28:0306(44)CA - Air Force HQ, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Council 214 -- 1987 FLRAdec CA



[ v28 p306 ]
28:0306(44)CA
The decision of the Authority follows:


DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, AIR FORCE LOGISTICS
COMMAND, WRIGHT-PATTERSON
AIR FORCE BASE, OHIO

     Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214, AFL-CIO

     Charging Party

Case No. 5-CA-60387

DECISION AND ORDER

The Administration 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. The Respondent filed exceptions to the Judge's decision and the General Counsel filed an opposition to the Respondent's 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, 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 the Air Force, Headquarters, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, Council 214, [PAGE] AFL - CIO, the agent of 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 American Federation of Government Employees, Council 214, AFL - CIO, the agent of the exclusive representative of a bargaining unit of its employees, the names and home addresses of all employees in the unit.

(b) Post at its facilities where bargaining unit employees represented by the American Federation of Government Employees, Council 214, AFL - CIO 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 Commanding Officer, Department of the Air Force, Headquarters, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, and shall be posted and maintained for 60 consecutive days there-after, in conspicuous places, including all bulletin boards and 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 V, 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., July 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v28 p2 ]

              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, Council 214, AFL - CIO, the agent of the exclusive representative of a bargaining unit of our employees, the names and home addresses of all employees in the unit.

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, Council 214, AFL - CIO, the agent of the exclusive representative of a bargaining 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 any of its provisions, they may communicate directly with the Regional Director, Region V, Federal Labor Relations Authority whose address is: 175 West Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604 and whose telephone number is: (312) 353-6306. [PAGE]

DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, AIR FORCE
LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE
BASE, OHIO

     Respondent

     and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
COUNCIL 214, AFL-CIO

     Charging Party

Case No. 5-CA-60387

William P. Krueger, Esquire
Major W. Kirk Underwood, Esquire
        For the Respondent

Mr. Paul Palacio
        For the Charging Party

John F. Gallagher, Esquire
        For the General Counsel, FLRA

Before: GARVIN LEE OLIVER
        Administrative Law Judge

DECISION

Statement of the Case

This decision concerns an unfair labor practice complaint issued by the Regional Director, Region Five, Federal Labor Relations Authority, Chicago, Illinois, against the Department of the Air Force, Headquarters, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio (Respondent), based on a charge filed by the American Federation of Government Employees, Council 214, AFL - CIO (Council 214 or Union). The complaint alleged, in substance, that Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor - Management Relations [PAGE] Statute, 5 U.S.C. 7101 et seq. (the Statute), by refusing to furnish the union with the names and home addresses of all bargaining unit employees pursuant to section 7114(b)(4) of the Statute.

Respondent's answer denied any violation of the Statute.

A hearing was held in Dayton, Ohio. The Respondent, Charging Party, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed helpful briefs. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

At all times material herein, the American Federation of Government Employees, AFL - CIO (AFGE), has been, and is now, the exclusive representative of a consolidated bargaining unit of approximately 73,000 non-professional employees paid from appropriated funds and serviced by the Air Force Logistics Command (AFLC) Civilian Personnel Office at eleven AFLC facilities and units throughout the United States. Council 214 is the agent of AFGE with respect to the unit.

At all times material herein, Respondent and the Union were parties to a collective bargaining agreement which expired on October 22, 1986. Section 9:02 provided, "Upon request, the Employer will make available for review to the Union authorized information which is relevant to the Union's representational duties." 1

By letter dated July 17, 1986 Council President Paul Palacio requested that Respondent furnish, pursuant to section 7114(b) of the Statute, a list of names and home addresses of all bargaining unit employees represented by the Union. Palacio set forth the following reasons for the request: [ v28 p2 ]

As part of our continuing efforts to provide effective representation to those employees, and cognizant of our statutory duty to represent all unit employees fairly and without discrimination, the Union wishes to personally correspond with each employee at his or her home address to obtain from each his or her particular input on the following issues(s):

1. To obtain views on the current status of the Master Labor Agreement negotiations and views of the Council's proposals currently pending before AFLC.

2. To obtain views on every aspect of 15 FLRA 27 (Ables' Award) with includes, but not limited to:

a. Child Care Centers

b. Temporary Promotions

c. Equal Employment Opportunity

d. Details

e. Promotions

As you are aware, the above matters are ones in which the Union maintains a strong interest in and for which we need to receive each employee's views. Upon receipt of employees' input, we intend to discuss and take positions on these matters, commensurate with employee's views with AFLC management in connection with negotiations on the new Master Labor Agreement and in connection with actions on 15 FLRA 27 (Ables' Award).

In addition, AFGE Council 214 needs to correspond with each unit employee to obtain input and/or views on its proposals before AFLC on AFR 125-14 (Motor Vehicle Traffic Supervision), a mid-term bargaining issue. Furthermore the Union needs employee's input on upcoming changes to AFR 40-630 and AF Form 971. [ v28 p 3 ]

In an August 8, 1986 letter, Respondent, by Mick Wells, Directorate of Civilian Personnel, denied Council 214's request for the names and home addresses for bargaining unit employees "primarily for the following reasons":

(1) Names and home addresses of bargaining unit employees are not considered "necessary" within the meaning of Section 7114(b)(4) of the Labor Statute. Adequate alternative means of communication are available for the union to contact unit employees.

(2) On balance, the privacy interests of the employees outweigh arguments that disclosure is in the public interest.

At no time prior to the filing of the instant charge did Respondent give Council 214 any other reason for not providing the information other than those stated in the August 8 letter. Respondent made no request that the Union clarify its request for information. Respondent did not claim that the information was too burdensome to provide. There is no evidence in the record that Respondent asked Council 214 to modify its request.

Respondent and the General Counsel entered into the following stipulations concerning the request:

Respondent stipulates that the information requested is kept in the normal course of business but is kept at the Air Logistics Centers, Wright - Patterson AF Base, and Newark AFS respectively as to each location's employees. It is not maintained at HQ AFLC as a single record.

Respondent stipulates that the information requested is readily available. It is (in) two separate and distinct files at each location and does not exist as a single record.

During the hearing, Respondent amended its answer to admit, pursuant to paragraph VI of the complaint, the following:

that the information requested is normally maintained in the regular course [ v28 p4 ] of business, but is kept at the Air Force Logistics Centers, Wright - Patterson Air Force Base and Newark Air Force (Station);...

that the information is reasonably available with the understanding that the information is maintained in two separate and distinct files at each location, and does not exist as a single record; (and)...

that the information requested does not constitute guidance, advice, counsel or training for management officials or supervisors relating to collective bargaining.

As reflected by the stipulation, the names and home addresses of bargaining unit employees do not exist in a single record form at AFLC headquarters. In order to obtain the information in that form it would have to be matched from two separate computer files at each location or recorded by hand from official personnel files or supervisors' records at each location.

More particularly, the AFLC has seven accounting and finance offices servicing 110,000 civilian employees of whom approximately 83,000 are AFLC employees. The computer program for the pay system includes names and mailing addresses, which may be home addresses, post office boxes, work locations, or other locations where employees wish certain types of mail to be sent. The pay system does not include the bargaining unit status. That information is contained in the personnel record computer system at each location as well as at a central location at Randolph Air Force Base, Texas. In order to compile the mailing addresses of bargaining unit employees from the computer files a computer program would have to be written which would extract pertinent information from the two separate systems and then merge it into the desired format. The effort to retrieve the information would take approximately three to four weeks. This time period would include non-work related administrative delays made necessary by such matters as waiting for mailings and securing computer time. The record does not reflect a cost estimate.

Respondent could also compile the names and mailing addresses of bargaining unit employees manually by having [ v28 p5 ] clerical employees extract the information from official personnel folders or supervisors' records at each location. This effort would be time-consuming since some official personnel folders are always out of the file and in use throughout the personnel office. The address in the official personnel files would be of uncertain accuracy. The addresses in the supervisors' files would be more up-to-date. The record does not reflect a cost or time estimate for a manual retrieval of this nature.

Discussion, Conclusion, and Recommendations

The issue for determination is whether Respondent's failure to furnish the Union the names and home addresses of bargaining unit employees was contrary to its duty to provide such information pursuant to section 7114(b)(4) of the Statute and violated section 7116(a)(1), (5), and (8) of the Statute.

In Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101, 23 FLRA 788 (1986) (FHAFO), appeal docketed sub nom. U.S. Department of Agriculture and the Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86-2579 (8th Cir., Dec. 23, 1986) the Authority gave full consideration to the many issues raised by requiring disclosure of names and home addresses of federal employees. The Authority analyzed the interplay of the Statute, the Privacy Act, and the Freedom of Information Act, and concluded that, "the release of names and home addresses to the union is not prohibited by law, is necessary for the Union to fulfill its duties under the Statute, and meets the other requirements of Section 7114(b)(4)." The Authority also held that, unlike other requests for other types of information, "a precise explication of the reasons for the request ... is not necessary." Finally, the Authority emphasized that names and home addresses of bargaining unit employees should be provided whether or not alternative means of communication are available. The Authority stated, "We will not review the adequacy of alternative methods of communication on a case-by-case basis."

In this case Respondent raises defenses concerning the Privacy Act and alternative means which are disposed of by the Authority's decision in FHAFO. In addition, Respondent defends, on the basis that there was a waiver in the applicable collective bargaining agreement and the requested information is not "reasonably available" since creating a new type of computer record or hand recording 73,000 names and addresses would be burdensome. [ v28 p6 ]

With respect to the alleged waiver, section 9:02 of the applicable agreement provided, "Upon request, the Employer will make available for review to the union authorized information which is relevant to the union's representational duties." Respondent contends that since the new agreement provides that Respondent will "make information available in accordance with the Statute," the old provision was only a right to review information and a knowing and conscious waiver of the Union's statutory right to obtain information. Respondent offered no evidence for its conclusory position from negotiations leading to the agreement or the past practices of the parties in implementing the agreement. The language itself does not compel the conclusion that any distinction was being made between the words "make (information) available for review," as stated in the agreement, and "furnish (data)" as provided in the Statute. It is well settled that the waiver of a statutory right must be clear and unmistakable. Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). Accordingly, Respondent's waiver argument is without merit.

Respondent's argument is also without merit that the information is not "reasonably available" since it would be too burdensome to create a new type of computer record from two separate computer records or to extract the information by hand recording names and addresses from official personnel files. The Authority has recently rejected similar arguments. In Air Force District of Washington, 26 FLRA No. 64 (1987), the agency had also contended that the home addresses of some 2500 employees were not "reasonably available" since the agency would have to either write a new computer program or have clerical personnel extract that information from two separate lists. The Authority concluded that such efforts would not place an undue burden on the agency. Similarly, in Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 19 FLRA No. 85 (1985), the agency also contended that the home addresses were not "reasonably available" because it would be necessary to pull the personnel files and hand record the addresses, with no guarantee of their accuracy, or develop a program for its computer at at cost that would go as high as $736. 19 FLRA at 690. The Authority's decision on remand, 24 FLRA No. 5 (1986), rejected these arguments and held that "the names and home addresses of the unit employees are reasonably available to the Respondent and...it would not place an undue burden on Respondent to provide the union with the information requested." In Department of the Air Force, Scott Air Force Base, 24 FLRA No. 28 (1986) the agency made similar arguments. The Authority again held [ v28 p7 ] that the home addresses were "reasonably available." In Department of Health and Human Services, Region V, Chicago, Illinois, 26 FLRA No. 56 (1987) the Authority adopted the conclusion of the Administrative Law Judge that the names and home addresses of approximately 500 bargaining unit employees were "reasonably available" in official personnel files despite the agency's contention that it would take one employee about 20 minutes per file to find and record the name and home address for every bargaining unit employee. In view of these recent decisions following the Authority's lead decision in FHAFO, it is concluded that the information sought is reasonably available within the meaning of section 7114(b)(4).

Inasmuch as the Union's request meets all of the requirements established by section 7114(b)(4), Respondent's refusal to provide the union with the names and home addresses violated section 7116(a)(1), (5), and (8) of the Statute, as alleged.

Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following 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 the Air Force, Headquarters, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, Council 214, AFL - CIO (Council 214), the agent of the exclusive representative of a bargaining unit of its employees, the names and home addresses (mailing 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 Federal Service Labor - Management Relations Statute. [ v28 p8 ]

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute.

(a) Furnish Council 214, the agent of the exclusive representative of a bargaining unit of its employees, the names and home addresses (mailing addresses) of all employees in the unit.

(b) Post at its facilities where said bargaining unit employees 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 Commander 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 V, 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.

GARVIN LEE OLIVER
Administrative Law Judge

Dated: May 5, 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, Council 214, AFL - CIO (Council 214), the agent of the exclusive representative of a bargaining unit of our employees, the names and home addresses (mailing addresses) of all employees in the unit.

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 Council 214, the agent of the exclusive representative of a bargaining unit of our employees, the names and home addresses (mailing addresses) of all employees in the unit.

                                ___________________________
                                   (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. [PAGE]

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 V, whose address is: