28:0090(19)CA - VA, Washington, DC and VA Medical and Regional Office Center, Wichita, KS and AFGE Local 477 -- 1987 FLRAdec CA



[ v28 p90 ]
28:0090(19)CA
The decision of the Authority follows:


28 FLRA No. 19

VETERANS ADMINISTRATION
WASHINGTON, D.C.

         and

VETERANS ADMINISTRATION MEDICAL AND
REGIONAL OFFICE CENTER, WICHITA, KANSAS

              Respondents

         and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 477

              Charging Party

Case No. 7-CA-70150

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 Veterans Administration, Washington, D.C. and Veterans Administration Medical and Regional Office Center, Wichita, Kansas shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, AFL - CIO, Local 477, 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 477, the exclusive representative of a bargaining unit 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 477 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 Director of the Veterans Administration Medical and Regional Office Center, Wichita, 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 477, 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 477, the exclusive representative of a bargaining unit 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]

VETERANS ADMINISTRATION,
WASHINGTON, D.C.

     and

VETERANS ADMINISTRATION
MEDICAL AND REGIONAL OFFICE
CENTER, WICHITA, KANSAS

               Respondents

     and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 477, AFL-CIO

               Charging Party

Case No.: 7-CA-70150

John A. Bell, 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 [PAGE] Hearing alleging Respondents violated section 7116(a)(1), (5) and (8) of the Statute when Respondents refused to furnish American Federation of Government Employees, AFL - CIO, Local 477 the names and home addresses of bargaining unit employees, which data had previously been requested by Local 477. Respondents filed an Answer, an Amended Answer and a Second Amended 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 and counsel for Respondents filed an answer and opposition to the 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 477, (herein the Union) on December 11, 1986, and was served upon Respondent Veterans Administration Wichita on or about the same date.

(b). An amended charge in this proceeding was filed by the Union on February 2, 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 that Respondents violated section 7116(a)(1), (5) and (8) 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 addresses.

3(a). Respondents served an Answer upon the Union and the Regional Director of Region 7 on or about March 20, 1987. [ v28 p2 ]

(b). Respondents served an Amended Answer upon the Union and the Regional Director of Regional 7 on or about March 25, 1987.

(c). Respondents served a Second Amended Answer upon the Union and the Regional Director of Region 7 on or about April 6, 1987.

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:

All non-supervisory Wage Grade, General Schedule and Canteen Service employees at the Veterans Administration Center, Wichita, Kansas, excluding all professional employees, supervisors, management officials, and employees engaged in Federal personnel work in other than a purely clerical capacity.

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

7. At all times material herein the Veterans Administration, Washington, D.C. and AFGE have been parties to a collective bargaining agreement covering the employees in the unit described in paragraph 6, above.

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

9. At all times material herein R.W. Meyerricks (herein Meyerricks) has occupied the position of Chief, Personnel Services, at Respondents' facilities in Wichita, 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. [ v28 p3 ]

10. On or about December 1, 1986, in writing, the Union requested Respondent Veterans Administration Wichita to furnish the names and home addresses of all bargaining unit employees working at Respondents' Wichita, Kansas facilities.

11. The names and home addresses of bargaining unit employees are maintained by Respondents in the regular course of business within the meaning of section 7114(b)(4) (A) of the Statute.

12. The names and home addresses of bargaining unit employees are reasonably available within the meaning of section 7114(b)(4)(B) of the Statute.

13. 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 within the meaning of section 7114(b)(4)(C) of the Statute.

14. On or about December 8, 1986, and at all times since, Respondents, through Meyerricks, have failed and refused to provide copies of the data described in paragraph 10, 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.

Counsel for Respondents essentially contends that furnishing names and home addresses of unit employees is prohibited by the Privacy Act, 5 U.S.C. 552a (1982) and, notwithstanding the admissions made supra, counsel urges Respondents are not obligated to furnish such data since adequate alternative means exist for communication between the exclusive representative and bargaining unit employees.

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 . . . [ v28 p4 ]

(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, 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). [ v28 p5 ]

The facts presented herein and the arguments raised by Respondents are not significantly different from those considered by the Authority in Farmers Home Administration and cases which followed thereafter, supra. In view of the Authority's holdings in these cases I am constrained to conclude Respondents' defenses to its failure and refusal to provide Local 477 with the names and home addresses of unit employees, as requested by Local 477, to be without merit 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 judgment 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 Veterans Administration, Washington, D.C. and Veterans Administration Medical and Regional Office Center, Wichita, Kansas, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, AFL - CIO, Local 477, 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 477, the exclusive representative of certain of its employees, the names and [ v28 p6 ] 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 477 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 Veterans Administration Medical and Regional Office Center, Wichita, Kansas, 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, 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 p7 ]

                                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 Federation of Government Employees, AFL - CIO, Local 477, 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 the rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL furnish the American Federation of Government Employees, AFL - CIO, Local 477, the exclusive representative of certain of our