28:1087(141)CA - HHS, Region IV, Atlanta, GA and NTEU -- 1987 FLRAdec CA



[ v28 p1087 ]
28:1087(141)CA
The decision of the Authority follows:


28 FLRA No. 141

DEPARTMENT OF HEALTH AND HUMAN
SERVICES, REGION IV,
ATLANTA, GEORGIA

                    Respondent

             and

NATIONAL TREASURY EMPLOYEES UNION

                    Charging Party

Case No. 4-CA-70193

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 Judge granted the General Counsel's motion for summary judgment, denied the Respondent's cross-motion for summary judgment, and recommended that the Respondent be ordered to take appropriate remedial action. The Respondent filed exceptions to the Judge's decision and the General Counsel filed an opposition to the Respondent's exceptions.

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 [PAGE] Department of Health and Human Services, Region IV, Atlanta, Georgia, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Treasury Employees Union, the exclusive representative of certain of its employees, the names and home addresses of all bargaining unit employees located at its Region IV offices in Atlanta, Georgia.

(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 National Treasury Employees Union, the exclusive representative of a bargaining unit of certain of its employees, the names and home addresses of all bargaining unit employees located at its Region IV offices in Atlanta, Georgia.

(b) Post at all facilities in Region IV, Atlanta, Georgia, where bargaining unit employees represented by the National Treasury Employees Union 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 the Department of Health and Human Services, Region IV, Atlanta, Georgia, 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 IV, Federal Labor Relations Authority, in writing, within [ v28 p2 ] 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 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 National Treasury Employees Union, the exclusive representative of certain of our employees, the names and home addresses of all the bargaining unit employees it represents at our Region IV offices in Atlanta, Georgia.

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 National Treasury Employees Union, the exclusive representative of certain of our employees, the names and home addresses of all the bargaining unit employees it represents at our Region IV offices in Atlanta, Georgia.

                           ______________________________
                                       (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 HEALTH AND
HUMAN SERVICES, REGION IV,
ATLANTA, GEORGIA

             Respondent

   and

NATIONAL TREASURY EMPLOYEES
UNION

             Charging Party

Case No. 4-CA-70193

Richard M. Friedman, Esq.
        For the Respondent

Kenneth D. Battle, Esq.
        For the General Counsel, FLRA

Before:  ELI NASH, JR.
         Administrative Law Judge

DECISION

Statement of the Case

This decision involves an unfair labor practice complaint issued by the Regional Director, Region IV, Federal Labor Relations Authority, Atlanta, Georgia, against the Department of Health and Human Services, Region IV, Atlanta, Georgia (herein Respondent), based on a charge filed by the National Treasury Employees Union (herein called Charging Party or Union). The complaint alleged, in substance, that Respondent violated section 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 names and home addresses of all bargaining unit employees represented by it pursuant to section 7114(b)(4) of the Statute. [PAGE]

Respondent's answer and amended answer, admitted the jurisdictional allegations as to the Respondent, the Union, and the charge; that, on or about November 17, 1986, the Union, the exclusive representative of a unit of Respondent's employees requested the names and home addresses of bargaining unit employees represented by it; and that, on or about December 11, 1986, Respondent denied the Union's request for the information. Respondent's answer, as amended, also admitted that the requested names and home addresses are normally maintained by the Respondent 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. Accordingly, such matters are found to be established.

Respondent's 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 further denied any violation of the Statute.

On or about May 28, 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, after a briefing schedule was set, for disposition pursuant to section 2423.19(k) and section 2423.22(b)(3) of the Regulations. Respondent, thereafter on June 2, 1987, filed a cross motion for summary judgment and on June 10, 1987, filed a statement of Genuine Issues. On June 27, 1987 the General Counsel responded to Respondent's motion and statement set out above.

Positions of the Parties

Basically, Respondent asserts that a genuine issue exists as to the existence and effectiveness of alternative means of communication between the exclusive representative and bargaining unit employees. This, according to Respondent, is material to whether disclosure of the requested information would be a "clearly" unwarranted invasion of privacy under the Freedom of Information Act and to the issue of whether disclosure is necessary under section 7114(b)(4)(B) of the Statute.

The General Counsel maintains that the Authority has unambiguously rejected alternative means of communication as a legitimate basis for refusal to disclose names and home [ v28 p2 ] addresses once requested by the exclusive representative. In sum, the General Counsel submits that all the material facts except the "necessary" issue raised above have been established, and inasmuch as that defense has been rejected by the Authority no controversy exists, therefore, Respondent's defenses should be rejected as a matter of law. Consequently, the General Counsel requested its Motion of Summary Judgment be granted and Respondent's Cross Motion for Summary Judgment be denied.

Findings of Fact

1. The Union is the exclusive representative of an appropriate unit of certain of Respondents' employees in its Atlanta, Georgia Region.

2. By letter dated November 17, 1986, the Union requested that Respondent furnish it with the names and home addresses of all employees within the above-mentioned bargaining unit.

3. It is factually undisputed that the requested information is normally maintained by Respondent in the regular course of business, is reasonably available, and could not be found to constitute guidance, counsel or training provided for management officials or supervisors relating to collective bargaining.

4. On or about December 11, 1986, Respondent refused to furnish the Union the names and home addresses of the above noted bargaining unit employees.

Conclusions

In Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 101 (1986) the Authority resolved the issue raised by Respondent stating that the names and home addresses of bargaining unit employees should be released whether or not alternative means of communication were available. The Authority seemingly foreclosed further consideration of that issue stating, "We will not review the adequacy of alternative methods of communication on a case-by-case basis." (Emphasis supplied) Considering the Authority's peremptory statement on the matter, it is concluded that faced with the Authority's holding regarding alternative means of communication Respondent has not raised, as it suggests, a genuine issue in this matter. [ v28 p3 ]

Inasmuch as there is no dispute as to any other material fact, it is concluded that this matter can be handled through the summary judgment procedure as proposed by the General Counsel. See Department of Energy, Western Area Power Administration, Golden, Colorado, 27 FLRA No. 90 (1987); Department of Health and Human Services, Region VII, Kansas City, Missouri, 27 FLRA No. 59 (1987); U.S. Food and Drug A ministration, Region VII, Kansas City, Missouri, 27 FLRA No. 58 (1987).

Since the Union's request herein meets all the requirements established by section 7114(b)(4), of the Statute, Respondent's refusal to provide it with the names and home addresses in this matter violated section 7116(a)(1), (5) and (8) of the Statute.

In light of the foregoing, the Respondent's Cross - Motion for Summary Judgment is denied and the General Counsel's Motion for Summary Judgment is granted. Accordingly, it is recommended that the Authority issue the following:

ORDER

Pursuant to SS 2423.29 of the Authority's Rules and Regulations, 5 C.F.R. 2423.29, and 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders the Department of Health and Human Services, Region IV, Atlanta, Georgia shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Treasury Employees Union, the exclusive representative of its employees, 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 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 the names and home addresses of all bargaining unit employees as requested by the National Treasury Employees Union. [ v28 p4 ]

                           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 WILL NOT refuse to furnish, upon request of the National Treasury Employees Union, the exclusive representative of our employees, the names and home addresses of all bargaining unit employees represented by it in the Department of Health and Human Services, Region IV, Atlanta, Georgia, facility.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured 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 National Treasury Employees Union.

                              ______________________________
                                    (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 IV, whose address is: 1371 Peachtree Street, N.E., Suite 736, Atlanta, Georgia 30367, and