28:1060(138)CA - Navy, Naval Underwater Systems Center, Newport, RI and NAGE, Federal Union of Scientists and Engineers, Local R1-144 -- 1987 FLRAdec CA



[ v28 p1060 ]
28:1060(138)CA
The decision of the Authority follows:


28 FLRA No. 138

DEPARTMENT OF THE NAVY,
NAVAL UNDERWATER SYSTEMS CENTER,
NEWPORT, RHODE ISLAND

                    Respondent

           and

FEDERAL UNION OF SCIENTISTS AND
ENGINEERS, NAGE, LOCAL R1-144

                    Charging Party

Case No. 1-CA-60235

DECISION AND ORDER

I. Decision

The Administrative Law Judge issued the attached decision in this case, 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 our 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 and the entire record, we adopt the Judge's findings, conclusions and recommended Order.

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the Federal Union of Scientists and Engineers, NAGE, Local R1-144, the exclusive representative of certain of its employees, the [PAGE] 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 Federal Union of Scientists and Engineers, NAGE, Local R1-144, the exclusive representative of a bargaining unit of certain 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 Federal Union of Scientists and Engineers, NAGE, Local R1-144 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 Commander of the Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 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 I, 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., September 22, 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 or fail to furnish, upon request of the Federal Union of Scientists and Engineers, NAGE, Local R1-144, 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 furnish the Federal Union of Scientists and Engineers, NAGE, Local R1-144, the exclusive representative of a bargaining unit of certain 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 I, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017, Boston, MA 02222-1046, and whose telephone number is: (617) 565-7280. [PAGE]

DEPARTMENT OF THE NAVY
NAVAL UNDERWATER SYSTEMS
CENTER, NEWPORT, RHODE ISLAND

               Respondent

    and

FEDERAL UNION OF SCIENTISTS
AND ENGINEERS, NAGE, LOCAL
R1-144

               Charging Party

Case No. 1-CA-60235

Thomas Wood
    For the Respondent

Dominick J. Lepore
    For  the Charging Party

Marilyn  H. Zuckerman, Esq.
    For  the General Counsel, FLRA

Before:  SAMUEL A. CHAITOVITZ
         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. 7101, et seq., 92 Stat. 1191 (herein-after referred to as the Statute) and the Rules and Regulations of Federal Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, 2410 et seq.

Pursuant to a charge filed on April 15, 1986, and amended on May 21, 1986, by Federal Union of Scientists and Engineers, NAGE R1-144, herein called FUSE and the Union, against Department of the Navy, Naval Underwater Systems [PAGE] Center, Newport, Rhode Island, 1 hereinafter called NUSC and Respondent, the General Counsel of the FLRA, by Director of Region 1, issued a Complaint and Notice of Hearing alleging that Respondent violated Section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish to FUSE with the names and home addresses of all bargaining unit employees. NUSC filed an Answer denying it had violated the Statute.

A hearing was conducted before the undersigned in Newport, Rhode Island. The Union, Respondent and General Counsel of the FLRA were represented and afforded a full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Briefs were filed and have been fully considered.

Based on the entire record in this matter, my observation of the witnesses and their demeanor, and my evaluation of the evidence, I make the following:

Findings of Fact

At all times material to this matter FUSE has been recognized as the exclusive representative of all professional and nonsupervisory employees of NUSC, excluding all non-professional, General Schedule and Wage Grade employees and other non-professional employees, management officials and supervisors and employees engaged in Federal personnel work in other than a purely clerical capacity.

There is no general collective bargaining agreement between the parties in the instant case. 2

There are approximately 926 employees in the bargaining unit represented by FUSE, ten percent of whom are union members. [ v28 p2 ]

FUSE has 13 officers and stewards, all of whom are "at large" union representatives. NUSC is able to keep track of the use of official time by FUSE representatives through a job order system, whereby union representation time is assigned specific job order codes. For fiscal year 1985, Union President Dominick Lepore spent 1583.5 hours on official time; during the same time period, the remaining union representatives spent a total of 1641.3 hours on official time. For fiscal year 1986, Lepore spent 1382.7 hours on official time, while the remaining union representatives spent a total of 1940.5 hours on official time.

NUSC and FUSE have been engaged in negotiations for a collective bargaining agreement, off and on, for the past nine years. since June, 1984 the parties have been operating under ground rules for negotiations established by an arbitrator, which calls for negotiations to be scheduled two days a week for four hours a day.

By memorandum dated April 9, 1986, FUSE requested that NUSC provide it with a list of names and home addresses of all unit members, stating that FUSE needed this information "in order to communicate with our members". By memorandum dated April 10, 1986, NUSC denied the request because NUSC had been providing FUSE a listing of its members on a monthly basis and because NUSC contended FUSE was able to communicate with its members by way of its officers and stewards. The Union did not communicate to the Respondent any specific reason for needing the requested information. FUSE wanted the employees' home addresses so that it could send them a newsletter and certain memoranda of understanding, even though FUSE had not published a newsletter "in quite some time".

NUSC has provided FUSE with a monthly retention register for several years, which lists each employee's name, organizational code, occupational title, tenure group and specialty code. The professional employees in the bargaining unit are easily identifiable on the registers by their occupational code.

FUSE also has had access to the NUSC telephone directory, which is distributed to all NUSC employees. This directory, which is published approximately every year to 18 months, contains listings for all NUSC employees and includes their name, organizational code, office telephone number, building number and, in some cases, the room number [ v28 p3 ] in the building. The organization codes in the retention register and telephone directory are similar, the only difference being that the codes in the directory are more specific.

All NUSC employees have access to the internal mail system, which is based, in part, on using the organization codes listed in the telephone directory or retention register. FUSE has used the internal mail system for various reasons including communicating with its stewards and officers. Although FUSE has never attempted to use the internal mail for mass mailing, the other NAGE Local at NUSC has used the internal mail system to send a questionnaire to all of the employees it represents.

NUSC publishes a weekly bulletin which is distributed to all NUSC employees and which is required reading for all employees. FUSE has access to publish items in the bulletin and has done so in the past, but such items must be approved by NUSC representatives.

NUSC maintains several types of records pertaining to its employees. The Personnel Office maintains an historical record of each employee's employment; however, this record does not contain the current home addresses of employees since there is no need for them. The Administrative Services Department maintains records based on data supplied by the employees which includes, among other information, employees' home addresses. These records do not reflect whether or not an employee is in the bargaining unit represented by FUSE. Finally, the Payroll Office maintains all financial information on employees' pay. These records include employees' mailing addresses, as opposed to their home addresses. Respondent mails earnings and leave statements to each employee's mailing address and sends the check to the mailing address or deposits it in the bank. The only way these records can distinguish whether an employee is in the FUSE bargaining unit is if the employee has union dues deducted from his/her pay. NUSC stated that there would be no problem to pull out the names of employees in unit represented by other FUSE and to compile a list of their home addresses. 3

Release of certain information protected by the Freedom of Information Act, 5 USC 552 and the Privacy Act, 5 USC [ v28 p4 ] 552a, which is in the possession of NUSC, is controlled by NUSC Instruction 5720.2A which in turn is controlled by SECNAV Instruction 5720.52C. 4 The requirements of the latter Instruction are mandatory for all Department of Navy activities. It was uncontroverted that information which is not releasable under SECNAV Instruction 5720.42C includes employees' home addresses.

Discussion and Conclusions of Law

The General Counsel of the FLRA contends that NUSC 's refusal to furnish FUSE with the names and home addresses of bargaining unit employees constituted a violation of sections 7114(b)(4) and 7116(a)(1), (5), and (8) of the Statute. Section 7114(b)(4) requires an agency to furnish to an exclusive representative, upon request, and to the extent not prohibited by law, data which is (1) normally maintained by the agency in the regular course of business; and (2) reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. Respondent admittedly refused to comply with the Union's request for the home addresses of the employees in the bargaining unit.

The General Counsel of the FLRA urges that NUSC 's refusal constituted a violation of sections 7114(b)(4) and 7116(a)(1), (5), and (8) in view of the FLRA's decision on remand in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986) (hereinafter called the Farmers Home case), petition for review filed sub. nom. U.S. Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86-2779 (8th Cir. Dec. 23, 1986). In Farmers Home case, supra, the FLRA concluded that the release of name and home addresses of bargaining unit employees to the exclusive representative of those employees is not prohibited by law, is necessary for unions to fulfill their duties under the Statute, and meets all of the other requirements established by section 7114(b)(4).

NUSC argues that the release of the home addresses is prohibited by the Privacy Act, supra and the Freedom of Information Act, 5 USC 552. In the Farmers Home case, supra, the FLRA analyzed these statutes and balance the [ v28 p5 ] privacy interests of federal employees against the public interest in disclosure and concluded that Privacy Act does not prevent the providing of the names and addresses of bargaining unit employees to a collective bargaining representative.

NUSC contends that reasons FUSE gave for needing the names and addresses were not true and that FUSE had not demonstrated it needed the information. In view of the Farmers Home case, supra, this argument was also rejected. When requesting names and home addresses, no reasons need be given by the Union in view of the nature of the request.

Also, NUSC apparently argues that the addresses were not "necessary" within the meaning of section 7114(b)(4) because alternative means of communication with unit members were available to the Union. This argument is also rejected. The FLRA will not review the adequacy of alternative means of communication on a case-by-case basis. The Farmers Home case, supra. 5

I conclude that the record herein establishes that the names and home addresses were readily available and normally maintained in the regular course of business by the Respondent.

In view of the above, I conclude NUSC violated Sections 7114(b)(4) and 7116(a)(1), (5) and (8) of the Statute by refusing to furnish the names and home addresses of unit employees to FUSE.

NUSC apparently urges that it was compelled to refuse to provide the requested names and addresses by the Department of the Navy, and therefore NUSC should not be found to have violated the Statute. FLRA has rejected such an argument and concluded that where a parent organization is not a named respondent, the subordinate activity will be held to have violated the Statute, even where the subordinate organization was merely following orders. Internal Revenue Service, 23 FLRA No. 100 (1986). Thus in the subject case, herein Department of the Navy was not named as a Respondent, I conclude NUSC must be found to have violated the Statute by refusing to provide FUSE with the requested names and addresses. [ v28 p6 ]

I reject NUSC's contention that it not be found to have violated the Statute because when it refused to provide the requested names and addresses because it was relying on FLRA's decisions that said such information should not be provided because of the Privacy Act, 5 USC. 552(a). The FLRA reversed its position in the Farmers Home case, supra. Thus the FLRA held in the Farmers Home case, supra, that a union is entitled to this information and if I held that NUSC did not violate the Statute, FUSE would not get the information to which it is entitled, which it requested and which NUSC refused to supply. Thus I must rejected NUSC's contention in this respect.

Accordingly, having found that Respondent violated the Statute, it is recommended that the Authority adopt the following:

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 Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, shall:

1. Cease and desist from:

(a) Refusing to furnish to Federal Union of Scientists and Engineers, NAGE, Local R1-144, the exclusive representative of a unit of professional 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 employees in the exercise of their rights assured by the Statute.

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

(a) Furnish the Federal Union of Scientists and Engineers, NAGE, Local R1-144, the exclusive representative of its employees, with the names and home addresses of all bargaining unit employees. [ v28 p7 ]

(b) Post at all its facilities in

Newport, Rhode island, where bargaining unit employees represented by Federal Union Scientists and Engineers, NAGE, Local R1-144 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 Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to members of the bargaining unit represented by the Federal Union of Scientists and Engineers, NAGE, Local R1-144, 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 of Region I, Federal Labor Relations Authority, 10 Causeway Street, Room 1017, Boston, Massachusetts 02222-1046, in writing, within 30 days of the date of this Order as to what steps have been taken to comply herewith.

SAMUEL A. CHAITOVITZ
Administrative Law Judge

Dated:  July 31, 1987
        Washington, D.C.

[ v28 p8 ]

                NOTICE TO MEMBERS AND EMPLOYEES
                     POSTED BY ORDER OF THE
               FEDERAL LABOR RELATIONS AUTHORITY
          AN AGENCY OF THE UNITED STATES GOVERNMENT

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 to Federal Union of Scientists and Engineers, NAGE, Local R1-144, the exclusive representative of a unit of professional 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 our employees in the exercise of their rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL, furnish to the Federal Union of Scientists and Engineers, NAGE, Local R1-144, the names and home addresses of all bargaining unit employees of the Naval Underwater Systems Center, Newport, Rhode Island.

                             _______________________________
                                   (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 I, whose address is: 10 Causeway Street, Room 1017, Boston, Massachusetts 02222-1046, and whose telephone number is: (617) 565-7280. [PAGE]

FOOTNOTES

Footnote 1 The Charge, and Amended Charge listed under the name of activity "Naval Underwater Systems Center" and the space titled "If Charge is made against an activity, name the agency of which the activity is a part" was filled in to read "NAVY".

Footnote 2 <