28:0392(62)CA - DOD, Air Force, 6550th Air Base Wing, Patrick AFB, FL and AFGE Local 2568 -- 1987 FLRAdec CA



[ v28 p392 ]
28:0392(62)CA
The decision of the Authority follows:


28 FLRA No. 62

DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
6550TH AIR BASE WING
PATRICK AIR FORCE BASE, FLORIDA

                  Respondent

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2568

                  Charging Party

Case No. 4-CA-60701

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 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 Defense, Department of the Air Force, 6550th Air Base Wing, Patrick Air Force Base, Florida shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, AFL - CIO, [PAGE] Local 2568, 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, AFL - CIO, Local 2568, 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, AFL - CIO, Local 2568 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, 6550th Air Base Wing, Patrick Air Force Base, Florida, and shall be posted and maintained for 60 consecutive days thereafter, 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 IV, Federal Labor Relations Authority, in writing, within 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 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, AFL - CIO, Local 2568, 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, AFL - CIO, Local 2568, 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 IV, Federal Labor Relations Authority whose address is: 1371 Peachtree Street, NE, Suite 736, Atlanta, Georgia 30367 and whose telephone number is: (404) 347-2324. [PAGE]

DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
6550TH AIR BASE WING
PATRICK AIR FORCE BASE,
FLORIDA

              Respondent

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2568

              Charging Party

Case No.: 4-CA-60701

Major Michael M. Johnston, Esq.
    For the Respondent

Pamela B. Jackson, Esq.
    For the General Counsel

Stuart A. Kirsch, Esq.
    For the Charging Party

Before:  WILLIAM NAIMARK
         Administrative Law Judge

DECISION

Statement of the Case

Pursuant to a Complaint and Notice of Hearing issued on September 24, 1986, by the Regional Director for the Federal Labor Relations Authority, Region IV, a hearing was held before the undersigned on December 17, 1986 at Cocoa Beach, Florida.

This case arose under the Federal Service Labor - Management Relations Statute, 5 U.S.C. 7101, et seq., (herein called the Statute). It is based on a first amended charge filed on September 22, 1986 by American Federation of [PAGE] Government Employees, AFL - CIO, Local 2568 (herein called the Union) against Department of Defense, Department of the Air Force, 6550th Air Base Wing, Patrick Air Force Base, Florida (herein called the Respondent).

The Complaint herein alleged, in substance, that on or about April 9, 1986 the Union requested that Respondent furnish it with the names and addresses of the employees in the appropriated and non-appropriated bargaining units represented by the Union as their exclusive bargaining representative; that on or about June 12, 1986 Respondent denied the aforesaid request. It was further alleged that the data requested was (a) normally maintained by Respondent in the regular course of business, (b) reasonably available and necessary for full and proper discussion, understanding and negotiation of subjects Within the scope of collective bargaining, (c) not guidance, advice, counsel or training for management officials or supervisors, relating to collective bargaining. By reason of the foregoing, it was alleged Respondent violated Section 7116(a)(1) and (8) of the Statute. 1

Respondent's Amended Answer, dated December 15, 1986, admits the said information was requested and refused as alleged in the Complaint. It also admitted that the information did not constitute guidance, advice, counsel or training for management officials or supervisors. Respondent denied, however, that the data was normally maintained in the regular course of business, and that the information was reasonably available and necessary for discussion, understanding and negotiation of collective bargaining subjects. It also denied the commission of any unfair labor practice. 2

All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed which have been duly considered. [ v28 p2 ]

Upon the entire record herein, from my observation of the witnesses and their demeanor and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions:

Findings of Fact

1. At all times material herein, the Union has been and still is the exclusive representative of a unit of all employees of appropriated funds serviced by the Civilian Personnel Office at Patrick Air Force Base, Florida with specified exclusions from said unit. 3

2. At all times material herein, the Union has been and still is the exclusive representative of a unit of all employees of non-appropriated funds serviced by the Civilian Personnel Office at Patrick Air Force Base, Florida with specified exclusions from said unit. 4

3. By letter dated April 9, 1986, Clarence Rowe, President of the Union, wrote Donald L. Green, Respondent's Labor Relations Specialist, and requested that the Union be furnished the names and addresses of all employees included in the appropriated fund unit 5 as well as the names and addresses of employees in the non-appropriated fund unit. 6 The purpose of the request, as stated, was to enable the Union to effectively communicate with its members.

4. Subsequent to April 9, 1986 the parties exchanged several letters. Respondent sought the reason why the Union requested the names and addresses of employees. The Union explained it needed the data to communicate with the employees, obtain their position on bargaining practices, [ v28 p3 ] learn their problems, and thereby frame bargaining proposals. By letter dated June 12, 1986 Respondent advised the Union that it would not provide the names and addresses of employees in the units as requested.

5. In respect to appropriated fund (AF) employees, record facts show that no list is kept by Respondent of the names and addresses of this unit. The names and bargaining unit status of the AF employees are kept in the computerized Personnel Data System - Civilian (PDS - C). While the latter system does not contain the addresses of employees, these can be found in the Official Personnel File (OPF). 7 However, the addresses may not be current ones.

6. Current addresses for AF employees are maintained in the Civilian Payroll Data Base, a computerized system, which does not indicate the bargaining unit status of employees.

7. If required, there are two methods which could be utilized by Respondent to create a list of names and addresses of AF unit employees. Firstly, Respondent can take the bargaining unit status report, which is computerized, and compare it manually with the names and addresses created by the Civilian Payroll System. This method would take about 50 man hours which does not include typing, proof-reading or accuracy verification. Secondly, Respondent could create a tape which involves a computer comparison between the PDS - C and the Civilian Payroll file. No program has been created to do this, and it would be much more complicated than the other means heretofore described. The computer method, if used, would take about 8 hours to develop a tape and one-half hour to obtain the names and addresses of unit employees.

8. Record facts reflect that names and addresses of civilian unit employees may be obtained by Respondent from the civilian pay data base. This would be done by a retrieval program which would take one to one and one-half hours to write and about ten minutes to run. An alphabetized list can be retrieved from the Civilian Payroll Data Base. [ v28 p4 ]

9. A list of the names and addresses of non-appropriated funds (NAF) employees is not kept by Respondent. The names and current home addresses are maintained in the computerized Master Payroll record and in the Official Personnel File of the employer. Neither source will disclose whether the employee is in the bargaining unit since they include supervisors, managers, confidential employees and other unit employees. To ascertain the bargaining unit status of NAF employees Respondent could look at the job title and grade of the employee to make a determination if the individual was in the bargaining unit. If the result was questionable, Respondent would have to look at the Official Personnel File, review the position description, and then make a determination.

10. The list of names and addresses of NAF employees in the bargaining unit can be furnished by Respondent through two means. One method is to take the NAF fund Master Payroll list, which contains the names and addresses, and compare it against the Official Personnel File. The bargaining unit status could be identified. Creating the list of names and addresses via this method would require about 22 hours exclusive of typing, proofreading and accuracy verification. Second method is to review the Official Personnel File, which includes the current addresses of NAF employees, after identifying bargaining unit members. This would take almost 17 hours and does not include typing, proofreading or accuracy verification.

Conclusions

The central issue herein is whether Respondent was required, in accordance with Section 7114(b)(4) of the Statute, to furnish the names and addresses of the appropriated fund and non-appropriated fund employees to the Union.

Under Section 7114(b)(4) of the Statute an agency is obliged to furnish to the exclusive representative, upon request, 8 and to the extent not prohibited by law, data (1) which is normally maintained by the agency in the regular course of business; (2) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective [ v28 p5 ] bargaining; (3) which does not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. 9

In resisting its duty to furnish the names and addresses of unit employees, Respondent sets forth the following defenses: (1) Disclosure of the information is prohibited by law; (2) A list of names and addresses of unit employees is not normally maintained in the regular course of business; (3) The names and addresses of unit employees are not reasonably available nor necessary for full discussion, understanding and negotiation of collective bargaining subjects.

The lead cases involving the disputed issue in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 88. After that case was remanded by the U.S. Court of Appeals for the District of Columbia Circuit, the Authority reversed its previous decision wherein it had held that disclosure of the data was prohibited by the Privacy Act of 1974, 5 U.S.C. 552a (1982). In the later decision, wherein it reversed Farmers Home Administration Finance Office, St. Louis, Missouri, 19 FLRA 195, the Authority reached several conclusions which are dispositive of several contentions made by Respondent herein. 10 It concluded that the public interest, which is furthered by providing the Union with an efficient method to communicate with employees it represents, far outweighs the privacy interest of employees to these names and addresses. Moreover, disclosure of the data would not constitute an unwarranted invasion of personal privacy and does not fall within the (b)(6) exemption to the Freedom [ v28 p6 ] of Information Act (FOIA). Thus, its disclosure is required under FOIA and under exemption (b)(2) of the Privacy Act.

Respondent's claim that the names and addresses were not "necessary" within the memory of 7114(b)(4) has also been laid to rest by the Authority. In the second Farmers Home case, supra, the Authority concluded that names and addresses of employees are necessary to enable a union to identify and communicate with the bargaining unit member to effectively represent them. It further stated that a precise explication of the reasons for the information requested is not necessary; that the need for the names and addresses of unit employees, whom the exclusive representative is required to represent, is apparent and related to the nature of the exclusive representation. At the same time, when an agency attempts to show that alternative means of communication exists, the Authority has declared it will not review the adequacy of such alternative means. 11 It concluded that the mere existence of such methods is insufficient to justify a refusal to release the names and addresses of such employees.

Recent decisions by the Authority have reaffirmed the rulings in the Farmers Home case, supra. It has continued to declare that the release of names and addresses of bargaining unit employees is not prohibited by law; that they are necessary for unions to fulfill their duties under the Statute; and that such release is required without regard to whether alternate means of communication are available. Department of Energy, Headquarters Office, 26 FLRA No. 68 Department of the Navy, Naval Undersea Warfare Engineering Station, Keyport, Washington, 26 FLRA No. 65; Department of Health and Human Services# Region V, Chicago, Illinois, 26 FLRA No. 56. Accordingly, Respondent's [ v28 p7 ] contentions in respect to such defenses are rejected, and the undersigned concludes that (a) the release by the Respondent of the names and addresses of employees in the appropriated and non-appropriated fund units are not prohibited by law; (b) the names and addresses of said unit employees are necessary for the Union herein to fulfill its duties under the Statute.

Respondent's remaining contentions are that the names and addresses of unit members are not normally maintained by it in the regular course of business, nor are they reasonably available within the meaning of Section 7114(b)(4). It argues that no list exists of such information; that to provide the information would require the creation of a non-existent list; and that no duty may be imposed upon it to create data in order to comply with the Statute. Further, Respondent insists that creating the list could impose an unreasonable burden upon it. 12

Record facts persuade the undersigned that the names and addresses of unit employees are normally kept by Respondent in the regular course of business. Names and addresses of the appropriated fund employees are retained via a computerized system. As to those employees, the needed information is regularly stored in the Civilian Payroll System even though it does not show which ones are bargaining unit members. While the computerized Personnel Data System shows the bargaining unit status of employees, it does not contain home addresses. Respondent also retains names and addresses manually in its Official Personnel File on a continuing basis. Further, regular records are kept, as to non-appropriated fund employees, though its Master Payroll record and the Official Personnel File. Information maintained in Official Personnel Files and computer files is data normally kept in the regular course of business, Farmers Home et sl., supra; Department of the Treasury, Bureau of Engraving and Printing, 26 FLRA No. 58. [ v28 p8 ]

It is also concluded by the undersigned that the information requested is reasonably available within the meaning of Section 7114(b)(4) of the Statute. In this respect, the defense interposed by Respondent that obtaining the data would be unduly burdensome is rejected.

For appropriated fund employees the names and addresses may be obtained through the computer system or manually. It would take about 50 hours to obtain the data by a manual comparison of the bargaining status report from the PDS - C with the Civilian Payroll System's names and addresses. Using the computer method, it would require eight hours to develop a tape and one-half hour to run it so as to furnish the names and addresses. 13 For non-appropriated fund employees, two methods of furnishing the names and addresses are available. One, a manual comparison of the computerized Master Payroll record with the Official Personnel File will supply the data, and it would take about 22 hours. The second method involves a review of the Official Personnel File, which for this unit would require about 17 hours.

While I recognize that the required time to obtain the data for either unit does not include typing, proofreading, and accuracy verification, I am constrained to conclude that furnishing the information would not constitute an unreasonable burden. The estimated time to retrieve the names and addresses is not an inordinate amount of time. Moreover, I do not view "creating" the data as any especial imposition but rather deem it as part and parcel of the retrieval system. Since the information may be found in the systems utilized by the agency, I am not persuaded that the data must be "created" but rather conclude that it exists and must be retrieved. See Department of the Air Force, Scott Air Force Base, 24 FLRA 226.

Based on the foregoing, the undersigned concludes that Respondent was required to furnish the names and addresses requested by the Union; that the defenses interposed by Respondent for its refusal to furnish the data are, based on the Authority's decisions in this regard, without merit; and that said refusal and failure by Respondent constitute a violation of section 7116(a)(1), (5) and (8) of the Statute. Accordingly, it is recommended that the Authority issue the following: [ v28 p9 ]

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the Department of Defense, Department of the Air Force,. 6550th Air Base Wing, Patrick Air Force Base, Florida, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, AFL - CIO, Local 2568, the exclusive representative of bargaining units of its employees, the names and home addresses of all the employees in the bargaining units 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) Upon request by the American Federation of Government Employees, AFL - CIO, Local 2568, the exclusive representative of bargaining units of its employees, furnish it with the names and home addresses of all the employees in the bargaining units it represents.

(b) Post at its facilities where bargaining unit employees, represented by the American Federation of Government Employees, AFL - CIO, Local 2568 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 Respondent's Commanding Officer 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. [ v28 p10 ] (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, 5 C.F.R. 2423.30, notify the Regional Director, Region IV, Federal Labor Relations Authority, 1371 Peachtree Street, NE., Suite 736, Atlanta, GA 30367, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

WILLIAM NAIMARK
Administrative Law Judge

Dated: May 18, 1987
Washington, D.C.

[ v28 p11 ]

               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 2568, the exclusive representative of bargaining units of our employees, the names and home addresses of all the employees in the bargaining units 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 by the Statute.

WE WILL, upon request by the American Federation of Government Employees, AFL - CIO, Local 2568, the exclusive representative of bargaining units of our employees, furnish it with the names and home addresses of all the employees in the bargaining units it represents.

                                ___________________________
                                   (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 IV, whose address is: 1371 Peachtree Street, NE., Suite 736, Atlanta, GA, and whose telephone number is: (404) 257-2324. [PAGE]

FOOTNOTES

Footnote 1 Under date of September 26, 1986 General Counsel amended the Complaint to allege that the acts and conduct of Respondent also violated Section 7116(a)(5) of the Statute.

Footnote 2 At the hearing Respondent further amended its Answer to include a denial that it violated Section 7116(a