28:0835(109)CA - Norfolk Naval Shipyard and AFGE Local 4015 -- 1987 FLRAdec CA



[ v28 p835 ]
28:0835(109)CA
The decision of the Authority follows:


28 FLRA No. 109

NORFOLK NAVAL SHIPYARD

                  Respondent

         and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 4015, AFL-CIO

                  Charging Party

Case No. 34-CA-70136

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, conclusions and recommended Order. For the reasons stated by the Judge, we reject the Respondent's argument that it did not commit an unfair labor practice by refusing to furnish upon request of the Charging Party, the names and home addresses of bargaining unit employees. See Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986), petition for [PAGE] review filed sub non. U.S. Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, 86-2579 (8th Cir. Dec. 23, 1986).

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 Norfolk Naval Shipyard shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 4015, 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 4015, 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 its facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 4015, 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 and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin [ v28 p2 ] 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 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 herewith.

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 American Federation of Government Employees, Local 4015, AFL - CIO, 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 their rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL furnish the American Federation of Government Employees, Local 4015, 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, Region III, Federal Labor Relations Authority, whose address is: 1111 18th St., N.W., Suite 700, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500. [PAGE]

NORFOLK NAVAL SHIPYARD

              Respondent

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 4015, AFL-CIO

              Charging Party

Case No. 34-CA-70136

Phillip Boyer, Esquire
         For the General Counsel

Robert J. Gilson, Esquire
         For the Respondent

Before: BURTON S. STERNBURG
        Administration Law Judge

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., and the Rules and Regulations issued thereunder.

Pursuant to an amended charge first filed on December 8, 1986, by Local 4015, American Federation of Government Employees, AFL - CIO, (hereinafter called AFGE or the Union), a Complaint and Notice of Hearing was issued on February 4, 1987, by the Acting Regional Director for Region III, Federal Labor Relations Authority, Washington, D.C. The Complaint alleges that the Norfolk Naval Shipyard, (herein-after called the Respondent or Navy), violated Sections [PAGE] 7116(a)(1), (5) and (8) of the Federal Service Labor - Management Relations Statute, (hereinafter called the Statute), by failing and refusing to furnish to the Union the names and home addresses of all unit employees within the bargaining unit.

A hearing was held in the captioned matter on March 3, 1987, in Norfolk, Virginia. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues involved herein. 2 The General Counsel and the Respondent submitted post-hearing briefs which have been duly considered.

Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusion and recommendations.

Findings of Fact

The Union is "the exclusive representative of Respondent's employees in an appropriate unit for collective bargaining, consisting of all ungraded inspectors (quality assurance personnel) of the Norfolk Naval Shipyard, except supervisors as defined by Title 7."

The Union and the Respondent are parties to a collective bargaining agreement which became effective in February 1982 for a period of three years. Although the three year term of the agreement has passed the parties are still honoring the provisions of the 1982 agreement while they continue to bargain for a new agreement. Article 3 of the 1982 agreement provides as follows:

THE AGREEMENT AND ITS RELATIONS TO LAW AND REGULATIONS

Section 1. It is agreed and understood that in the administration of all matters covered by the agreement, officials and employees are governed: [ v28 p2 ]

a. By existing or future laws, Executive Orders and Statutes and by government-wide rules and regulations of appropriate authorities set forth in the Federal Personnel Manual.

b. By published Department of Defense and Navy Department policies and regulations: in existence at the time the agreement was approved.

c. By the regulations of appropriate authorities such as FLRA.

The Department of Defense Directive dated June 29, 1981, which bears the identifying reference 1400.25M, CPM 711. F, is a regulation dealing with labor-management relations programs and policies for the employees in the Department of Defense. Subchapter 3-5 of the Directive entitled General Provisions: d. Furnishing of Information. (711-16) provides as follows:

d. Furnishing of Information. Lists of names, position titles, grades, salaries, and/ or duty stations of activity or unit employees will be furnished to labor organizations upon request. Lists of DoD employees' home addresses or telephone numbers will not be furnished to labor organizations. Other information which is necessary and relevant to the performance of an exclusive union's representational functions (but not including material described in 5 U.S.C. 7124(b)(4)(C)) shall be furnished to the union on request, subject to the guidance set forth in Appendix C to FPM Supplement 7112 (CPM 711.E.9).

Subchapter 3-4 entitled Dealings With Organizations, Holding Exclusive Recognition provides in pertinent part as follows:

a. Rights and Obligations

(1) A labor organization granted exclusive recognition in an appropriate unit shall have the rights and responsibilities conferred upon such organizations by the Federal Service Labor - Management Relations Statute (OPM 711.E-1), subject to explication through decisions of the Federal Labor Relations Authority and of the courts. [ v28 p3 ]

By letter dated November 10, 1986, the Union requested that Respondent furnish it with the name and home addresses of all the employees within the bargaining unit.

The parties stipulated that the information requested, i.e. the names and addresses of all the employees within the bargaining unit, is normally maintained by Respondent and reasonably available.

The parties further stipulated that all times subsequent to November 10, 1986 "Respondent has failed and refused to provide said names and addresses to the Union."

On January 2, 1987, Respondent formally replied to the Union's November 10th request for the names and addresses. Respondent's reply reads in pertinent part as follows:

This is in reply to your memorandum of November 10, 1986 to Mr. O'Carroll of my staff requesting names and addresses of bargaining unit employees in accordance with 23 FLRA No. 101, issued October 31, 1986.

We have been advised that the Department of Justice is seeking to appeal the decision, and perhaps others, to appropriate courts. Until final judicial disposition of this issue, the Department of Navy still maintains the position that, consistent with Farmers Home Administration Finance Office, St. Louis, Missouri and American Federation of Government Employees, Local 3354, 19 FLRA No. 21, July 22, 1985, home addresses of bargaining unit employees Should not be released. Further, such release would be an unwarranted invasion of employees' privacy for the reasons set forth in American Federation of Government Employees, Local 1923 v. United States Department of Health and Human Services, 722 F.2d 932 (4th Cir. 1983).

Discussion and Conclusions

Respondent offers three arguments in defense of its action in refusing to furnish the Union the names and home addresses of the bargaining unit employees. Thus, the Respondent takes the position that the disclosure of the [ v28 p4 ] home addresses of the unit employees would violate the Privacy Act. Secondly, it is Respondent's position that since there are alternative means of communication with the unit employees, the names and home address of the unit employees are not "necessary and relevant" to the Union's ability to carry out its representational functions. Finally, Respondent relies on the provision of the collective bargaining agreement which incorporates by reference a regulation of the Department of Defense which prohibits the disclosure of the home addresses of unit employees. It appears that Respondent is taking the position that the Union by having agreed to abide by all existing regulations of the Department of Defense, one of which prohibits the disclosure of the home addresses of bargaining unit members, has waived its right to such information.

The General Counsel, on the other hand, based upon the Authority's decision in Farmers Home Administration, Finance Office, St. Louis, Missouri, supra, takes the position that Respondent's defenses based upon the Privacy Act and the existence of alternate means of communication are without merit. With respect to Respondent defense predicated on the incorporation in the collective bargaining contract of the Defense Department Regulation which prohibits the disclosure of the home addresses of unit employees, it is the General Counsel's position that the regulation is at best ambiguous in that while it does specifically prohibit the disclosure of the home addresses of unit employees it also requires the Respondent to accord a recognized labor organization all rights conferred by the Statute "subject to explication through decisions of the FLRA and of the Courts." Since the Authority has analyzed the Statute and concluded that Unions do have a right to the home addresses of the employees, it is the General Counsel's position that Authority's decision is paramount to the prohibition in the regulation, particularly since the right of the Union to the information had not been determined at the time the collective bargaining agreement was executed. In this latter connection, the General Counsel cites the Authority's decision in Immigration and Naturalization Service, 10 FLRA 202, wherein the Authority held in substance that a union could not waive a right which it was unaware, at the time of the waiver, that it possessed.

In agreement with the General Counsel, I find that Respondent's defenses predicated on the Privacy Act, alternative means of communication, and absence of a showing of relevancy, have all been found by the Authority in Farmers [ v28 p 5 ] Home Administration, Finance Office, St. Louis, Missouri, supra, to be without merit. Thus, the Authority held that release of the names and home addresses of unit employees is not prohibited by the Privacy Act, that regardless of the existence of alternative means of communication the names and home addresses of unit employees should be supplied to the Union on request, and, finally, that the exclusive representative need not offer any explanation as to the reasons it seeks such information since the Union's need "is so apparent and essentially related to the nature of exclusive representation itself . . ."

With respect to Respondent's defense predicated on the fact that the Defense Department Regulation prohibiting the disclosure of the home addresses of bargaining unit employees had been incorporated by reference into the 1982 collective bargaining agreement which is still being honored pending agreement on a new contract, I find in all the circumstance present herein that such defense is without merit.

There is no doubt that the Department Defense Regulation specifically prohibits the disclosure of the unit employee's home addresses to the Union. It is also clear that in 1982 when the regulation was incorporated into the collective bargain agreement, the Authority had not considered the question of a union's entitlement to the home addresses as a statutory right under Section 7114(b)(4). Finally, it is also clear from the regulation that the Respondent intended to accord the labor organizations which had been granted exclusive representation all rights conferred upon them by the Statute subject to explication by the Authority and the Courts. Thus, from the foregoing, it appears that to the extent that the provisions of the regulation conflict with subsequent decisions of the Authority and the Courts, the latter would take precedence over the former. Moreover, in this context, as pointed out by the General Counsel, inasmuch as the prohibition might well be argued to be a form of a waiver, such waiver in order to be effective must have encompassed an existing right and not a right determined to exist at a subsequent date, i.e. some four years later. Cf. Immigration and Naturalization Service, supra. To the extent that Respondent appears to reply on the Fourth Circuit's decision in American Federation of Government Employees, AFL - CIO, Local 1923, 712 F.2d 931 as a decision in accord with the Department of Defense Regulation, it is noted that such decision did not concern a request for information, i.e. home addresses of unit employees, under Section 7114(b)(4) of the Statute but rather under the Freedom of Information [ v28 p6 ] Act, (FOIA). 3 In such circumstances the only outstanding Authority and/or Court decisions on the subject are in conflict with the prohibition contained in the Regulation, and, as noted above, would appear to take precedence over such prohibition. Accordingly, predicated upon the above analysis and the Authority's decision in Immigration and Naturalization Service, I find that the Union did not waive its right to the home addresses of the unit employees and that its decision in Farmers Home Administration, supra, takes precedence over the prohibition in the regulation.

Since I have concluded that the Union did not waive its right to the home addresses of the unit employees and in view of, and in accord with, the Authority's decision in Farmers Home Administration, Finance Office, St. Louis, supra, wherein the Authority found that remaining defenses of Respondent to be without merit, I find that the Respondent violated Sections 7116(a)(1), (5) and (8) of the Statute when it refused to honor the Union's request for the names and home addresses of the bargaining unit employees. Accordingly, I recommend that the Authority issue the following order designed to effectuate the purposes and policies of the Statute.

ORDER

Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, it is hereby ordered that the Norfolk Naval Shipyard shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of American Federation of Government Employees, Local 4015, AFL - CIO, 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. [ v28 p7 ]

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 American Federation of Government Employees, Local 4015, AFL - CIO.

(b) Post at all its facilities where bargaining unit employees represented by American Federation of Government Employees, Local 4015, 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 a responsible official of the Norfolk Naval Shipyard or a designee 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 section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, 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.

BURTON S. STERNBURG
Administrative Law Judge

Dated: June 23, 1987
       Washington, D.C.

[ v28 p8 ]

                              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 have been found by the Federal Labor Relations Authority to have committed an unfair labor practice. We have been ordered to post this Notice and abide by its provisions.

WE WILL NOT refuse to furnish, upon request of American Federation of Government Employees, Local 4015, AFL - CIO, the exclusive representative of our employees, the names and home addresses of all bargaining unit employees in the Norfolk Naval Shipyard.

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 names and home addresses of all bargaining unit employees as requested by the American Federation of Government Employees, Local 4015, 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. [PAGE]

If