29:0294(34)CA - Lowry AFB, Denver, CO and AFGE Local 1974 -- 1987 FLRAdec CA



[ v29 p294 ]
29:0294(34)CA
The decision of the Authority follows:


29 FLRA No. 34

LOWRY AIR FORCE BASE
DENVER, COLORADO

                   Respondent

      and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
LOCAL 1974, AFL-CIO

                   Charging Party

Case No. 7-CA-70227

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 the Respondent be ordered to take appropriate remedial action. The Respondent 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 and find that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision, the exceptions to that Decision, and the entire record, we adopt the Judge's findings, conclusions, and recommended 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, Lowry Air Force Base, Denver, Colorado, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 1974, AFL - CIO, the exclusive representative of a bargaining unit [PAGE] 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 action in order to effectuate the purposes and policies of the Statute:

(a) Furnish the American Federation of Government Employees, Local 1974, 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 all its facilities where bargaining unit employees represented by American Federation of Government Employees, Local 1974, 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, Lowry Air Force Base, Denver, Colorado, 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 VII, 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 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 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 American Federation of Government Employees, Local 1974, AFL - CIO, the exclusive representative of a bargaining unit of our employees, the names and home addresses of all 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 furnish the American Federation of Government Employees, Local 1974, 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 of the Federal Labor Relations Authority, Region VII, whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202, and whose telephone number is: (303) 564-5224. [PAGE]

LOWRY AIR FORCE BASE,
DENVER, COLORADO

              Respondent

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1974, AFL-CIO

              Charging Party

Case No.: 7-CA-70227

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

Michael Farley, 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 VII, Federal Labor Relations Authority, Denver, Colorado against Lowry Air Force Base, Denver, Colorado (Respondent), based on a charge filed by the American Federation of Government Employees, Local 1974, AFL - CIO (Charging Party or Union). The complaint alleged, in substance, that Respondent 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, pursuant to section 7114(b)(4) of the Statute, with the names and home addresses of all bargaining unit employees represented by the Union.

Respondent filed an answer and an amended answer, and the parties subsequently agreed to a stipulation of facts. On or about May 13, 1987, Counsel for the General Counsel moved for summary judgment and submitted a supporting brief. The [PAGE] 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 response on June 5, 1987, and the General Counsel served an opposition to Respondent's response on June 19, 1987.

Based upon the pleadings, the stipulation of facts, and the briefs, I make the following findings of fact, conclusions of law, and recommendations.

Finding of Fact

1. At all times material herein, the Union is, and has been, a labor organization within the meaning of 5 U.S.C. 7103(a)(4).

2. At all times material herein, Respondent is, and has been, an agency within the meaning of 5 U.S.C. 7103(a)(3).

3. At all times material herein, the Union has been certified as the exclusive representative of all eligible, non-professional, civilian employees employed by Respondent, excluding temporary full-time, temporary part-time and casual employees, managerial, executive and supervisory employees, managerial trainees, employees engaged in personnel work in other than a purely clerical capacity, professional employees, guards, and watchmen, USAF School of Applied Aerospace Science, the fire protection Branch of 3415 Civil Engineer Squadron, and employees in other units holding exclusive recognition.

4. At all times material herein, the Respondent and the Union have been parties to a collective bargaining agreement covering the employees in the unit described in paragraph 3, above.

5. At all times material herein, Louis P. Rottman, herein Rottman, has occupied the position of Labor Relations Officer at Respondent's facility in Denver, Colorado, and has been, and is now, a management official or supervisor within the meaning of 5 U.S.C. 7103(a)(10) and/or (11), and an agent of Respondent.

6. On or about November 18, 1986, the Union, in writing, requested Respondent to provide the names and home addresses of all bargaining unit employees represented by the Union. [ v29 p2 ]

7. On or about January 12, 1987, and at all times since, Respondent, through Rottman, has failed and refused to furnish the Union with the names and home addresses of all bargaining unit employees represented by the Union.

8. The names and home addresses of bargaining unit employees do not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining.

9. In accordance with the requirements of the Federal Personnel Manual and the Office of Personnel Management, the Respondent physically maintains official personnel folders (hereafter "OPFs") on all of its employees in the Central Civilian Personnel Office at Lowry AFB, CO. These OPFs contain the names and home addresses of employees as of the time of their employment at the Activity.

10. The Respondent maintains a computerized database of information on its employees called the Personnel Data System, Civilian (hereafter "PDSC"), at Lowry Air Force Base, Colorado. The PDSC includes such information as the employee's name, social security number, bargaining unit status code, office symbol, job series and grade, job title, and other information regarding their employment status. The bargaining unit status code indicates whether a particular employee is in the bargaining unit represented by AFGE Local 1974 (the Union). Mailing addresses are not contained in this system of records.

11. The Respondent also maintains a computerized system of information on its civilian employees for payroll purposes at the Air Force Accounting and Finance Center in Denver, Colorado. This system can be remotely accessed by the Respondent through its Accounting and Finance Office at Lowry Air Force Base, Colorado. This system of records contains the employee's name, social security number, check mailing address and pay statement mailing address. There is no entry in this system of records which indicates the employee's bargaining unit status except for those bargaining unit members who have elected to participate in dues withholding.

12. There are four Unions at Lowry Air Force Base representing employees in seven separate bargaining units. There are a total of approximately 4477 civilian employees, excluding Non-Appropriated Fund (NAF) employees, at the Respondent's activity, 676 of which are in the bargaining unit represented by AFGE Local 1974 (the Union). [ v29 p3 ]

13. It is technically feasible to develop a computer program that will correlate the information contained in the Respondent's PDSC with the data contained in the Respondent's payroll records. A qualified computer programmer who is familiar with the Respondent's computer systems could develop such a program in eight hours or less. Personnel possessing the foregoing qualifications are presently employed by the Respondent. The Respondent has not previously developed such a program as the Respondent has no internal business requirement for this information in this form. Once the program is properly written, the requested information could be extracted from the system and a complete list of the names and home addresses of all the Respondent's employees in the bargaining unit represented by the Union could be printed in a matter of minutes.

14. As an alternate method of providing a list of names and home addresses of bargaining unit employees in accordance with the Union's request, the Respondent could run a computer printout of the names and home addresses of all its employees contained in its payroll data system and run a computer printout of the names of its employees in the bargaining unit represented by the Union contained in its PDSC. A clerical employee could then prepare a list of names and home addresses by hand deleting from the payroll list those employees of the Respondent who are not in the bargaining unit represented by the Union. This process would take approximately 11-12 man-hours to complete.

15. As a second alternate method for compiling a list of names and home addresses of bargaining unit employees represented by the Union, the Respondent could run a computer printout of the names of its employees in the bargaining unit represented by the Union contained in its PDSC. One or more clerical employees could then locate each of the 676 OPFs pertaining to the employees in the bargaining unit represented by the Union which are maintained by the Respondent, and extract the requested names and home addresses from such OPFs. This could be accomplished in one of two methods: (1) Annotating the bargaining unit status code printout by hand to include the home address for each employee taken from an appropriate source document in the OPF. (This process would take approximately 13-14 man-hours to complete.); (2) Removing and copying the appropriate document from the OPF, then deleting by hand any extraneous information from the document. (This process would take approximately 20-22 man-hours to complete). [ v29 p4 ]

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 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 names and 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 to review filed sub nom. U.S. Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86 779 (8th Cir. Dec. 23, 1986).

Respondent contends that the release of the home addresses is prohibited by law as it is precluded by the Privacy Act and does not properly fall under exception (b)(3) of the Privacy Act, 5 U.S.C. 552(b)(3), as a "routine use." Respondent argues that "routine" use only applies to personnel records, such as the official personnel folders of unit employees (see Finding 9), and does not apply to payroll records, (see Finding 11), which are not maintained in accordance with OPM guidance and are not covered by OPM's "routine use" exception.

In FHAFO, 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)." The Authority analyzed the two exceptions to the Privacy Act's bar to disclosure of personal information pertinent to the release of employees' names and home addresses: exception (b)(2) concerning the Freedom of [ v29 p5 ] Information Act, and exception (b)(3) relating to "routine use" of information. The Authority found that both exceptions to the Privacy Act's bar applied so as to authorize release of the information under the Privacy Act.

As the General Counsel points out, the Air Force's own system of records notice concerning civilian pay records describes labor organizations as a "routine user" of this information. 46 Fed. Reg. 6581 (1981). As such, civilian payroll records would be covered by the "routine use" exception, and release of the names and home addresses of unit employees contained within these records would not be prohibited by law.

Recently in Departments of the Army and Air Force, Army and Air Force Exchange Service Headquarters, Dallas, Texas and Army and Air Force Exchange Service, McClellan Air Force Base, California, 26 FLRA No. 85 (1987), application for enforcement filed sub nom. FLRA v. Departments of the Army and Air Force, Army and Air Force Exchange Service Headquarters, Dallas, Texas and Army and Air Force Exchange Service, McClellan Air Force Base, California, No. 87-1201 (D.C. Cir. May 4, 1987), the Authority addressed the situation where employees' home addresses were not in a system of records governed by the Office of Personnel Management's routine use statement which allows disclosure to unions. The Authority found that this distinction does not affect the disclosure of the employees' home addresses to a union under exception (b)(2) of the Privacy Act. Thus, regardless of the particular character of the system of records containing the employees' home addresses, disclosure may still be made to a union. Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, North Chicago, Illinois and American Federation of Government Employees, Local 2107, AFL - CIO, 27 FLRA No. 42, 27 FLRA 310 (1987).

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 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 interpretation of the statute is rejected. It is [ v29 p6 ] 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); Air Force District of Washington, 26 FLRA No. 64 (1987).

Similarly, Respondent contends that the data is not "reasonably available" since the agency must create the requested listing of home addresses of unit employees by either developing a computer program which could correlate the data in the Personnel Data System, Civilian with the data in the payroll system or by compiling the information through a burdensome clerical process. The development of a new computer program would require up to eight hours by a computer programmer, and the compilation of the list by clerical personnel would require from 11 to 22 man-hours to complete.

Respondent's argument that the data is not "reasonably available" or would be unduly burdensome to furnish 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 clerical or computer efforts to compile the information would place an undue burden or expense on the agency. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 28 FLRA No. 44 (1987); De