agent of Respondents.

11. On or about November 26, 1986, in writing, the Union requested Respondent Fort Riley to furnish the names and home addresses of all bargaining unit employees working at Respondents' Fort Riley, Kansas, facility.

12. The names and home addresses of bargaining unit employees are maintained by Respondents in the regular course of business.

13. The names and home addresses of bargaining unit employees are reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.

14. The names and home addresses of bargaining unit employees do not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining.

15. On or about January 7, 1987, and at all times since, Respondents, through Earnest and Martin, have failed and refused to provide copies of the data described in paragraph 11, above.

Discussion and Conclusions

Counsel for the General Counsel moves for summary judgment based upon the Authority's decision in Farmers Home Administration Finance Office, St. Louis Missouri, 23 FLRA 788 (1986) which treated an agency's obligation to furnish unit employees' names and home addresses to the exclusive collective bargaining representative. [ v28 p4 ]

Section 7114(b)(4) of the Statute provides:

"(b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation . . .

"(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized 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 . . ."

In Farmers Home Administration, id., the Authority held: (1) the disclosure of the names and home addresses of bargaining unit employees to the exclusive representative was not prohibited by the Privacy Act; (2) an agency's possession of Official Personnel Files wherein can be found employees' addresses satisfies the requirements of section 7114(b)(4)(A) and (B) of the Statute that such data be normally maintained by the agency and reasonably available; and (3) such data was necessary under section 7114(b)(4)(B) of the Statute for unions to meet their statutory obligation to represent the interests of all employees in the unit without discrimination as required by section 7114(a)(1) of the Statute, notwithstanding the existence of alternative means by which a union might communicate to unit employees. In subsequent decisions the Authority has followed Farmers Home Administration in deciding numerous cases which involved substantially the same issues. Philadelphia Naval Shipyard, 24 FLRA 39 (1986); Defense Mapping Agency Aerospace Center, [ v28 p5 ] St. Louis, Missouri, 24 FLRA 43 (1986); Social Security Administration, Northeastern Program Service Center, 24 FLRA 108 (1986); Department of the Navy, Portsmouth Naval Shipyard, 24 FLRA 209 (1986); Department of the Air Force, Scott Air Force Base, 24 FLRA 226 (1986); Department of Health and Human Services, Region V, 26 FLRA No. 56 (1987); and Air Force District of Washington, 26 FLRA No. 64 (1987).

Counsel for Respondents contends that by application of 5 U.S.C. 2105(c), Army and Air Force Exchange Service (herein AAFES) employees are not subject to Office of Personnel Management (OPM) regulations and therefore labor unions within AAFES are not routine users of personnel records within the meaning of exception (b)(3) of the Privacy Act, 5 U.S.C. 552a(b)(3)(1982). Counsel for Respondents therefore argues that the Authority's analysis in Farmers Home Administration, id. regarding the applicability of exception (b)(3) of the Privacy Act cannot be applied in this case. Rather, it is urged, the matter should be decided by evaluating the demand for names and home addresses under the requirements of the Freedom of Information Act, 5 U.S.C. 552(1982), exception (b)(6), which provides that information contained in personnel files may be withheld if disclosure would constitute a clearly unwarranted invasion of privacy. Respondent would "balance the interests" in favor of nondisclosure citing American Federation of Government Employees v. U.S. Department of Health and Human Services, 712 F.2d 931 (4th Cir. 1983) in support of its position. However, to the extent such an argument might be deemed relevant to a situation involving a request for information made by an exclusive bargaining representative under the Statute, the Authority in Farmers Home Administration, supra, at 791-793, did balance the competing interests and found "that the balance favors disclosure of the names and home addresses sought by the Union." Indeed, the Authority recently rejected the identical argument made by Respondents in Departments of the Army and Air Force, Army and Air Force Exchange Service Headquarters, Dallas, Texas and Army and Air Force Exchange Service, McClellan Air Force Base, California, 26 FLRA No. 85 (1987). I therefore reject Respondents argument and I conclude Respondents were obligated under section 7114(b)(4) of the Statute to furnish the Union with the names and home addresses of unit employees.

Accordingly, I conclude Respondents' refusals to furnish such data violated section 7116(a)(1), (5) and (8) of the Statute and grant the General Counsel's motion for summary [ v28 p6 ] judgment and deny Respondents' motion and cross-motion and therefore recommend 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 Army and Air Force Exchange Service, Dallas, Texas and Army and Air Force Exchange Service, Fort Riley, Kansas, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, AFL - CIO, Local 2324, the exclusive representative of certain of its employees, the names and 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 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 American Federation of Government Employees, AFL - CIO, Local 2324, the exclusive representative of certain of its employees, the names and home addresses of all employees in the bargaining unit it represents.

(b) Post at all facilities where bargaining unit employees represented by the American Federation of Government Employees, AFL - CIO, Local 2324 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 a senior official of the Army and Air Force Exchange Service, Fort Riley, Kansas, and shall be posted and maintained for 60 consecutive days thereafter, in [ v28 p 7 ] 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, Denver, Colorado, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

SALVATORE J. ARRIGO
Administrative Law Judge

Dated: May 13, 1987
       Washington, D.C.

[ v28 p8 ]

                              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 of the American