28:0775(101)CA - Commerce, Minority Business Development Agency and NFFE Local 2008 -- 1987 FLRAdec CA



[ v28 p775 ]
28:0775(101)CA
The decision of the Authority follows:


28 FLRA No. 101

U.S. DEPARTMENT OF COMMERCE
MINORITY BUSINESS DEVELOPMENT
AGENCY

     Respondent

     and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 2008

     Charging Party

Case No. 3-CA-70075

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 by refusing to furnish, upon request of the Charging Party, the names and home addresses of bargaining unit employees. 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 as corrected, conclusions, and recommended [PAGE] Order. For the reasons stated by the Judge, we reject the Respondent's argument that it did not commit an unfair labor practice because it does not maintain the data requested. We also reject the Respondent's argument that it did not commit an unfair labor practice because its denial of the Union's request was lawful when the denial was made. See U.S. Department of the Treasury, 27 FLRA No. 102 (1987); Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 26 FLRA No. 57 (1987), application for enforcement filed sub nom. FLRA v. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, No. 87-1148 (D.C. Cir. Apr. 3, 1987).

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 U.S. Department of Commerce, Minority Business Development Agency shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Federation of Federal Employees, Local 2008, the exclusive representative of certain of its employees, the names and hone 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) Request the Office of Personnel in the Department of Commerce and/or its support centers to provide the Minority Business Development Agency with the names and home addresses of all employees of the Minority Business Development Agency in the unit represented by the National Federation of Federal Employees, Local 2008. Upon receipt thereof, the Minority Business Development Agency shall furnish the Union with 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 National Federation of Federal Employees, Local 2008 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 [ v28 p2 ] be signed by the Director of the Minority Business Development Agency 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 III, 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., August 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 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 National Federation of Federal Employees, Local 2008 (the Union), 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 request the Office of Personnel in the Department of Commerce and/or its support centers for the names and home addresses of all employees of the Minority Business Development Agency in the unit represented by the National Federation of Federal Employees, Local 2008, the exclusive representative of a bargaining unit of certain of our employees, and upon receipt thereof, furnish the Union with 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 III, Federal Labor Relations Authority, 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]

U.S. DEPARTMENT OF COMMERCE
MINORITY BUSINESS DEVELOPMENT
AGENCY

     Respondent

     and

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 2008

     Charging Party

Case No.: 3-CA-70075

Bruce I. Waxman, Esq.
        For the Respondent

Patricia Eanet Dratch, Esq.
        For the General Counsel

Before: WILLIAM NAIMARK
        Administrative Law Judge

DECISION

Statement of the Case

Pursuant to a Complaint and Notice of Hearing issued on December 22, 1986, by the Regional Director for the Federal Labor Relations Authority, Region III, a hearing was held before the undersigned on February 18, 1987 at Washington, D.C.

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 charge filed on November 13, 1986 by National Federation of Federal Employees, Local 2008 (herein called the Union) against U.S. Department of Commerce, Minority Business Development Agency (herein called Respondent or MBDA).

The Complaint alleged, in substance, that on or about July 28, 1986 the Union requested that Respondent furnish the names and home addresses of employees in the bargaining unit. Further, that the information requested is normally [PAGE] maintained by Respondent in the regular course of business; that it is reasonably available and necessary for full and proper discussion, understanding and negotiation of collective bargaining subjects; that the information does not constitute guidance, advice, counsel or training for management officials or supervisors relating to collective bargaining.

The Complaint also alleged that on or about September 10, 1986 Respondent refused to furnish the data requested and thus did not comply with the provisions of Section 7114(b)(4) of the Statute. Accordingly, it is alleged that Respondent violated Section 7116(a)(1), (5) and (8) of the Statute.

Respondent's Answer, 2 dated January 26, 1987, admits the request for, and denial of, the information sought by the Union. While admitting that the information does not constitute guidance, advice, counsel or training for management officials, the Answer denies that the data is normally maintained by Respondent in the regular course of business. It also denies that the data is reasonably available and necessary for full and proper discussion, understanding and negotiation of collective bargaining subjects. Respondent also denied the commission of any unfair labor Practices.

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, Respondent filed a brief with the undersigned which has been duly considered.

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 certified exclusive representative of, [ v28 p2 ] Respondent's non-supervisory and non-professional employees assigned to its Regional and District Offices.

2. At all times material herein both the Union and Respondent have been parties to a collective bargaining agreement covering the aforesaid unit employees. 3. Respondent maintains six regional offices which are located in New York, Washington, D.C., 3 Atlanta, Dallas, Chicago and San Francisco. It also has four district offices. One at Los Angeles is attached to the San Francisco Region; another at Boston is subordinate to the New York Regional Office; a third is located in Philadelphia and under the Washington, D.C. Regional and the fourth is at Miami and subordinate to the Atlanta Region.

4. The bargaining unit comprises approximately 145 employees. About 75 of them are stationed at Washington, D.C. while the remainder are assigned to the various regional offices throughout the United States.

5. The Minority Business Development Agency (MBDA) itself has no personnel office. The Office of Personnel in the Office of the Secretary, within the Department of Commerce, handles the personnel administration and payroll functions and documents for MBDA employees stationed in Washington, D.C. The Director of Personnel in Civil Rights at the Washington, D.C. headquarters is in charge of personnel administration. There is also a personnel officer in charge of operation for MBDA personnel located within the Hoover Building. This office services other departments within the Department of Commerce.

Personnel work, including payroll documents, for the regional offices are handled by the Regional Administrative Support Center (RASC) throughout the country. The support centers are centralized administrative units, developed by the Commerce Department; they service all Departments of Commerce components in a given geographic area. These support centers report to a component within the Department of Commerce of the National Oceanographic and Atmospheric Administration (NOAA), and the individuals are NOAA employees. [ v28 p3 ]

6. MBDA does not keep a list of employees' home addresses nor maintain official personnel folders. Home addresses of the Washington regional personnel in the Hoover Building are kept by the Office of Personnel of the Department of Commerce. That office retains the official files for each individual working in the Hoover Building, which would include MBDA employees and those employed by other agencies. The Official Personnel Files for employees of MBDA working in regional offices are kept in the respective RASCs. The files for MBDA employees in the New York Regional Office are kept in Norfolk, Virginia; files for those employees in the Washington Region are in the Hoover Building in Washington, D.C.; files for Atlanta and Chicago regional employees are kept in Kansas City; the files for Dallas employees are at Boulder, Colorado; and the Official Personnel Files for San Francisco regional employees are at Seattle, Washington.

7. The names and home addresses of MBDA employees would be found in the Official Personnel File for each person. Record facts show that the Office of Personnel in Washington can communicate with RASC personnel by phone. There is a computer system to funnel information between regions and the main Department of Commerce office, and there is an express mail service which could be used. The administrative officer for MBDA, George S. Parish, testified that, if asked, he would obtain names and home addresses by asking all personnel offices at the regional administrative support centers to run a computer list from their records and give him the information.

8. By memorandum dated July 28, 1986 Herman Rivera, President of the Union, requested Respondent's Director, James H. Richardson, to provide the Union with the names and home addresses of all bargaining unit members. Rivera also stated therein that the data was required in order to provide the employees information concerning their rights under the negotiated agreement. 4 He testified at the hearing that he wanted the information due to his concern about a possible reorganization and to discharge his responsibilities.

9. By memorandum dated September 10, 1986 Respondent's Personnel Management Specialist, Kathy Struck, [ v28 p4 ] forwarded to Rivera a list of unit employees and their office addresses. Respondent's official also stated therein that, while it appeared the request was appropriate for distribution under Article 11, Section 5 of the agreement, the agency was deferring release of home addresses due to the confusion in current case law and FLRA's pending policy decision.

10. The home addresses of unit employees were not furnished by Respondent and the Union has not received same. 5

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 home addresses of the unit employees to the Union.

An agency is charged with a duty, under Section 7114 (b)(4) of the Statute to supply the exclusive representative, upon request, 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 bargaining; (3) which does not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. 6

Several contentions are made by Respondent in asserting that it has no duty herein to furnish the data sought by the Union. The agency insists that (1) under the Privacy Act, [ v28 p5 ] 5 U.S.C. 552 (b)(6), the information need not be furnished, and its disclosure is thus prohibited by law; (2) the data is not normally maintained by the agency in the regular course of business; (3) the data is not reasonably available; (4) the names and home addresses of unit employees are not necessary for full discussion, understanding and negotiation of collective bargaining subjects.

The lead case involving several of the defenses raised by Respondent herein is Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788. 7 The Authority rejected the argument that the disclosure of names and home addresses of employees was prohibited by law, namely the Privacy Act. 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 of Information Act (FOIA). Thus, its disclosure is required under FOIA and under (b) (2) of the Privacy Act.

The Authority also concluded, in the second Farmers Home, case, supra, that names and home addresses of unit employees are necessary to enable a union to identify and communicate with bargaining unit members and thus effectively represent them. Moreover, when an agency attempts to show that alternative means of communication are available, the Authority has stated it will not review the adequacy of such alternative means. The mere existence of such methods is insufficient to justify a refusal to release the names and home addresses of the employees. 8 [ v28 p6 ]

In view of the Authority's decisions, as cited, the undersigned rejects Respondent's defense that the disclosure of names and home addresses is prohibited by the Privacy Act, as well as its further defense that the data is not necessary for full discussion, understanding and negotiation of collective bargaining matters.

It is stressed by Respondent that MBDA does not normally maintain the names and addresses in the regular course of business. In support of this argument Respondent adverts to the fact that it has no personnel office, keeps no list of this information, and does not maintain official personnel folders. It insists that the information is maintained by the Department of Commerce's Office of Personnel for Washington personnel ' of Respondent; that the Administrative Support Centers which report to National Oceanographic and Atmospheric Administration (NOAA), handle the data for MBDA's regional offices.

The undersigned is not persuaded that such reasoning is valid. Respondent MBDA is an entity of the Department of Commerce. Moreover, while the regional administrative support centers handle Respondent's personnel matters - which includes the data sought herein - these centers were developed and created by the Department of Commerce. Even NOAA, to whom these centers report, is part of the Commerce Department. One must employ a fiction to conclude that MBDA and Commerce are separate entities having no relationship. The latter handles the personnel files and payroll activities for Respondent, and the NOAA component of Commerce does like-wise for the MBDA regions. As such, the names and home addresses are being kept by and for Respondent in the normal course of business. 9

Respondent also insists that it has not been established that the names and home addresses of the unit employees were reasonably available. Record facts show that the data is kept at Washington, D.C.; Norfolk, Virginia; Kansas City, [ v28 p7 ] Missouri; Seattle, Washington; and Boulder, Colorado. At each location Official Personnel Files for the MBDA employees are retained by the Department of Commerce centers. Respondent's administrative officer testified he would, if called upon, request the names and home addresses from the support centers; that the records thereat and at Washington, D.C. contain the names and home addresses of the MBDA employees. The record supports the conclusion that such data is available to/Respondent, and I reject its defense to the contrary. 10

Accordingly, and based upon the foregoing, I conclude that the refusal by MBDA to furnish the names and home addresses to the Union was a failure to comply with Section 7114(b) (4) of the statute and was a violation of Section 7116(a) (1), (5) and (8) of the Statute. It is therefore recommended that the Authority issue the following:

ORDER 11

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 Minority Business Development Agency, Washington, D.C., shall:

1. Cease and desist from:

(a) Refusing and failing to furnish, upon request of the National Federation of Federal Employees, Local 2008, the exclusive representative of certain of its employees, the names and home addresses of all employees in the represented unit.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured 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) Request the Office of Personnel in the Department of Commerce and/or its support centers for the names and home addresses of all employees of the minority Business Development Agency in the unit represented by the National Federation of Federal Employees, Local 2008, the exclusive bargaining representative and, upon receipt thereof, furnish the National Federation of Federal Employees, Local 2008, with the said names and home addresses of the unit employees.

(b) Post at its facilities where bargaining unit employees represented by National Federation of Federal Employees, Local 2008 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 Minority Business Development Agency, 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, Washington, D.C., 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: June 8, 1987
       Washington, D.C.

[ v28 p9 ]

                         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 National Federation of Federal Employees, Local 2008, the exclusive representative of certain of its employees, the names and addresses of all employees in the represented unit.

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 request the Office of Personnel in the Department of Commerce and/or its support centers for the names and home addresses of all employees of the Minority Business Development Agency in the unit represented by the National Federation of Federal Employees, Local 2008, the exclusive bargaining representative, and upon receipt thereof, furnish the National Federation of Federal Employees, Local 2008 with he said names and home addresses of the unit employees.

                               _____________________________
                                    (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 III, whose address is: 1111 - 18th Street, NW., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500. [ v28 p2 ]

FOOTNOTES

Footnote 1 The Respondent asserts, among other things, that the Judge made several technical factual misstatements in his findings of fact. The Judge's inadvertent misstatements are hereby corrected to note that (1) the Washington, D.C. regional office of the Minority Business Development Agency and the headquarters office are different offices; (2) the Charging Party's request for information was made pursuant to the Statute; and (3) the Respondent attempted to introduce evidence on alternative means of communication available to the Union.

Footnote 2 Attached to the Answer was a Motion to Correct the Transcript. No objections having been interposed thereto, Respondent's motion is granted and the Transcript is corrected as requested.

Footnote 3 This office, which is in the Hoover Building, is the headquarters of the agency.

Footnote 4 Rivera sought the material pursuant to Article 11, Section 7 of the agreement. Neither party introduced the said agreement in evidence at the hearing.

Footnote 5 At the hearing Respondent's counsel indicated it wished to introduce evidence as to alternative means available to the Union for obtaining the home addresses. Further he sought to explore the applicability of the Privacy Act by means of evidence to be adduced. The undersigned allowed Respondent to make an offer of proof in these respects, which was rejected, and refused to permit evidence as to there particular issues on the ground that the Authority has, in its recent decisions, declared that such defenses have no merit.

Footnote 6 Respondent does not contend that the data sought was, in fact, guidance, advice, counsel or training for its officials or supervisors.

Footnote 7 The case was before the Authority pursuant to a remand from the U.S. Court of Appeals for the District of Columbia Circuit. In the previous decision, 19 FLRA No. 21, the Authority held that the data was prohibited by the Privacy Act. In this later decision it reversed that holding.

Footnote 8 Subsequent decisions reflect that the Authority has reaffirmed its conclusions reached in the later Farmers Home, case, supra. See 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. 5.

Footnote 9 To hold otherwise would result in an anomalous situation. In the event one sought the data from the Commerce Department, that body could contend it is not the employer, has no bargaining relationship with the Union, and the latter should look to MBDA for the names and home addresses. At the least, it should be recognized that an agency relationship prevails between MBDA and the Department of Commerce, and the latter retains the data for Respondent.

Footnote 10 Note is also taken that Respondent did furnish the unit employees and their office addresses, and that a computer system exists between the region and the main Department of Commerce headquarters.

Footnote 11 Since the record reflects that the data could be procured through the Department of Commerce and its c