29:0947(68)CA - DOD, Navy, Navy Exchange, Naval Administrative Comand, Orlando, FL and NFFE Local 1451 -- 1987 FLRAdec CA



[ v29 p947 ]
29:0947(68)CA
The decision of the Authority follows:


29 FLRA No. 68

DEPARTMENT OF DEFENSE
DEPARTMENT OF THE NAVY
NAVY EXCHANGE, NAVAL
ADMINISTRATIVE COMMAND
ORLANDO, FLORIDA

                   Respondent

         and

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
LOCAL 1451, INDEPENDENT

                   Charging Party

Case No. 4-CA-70163

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 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 and the General Counsel filed an opposition to the Respondent'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 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, the Navy Exchange, Naval Administrative Command, Orlando, Florida, shall: [PAGE]

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Federation of Federal Employees, Local 1451, Independent, the exclusive representative of an appropriate unit of its 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 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 Federation of Federal Employees, Local 1451, Independent, the exclusive representative of an appropriate unit of its employees, with the names and home addresses of all employees in the bargaining unit.

(b) Post at all facilities where bargaining unit employees represented by the National Federation of Federal Employees, Local 1451, Independent, 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 commanding Officer, Naval Administrative Command, Orlando, Florida, 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 [ v29 p2 ] writing, within 30 days from the date of this Order as to what steps have been taken to comply herewith.

Issued, Washington, D.C., October 20, 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 or fail to furnish, upon request of the National Federation of Federal Employees, Local 1451, Independent, the exclusive representative of an appropriate 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 furnish the National Federation of Federal Employees, Local 1451, Independent, the exclusive representative of an appropriate unit 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 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 DEFENSE
DEPARTMENT OF THE NAVY
NAVY EXCHANGE, NAVAL
  ADMINISTRATIVE COMMAND
ORLANDO, FLORIDA

              Respondent

         and

NATIONAL FEDERATION OF FEDERAL
  EMPLOYEES, LOCAL 1451, INDEPENDENT

              Charging Party

Case No. 4-CA-70163

Richard S. Jones, Esquire
Philip T. Roberts, Esquire
         For the General Counsel

Charlie A. Gaines, III
         For the Charging Party

Robert J. Gilson
         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 [PAGE] Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq. Pursuant to a charge filed by the National Federation of Federal Employees, Local 1451, Independent ("Union"), the General Counsel of the Federal Labor Relations Authority issued a Complaint and Notice of Hearing on February 23, 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. A violation is sought only against the Activity (Tr. 7). In a timely filed Answer, Respondent denied 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 Orlando, Florida, on April 16, 1987. All parties were given full opportunity to be heard, adduce evidence, and examine and cross-examine witnesses. After the hearing, Respondent abandoned certain contentions made at the hearing and conceded that Respondent's only remaining argument is that disclosure of the names and addresses was prohibited by the Privacy Act and that alternative means of communication with the employees were available to the Union (Order and memorandum of Telephone Conference dated may 5, 1987). 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 National Federation of Federal Employees, Local 1451, Independent ("Union") has been the exclusive representative of an appropriate unit of certain employees of the Navy Exchange, Naval Administrative Command, Orlando, Florida ("Respondent" or "Activity").

On November 24, 1986, the Union made a request to Respondent for the names and home addresses of all employees in the bargaining unit in order for it to prepare for contract negotiations. This information is reasonably available and normally maintained by Respondent in the regular course of business (Tr. 5). On November 25, 1986, Respondent denied the Union's request. [ v29 p2 ]

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 home addresses of the employees in the bargaining unit. The only remaining issues are whether the disclosure of the requested information is "prohibited by law" and "necessary" under 7114(b)(4).

The General Counsel argues that Respondent's refusal constitutes a violation of the above sections of the Statute 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 (FOIA). Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the information is required under the FOIA. Exemption (b)(6) of the FOIA provides that information contained in personnel files may be withheld if disclosure would constitute a "clearly unwarranted invasion of personal privacy." 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 the names and home addresses was permissible under exception (b)(2) of the Privacy Act. [ v29 p3 ]

Respondent contends that the Authority erred in FHAFO by not giving greater consideration to the fact that employees might be subjected to harassment or other potential abuse by the union. Respondent does not suggest that the current officers of the Union will misuse the employees' addresses, but states that there is no guarantee that the information will not be misused in the future. This argument is rejected. in weighing the privacy interests in FHAFO, the Authority clearly considered potential inconvenience and abuse to the employees. Moreover, the Authority's consideration of potential abuse was also demonstrated when it noted its holding was consistent with private sector law. In one case mentioned by the Authority, the addresses could be properly withheld from the union when there was evidence that their disclosure would put the employees in imminent danger. Id. at 11. Assuming arguendo that the Authority would be guided by the private sector law on this point, it is noted that no evidence of potential abuse was introduced in the instant case.

Respondent also disagrees with the Authority's conclusion in FHAFO that exception (b)(3) of the Privacy Act, the routine use exception, constitutes a separate legal basis for releasing the names and home addresses to the Union. The Authority, following an OPM notice defining routine uses of government personnel records (49 Fed, Reg. 36949, 36956), held that such a disclosure would constitute a "routine use" of information contained in the personnel records when the information was necessary for the Union to discharge its statutory obligations. Id.

Respondent contends that the employees' home addresses were only "incidental to the actual records" and that the routine use exception applies only to information for which the agency is specifically required, presumably by law or higher authority, to maintain an accurate record. It has been stipulated that the home addresses in issue are normally maintained in the ordinary course of business by the Respondent. Respondent's argument has no merit. In the first place, the Privacy Act protects "any item . . . of information" about an individual that is maintained, collected, used, or disseminated by an agency, and this information may be released under the routine use exception. 5 USC 552a(a) and (b)(3). The OPM notice provides that personnel records may include