29:1194(88)CA - HHS and HHS Region II and NTEU Chapter 218 -- 1987 FLRAdec CA



[ v29 p1194 ]
29:1194(88)CA
The decision of the Authority follows:


29 FLRA No. 88

UNITED STATES DEPARTMENT OF HEALTH
AND HUMAN SERVICES, AND UNITED
STATES DEPARTMENT OF HEALTH AND
HUMAN SERVICES, REGION II

              Respondents

      and

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 218

              Charging Party
Case No. 2-CA-70092

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in this case, finding that the United States Department of Health and Human Services, Region II (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 and recommended that the Respondent be ordered to take appropriate remedial action. The Judge also granted the General Counsel's motion to withdraw the complaint against the United States Department of Health and Human Services. 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 made at the hearing and find that no prejudicial error was committed. The rulings [PAGE] are hereby affirmed. upon consideration of the Judge's Decision, the exceptions, 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 United States Department of Health and Human Services, Region II shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Treasury Employees Union, Chapter 218, the exclusive representative of certain 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) Furnish the National Treasury Employees Union, Chapter 218, with the names and home addresses of all employees in the bargaining unit it represents.

(b) Post at its facilities where bargaining unit employees represented by the National Treasury Employees Union, Chapter 218, 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 Regional Director 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. [ v29 p2 ]

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, 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., October 28, 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 of the National Treasury Employees Union, Chapter 218, the exclusive representative of certain 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 Treasury Employees Union, Chapter 218 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 II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 3700, New York, New York 10278 and whose telephone number is: (212) 264-4934. [PAGE]

UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
AND UNITED STATES DEPARTMENT
OF HEALTH AND HUMAN SERVICES,
REGION II

              Respondents

    and

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 218

              Charging Party

case No. 2-CA-70092

Richard M. Friedman, Esq.
         For the Respondent

Cecil M. O'Connor, Esq.
         For the General Counsel

Before: WILLIAM NAIMARK
         Administrative Law Judge

DECISION

Statement of the Case

Based on a first amended charge filed by National Treasury Employees Union, Chapter 218 (Charging Party a Union) against United States Department of Health and Human Services (Respondent DHHS) and United States Department of Health and Human Services, Region II (Respondent Region) a Complaint and Notice of Hearing was issued by the Regional Director, Region II, Federal Labor Relations Authority against the said Respondents. The Complaint alleged, in substance, that Respondents failed and refused to provide the Union herein, upon request, with the home addresses of the bargaining unit employees represented by the Union as required by Section 7114(b)(4) of the Federal Service Labor - Management [PAGE] Relations Statute (Statute) -- all in violation of Section 7116(a)(1), (5) and (8) of the Statute.

Respondents' Amended Answer admitted that (a) Respondent Region, at all times material herein, has been a constituent entity within Respondent DHHS and an agent acting on its behalf; (b) on or about November 26, 1986, the Union, as the exclusive representative of a unit of Respondent Region's employees, requested that Respondent Region furnish it with the home addresses of bargaining unit employees; (c) on or about December 22, 1986, Respondent Region refused to provide the requested information, but denies that Respondent DHHS prevented Respondent Region from fulfilling its obligations under Section 7114(b)(4) of the Statute; (d) the names and home addresses of unit employees are maintained by Respondent DHHS but denied that such data is maintained by Respondent Region; (e) the names and home addresses of unit employees are reasonably available; (f) the requested information does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining. 1

Respondent's Amended Answer denies therein that the information requested is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining. it also denies the commission of any unfair labor practices.

Under date of April 23, 1987 General counsel moved for summary judgment and submitted a brief in support thereof. On the same date the Regional Director, Region II, issued an order transferring the aforesaid Motion to the Chief Administration Law Judge pursuant to Section 2423.22(b) of the Authority's Rules and Regulations. 2 Thereafter, on May 12, 1987 Respondents filed a cross-motion for summary judgment with a memorandum supporting its motion and opposing General Counsel's motion for summary judgment. General Counsel thereafter filed its opposition to the cross-motion on May 26, 1987, and Respondents then filed a supplementary memorandum in support of its position on July 30, 1987. [ v29 p2 ]

Under date of May 5, 1987, General Counsel filed an Amended Motion for Summary Judgment. it was moved therein that if the Motion for summary judgment be granted against Respondent Region, the Complaint be withdrawn as to Respondent DHHS. The Charging Party joined in said amended motion and Respondents took no position along with said amended motion General Counsel filed a memorandum in support thereof.

Positions of the Parties

Respondents make two principal contentions in opposing the General Counsel's motion for summary judgment and urging that its cross-motion for such relief be granted. it argues that the purpose for which the Union desires the data is beyond the scope of Section 7114(b)(4) of the Statute. Respondents contend that while the Union's entitled to relevant information, the requirement to furnish such information does not extend to data relevant to the Union's representational functions or its need to communicate with unit employees. Secondly, Respondents insist that the disclosure of the home addresses is prohibited by the Privacy Act since the purpose of the Union is outside the scope of routine use, and disclosure would not serve any public interest under FOIA Exemption 6. moreover, it is contended there is a real issue of fact re alternative means of communication with employees so as to challenge whether the information is "necessary" under 7114(b)(4).

General Counsel takes the position that no genuine issue of fact exist to preclude summary judgment in its behalf. It submits that the issues raised by Respondent have been addressed by the Authority in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986), petition for review filed sub. nom. U.S. Department of Agriculture over the Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA No. 86-2779 (8th Cir. Dec. 23, 1986). Thus, it is argued, the failure and refusal by Respondents to provide the names and addresses of unit employees is a failure to comply with section 7114(b)(4) and is violative of Section 7116(a)(1), (5) and (8) of the Statute.

Discussion and Conclusions

The principal arguments advanced by Respondents were considered by the Authority and disposed of in the Farmers Home case, supra. It was concluded therein that an exclusive representative responsibilities extend to all bargaining [ v29 p3 ] unit members. Further, that a union must be able to identify and communicate with those members if it is to adequately represent them. The Authority not only concluded that the information was necessary for the union to fulfill its functions, but it rejected any consideration of alternative means of communication by the union with the employees. The mere existence of alternative means is insufficient to justify a refusal to supply the names and addresses, and the data must be provided irrespective of whether or not other means of communication are available.

Moreover, in Farmers Home, supra, the Authority concluded that disclosure of names and home addresses would not constitute a clearly unwarranted invasion of personal property and does not fall within the (b)(6) exemption to the FOIA. As a result, its disclosure is required under FOIA and, under exception (b)(2) to the Privacy Act, its release is not prohibited by law.

In respect to the contention that the information is maintained by Respondent DHHS rather than Respondent Region, I conclude that such factor does not relieve the latter of its obligation to furnish the data to the Union herein. it is admitted by the Amended Answer that Respondent Region is a constituent entity within Respondent DHHS and acts as its agent. Moreover, it does not appear that Respondent Region would not have been able to obtain the information from Respondent DHHS.

Inasmuch as the union's request complies with Section 7114(b) of the Statute, and the express refusal to provide the names and home addresses of bargaining unit employees is patently unjustified, the motion for summary judgment against Respondent Region 3 is granted. The cross motion by Respondent for summary judgment is denied.

Accordingly, the undersigned concludes that Respondent Region has violated Section 7116(a)(1), (5) and (8) of the Statute, and it is recommended that the Authority issues the following: [ v29 p4 ]

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 United States Department of Health and Human Services, Region II, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Treasury Employees Union, Chapter 218, the exclusive representative of certain 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 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 National Treasury Employees Union, Chapter 218, the exclusive representative of certain of its employees, the names and home addresses of all employees in the bargaining unit it represents.

(b) Post at its facilities where bargaining unit employees represented by National Treasury Employees Union, Chapter 218, 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 a senior official and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, included 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. [ v29 p5 ]

(c) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, 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.

WILLIAM NAI MARK
Administrative Law Judge

Dated: August 31, 1987
       Washington, D.C.

[ v29 p6 ]

                   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 or fail to furnish, upon request of the National Treasury Employees Union, Chapter 218, the exclusive representative of certain 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 Treasury Employees Union, Chapter 218, the exclusive representative of certain of our employees the names and home addresses of all employees in the bargaining unit it represents.

                              _____________________________
                                    (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 II, whose address is: 26 Federal Plaza, Room 3700, New York, New York 10278, and whose telephone number is: (212) 264-4934. [PAGE]

FOOTNOTES

Footnote 1 These allegations as admitted in the Amended Answer are incorporated herein as