28:0895(117)CA - DOD, Air Force and Air Force, Carswell AFB, TX and AFGE Local 1364 -- 1987 FLRAdec CA



[ v28 p895 ]
28:0895(117)CA
The decision of the Authority follows:


28 FLRA No. 117

UNITED STATES DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE AND
DEPARTMENT OF THE AIR FORCE
CARSWELL AIR FORCE BASE, TEXAS

                    Respondents

      and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
LOCAL 1364

Case No. 6-CA-70108

                    Charging Party

DECISION AND ORDER

The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that Respondent Department of the Air Force, Carswell Air Force Base had engaged in certain 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. He recommended that Respondent Department of the Air Force, Carswell Air Force Base, be ordered to cease and desist from the unfair labor practices and take appropriate remedial action. The Judge found further that Respondent United States Department of Defense, Department of the Air Force had not engaged in other unfair labor practices alleged in the complaint, and recommended that portion of the complaint be dismissed. The Respondents filed exceptions to the Judge's Decision and the General Counsel filed a brief opposing the exceptions and urging that the Judge's Decision be adopted in its entirety.

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. [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 United States Department of the Air Force, Carswell Air Force Base, Texas, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request by the American Federation of Government Employees, AFL - CIO, Local 1364, the exclusive representative of certain of its employees, the names and home 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) Furnish the American Federation of Government Employees, AFL - CIO, Local 1364, the exclusive representative of its employees, 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 American Federation of Government Employees, AFL - CIO, Local 1364 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, United States Department of the Air Force, Carswell Air Force Base, Texas, 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 VI, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

IT IS FURTHER ORDERED that the Complaint, to the extent that it joins United States Department of Defense, [ v28 p2 ] Department of the Air Force as a party respondent, be, and it hereby is dismissed.

Issued, Washington, D.C., September 4, 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 by the American Federation of Government Employees, AFL - CIO, Local 1364, 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 the rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL furnish the American Federation of Government Employees, AFL - CIO, Local 1364, the exclusive representative of our employees, 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 VI, Federal Labor Relations Authority, whose address is: 525 Griffin Street, Suite 926, Dallas, TX 75202 and whose telephone number is: (214) 767-4996. [PAGE]

UNITED STATES DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE AND
DEPARTMENT OF THE AIR FORCE
CARSWELL AIR FORCE BASE, TEXAS

               Respondents

    and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1364

               Charging Party

Case No.: 6-CA-70108

Christopher J. Ivits, Esquire
          For the General Counsel

James A. Harper, Esquire
          For the Respondent

Mr. Carl  W. Holt
          For the Charging Party

Before:   BURTON S. STERNBURG
          Administrative 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 29, 1986, by Local 1364, American Federation of Government [PAGE] Employees, (hereinafter called the Union or Local 1364), an Amended Complaint and Notice of Hearing was issued on March 4, 1987, by the Regional Director for Region VI, Federal Labor Relations Authority, Dallas, Texas. The Amended Complaint alleges that the United States Department of Defense Department of the Air Force, (hereinafter called Respondent Air Force), and Department of the Air Force Carswell Air Force Base, Texas, (hereinafter called Respondent Carswell), violated Sections 7116(a)(1), (5) and (8) of the Federal Service Labor - Management Relations Statute (hereinafter called the Statute), by refusing to provide the Union with the names and home addresses of bargaining unit employees. 1

A hearing was held in the captioned matter on April 29, 1987, in Dallas, Texas. 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, conclusions, and recommendations.

Findings of Fact

The Union is the exclusive representative of a bargaining unit composed of "all non-supervisory, non-professional appropriated fund Air Force employees serviced by the Central Civilian Personnel Office, Carswell Air Force Base, Texas . . ." [ v28 p2 ]

The parties stipulated as follows:

(1) Marlys Karsh is the labor relations officer for Carswell Air Force Base and as such is a representative of Carswell Air Force Base.

(2) On or about November 12, 1986, the American Federation of Government Employees, Local 1364, requested from Carswell Air Force Base the names and home addresses of bargaining unit employees.

(3) Carswell Air Force Base denied this request on or about November 12, 1986.

(4) Carswell Air Force Base does not maintain a list of home addresses for bargaining unit employees. A list could be created by merging two computer systems. It would take about eight hours of computer time to merge the lists.

(5) The finance office does not mail leave -- earnings and leave statements to employees' home addresses. The computer system of the finance office would have to be merged with the personnel computer to create such a list.

(5) The list does not constitute guidance, advice, counsel or training for management officials or supervisors related to collective bargaining.

Sometime in February 1987, Mr. Carl Holt, a National Representative for the AFGE and Mr. Larry Johnson, President of Local 1364, met with Marlys Karsh, a Labor Relations Specialist, and Colonel Charles A. Jones, Commander, Carswell Air Force Base, for purposes of discussing labor relations. During the course of the meeting Holt raised the matter of the Union's request for the names and home addresses of bargaining unit members and was informed by Karsh that "the Union was not going to get the names because the -- on instructions from the Air Force". When Holt asked why they had not been informed at an earlier date of Respondent Carswell's position, Commander Jones told Karsh that the Union was entitled to a response and that a formal response should be prepared forthwith. Thereafter, by letter dated February 27, 1987, and bearing the letterhead "Department of the Air Force, Headquarters 7th Combat Support Group (SAC), [ v28 p 3 ] Carswell Air Force Base, Texas", the Union was informed that Mr. James Harper of HQ USAF/CLLO is handling the unfair labor practice involving the refusal of the Respondent to make the names and home addresses of the unit employees available and that he was the proper person to contact. 3

According to Mr. Johnson, the President of Local 1364, who was also present at the February 1987 labor relations meeting, in reply to Mr. Holt's inquiry as to when the Union was going to receive the requested names and home addresses of the bargaining unit employees, Marlys Karsh stated that "they has received word from Air Force not supply the information". Although Mr. Johnson "assumed" that they meant Headquarters Air Force in Washington, D.C., the record is barren of any evidence, other than what is cited above, to support such an assumption.

Discussion and Conclusions

The General Counsel relying on the Authority's decision in Farmers Home Administration, supra, takes the position that Respondent Carswell violated Sections 7116(a)(2), (5) and (8) of the Statute when it failed and refused to make the names and home addresses of bargaining unit employees available to the Union. Alternatively, General Counsel, relying on the Authority's decision in U.S. Department of the Treasury, IRS and IRS, Austin District and IRS, Houston District, 23 FLRA No. 100, contends that the record supports the conclusion that Respondent Air Force violated Sections 7116(a)(1) and (5) of the Statute when it interfered with the bargaining relationship between the Union and Respondent Carswell and directed Carswell not give the Union the names and home addresses of the bargaining unit employees. Inasmuch as Respondent Air Force was responsible for the actions of its subordinate Carswell in not making the names available, the General Counsel would further find that Respondent Air Force violated Sections 7116(a)(1), (5) and (8) of the Statute.

Respondent's counsel, who acknowledges the Authority's findings to the contrary, contends that the disclosure of the home addresses of the bargaining unit employees would [ v28 p4 ] violate the Privacy Act. Although not argued in his post-hearing brief, it appears that Counsel for the Respondent also challenges the necessity for the names since he attempted to prove at the hearing that there were other alternative means of communication available to the Union.

In agreement with the General Counsel I find that the Authority's decision in Farmers Home Administration, Finance Office, St. Louis, Missouri, supra, is dispositive of all Respondent's contentions and/or defenses. 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. . .". 4

Accordingly, based primarily on the Authority's decision in Farmers Home Administration, Finance Office, St. Louis, Missouri, supra, I find that Respondent Carswell's refusal to furnish the Union with the names and home addresses of bargaining unit employees constituted a violation of Sections 7116(a)(1), (5) and (8) of the Statute.

To the extent that the Complaint, alternatively, alleges that Carswell's action in refusing to make the home addresses available was at the direction of Respondent Air Force, I find that the record evidence fall short of establishing such a fact. Thus, all that the record shows is that when Carswell representatives were questioned as to the reasons for the refusal of Carswell to make the requested information available, they were told that "on instructions from the Air [ v28 p5 ] Force" they did not make the home addresses available. Such non-specific testimony, standing alone, is insufficient to establish that Respondent Air Force in Washington, D.C. was responsible for Carswell's action. This is particularly true in view of the fact that the record indicates that there are many bases, etc; which carry the designation "Headquarter's U.S. Air Force". Thus, among others, there is one at Carswell and another at Randolph Air Force Base, Texas. Accordingly, it is hereby recommended that the Authority dismiss the Complaint in its entirety to the extent that it names the United States Department of Defense Department of the Air Force as a respondent and charges such entity with a violation of Sections 7116(a)(1), (5) and (8) of the Statute.

Having found that Respondent Carswell violated the Statute by refusing to supply the Union with the names and home addresses of the bargaining unit employees, it is hereby recommended that the Federal Labor Relations Authority adopt the following order designed to effectuate the purposes and policies of the Statute.

ORDER

Pursuant to Section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and Section 7118 of the Federal Service Labor - Management Relations Statute, 5 U.S.C., Section 7118, it is ordered that Department of the Air Force Carswell Air Force Base, Texas, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request by the American Federation of Government Employees, AFL - CIO, Local 1364, the exclusive representative of a unit of its employees, the names and home addresses of all employees in the bargaining 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 Federal Service Labor - Management Relations Statute:

(a) Furnish the American Federation of Government Employees, AFL - CIO, Local [ v28 p6 ] 1364, the exclusive representative of a unit of its employees, the names and home addresses of all employees in the bargaining unit.

(b) Post at its facilities where bargaining unit employees represented by the American Federation of Government Employees, AFL - CIO, Local 1364, 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 of Carswell Air Force Base, Texas, 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.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VI, Federal Labor Relations Authority, 525 Griffin Street, Suite 926, Dallas, TX 75202, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

IT IS FURTHER ORDERED that the Complaint, to the extent that it joins United States Department of the Defense Department of the Air Force as a party respondent, should be, and hereby in dismissed in its entirely.

BURTON S. STERNBURG
Administrative Law Judge

Dated: July 15, 1987
       Washington, D.C.

[ v28 p7 ]

              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 by the American Federation of Government Employees, AFL - CIO, Local 1364, the exclusive representative of a bargaining unit of our employees, the names and home addresses of all employees in the bargaining unit.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce any employee in the exercise of their rights guaranteed by the Federal Service Labor - Management Relations Statute.

WE WILL furnish the American Federation of Government Employees, AFL - CIO, Local 1364, the exclusive representative of a bargaining unit of our employees, the names and home addresses of all employees in the bargaining unit.

                              _____________________________
                                   (Agency or Activity)

Dated:__________________  By:______________________________