28:0122(24)CA - VA Washington, DC and VA Medical and Regional Office Center, Sioux Falls, SD and AFGE and AFGE Local 1509 and AFGE Local 3832 -- 1987 FLRAdec CA



[ v28 p122 ]
28:0122(24)CA
The decision of the Authority follows:


28 FLRA No. 24

VETERANS ADMINISTRATION
WASHINGTON, D.C.

      and

VETERANS ADMINISTRATION
MEDICAL AND REGIONAL
OFFICE CENTER, SIOUX FALLS
SOUTH DAKOTA

                    Respondents

      and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO

      and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 1509

      and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 3832

                    Charging Parties

Case Nos. 7-CA-70191(1)
          7-CA-70197

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 and recommending that the Respondents be ordered to take appropriate remedial action. Thereafter, the Respondents 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 Regulations and section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), we have [PAGE] 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 to that 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 - Management Relations Statute, the Veterans Administration, Washington, D.C. and the Veterans Administration Medical and Regional Office Center, Sioux Falls, South Dakota shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, AFL - CIO, Local 1509 or of the American Federation of Government Employees, AFL - CIO, Local 3832, the exclusive representatives of certain of its employees, the names and home addresses of all bargaining unit employees located at the Sioux Falls Veterans Administration Medical and Regional Office Center represented by them.

(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 1509 and American Federation of Government Employees, AFL - CIO, Local 3832, the exclusive representatives of certain of its employees, furnish them with the names and home addresses of all bargaining unit employees located in its Sioux Falls Veterans Administration Medical and Regional Office Center.

(b) Post at all its facilities of its Sioux Falls Veterans Administration Medical and Regional Office Center, where bargaining unit employees represented by the American Federation of Government Employees, AFL - CIO, Local 1509, or the American Federation of Government Employees, AFL - CIO, Local 3832 are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations [ v28 p2 ] Authority. Upon receipt of such forms, they shall be signed by a senior official of the Veterans Administration Medical and Regional Office Center, Sioux Falls, South Dakota, 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 with this Order.

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 to furnish, upon request of the American Federation of Government Employees, AFL - CIO, Local 1509 and American Federation of Government Employees, AFL - CIO, Local 3832, the exclusive representatives of our employees, the names and home addresses of all bargaining unit employees located in our Sioux Falls Veterans Administration Medical and Regional Office Center.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of 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 1509 and American Federation of Government Employees, AFL - CIO, Local 3832, the exclusive representatives of our employees, furnish them with the names and home addresses of all bargaining unit employees located at our Sioux Falls Veterans Administration Medical and Regional Office Center.

                               ____________________________
                               (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, Colorado 80202 and whose telephone number is: (303) 837-5224. [PAGE]

VETERANS ADMINISTRATION
WASHINGTON, D.C.

    and

VETERANS ADMINISTRATION
MEDICAL AND REGIONAL
OFFICE CENTER, SIOUX FALLS,
SOUTH DAKOTA

              Respondent

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1509

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3832

         Charging Parties

Case Nos. 7-CA-70191(l)
          7-CA-70197

William H. Ranney, Esq.
    For the Respondents

Hazel E. Handley, Esq.
    For the General Counsel

Before:  SALVATORE J. ARRIGO
         Administrative Law Judge

[PAGE]

DECISION

Statement of the Case

This matter 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 unfair labor practice charges having been filed by the captioned Charging Parties 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 Consolidated Complaint and Notice of 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 1509, and Local 3832 the names and home addresses of employees in their respective bargaining units, which data had previously been requested by Locals 1509 and 3832. Respondents filed a Answer and an Amended Answer to Complaint in which some of the allegations of the Consolidated Complaint were admitted and others denied.

Subsequently, counsel for the General Counsel filed a Motion for Summary Judgment and an Amended Motion for Summary Judgment with supporting documents. Thereupon counsel for Respondents filed an Objection to the Motion for Summary Judgment and a Cross-motion for Summary Judgment which counsel for the General Counsel opposed. 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:

1. At all times material the American Federation of Government Employees, AFL - CIO, (herein AFGE National), the American Federation of Government Employees, AFL - CIO, Local 1509 (herein Local 1509) and the American Federation of Government Employees, AFL - CIO, Local 3832 (herein Local 3832) have been labor organizations within the meaning of section 7103(a)(4) of the Statute. [ v28 p2 ]

2. At all times material Veterans Administration, Washington, D.C. (herein VA Washington) and Veterans Administration Medical and Regional Office Center, Sioux Falls, South Dakota (herein VA Sioux Falls), have been agencies within the meaning of section 7103(a)(3) of the Statute.

3(a). At all times material AFGE National has been certified as the exclusive representative of a national consolidated non-professional unit, consisting of, among other units, the following unit:

All non-supervisory, non-professional employees at the Veterans Administration Center, Sioux Falls, South Dakota, excluding all professional employees, supervisors, management officials and personnel engaged in Federal personnel work in other than a purely clerical capacity.

(b). At all times material AFGE National has been certified as the exclusive representative of a national consolidated professional unit, consisting of, among other units, the following unit:

All professional nurses employed by the Veterans Administration Hospital, Sioux Falls, South Dakota, excluding all other professional employees, non-professional employees, management officials, head nurses, nurse anesthetists, supervisors and employees described in 5 USC 7112(b) (2), (3), (4), (6) and (7).

(c). The unit described in paragraph 3(a), above, includes non-professional unit employees located at Respondents' Sioux Falls, South Dakota facility who are represented by Local 1509.

(d). The unit described in paragraph 3(b), above, includes professional nurse unit employees located at Respondents' Sioux Falls, South Dakota facility who are represented by Local 3832.

(e). At all times material Local 1509 and Local 3832 have been affiliates of AFGE National. [ v28 p3 ]

4(a). At all times material VA Washington and AFGE National have been parties to a national collective bargaining agreement covering the employees described in paragraph 3(a), above.

(b). At all times material VA Sioux Falls and Local 1509 have been parties to a supplemental collective bargaining agreement to the national collective bargaining agreement described in paragraph 4(a), above, covering the employees described in paragraph 3(a), above.

(c). At all times material VA Washington and AFGE National have been parties to an Interim Memorandum of Agreement covering the employees described in paragraph 3(b), above.

5. At all times material Elmer Richards, herein called Richards, has occupied the position of Chief, Personnel Service at Respondents' Sioux Falls, South Dakota facility, and has been, and is now, a management official or supervisor within the meaning of 5 USC 7103(a)(10) and/or (11), and an agent of Respondents.

6(a). On or about December 19, 1986, in writing, and again on or about December 31, 1986, also in writing, Local 1509 requested VA Sioux Falls to furnish it with a list of bargaining unit employees and their home addresses.

(b). The information requested in paragraph 6(a), above, is normally maintained by VA Sioux Falls and/or VA Washington in the regular course of business.

(c). The information requested in paragraph 6(a), above, is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.

(d). The information requested in paragraph 6(a), above, does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining.

7(a). On or about November 5, 10, and 14, 1986, orally, and again on or about December 16, 1986, in writing, Local 3832 requested VA Sioux Falls to furnish it with a list of bargaining unit employees and their home addresses.

(b). The information requested in paragraph 7(a), above, is normally maintained by Respondent Sioux Falls and/or Respondent Washington in the regular course of business. [ v28 p4 ]

(c). The information requested in paragraph 7(a), above, is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.

(d). The information requested in paragraph 7(a), above, does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining.

8(a). On or about December 24, 1986, and again on or about January 7, 1987, in writing, and at all times since, Respondents, through Richards, at Respondents' Sioux Falls, South Dakota facility, failed and refused to furnish Local 1509 with the names and home addresses of bargaining unit members requested by Local 1509, as described in paragraph 6(a), above.

(b). On or about November 10, 1986, orally, and again on or about November 14, 1986, orally, and again on or about December 24, 1986, in writing, and at all times since, Respondents, through Richards, at Respondents' Sioux Falls, South Dakota facility, failed and refused to furnish Local 3832 with the names and home addresses of bargaining unit employees requested by Local 3832, as described in paragraph 7(a), 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, 3 FLRA 788 (1986) which treated an agency's obligation to furnish unit employees names and addresses to the exclusive collective bargaining representative.

Counsel for Respondents essentially contends that furnishing names and addresses of unit employees is prohibited by the Privacy Act, 5 U.S.C. 552a (1982) and, notwithstanding the admissions made in the Amended Answer to the Complaint, counsel urges Respondents are not obligated to furnish such data since adequate alternative means exists for communication between the exclusive representative and bargaining unit employees and, in any event, section 7114(b)(4) of the Statute concerns only data relating to conditions of employment that will form the basis of collective bargaining and not names and addresses of employees. [ v28 p5 ]

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 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 to be normally maintained by the agency and reasonably available; and (3) such data was necessary under section 7114(b)(4)(B) 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, [ v28 p6 ] 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).

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 1509 and Local 3832 with the names and addresses of unit employees, as requested by Local 1509 and 3832, to be without merit and I conclude Respondents were obligated under section 7114(b) of the Statute to furnish the union with the names and addresses of said unit employees. 1

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 deny Respondents' cross-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, Sioux Falls, South Dakota, shall: [ v28 p7 ]

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, AFL - CIO, Local 1509, the exclusive representative of certain of its employees, the names and home addresses of all employees in the bargaining unit it represents.

(b) Refusing to furnish, upon request of the American Federation of Government Employees, AFL - CIO, Local 3832, the exclusive representative of certain of its employees, the names and home addresses of all employees in the bargaining unit it represents.

(c) 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 1509, the exclusive representative of certain of its employees, the names and home addresses of all employees in the bargaining unit it represents.

(b) Furnish the American Federation of Government Employees, AFL - CIO, Local 3832, the exclusive representative of certain of its employees, the names and home addresses of all employees in the bargaining unit it represents.

(c) Post at all facilities where bargaining unit employees represented by the American Federation of Government Employees, AFL - CIO, Local 1509 and Local 3832 are located, copies of the attached [ v28 p8 ] 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, Sioux Falls, South Dakota, 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:  April 27, 1987
        Washington, D.C.

[ v28 p9 ]

                            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 1509, 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 refuse to furnish, upon request of the American Federation of Government Employees, AFL - CIO, Local 3832, 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 1509, the exclusive representative of certain of our employees, the names and home addresses of all employees in the bargaining unit it represents.

WE WILL, furnish the American Federation of Government Employees, AFL - CIO, Local 3832, the exclusive representative of certain of our employees, the names and home addresses of all employees in the bargaining unit it represents. [PAGE]

                              ______________________________
                                    (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 VII, whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202, and whose telephone number is: (303)