28:1072(139)CA - National Weather Service and NOAA and National Weather Service Employees Organization Affiliated with MEBA -- 1987 FLRAdec CA



[ v28 p1072 ]
28:1072(139)CA
The decision of the Authority follows:


28 FLRA No. 139

NATIONAL WEATHER SERVICE

                   Respondent

      and

NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION

                   Respondent
      and

NATIONAL WEATHER SERVICE
EMPLOYEES ORGANIZATION
AFFILIATED WITH MEBA, AFL-CIO

                   Charging Party

Case Nos. 3-CA-60561
          3-CA-70180

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in the above-entitled proceeding relating to the release of names and home mailing addresses of bargaining unit employees, finding that the Respondent National Oceanic and Atmospheric Administration (NOAA) had engaged in the unfair labor practices alleged in Case No. 3-CA-70180. The Judge also found that the Respondent National Weather Service (NWS) had not committed the unfair labor practices alleged in Case No. 3-CA-60561. The Respondent NOAA filed exceptions to the Judge's Decision and the Charging Party filed an opposition to NOAA's exceptions.

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 and the entire record, we adopt the Judge's [PAGE] findings, conclusions and recommended Order as modified below. In agreement with the Judge, we find that Respondent NOAA interfered with the relationship between the NWS and the Charging Party by ordering the NWS not to comply with the Charging Party's request for the names and home mailing addresses of the bargaining unit employees and by failing to provide NWS with the requested data.

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 National Oceanic and Atmospheric Administration shall:

1. Cease and desist from:

(a) Instructing the Administrative Support Centers not to furnish the names and home mailing addresses of National Weather Service bargaining unit employees to the National Weather Service and to the exclusive representative, National Weather Service Employees Organization, affiliated with MEBA, AFL - CIO.

(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) Permit the Administrative Support Centers and the National Weather Service to furnish to the National Weather Service Employees Organization, affiliated with MEBA, AFL - CIO, the exclusive representative of a bargaining unit of certain of its employees, the names and home mailing addresses of National Weather Service bargaining unit employees.

(b) Post at National Oceanic and Atmospheric Administration headquarters and at all facilities where bargaining unit employees represented by the National Weather Service Employees Organization, affiliated with MEBA, 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 of Administration, National Oceanic and Atmospheric Administration, and shall be posted in [ v28 p2 ] 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 herewith.

Further, the complaint alleging that Respondent National Weather Service refused to provide the Charging Party with the names and home mailing addresses of its bargaining unit employees is dismissed.

Issued, Washington, D.C., September 22, 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 instruct the Administrative Support Centers not to furnish the names and home mailing addresses of National Weather Service bargaining unit employees to the National Weather Service and to the exclusive representative, National Weather Service Employees organization, affiliated with MEBA, AFL - CIO.

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 permit the Administrative Support Centers and the National Weather Service to furnish to the National Weather Service Employees Organization, affiliated with MEBA, AFL - CIO, the exclusive representative of a bargaining unit of certain of our employees, the names and home mailing addresses of National Weather Service bargaining unit employees.

                           ________________________________
                                     (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]

NATIONAL WEATHER SERVICE and
NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION

               Respondents

    and

NATIONAL WEATHER SERVICE EMPLOYEES
ORGANIZATION, AFFILIATED WITH
MEBA, AFL-CIO

               Charging Party

Case Nos. 3-CA-60561
           3-CA-7O18O

Ana de la Torre,   Esquire
          For the  General Counsel


Richard J. Hirn,  Esquire
          For the Charging Party

Hugh D. Jascourt,  Esquire
Erica F. Cooper, Esquire
          For the Respondents

Before:  RANDOLPH D. MASON
         Administrative Law Judge

DECISION

Statement of the Case

These consolidated proceedings were initiated under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. S7101, et [PAGE] seq., and the Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq. Pursuant to charges filed by the National Weather Service Employees Organization, affiliated with MEBA, AFL - CIO, the General Counsel of the Federal Labor Relations Authority issued complaints and Notices of Hearing in 3-CA-60561 and 3-CA-70180 on November 28, 1986, and February 20, 1987, respectively, alleging that Respondents violated section 7l16(a)(1), (5), and (8) of the Statute by refusing to furnish the union the names ana home addresses of bargaining unit employees. In a timely filed Answer, Respondents deny any violation of the Statute.

The undersigned was selected by the Office of personnel Management to conduct this proceeding under the authority of 5 U.S.C. 3344 and 5 CFR C930.213.

A hearing was held by the undersigned in Washington, D. C., on March 25, 1987. All parties were represented by counsel and given full opportunity to be heard, adduce evidence, and examine and cross-examine witnesses. Respondents and the Charging Party submitted briefs which have been duly considered. After consideration of the entire record, including the pleadings, briefs, documentary evidence, admissions, and stipulations of the parties, I make the following findings of fact, conclusions of law, and recommend order:

FINDINGS OF FACT

Background

At all times material hereto, the National Weather Service Employees Organization ("Union"), affiliated with the Marine Engineers Beneficial Association ("MEBA"), AFL - CIO, has been the exclusive representative of an appropriate nationwide unit consisting of all professional and nonprofessional employees of the National Weather Service ("NWS"). NWS operates 320 stations nationwide and is one of six major line organizations of its parent agency, the National Oceanic and Atmospheric Administration ("NOAA"). NOAA is a primary national subdivision of the Department of Commerce ("DOC").

Previously, NWS, like all other DOC line organizations, had its own personnel offices serving its regional directors. In about 1983, DOC eliminated the overlapping administrative offices that each of its components had in the field. DOC replaced these administrative field offices with five Administrative Support Centers ("ASC's") to [ v28 p2 ] service all DOC employees regardless of their bureau, component, or line organization. The ASC's are administered by NOAA for the entire Department of Commerce. The personnel services of NWS (which is part of NOAA) are now performed by these ASC's, which also maintain the NWS personnel files. NWS does not have any written servicing agreement with the ASC's. The ASC'S handle hiring procedures and have labor relations officers who represent NWS management in dealing with the Union on grievances, arbitration, pay matters and other employee complaints.

In 1985 DOC contracted with the U. S. Department of Agriculture to administer DOC's payroll function. In early 1986 each DOC employee was required to update his or her home address by completing form AD-349, which was transmitted to USDA. This update enabled the USDA National Finance Center to mail employees their W-2 forms and paychecks directly. As a result, commencing June 7, 1986, each ASC had the capability of retrieving by computer the name and home address of each NWS employee working within that particular ASC's geographical servicing area. The NOAA Director of Personnel could directly retrieve this information for all NOAA employees. In addition to this computerized resource, the ASC's also kept the employee's home address in either the pay folder or personnel file.

Pauline Shanker is the labor-management relations program coordinator for NWS. When she wishes to take action which might affect a national policy of NOAA, she has to obtain NOAA's prior approval. C. A. Blake, then the labor relations officer for NOAA, informed Shanker of NOAA's position on labor relations matters, which was binding on Shanker and NWS. Also, when Shanker needed any personnel data on NWS employees from the USDA system, she had to request it from Susan Johnson, the NOAA Personnel Officer, who would then decide whether the information would be furnished (Tr. 38). As previously stated, Johnson had direct, immediate access to the computerized personnel data of all NOAA employees (including NWS employees) and determined whether disclosure of information was precluded by the Privacy Act. To the extent permitted by NOAA, Shanker was allowed to deal directly with the National Capital ASC, which serviced the Washington, D. C., area and headquarters, where she worked, but if she needed information from other ASC's she would have to ask Johnson first (Tr. 39-40).

On June 4, 1986, Karen Racer, Director of Membership Services for the Union, wrote Shanker at NWS and requested the names and home addresses of employees hired in the bargaining unit since January 1986. This information is not [ v28 p 3 ] maintained on a current basis by NWS 1 . Shanker then contacted Blake, the NOAA labor relations officer, for instructions, and also discussed the matter with Blake and the ASC's by conference call. Shanker asked the ASC's to put the information together and mail it directly to the Union. Shanker wrote to Racer on August 5, 1986, and confirmed that she had taken this action.

On August 14, the National Capital ASC sent Racer a list of names and home addresses of twenty employees hired by NWS in the Washington, D. C. area since January 1986. Another ASC had its list ready to send. However, this list was not sent because Blake then instructed all of the ASC's that NOAA was taking the position that the names and home addresses were protected by the Privacy Act and that the ASC's were not permitted to disclose this information (Tr. 70). As a result, none of the other four ASC's sent the information sought in Racer's June 4 request.

Also, in a letter to Shanker dated August 5, 1986, Racer made a broader request for each NWS unit employee's Form AD-349A, which contains the employee's name and home address. In view of Blake's previous instruction, the ASC's refused to provide this information to the Union. Shanker forwarded Racer's letter to Blake, who responded by letter to the Union on September 5. In his letter, Blake refused to provide the NWS unit employees' home addresses until FLRA held that such information should be disclosed. On October 31, the Authority issued such a decision in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986), but the Respondents have continued to refuse to provide the information contained in the August 5 request.

In addition to the possibility of sending information through the mail to an employee's home address, the Union does have some alternative means of communication with unit employees. However, these alternative means have not been adequate for the Union. It publishes a newspaper and has bulletin boards in the various NWS stations. Each employee has a mail drawer or mail slot at his work station. In larger facilities such as Washington, D. C., mail might have been sent through the NOAA internal mail system, but NWS [ v28 p4 ] denied the Union this usage on December 3, 1985. Also, the Union can use conference rooms to conduct meetings; however, only 280 of the 320 NWS stations have union stewards. The Union has also had problems contacting its employees because most of them work rotating shifts and are hard to contact even where stewards exist. The Union feels that it is important to be able to send mail to the home addresses in order to assure confidentiality.

CONCLUSIONS OF LAW

Two primary issues are presented for decision. First, did the failure to comply with the Union's request, made pursuant to section 7114(b)(4) of the Statute, for the names and home addresses of its unit employees constitute an unfair labor practice in violation of section 7116(a)(1), (5), and (8)? If so, then NOAA admittedly takes responsibility for this violation because it instructed the ASC's servicing NWS not to release this information. Second, it must be determined whether NWS's failure to provide this information constituted an independent violation of the Statute or whether NWS's noncompliance constituted a ministerial act in accordance with NOAA's policy and instruction.

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.

The General counsel argues that this case is controlled by 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 Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86-2779 (8th cir. Dec. 23, 1986). In FHAFO the Authority concluded that the release of names and home addresses of bargaining unit employees to the exclusive representatives 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).

Respondents argue that the release of the home addresses is prohibited by the Privacy Act and Freedom of Information Act because the NWS employees have a particular reluctance [ v28 p5 ] to release their addresses. In FHAFO, the Authority balanced the privacy interests of federal employees against the public interest in disclosure and concluded that the privacy interests were not particularly compelling. Respondents have failed to present evidence which distinguishes the interests of NWS employees from the employees in FHAFO.

Respondents also contend that the union failed to adequately explain its need for the home addresses, and 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. In view of the FHAFO decision, both of these arguments are rejected. When requesting names and home addresses, no reasons need be given by the union in view of the nature of the request. Also, the Authority will not review the adequacy of alternative means of communication on a case-by-case basis. In any event, I find that the alternative means in the instant case were clearly inadequate.

There is no dispute that the names and home addresses were readily available and normally maintained in the regular course of business by NOAA and the Administrative Support Centers (ASC's). In view of the above conclusions, it is clear that Respondent NOAA violated the Statute by admittedly instructing the ASC's, which serviced NWS, that they were not permitted to release the names and addresses to the Union. NWS had specifically requested that this information be provided, but NOAA's instruction interfered with the fulfillment of NWS's statutory duty. Accordingly, Respondent NOAA's instruction violated section 7116(a)(1), (5), and (8) of the Statute. Department of the Interior Water and Power Resources Service, Grand Coulee Project Grand Coulee, Washington, D. C., 9 FLRA No. 46 (1982); Department of Health and Human Services, Washington, D. C. and Department of Health and Human Services, Region 7, Kansas City, Missouri, 16 FLRA No. 44 (1984); Headquarters, Department of the Army, Washington, D. C. and U. S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, 22 FLRA No. 71 (1986); and FHAFO, supra.

The next issue for consideration is whether NWS's failure to provide the names and home addresses constituted an independent violation of section 7114(b)(4). The first question is whether NWS "normally maintained" these names and home addresses and whether this information was "reasonably available" within the meaning of that section. It is clear that the information was normally maintained and [ v28 p6 ] available to NOAA's ASC's, which provided personnel services to NWS and other entities within the Department of Commerce. But since NOAA prohibited the ASC's from releasing the names and addresses, it cannot be said that this information was "reasonably available" to NWS. In view of this conclusion, I need not decide whether the information was "normally maintained" by NWS on the theory that the ASC's maintained this information as agents of NWS.

The General Counsel relied upon the fact that one of the NWS area managers somehow obtained a computer printout of the names and addresses for his area. However, this occurred several months before NOAA issued its instruction denying disclosure and does not indicate that NWS managers had access to such information during the subsequent time period relevant herein. Also, there is no evidence that this manager retained this information in the regular course of business or that any other managers obtained such information.

Finally, it is noted that NWS attempted to comply with the Union's request, but was thwarted by the instruction of its parent organization, NOAA. In view of the instruction and policy position taken by NOAA, NWS was afforded no discretion to disclose the information, even if it had been readily available. Thus NOAA's position rendered any noncompliance by NWS merely ministerial in nature. Accordingly, it is concluded that NWS did not violate sections 7114(b)(4) and 71l6(a)(1), (5), and (8), and the Complaint in Case No. 3-CA-60561 is dismissed. Department of the Interior Water and Power Resources Service, Grand Coulee Project, Grand Coulee, Washington, supra.

Accordingly, having found that Respondent NOAA violated sections 7116(a)(i), (5), and (8) of 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 National Oceanic and Atmospheric Administration shall:

1. Cease and desist from:

(a) Instructing the Administrative Support Centers not to furnish the names and home addresses of National Weather Service bargaining unit employees to the exclusive [ v28 p7 ] representative, National Weather Service Employees organization, affiliated with MEBA, AFL - CIO.

(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 purpose and policies of the Statute:

(a) Upon request of National Weather Service Employees Organization, affiliated with MEBA, AFL - CIO, permit the Administrative Support Centers and NWS to furnish the names ana home addresses of National Weather Service bargaining unit employees.

(b) Post at NOAA Headquarters and at all facilities at the National Weather Service where bargaining unit employees represented any the National Weather Service Employees Organization, affiliated with MEBA, AFL - CIO, are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt at such forms, they shall be signed by a responsible official of the National Oceanic and Atmospheric Administration, 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 National Weather Service Employees Organization, affiliated with MEBA, AFL - CIO, 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 III, Federal Labor Relations Authority, 1111 18tn Street, N. W., Suite 700, Washington, D. C., in writing, within 30 days of the date of this Order as to what steps have been taken to comply herewith.

IT IS FURTHER ORDERED that the Complaint against National Weather Service in Case No. 3-CA-60561 be, and hereby is, DISMISSED.

Randolph D. Mason
Administrative Law Judge

Dated:  June 24,  1987
        Washington, D. C.

[ v28 p8 ]

                      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 instruct the Administrative Support Centers not to furnish the names and home addresses of National Weather Service bargaining unit employees to the exclusive representative, National Weather Service Employees Organization, affiliated with MEBA, AFL - CIO.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their right's assured by the Federal Service Labor - Management Relations Statute.

WE WILL, upon request of National Weather Service Employees Organization, affiliated with MEBA, AFL - CIO, permit the Administrative Support Centers ana National Weather Service to furnish the Union with the names and home addresses of National Weather Service bargaining unit employees.

                          ________________________________
                                  (Agency or Activity)

Dated:_________________ By:______________________________