30:0587(73)CA - DOI and Bureau of Reclamation and Engineering and Research Center, Denver, CO and IFPTE Local 128 -- 1987 FLRAdec CA



[ v30 p587 ]
30:0587(73)CA
The decision of the Authority follows:


30 FLRA No. 73

DEPARTMENT OF THE INTERIOR

      and

BUREAU OF RECLAMATION

      and

ENGINEERING AND RESEARCH CENTER
DENVER, COLORADO

              Respondents

      and

INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, AFL-CIO
LOCAL 128

              Charging Party

Case No. 7-CA-70349

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in this case, finding that the Respondents Department of the Interior (Interior) and the Bureau of Reclamation had engaged in the unfair labor practices alleged in the complaint by directing the Respondent Engineering and Research Center, Denver, Colorado (Activity) not to furnish the Charging Party with the names and home addresses of bargaining unit employees. The Judge also found that the Respondent Activity had not committed the unfair labor practices alleged in the complaint by refusing to furnish the Charging Party with the names and home addresses of bargaining unit employees because the Respondent Activity's action was merely ministerial in nature.

The Judge granted the General Counsel's motion for summary judgment with respect to Respondents Interior and Bureau of Reclamation and recommended that they be ordered to take appropriate remedial action. Respondents Interior and [PAGE] Bureau of Reclamation filed exceptions to the Judge's Decision and the General Counsel filed an opposition to the 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 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, as modified concerning the officials of the Respondents to sign the notice to employees. See United States Department of Health and Human Services, Social Security Administration v. FLRA, Nos. 87-3513(L), 87-3514, 87-3515 (4th Cir. Nov. 25, 1987), affirming Department of Health and Human Services, Social Security Administration, 24 FLRA 543 (1986); Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, New York Region, 24 FLRA 583 (1986); Department of Health and Human Services, Social Security Administration, 24 FLRA 600 (1986).

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 Interior and the Bureau of Reclamation shall:

1. Cease and desist from:

(a) Directing the Engineering and Research Center, Denver, Colorado to refuse to furnish the International Federation of Professional and Technical Engineers, AFL - CIO, Local 128, the exclusive representative of certain of its employees, with 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 of the Engineering and Research Center, Denver, Colorado 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: [ v30 p2 ]

(a) Permit the Engineering and Research Center, Denver, Colorado to furnish the International Federation of Professional and Technical Engineers, AFL - CIO, Local 128 with the names and home addresses of all employees in the bargaining unit it represents.

(b) Post at facilities where bargaining unit employees of the Engineering and Research Center, Denver, Colorado represented by the International Federation of Professional and Technical Engineers, AFL - CIO, Local 128 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 officials of the Department of the Interior and the Bureau of Reclamation responsible for the policy preventing the Engineering and Research Center, Denver, Colorado from furnishing the International Federation of Professional and Technical Engineers, AFL - CIO, Local 128 with the names and home addresses of all employees in the bargaining unit it represents. The forms 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 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.

Further, the allegations of the complaint against the Engineering and Research Center, Denver, Colorado are dismissed.

Issued, Washington, D.C., December 24, 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 direct the Engineering and Research Center, Denver, Colorado to refuse to furnish the International Federation of Professional and Technical Engineers, AFL - CIO, Local 128, the exclusive representative of certain of our employees, with 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 employees of the Engineering and Research Center, Denver, Colorado in the exercise of their rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL permit the Engineering and Research Center, Denver, Colorado to furnish the International Federation of Professional and Technical Engineers, AFL - CIO, Local 128 with the names and home addresses of all employees in the bargaining unit it represents.

                               ____________________________
                                   (Agency or Activity)

Dated: ___________________ By: ____________________________
                                 (Signature)  (Title)

                               ____________________________
                                   (Agency or 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. [PAGE]

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VII, Federal Labor Relations Authority, whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose telephone number is: (303) 837-5224. [ v30 p 2 ]

DEPARTMENT OF THE INTERIOR

              and

BUREAU OF RECLAMATION

              and

ENGINEERING AND RESEARCH CENTER
DENVER, COLORADO

              Respondents

              and

INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, AFL-CIO
LOCAL 128

              Charging Party

Case No. 7-CA-70349

Hazel E. Hanley, Esquire
Joseph Swerdzewski, Esquire
         For the General Counsel

Gerald J. Rachelson
         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 an amended charge filed by the International Federation of Professional and Technical Engineers, AFL - CIO, Local 128 ("Union"), the General Counsel of the Federal Labor Relations Authority issued a complaint and Notice of Hearing on April 27, 1987, alleging that Respondent Engineering and Research Center (E & R Center or Activity) 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 Respondent Activity. Respondents Department of the Interior (Interior) and Bureau of Reclamation were alleged to have violated the above sections of the Statute by directing the E & R Center to refuse to provide the above information. In a timely filed Answer, Respondents admitted most of the material facts alleged in the Complaint, but denied any violation of the Statute.

On June 15, 1987, Counsel for the General Counsel filed a Motion for Summary Judgment together with a brief and memorandum of points and authorities. On that date the Regional Director transferred the motion to the Chief Administrative Law Judge for appropriate action. On July 24, 1987, Respondents opposed the motion for summary judgment and filed a cross motion for summary judgment and dismissal of the Complaint. On August 12, 1987, the General Counsel filed an opposition to Respondents' cross motion.

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.

After consideration of the entire record, including the pleadings and stipulations of the parties, I find that there is no issue of material fact warranting a hearing and make the following findings of fact, conclusions of law, and recommended order:

Findings of Fact

At all times material herein the International Federation of Professional and Technical Engineers, AFL - CIO, Local 128 (Union) has been the exclusive representative of an appropriate unit of employees of the Engineering and Research Center, Denver, Colorado (Activity) of the Department of the Interior, Bureau of Reclamation.

On or about February 17, 1987, the Union requested the Activity to furnish the names and home addresses of all bargaining unit employees represented by the Union. Such [ v30 p2 ] information is maintained by Respondents in the regular course of business and is reasonably available. The parties have stipulated, and I find, that "at all times material herein, Respondent interior and/or Respondent Bureau (of Reclamation) directed Respondent E & R center to refuse to provide the (above) data." On February 24, 1987, and at all times thereafter, the Activity, at the direction of Respondents Interior and Bureau of Reclamation, failed and refused to provide the data requested by the Union.

Conclusions of Law

The General Counsel contends that the Respondent Activity'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. It is also alleged that Respondents Interior and Bureau of Reclamation violated these sections by directing the Activity to refuse to provide this information. 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. The Activity, at the direction of its parent agencies, admittedly refused to comply with the Union's request for the home addresses of the employees in the bargaining unit. Respondents contend that the disclosure of the requested information is "prohibited by law" and is not the kind of "necessary" data which must be provided to the Union under section 7114(b)(4) of the Statute.

The General Counsel argues that Respondents' 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).

The Authority also held in FHAFO that the existence of alternative means of communication by the Union with the [ v30 p3 ] employees is irrelevant. Accordingly, there is no need to have a hearing to establish that the Union, for example, has access to the internal mail system, bulletin boards, and can distribute literature at employee entrances. However, if it were appropriate to consider such matters, I would find that they do not constitute adequate means of communication. Id.

Respondents disagree with certain aspects of the Authority's decision in FHAFO. However, I am bound by this decision. There is no dispute that the names and home addresses were readily available and normally maintained in the regular course of business by Respondents. In view of the FHAFO decision, release of the information was necessary and was not prohibited by the Privacy Act or Freedom of Information Act. The information should have been provided to the Union under section 7114(b)(4). It is clear that Respondents Interior and Bureau of Reclamation violated the Statute by admittedly instructing the Activity that it was not permitted to release the names and addresses to the Union. This instruction interfered with the fulfillment of the Activity's statutory duty. Accordingly, Respondents Interior and Bureau of Reclamation violated sections 7114(b)(4) and 7116(a)(1), (5), and (8) of the Statute. Department of the Interior Water and Power Resources Service, Grand Coulee Project Grand Coulee, Washington, 9 FLRA No. 46 (1982); Department of Health and Human Services, Washington, D. C. and Department of Health and Human Services, Region 7, Kansas City, Missouri, 16 FLRA No. 44 (1984); Headquarters, Department of the Army, Washington, D. C. and U. S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, 22 FLRA No. 71 (1986); and FHAFO, supra.

In view of the instruction and policy position taken by the respondent parent organizations, the Activity was afforded no discretion to disclose the information. Thus the position of the parent organizations rendered any noncompliance by the Activity merely ministerial in nature. Accordingly, it is concluded that the Engineering and Research Center, Denver, Colorado, did not violate sections 7114(b)(4) and 7116(a)(1), (5), and (8), and the Complaint is dismissed with respect to this respondent. Department of the Interior Water and Power Resources Service, Grand Coulee Project, Grand Coulee, Washington, supra.

Accordingly, the Motion for Summary Judgment filed by the General Counsel is granted with respect to Respondents Interior and Bureau of Reclamation. In view of the above, I conclude that the latter Respondents violated section 7116(a)(1), (5), and (8) of the Statute, and recommend that the Authority adopt the following: [ v30 p4 ]

Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of the Interior and the Bureau of Reclamation shall:

1. Cease and desist from:

(a) Refusing to permit the Engineering and Research Center, Denver, Colorado, to furnish, upon request by the International Federation of Professional and Technical Engineers, Local 128, AFL - CIO, the exclusive representative of a bargaining unit of certain employees, the names and home addresses of such employees.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purpose and policies of the Statute:

(a) Permit the Engineering and Research Center, Denver, CO, to furnish the International Federation of Professional and Technical Engineers, Local 128, AFL - CIO, the exclusive representative of a bargaining unit of certain employees, the names and home addresses of such employees.

(b) Post at all its facilities where bargaining unit employees represented by International Federation of Professional and Technical Engineers, Local 128, 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 Secretary of the Interior, or his delegate, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to members of the bargaining unit represented by the International Federation of Professional and Technical Engineers, AFL - CIO, Local 128, 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 of Region VII, Federal Labor Relations Authority, 535-16th Street, Suite 310, Denver, CO 80202, in writing, within 30 days of the date of this Order as to what steps have been taken to comply herewith. [ v30 p5 ]

IT IS FURTHER ORDERED, that the allegations in the Complaint against the Engineering and Research Center, Denver, Colorado, be, and hereby are, dismissed.

Randolph D. Mason
Administrative Law Judge

Dated:  October 19, 1987
        Washington, D. C.

[ v30 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 direct the Engineering and Research Center, Denver, Colorado, to refuse to furnish, upon request by the International Federation of Professional and Technical Engineers, Local 128, AFL - CIO, the exclusive representative of a bargaining unit of certain employees, the names and home addresses of such 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 permit the Engineering and Research Center, Denver, Colorado, to furnish the International Federation of Professional and Technical Engineers, Local 128, AFL - CIO, the names and home addresses of all of its bargaining unit employees.

                               ____________________________
                                   (Agency or 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 Noti