30:0201(24)CA - HHS and HHS, Region III and NTEU Chapter 232 -- 1987 FLRAdec CA



[ v30 p201 ]
30:0201(24)CA
The decision of the Authority follows:


30 FLRA No. 24

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

                   Respondents

         and

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 232

                   Charging Party

Case No. 2-CA-70090

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in this case, finding that the Respondent United States Health and Human Services, Region III 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. 1 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 pre-judicial error was committed. The rulings are hereby [PAGE] affirmed. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order, as modified.

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 III, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Treasury Employees Union, Chapter 232, 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 Treasury Employees Union Chapter 232, 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 Treasury Employees Union, Chapter 232, 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 Administrator, United States Department of Health and Human Services, Region III 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. [ v30 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 herewith.

Issued, Washington, D.C., November 27, 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 or fail to furnish, upon request of the National Treasury Employees Union, Chapter 232, 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 Treasury Employees Union, Chapter 232, 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 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 III

              Respondents

    and

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 232

              Charging Party

Case No. 2-CA-70090

Richard M. Friedman, Esq.
         For the Respondent

Cecile 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 232 (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 III (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- [PAGE] Management 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 25, 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 16, 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. 2

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 30, 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. 3 Thereafter, on May 7, 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 17, 1987, and Respondents then filed a supplementary memorandum in support of its position on July 30, 1987. [ v30 p2 ]

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's responsibilities extend to all bargaining 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. [ v30 p3 ]

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 4 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:

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 III, shall:

1. Cease and desist from: [ v