28:0382(61)CA - HHS, Health Care Financing Administration and AFGE Local 1923 -- 1987 FLRAdec CA



[ v28 p382 ]
28:0382(61)CA
The decision of the Authority follows:


28 FLRA No. 61

DEPARTMENT OF HEALTH AND HUMAN
SERVICES, HEALTH CARE FINANCING
ADMINISTRATION

                   Respondent

         and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO

                   Charging Party

Case No. 3-CA-70135

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. 1 and the entire record, we adopt the Judge's findings, conclusions and recommended Order. [PAGE]

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 Health and Human Services, Health Care Financing Administration, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 1923, 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 American Federation of Government Employees, Local 1923, 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 all facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 1923, 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 Administrator of the Department of Health and Human Services, Health Care Financing Administration, 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 III, Federal Labor Relations Authority, in writing, within [ v28 p2 ] 30 days from the date of this order as to what steps have been taken to comply.

Issued, Washington, D.C., July 31, 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 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, Local 1923, 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 the rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL furnish the American Federation of Government Employees, Local 1923, AFL - CIO, 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 its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region III, whose address is: 1111 18th Street, NW, 7th Floor, Washington, DC 20033-0758, and whose telephone number is: (202) 653-8500. [PAGE]

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, HEALTH CARE
FINANCING ADMINISTRATION

              Respondent

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1923, AFL-CIO

              Charging Party

Case No. 3-CA-70135

Patricia Eanet Dratch, Esq.
         For the General Counsel

Richard M. Friedman, Esq.
         For the Respondent

Joseph Flynn
         For the Charging Party

Before: ELI NASH, JR.

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., (hereinafter called the Statute) and the Rules and Regulations issued thereunder. Pursuant to a charge filed on December 17, 1986 by the American Federation of Government Employees, Local 1923, AFL - CIO (hereinafter called the Union), a Complaint and Notice of Hearing was issued on March 27, 1987 by the Regional Director for Region III, Federal Labor Relations Authority, Washington, D.C. The Complaint alleges [PAGE] that the Department of Health and Human Services, Health Care Financing Administration (hereinafter called Respondent) violated section 7116(a)(1), (5) and (8) of the Statute by failing and refusing to furnish the Union the names and home addresses of all employees within the appropriate bargaining unit.

A hearing was held in the above-captioned matter on May 5, 1987, in Washington, D.C. At the beginning of the hearing the General Counsel introduced formal documents consisting of the charge; the Complaint and Respondent's Answer thereto; a Joint Exhibit consisting of the Union's request for the names and home addresses of bargaining unit employees dated November 13, 1986; Respondent's refusal to furnish the information dated December 4, 1986; and a stipulation of certain facts. On the basis of the foregoing documents and the Authority's decision in Farmer's Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 101 (1986), the General Counsel moved for summary judgment. Prior to ruling on the motion, the undersigned requested Respondent's position on the motion. Whereupon, Respondent's Counsel asserted that it was under no obligation to supply the names and home addresses of bargaining unit members because the Union had adequate alternate means of communication with bargaining unit employees, thereby removing the necessity for supplying the requested information. Respondent was permitted to make an offer of proof regarding adequate alternate means of communication. However, the offer of proof was rejected because Farmers Home Administration, supra, makes it clear that the mere existence of alternate means of communication is insufficient justification for denying a Union's request for names and addresses. Respondent offered no other evidence. The motion for summary judgment was therefore, granted. However, Respondent was permitted to preserve its position and submit a brief or memorandum concerning its position by May 19, 1987.

Thereafter, Respondent and the Union submitted timely post-hearing memoranda.

Upon the basis of the described record, I make the following findings of fact, conclusions and recommendations.

Findings of Fact

1. The Union is the exclusive representative of Respondent's employees "in a unit appropriate for collective bargaining." [ v28 p2 ]

2. By letter dated November 13, 1986, the Union requested that Respondent furnish it with the names and home addresses of all unit employees within the above-mentioned bargaining unit.

3. The parties stipulated that the requested 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.

4. By letter dated December 4, 1986, Respondent refused to furnish the Union the names and home addresses of bargaining unit employees.

Conclusions

Since Farmers Home Administration Finance Office, St. Louis, Missouri, supra (1986), the Authority has reviewed its decision regarding the disclosure of names and home addresses of bargaining unit employees to exclusive representatives on more than one occasion. 2

A review of the Authority's holdings in those cases leaves little doubt that it considers the information "necessary" under section 7114(b)(4) of the Statute.

Respondent's arguments in its cross-motion for summary judgment in my view, raise no new issues. It is therefore, my opinion that Farmers Home Administration Finance Office, St. Louis, Missouri, supra, is clearly dispositive of all arguments raised by Respondent herein. As a result of the Authority's holdings in the cited cases, I am constrained to find that Respondent's defenses for its failure and refusal [ v28 p3 ] to provide the Union with the requested information lacks any merit. Accordingly, it is concluded that Respondent was obligated under section 7114(b)(4) of the Statute to furnish the names and home addresses of the unit employees upon request.

In light of the above, it is my finding that Respondent violated section 7116(a)(1), (5) and (8) of the Statute. Therefore, Respondent's cross-motion for summary judgment is denied and the granting of the General Counsel's motion for summary judgment is hereby, reaffirmed. It is therefore, recommended that the Authority issue the following:

ORDER

Pursuant to 2423.29 of the Authority's Rules and Regulations, 5 C.F.R. 2423.29, and 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders the Department of Health and Human Services, Health Care Financing Administration shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of American Federation of Government Employees, Local 1923, 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 American Federation of Government Employees, Local 1923, AFL - CIO. [ v28 p4 ]

(b) Post at Department of Health and Human Services, Health Care Financing Administration copies of the attached Notice (See Appendix) 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 Department of Health and Human Services, Health Care Financing Administration 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 insure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to S 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of Region III, Federal Labor Relations Authority, 1111 - 18th Street, N.W., Suite 700, P.O. Box 33758, Washington, D.C. 20033-0758, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

ELI NASH, JR.
Administrative Law Judge

Dated: June 3, 1987
       Washington, D.C.

[ v28 p5 ]

                     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, Local 1923, AFL - CIO, the exclusive representative of our employees, the names and home addresses of all bargaining unit employees in the Department of Health and Human Services, Health Care Financing Administration.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured 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 American Federation of Government Employees, Local 1923, 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 III, whose address is: 1111-18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500. [PAGE]

FOOTNOTES

Footnote 1 The Respondent argues, among other things, that according to Federal Personnel Manual (FPM) Supplement 71171, Appendix C, disclosure of employees' home addresses is an unwarranted invasion of privacy. However, FPM Supplement 711-1, Appendix C was deleted on May 16, 1986. Essential material from the supplement has been updated and incorporated into FPM Chapter 711. FPM Chapter 711 contains no statement similar to that which was contained in FPM Supplement 711-1, Appendix C and on which the Respondent relies.

Footnote 2 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 to 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); Department of the