28:0972(127)CA - Navy and Pensacola Commissary Store Region, Pensacola, FL and AFGE Local 1960 -- 1987 FLRAdec CA



[ v28 p972 ]
28:0972(127)CA
The decision of the Authority follows:


28 FLRA No. 127

DEPARTMENT OF THE NAVY AND
PENSACOLA COMMISSARY STORE
REGION, PENSACOLA, FLORIDA

               Respondents

       and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1960, AFL-CIO

               Charging Party

Case No. 4-CA-70124

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent Pensacola Commissary Store Region, Pensacola, Florida (the Activity) 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 Judge granted the General Counsel's motion for summary judgment as to the Respondent Activity and recommended that the Activity be ordered to take appropriate remedial action. The Judge also found that the Respondent Department of the Navy had not engaged in the unfair labor practices alleged in the complaint. The Respondent Activity 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 affirmed. Upon consideration of the Judge's decision, the exceptions 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 Activity's arguments that the release of home addresses of employees is [PAGE] prohibited by the Privacy Act, that the information is not relevant or necessary for the Union to carry out its representational duties, and that the information need not be supplied because there are alternative means available to the Union to communicate with unit employees. See Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986), petition for review filed sub nom. U.S. Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri, No. 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:

A. The Pensacola Commissary Store Region, Pensacola, Florida shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 1960, 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 actions in order to effectuate the purposes and policies of the Statute:

(a) Furnish the American Federation of Government Employees, Local 1960, 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 1960, 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 Director, Pensacola Commissary Store Region, Pensacola, Florida, and shall be [ v28 p2 ] 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.

B. Those portions of the complaint which allege a violation of the Statute by the Department of the Navy are dismissed.

Issued, Washington, D.C., September 15, 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 or fail to furnish, upon request of the American Federation of Government Employees, Local 1960, 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 the rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL furnish the American Federation of Government Employees, Local 1960, 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 IV, Federal Labor Relations Authority, whose address is: 1371 Peachtree Street, N.E., Suite 736, Atlanta, Georgia 30367 and whose telephone number is: (404) 347-2324. [PAGE]

DEPARTMENT OF THE NAVY AND
PENSACOLA COMMISSARY STORE
REGION, PENSACOLA, FLORIDA

              Respondents

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1960, AFL-CIO

              Charging Party

Case No. 4-CA-70124

Mr. Robert J. Gilson
         For the Respondents

Philip T. Roberts, Esquire
         For the General Counsel, FLRA

Before: GARVIN LEE OLIVER
        Administrative Law Judge

DECISION

Statement of the Case

This decision concerns an unfair labor practice complaint issued by the Regional Director, Region IV, Federal Labor Relations Authority, Atlanta, Georgia, against the Department of the Navy and Pensacola Commissary Store Region, Pensacola, Florida (Respondents), based on a charge filed by the American Federation of Government Employees, Local 1690, AFL - CIO, (Charging Party or Union). The complaint alleged, in substance, that Respondents violated sections 7116(a)(1), (5) and (8) of the Federal Service Labor - Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), by refusing to furnish the Union upon request with the home addresses of [PAGE] all bargaining unit employees represented by the Union pursuant to section 7114(b)(4) of the Statute. 1

Respondents' answer, as amended, admitted the jurisdictional allegations as to the Respondents, the Union, and the charge; that, on or about November 10, 1986, the Union, the exclusive representative of a unit of Respondent Pensacola Commissary Store employees, requested the home addresses of employees in the Union bargaining unit; and that, on or about November 14, 1986 and December 10, 1986, agents of Respondents denied the Union's request for the information. Respondents' answer, as amended, also admitted that the home addresses are normally maintained by the Respondent Pensacola Commissary Store Region in the regular course of business; are reasonably available; and do not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. Respondents' answer, as amended, also averred that while Agency [ v28 p2 ] regulations and guidance oppose release of the requested information, the decision to release or not release is a local one to be made by Respondent Pensacola Commissary Store Region. The General Counsel did not take issue with this assertion. Accordingly, such matters are found to be established.

Respondents' answer, as amended, denied that the information requested is necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. Respondent also denied any violation of the Statute,

On or about May 15, 1987, Counsel for the General Counsel moved for summary judgment and submitted a supporting brief. The Regional Director transferred the motion to the Chief Administrative Law Judge, pursuant to section 2423.22(b)(1) of the Regulations, and it was assigned to the undersigned for disposition pursuant to section 2423.19(k) and section 2423.22(b)(3) of the Regulations. Respondent served its opposition on June 2, 1987.

Positions of the Parties

Respondents request a hearing in order to introduce evidence on the sufficiency of the means available to the Union to communicate with employees in the unit. Respondents also contend that the basis for the Union's request does not meet the requirement under the Statute that the information must be "necessary for full and proper discussion, under-standing, and negotiation of subjects within the scope of collective bargaining." Respondents assert that the Authority's decision on remand in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986) (FHAFO), petition for review filed sub nom. U.S. Department of Agriculture and the Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86-2779 (8th Cir. Dec. 23, 1986) is in error as the Authority failed to give greater consideration to the potential abuses inherent in the discloser of employees' home addresses. Respondents contend that such disclosure constitutes a clearly unwarranted invasion of employees' privacy and does not properly fall under exception (b)(3) of the Privacy Act, 5 U.S.C. 552(b)(3), as a "routine use."

The General Counsel contends that in light of the Authority's decision in FHAFO there are no disputed issues of material fact, and it is entitled to summary judgment as [ v28 p3 ] the Respondents' failure and refusal to provide the employees' home addresses to the Union in this case constitutes a refusal to comply with section 7114(b)(4) and a violation of section 7116(a)(1), (5) and (8) of the statute.

Discussion and Conclusions

In FHAFO the Authority held that "the statutory requirement concerning sufficiency of a request under section 7114(b)(4) is satisfied for requests such as that involved here (for names and home addresses) when a general written request for the information is made. A precise explication of the reasons for the request involved here is not necessary." The Authority also emphasized that names and home addresses of bargaining unit employees should be provided whether or not alternative means of communication are available. The Authority stated, "We will not review the adequacy of alternative methods of communication on a case-by-case bases." In view of the Authority's FHAFO decision it is concluded that facts as to the purpose of the request and whether or not alternative means of communication are available between unit employees and their exclusive representative are not material.

There being no dispute as to any material fact, it is concluded that the General Counsel is entitled to summary judgment as a matter of law under the Authority's decision in FHAFO. There the Authority gave full consideration to the many issues raised by requiring disclosure of names and home addresses of federal employees. The Authority analyzed the interplay of the Statute, the Privacy Act, and the Freedom of Information Act, and concluded that, "the release of names and home addresses to the Union is not prohibited by law, is necessary for the Union to fulfill its duties under the Statute, and meets the other requirements of section 7114(b)(4)."

Inasmuch as the union's request meets all of the requirements established by section 7114(b)(4), Respondent Pensacola Commissary Store Region, having the discretion to release the home addresses to the Union and failing to do so, violated section 7116(a)(1), (5), and (8) of the Statute, since there is no evidence that the Department of the Navy, unconditionally directed its subordinate activity to refuse the data, Respondent Department of the Navy did not violate the Statute, and it will be recommended that the complaint, as to it, be dismissed. [ v28 p4 ]

Based on the foregoing, the General counsel's motion for summary judgment is granted. It is recommended that the Authority issue the following 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 Pensacola Commissary Store Region, Pensacola, Florida shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 1960, AFL - CIO, the exclusive representative of a bargaining unit 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 Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute.

(a) Furnish AFGE, Local 1960, the exclusive representative of a bargaining unit of its employees, the names and home addresses of all employees in the bargaining unit it represents.

(b) Post at its facilities where said bargaining unit employees 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 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 p5 ]

(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 herewith.

IT IS FURTHER ORDERED that those portions of the complaint alleging a violation of the Statute by the Department of the Navy are dismissed.

GARVIN LEE OLIVER
Administrative Law Judge

Dated: June 19, 1987
       Washington, D.C.

[ v28 p6 ]

                              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