29:0202(17)CA - Air Force Reserves HQ, 910th Tactical Airlift Group, Vienna, OH and AFGE Local 1952 -- 1987 FLRAdec CA



[ v29 p202 ]
29:0202(17)CA
The decision of the Authority follows:


29 FLRA No. 17

U.S. AIR FORCE RESERVES
HEADQUARTERS, 910th TACTICAL
AIRLIFT GROUP, VIENNA, OHIO

                    Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1952, AFL-CIO

                    Charging Party

Case No. 5-CA-70130

DECISION AND ORDER

The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in the unfair labor practices alleged in the complaint and recommending that it be ordered to cease and desist from the unfair labor practices and take appropriate remedial action. Thereafter, the Respondent filed exceptions to the Judge's Decision and Order.

Pursuant to section 2423.29 of the Authority's Rules and Section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), we have reviewed the rulings and conclusions of the Judge and find that no prejudicial error was committed. The findings are hereby affirmed. Upon consideration of the Judge's Decision, the exceptions, and the entire record, we adopt the Judge's findings and conclusions, and recommended Order. 1 [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 U.S. Air Force Reserves, Headquarters, 910th Tactical Airlift Group, Vienna, Ohio, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request by the American Federation of Government Employees, Local 1952, AFL - CIO, the exclusive representative of a 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 Statute.

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

(a) Upon request by the American Federation of Government Employees, Local 1952, AFL - CIO, the exclusive representative of its employees, furnish it with the names and home addresses of employees in the bargaining unit it represents.

(b) Post at its facilities at the U.S. Air Force Reserves, Headquarters, 910th Tactical Airlift Group, Vienna, Ohio, 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 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.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region V, Federal Labor Relations Authority, Chicago, Illinois, in writing, within 30 days from the [ v29 p2 ] date of this Order as to what steps have been taken to comply.

Issued, Washington, D.C., September 29, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 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, Local 1952, AFL - CIO, the exclusive representative of a unit 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 upon request by the American Federation of Government Employees, Local 1952, AFL - CIO, the exclusive representative of our employees, furnish it with 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 V, Federal Labor Relations Authority, whose address is: 175 W. Jackson Blvd., Suite 1359-A, Chicago, IL 60604 and whose telephone number is: (312) 353-6306. [PAGE]

U. S. AIR FORCE RESERVES,
HEADQUARTERS, 910th TACTICAL AIRLIFT
GROUP, VIENNA, OHIO

             Respondent

         and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1952, AFL-CIO

             Charging Party

Case No. 5-CA-70130

Sandra J. Lebold, Esquire
         For the General Counsel

Donald L. Hoffman
         For the Charging Party

Lt. Colonel Lewis G. Brewer, Esquire
         For the Respondent

Before: RANDOLPH D. MASON
        Administrative Law Judge

DECISION

Statement of the Case

This proceeding was initiated under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq., and the Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq. Pursuant to a charge filed by the American Federation of Government Employees, Local 1952, AFL - CIO [PAGE] ("Union"), the General Counsel of the Federal Labor Relations Authority issued a Complaint and Notice of Hearing on March 5, 1987, alleging that Respondent violated sections 7114(b)(4) and 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the Union with the names and home addresses of all bargaining unit employees at the Activity. In a timely filed Answer, Respondent denies 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 930.213.

A hearing was held by the undersigned in Cleveland, Ohio, on April 8, 1987. The General Counsel and Respondent were represented by counsel and all parties were given full opportunity to be heard, adduce evidence, and examine and cross-examine witnesses. Respondent and the General Counsel submitted briefs which have been duly considered. After consideration of the entire record, including the pleadings, briefs, documentary evidence, and stipulations of the parties, I make the following findings of fact, conclusions of law, and recommended order:

FINDINGS OF FACT

At all times material hereto, the American Federation of Government Employees Local 1952, AFL - CIO, ("Union") has been the exclusive representative of an appropriate unit of about 237 employees assigned to U. S. Air Force Reserves, Headquarters, 910th Tactical Airlift Group, Vienna, Ohio ("Respondent" or "Activity").

In November 1985 Respondent and the Union executed a negotiated agreement. During the previous negotiations in April of 1985 the Union had proposed that the agreement contain a provision requiring management to furnish the names ana home addresses of bargaining unit employees. At that time the Authority had not issued a decision on this issue, and the parties were only aware of some conflicting recommended decisions by Administrative Law Judges.

Daring the negotiations, the Union agreed not to request the addresses until a final FLRA decision was issued in its favor (Tr. 21-22, 54-55). The minutes from the April - May negotiating sessions and the credible testimony of Union negotiators Hoffman and Harrison reflect that the parties agreed to reconsider the contract provision relating to supplying names to the union when the recommended decisions were appealed to the Authority and a relevant FLRA decision rendered in favor of the Union. If that event occurred, [ v29 p2 ] then the Union clearly could request the home addresses and negotiate on the frequency and method of obtaining this information.

in this regard, the minutes for the April 25, 1985 session reflect a tentative agreement that management would supply only the names, grades, and office symbols on a quarterly basis, but that this paragraph would be reconsidered "if appeal decision is for the union" (Resp. Exh. 3, 4). The Union subsequently changed its position and demanded the home addresses. On May 22, 1985, the Union finally agreed to be furnished with a list of only the names, grades, and office symbols, and management agreed to "assist union officials in getting addresses from bargaining unit employees by producing a form letter." The minutes also reflect that management further agreed that "if the appeals are not favorable towards management, this provision can be renegotiated at Union request." Again, renegotiation was anticipated by the parties after the Authority had taken its position on this issue. Although one member of the management team, Joseph Duran, personally wanted to see appellate court decisions "if necessary" before Respondent should release the home addresses, the Union did not agree to table this issue beyond the date of a conclusive decision by the Authority.

On October 31, 1986, the Authority issued its landmark decision clearly favoring the Union on the home address issue in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986) ("FHAFO"). By letter dated November 12, 1986, the Union President, Donald Hoffman, referred to the Authority's decision in FHAFO and requested that the names and home addresses of all bargaining unit employees be furnished by Respondent to the Union. Soon thereafter, Hoffman met with Kenneth Moore, Respondent's Civilian Personnel Officer, who agreed that the Union was entitled to the addresses under the FHAFO decision, but that he needed guidance on how to provide the information. Hoffman's request was reiterated by letter dated November 24, 1986, which stated, in part: "In accordance with the negotiating session minutes of the last contract:, this was an item that was tabled until the courts decided on its (sic) decision." He was referring, albeit inaccurately, to the Authority's decision in FHAFO (Tr . 22).

On January 27, 1987, the Union and management held a negotiating session at which this request was discussed. The Union stated it was entitled to a list of the names and home addresses under FHAFO and wished to negotiate the frequency that the agency would provide the list. The Union said it needed this information to administer the negotiated [ v29 p3 ] agreement, which requires the Union to disseminate various types of information to the employees. Management admitted that the names and home addresses could be provided in a few days. Management also admitted that the Union was entitled to the information under FHAFO, but notwithstanding that decision stated that it as still concerned about potential liability to employees due to a possible violation of the Privacy Act. Although management mentioned that FHAFO could be appealed at a later date, it never alleged prior to the hearing that the Union had waived its right to the names and addresses.

The information was normally maintained by, and reasonably available to Respondent. First, Respondent maintains each employee's current home address in the employee's personnel folder and on Form 971 maintained by the employee's supervisor. The home addresses are also located in Respondent's central civilian Personnel Office at Pittsburgh International Airport. Also, each employee's leave and earnings statement, which is maintained by the pay section at the facility and accessible to the employee's supervisor, contains the employee's home address. Second, each employee's Form 50 indicates whether the employee is a member of the bargaining unit, and Respondent's computer system provides a list of all bargaining unit employees with their office symbol and grade. Under the negotiated agreement, management presently provides the Union with a list of the names of bargaining unit employees every 90 days. Thus the information requested by the Union would presently require a two step process: first, management would identify the employees who are in the bargaining unit; and second, it would ascertain their home addresses. There is no evidence that this would be a burdensome process for management.

Notwithstanding the Union's timely request for the home addresses of the bargaining unit employees, Respondent has continuously failed and refused to furnish this information to the Union.

CONCLUSIONS OF LAW

The primary issue for consideration is whether Respondent's refusal to furnish the Union 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 [ v29 p4 ] 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 argues that Respondent's refusal constitutes a violation of section 7114(b)(4) and 7116(a)(1), (5), and (8) in view of 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).

Respondent first argues that the release of the home addresses is prohibited by the Privacy Act and Freedom of information Act. In FHAFO, the Authority analyzed these statutes and balanced the privacy interests of federal employees against the public interest in disclosure and concluded that the privacy interests were not particularly compelling. The Authority concluded that the release of such information was not prohibited by law within the meaning of section 7114(b)(4) of the Statute. Accordingly, this argument is rejected.

Respondent also contends that the Union failed to state any reason for needing the home addresses, and that such information was not "necessary" within the meaning of section 7114(b)(4). These arguments are also rejected. When requesting names and home addresses, no reasons need be given by the Union in view of the nature of the request. FHAFO, supra. Respondent argues that the addresses were not "necessary" because alternative means of communication with unit members were available to the Union. Respondent was not permitted to submit proof on this issue because the Authority will not review the adequacy of alternative means of communication on a case-by-case basis. Id. In any event, I find that the alternative means alleged by Respondent in the instant case were inadequate.

Respondent also contends that the names and home addresses were neither "normally maintained by the agency in the regular course of business" nor "reasonably available" within the meaning of section 7114(b)(4). First, Respondent [ v29 p5 ] argues that since it does not maintain, in the form of a single list, the names and home addresses of all bargaining unit employees, that the information is not "normally maintained by the agency." Thus Respondent contends that unless data requested under section 7114(b)(4) is kept by the agency in the format requested without the necessity of further compilation, it is not "normally maintained by the agency". This strained and restrictive interpretation of the statute is rejected. It is sufficient if portions of the requested data are maintained in different places, requiring the agency to make a compilation. See, e.g., Department of Health and Human Services, Social Security Administration, 24 FLRA No. 60 (1986).

Similarly, Respondent contends that the data is not "reasonably available" since the agency must create the requested listing of home addresses of unit employees "through the burdensome clerical process of reconciling two separate listings." This argument is also rejected. The Authority has held that data is reasonably available despite the fact that Respondent could compile the information only by having a computer programmer write a new computer program or by having clerical personnel reconcile two separate lists. Air Force District of Washington, 26 FLRA No. 64 (1987). The Authority has rejected arguments that such efforts to compile the information would place an undue burden or expense on the agency. Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 19 FLRA No. 85 (1985); Department of the Air Force, Scott Air Force Base, 24 FLRA No. 28 (1986).

In addition, the record contains no evidence that the required compilation would constitute an undue burden on the Respondent. In fact, Respondent admitted that the information could be produced in a few days. Under these circumstances, it is not necessary to discuss the General Counsel's contention that Respondent is precluded from raising the burdensome defense unless it was raised at the time of the Union's request for information.

Finally, Respondent argues that during the contract negotiations in May of 1985 the Union waived its right to obtain the names and home addresses of bargaining unit employees until the issue is finally decided by the "courts." The Authority has held that a waiver will be found only if it can be shown that the exclusive representative clearly and unmistakably waived its right. Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). Assuming arguendo that a waiver occurred in May of 1985, it is clear that the Union only waived its right to the home addresses in question for the period prior [ v29 p6 ] to October 31, 1986, the date of the Authority's landmark decision in FHAFO, supra. I have based this finding upon the forthright and credible testimony of Union negotiators Hoffman and Harrison, the language of the minutest and the subsequent actions of the parties, all of which are consistent with this interpretation. Since no waiver existed after October 31, 1986, the Union's subsequent request for information cannot be denied by Respondent on that ground.

Accordingly, Respondent violated sections 7114(b)(4) and 7116(a)(1), (5), and (8) of the Statute, and 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 U. S. Air Force Reserves, Headquarters, 910th Tactical Airlift Group, Vienna, Ohio, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request by the American Federation of Government Employees, Local 1952, AFL - CIO, the exclusive representative of an appropriate unit of appropriated fund 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 purpose and policies of the Statute:

(a) Furnish the American Federation of Government Employees, Local 1952, AFL - CIO, the exclusive representative of its employees, with the names and home addresses of all bargaining unit employees.

(b) Post at all its facilities where bargaining unit employees represented by American Federation of Government Employees, Local 1952, 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 Commander of the Headquarters, 910th Tactical Airlift Group, Vienna, Ohio, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin [ v29 p7 ] boards and other places where notices to members of the bargaining unit represented by the American Federation of Government Employees Local 1952, 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 V, Federal Labor Relations Authority, Suite A-1359, 175 W. Jackson Blvd., Chicago, IL 60604, in writing, within 30 days of the date of this Order as to what steps have been taken to comply herewith.

Randolph D. Mason
Administrative Law Judge

Dated: July 20, 1987
       Washington, D. C.

[ v29 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 refuse to furnish, upon request by the American Federation of Government Employees, Local 1952, AFL - CIO, the agent for the exclusive representative of bargaining unit employees, the names and home addresses of the bargaining unit employees.

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, upon request of American Federation of Government Employees, Local 1952, AFL - CIO, furnish the names and home addresses of all of the bargaining unit employees of the U. S. Air Force Reserves, Headquarters, 910th Tactical Airlift Group, Vienna, Ohio.

                             ______________________________
                                  (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 its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority, Region V, whose address is: 175 W. Jackson Blvd., Suite 1359-A, Chicago, IL 60604 and whose telephone number is: (312) 353-6306. [PAGE]

FOOTNOTES

Footnote 1 In addition to arguments often raised in