30:0081(15)CA - ### -- 1987 FLRAdec CA



[ v30 p81 ]
30:0081(15)CA
The decision of the Authority follows:


30 FLRA No. 15

DEPARTMENT OF THE NAVY
U.S. NAVAL AIR STATION
CECIL FIELD, FLORIDA

               Respondent

       and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2010

               Charging Party

Case No. 4-CA-70455

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in this case, finding that the Department of the Navy, U.S. Naval Air Station, Cecil Field, Florida (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 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, 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, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order. [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 Department of the Navy, U.S. Naval Air Station, Cecil Field, Florida shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, AFL - CIO, Local 2010, 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 American Federation of Government Employees, AFL - CIO, Local 2010 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 American Federation of Government Employees, AFL - CIO, Local 2010 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 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 [ v30 p2 ] 30 days from the date of this Order as to what steps have been taken to comply.

Issued, Washington, D.C.,November 23, 1987.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v30 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 American Federation of Government Employees, AFL - CIO, Local 2010, 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 American Federation of Government Employees, AFL - CIO, Local 2010 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 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 THE NAVY
U.S. NAVAL AIR STATION
CECIL FIELD, FLORIDA

              Respondent

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2010

               Charging Party

Case No. 4-CA-70455

Nona J. Jordan
    For the Respondent

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

Before: SAMUEL A. CHAITOVITZ
        Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq., 92 Stat. 1191 (hereinafter referred to as the Statute) and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, 2410 et seq.

Pursuant to a charge filed on April 14, 1987, and amended on June 11, 1987, by the American Federation of Government Employees, AFL - CIO, Local 2010, (hereinafter referred to as the Union), against Department of the Navy, U.S. Naval Air Station, Cecil Field, Florida, (hereinafter referred to as the Respondent), the General Counsel of the FLRA, by the Regional Director of FLRA Region IV of the FLRA, issued a [PAGE] Complaint and Notice of Hearing on June 29, 1987, alleging that Respondent violated Section 7116(a)(1), (5) and (8) of the Statute by failing and refusing to provide the Union with the names and home addresses of employees in a unit represented by the Union and as requested by the Union.

Respondent filed an answer admitting all the factual allegations of the Complaint, except for paragraph 8(C), 1 of the Complaint and denying it had violated the Statute.

Pursuant to Section 2423.22 of the FLRA's Rules and Regulations the General Counsel of the FLRA filed a "Motion for Summary Judgment" dated August 14, 1987, together with a supporting Memorandum. The Regional Director for Region IV issued an Order dated August 14, 1987 referring this motion to the Chief Administrative Law Judge. Respondent filed an opposition to the Motion on August 27, 1987. General Counsel of the FLRA filed a response to the opposition to the Motion for Summary Judgment. 2 This matter was assigned to the undersigned for disposition.

Having considered the Complaint, Answer, the Motion for Summary Judgment filed by the General Counsel of the FLRA, Respondent's opposition, the response to the opposition, the memoranda filed, and the FLRA's decision in Farmers Home Administration, Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986), hereinafter called the Farmers Home Case, I conclude a hearing in this matter is not necessary because there is no material fact in dispute. [ v30 p2 ]

Accordingly, upon the basis of the above described record, I make the following findings of fact, conclusions and recommendations.

Findings of Fact

At all times material herein, the Department of Defense has been, and is now, an agency within the meaning of Section 7103(a)(3) of the Statute.

At all times material herein, the Department of the Navy has been, and is now, a primary national subdivision of the Department of Defense within the meaning of Section 2421.4 of the Rules and Regulations of the Authority, as amended.

At all times material herein, the Naval Air Station, Cecil Field, Florida has been, and is now, an activity of the Department of the Defense within the meaning of Section 2421.4 of the Authority's Rules and Regulations, as amended.

At all times material herein, the Union has been, and is now, a labor organization within the meaning of Section 7103(a)(4) of the statute.

At all times material herein, the union has been, and is now, the exclusive representative of certain Non-Appropriated Fund employees of the Naval Air Station, Cecil Field, Florida, in a bargaining unit more fully set forth and described in a collective bargaining agreement between the American Federation of Government Employees, Local 1824 and the Naval Air Station Cecil Field, Florida, which is effective by its terms from on or about May 27, 1982, for at least a three-year period and which the parties are currently operating under.

At all times material herein, the union has been and is now the exclusive representative of certain Appropriated Fund employees of the Naval Air Station, Cecil Field, Florida in a bargaining unit more fully set forth and described in a collective bargaining agreement between the American Federation of Government Employees, Local 1824 and the Naval Air Station, Cecil Field, Florida, which is effective by its terms from on or about December 22, 1983, for at least a two year period and which the parties are currently operating under. [ v30 p3 ]

Pursuant to an Amendment of Certification (Case No. 4-AC-40021) dated December 18, 1984, the names of the American Federation of Government Employees, Local 1824 was changed to the American Federation of Government Employees, Local 2010.

At all times material herein, Respondent's Commanding Officer, Philip H. Jacobs, herein called Jacobs, has been and is now a supervisor and/or management official within the meaning of Section 7103(a)(10) and (11) of the Statute, and/or is an agent of Respondent.

On or about January 20, 1987, the Union, by its President, Winston E. Jernigan, made a request to Jacobs for, inter alia, the names and home address of the Appropriate and Non-Appropriated Fund bargaining unit employees.

On or about February 6, 1987, Respondent, by Jacobs, denied the Union's request for the home addresses of Appropriated Fund bargaining unit employees.

On or about February 23, 1987, Respondent, by Jacobs, denied the Union's request for the home addresses of Non-Appropriated Fund bargaining unit employees.

The information requested by the Union above is normally maintained by Respondent in the regular course of business; is reasonably available; and is not guidance, advice, counsel or training for management officials or supervisors, related to collective bargaining.

Discussion and Conclusions

The General Counsel of the FLRA, relying on the FLRA's decision in Farmers Home Case, supra, contends Respondent violated section 7116(a)(1), (5) and (8) of the Statute when it refused to supply the Union with the names and home addresses of all bargaining unit employees. Respondent essentially contends the requirements of section 7114(b)(4) of the Statute have not been met in that Respondent is prohibited by the Privacy Act, 5 U.S.C. 552a, from releasing the information; and the data is not necessary for the Union to carry out its representational duties.

Section 7114(b)(4) of the Statute provides in relevant part: [ v30 p4 ]

"(b) the duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation . . .

"(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data--

"(A) which is normally maintained by the agency in the regular course of business; (and)

"(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining . . ."

In Farmers Home case, supra, the FLRA held: (1) the disclosure of the names and addresses of bargaining unit employees to the exclusive representative was not prohibited by the Privacy Act; (2) an agency's possession of Official Personnel Files wherein can be found employees' addresses satisfies the requirements of section 7114(b)(4)(A) and (B) of the Statute that such data to be normally maintained by the agency and reasonably available; and (3) such data was necessary under section 7114(b)(4)(B) for unions to meet their statutory obligation to represent the interests of all employees in the unit without discrimination as required by section 7114(a)(1) of the Statute, notwithstanding the existence of alternative means by which a union might communicate to unit employees. In subsequent decisions the FLRA followed Farmers Home case, supra, in deciding numerous cases which involved substantially the same issues. Philadelphia Naval Shipyard, 24 FLRA 37 (1986); Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 24 FLRA 43 (1986); Social Security Administration, Northeastern Program Service Center, 24 FLRA 108 (1986); Department of the Navy, Portsmouth Naval Shipyard, 24 FLRA 209 (1986); Department of the Air Force, Scott Air Force Base, 24 FLRA 226 (1986); Department of Health and Human Services, Region V, 26 FLRA 460 (1987); Air Force District of Washington, 26 FLRA 542 (1987); 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 [ v30 p5 ] Base, California, 26 FLRA 691 (1987), Long Beach Naval Shipyard, Long Beach, California, 27 FLRA No. 83 (1987); and 831 Combat Support Group (TAC), George Air Force Base, California, 28 FLRA No. 16 (1987).

The arguments raised by Respondent herein are not significantly different from those considered by the FLRA in Farmers Home case, supra, and cases which followed thereafter, supra. In view of the FLRA's holdings in the above cases I conclude Respondent's defenses to its failure and refusal to provide the Union with the names and home addresses of unit employees as requested by the Union to be without merit. I further conclude Respondent was obligated under section 7114(b) of the Statute to furnish the Union with the names and addresses of unit employees and accordingly, I conclude Respondent's refusal to furnish such data violated section 7116(a)(1), (5) and (8) of the Statute.

Accordingly I hereby grant the Motion For Summary Judgment made by the General Counsel of the FLRA and recommend the Authority issue the following:

ORDER

Pursuant to Section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the Department of the Navy, Naval Air Station, Cecil Field, Florida, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, AFL - CIO, Local 2010, the exclusive representative 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 employees in the exercise of rights assured 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: [ v30 p6 ]

(a) Furnish the American Federation of Government Employees, AFL - CIO, Local 2010, the exclusive representative 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 the American Federation of Government Employees, AFL - CIO, Local 2010, 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 or equivalent official 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 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, Region IV, Federal Labor Relations Authority, 1371 Peachtree Street, N.E., Suite 736, Atlanta, GA 30367, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

SAMUEL A. CHAITOVITZ
Administrative Law Judge

Dated: September 16, 1987
       Washington, D.C.

[ v30 p7 ]

                           NOTICE TO EMPLOYEES
                          POSTED BY ORDER OF THE
                    FEDERAL LABOR RELATIONS AUTHORITY
                AN AGENCY OF THE UNITED STATES GOVERNMENT

We have been found by the Federal Labor Relations Authority to have committed an unfair labor practice. We have been ordered to post this Notice and abide by its provisions.

WE WILL NOT refuse to furnish, upon request of the American Federation of Federal Employees, Local 2010, 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 by the Federal Service Labor - Management Relations Statute.

WE WILL furnish the American Federation of Government Employees, AFL - CIO, Local 2010, the exclusive representative of a unit 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 IV, whose address is: 1371 Peachtree Street, N.E., Suite 736, Atlanta, GA 30367, and whose telephone number is: (404) 347-2324. [PAGE]

FOOTNOTES

Footnote 1 Chapter 8(C) of the Complaint alleges that the requested names and addresses were "Necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; . . ."

Footnote 2 General Counsel of the FLRA filed "Counsel for the General Counsel's Response to Respondent's Motion to Dismiss General Counsel's Motion for Summary Judgment." The FLRA's Rules and Regulations do not provide for the filing of a response to an opposition to a motion, without special permission. In the instant case, however, Respondent inartfully called its opposition to the