31:0694(42)CA - HHS, Public Health Service Health Resources and Services Administration, Oklahoma City Area Indian Health Service, W. W. Hastings Indian Hospital, Tahlequah, OK and NFFE Local 414 -- 1988 FLRAdec CA



[ v31 p694 ]
31:0694(42)CA
The decision of the Authority follows:


31 FLRA No. 42

DEPARTMENT OF HEALTH AND HUMAN
SERVICES, PUBLIC HEALTH SERVICE
HEALTH RESOURCES AND SERVICES
ADMINISTRATION, OKLAHOMA CITY AREA
INDIAN HEALTH SERVICE, W. W. HASTINGS
INDIAN HOSPITAL, TAHLEQUAH, OKLAHOMA

                   Respondent

         and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 414

                   Charging Party

Case No. 6-CA-70212

DECISION AND ORDER

The Administrative Law Judge issued the attached Decision in this case, finding that the Department of Health and Human Services, Public Health Service, Health Resources and services Administration, Oklahoma City Area Indian Health Service, W. W. Hastings Indian Hospital, Tahlequah, Oklahoma (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. The General Counsel filed an untimely opposition which has not been considered.

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 affirmed. Upon consideration of the Judge's Decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order. See Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986), enforced in part and remanded sub nom. U.S. [PAGE] Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86-2579 (8th Cir. Jan. 15, 1988), petitions for rehearing filed. See also U.S. Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, No. 87-1143 (7th Cir. Jan. 27, 1988), affirming Department of the Air Force, Scott Air Force Base, Illinois, 24 FLRA 226 (1986); Department of Health and Human Services, Social Security Administration v. FLRA, 833 F.2d 1129 (4th Cir. 1987), petition for rehearing filed Jan. 8, 1988, 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 Health and Human Services, Public Health Service, Health Resources and Services Administration, Oklahoma City Area, Indian Health Service, W. W. Hastings Indian Hospital, Tahlequah, Oklahoma shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Federation of Federal Employees, Local 414, 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 Federation of Federal Employees, Local 414 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 Federation of Federal [ v31 p2 ] Employees, Local 414 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 Area 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.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VI, 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., March 3, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v31 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 Federation of Federal Employees, Local 414, 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 Federation of Federal Employees, Local 414 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 VI, Federal Labor Relations Authority, whose address is: 525 Griffin Street, Suite 926, Dallas, TX 75202, and whose telephone number is: (214) 767-4996. [ v31 p4 ]

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, PUBLIC
HEALTH SERVICE, HEALTH
RESOURCES AND SERVICES
ADMINISTRATION, OKLAHOMA
CITY AREA, INDIAN HEALTH
SERVICE, W. W. HASTINGS
INDIAN HOSPITAL, TAHLEQUAH,
OKLAHOMA

              Respondent

    and

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
LOCAL 414

              Charging Party

Case No. 6-CA-70212

Richard Friedman, Esq.
    For the Respondent

Joseph T. Merli, 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. [PAGE]

Pursuant to a charge filed on March 9, 1987, by the National Federation of Federal Employees, Local 414, (hereinafter referred to as the Union) against Department of Health and Human Services, Public Health Service, Health Resources and Service Administration, Oklahoma City Area, Indian Health Service, W. W. Hastings Indian Hospital, Tahlequah, Oklahoma, (hereinafter referred to as the Respondent), the General Counsel of the FLRA, by the Regional Director of Region VI of the FLRA, issued a Complaint and Notice of Hearing on July 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 at the W. W. Hastings Indian Hospital, 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 paragraphs 8(c) and (e), 1 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 October 8, 1987. The Regional Director for Region VI issued an Order dated October 8, 1987 referring this motion to the Chief Administrative Law Judge. Respondent filed a cross-motion for Summary Judgment with a supporting memorandum on October 22, 1987. General Counsel of the FLRA filed a memorandum in support of his motion. 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 Cross - Motion, 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.

Accordingly, upon the basis of the above described record, I make the following findings of fact, conclusions and recommendations. [ v31 p2 ]

Findings of Fact

At all times material herein, Respondent has been an agency within the meaning of 5 USC 7103(a)(3).

At all times material herein, the Union has been a labor organization within the meaning of 5 USC 7103(a)(4).

At all times material herein, the following named persons occupied positions set opposite their respective names and have been, and are now, agents of Respondent acting on its behalf, and are supervisors and/or management officials within the meaning of 5 USC 7103(a)(10) and (11) .

Thomas C. Long     Regional Labor Relations Officer
                   Department of Health and Human
                   Services

Jody McCrary       Personnel Specialist
                   W. W. Hastings Hospital

At all times material herein, the Oklahoma Area Indian Health Service Council, National Federation of Federal Employees (NFFE), Independent, has represented a consolidated unit of employees of the Department of Health and Human Services, Health Resources and Services Administration, Oklahoma City Area, Indian Health Service, Oklahoma City, Oklahoma, which is described as follows:

INCLUDED: All nonsupervisory, nonprofessional and professional GS and WB employees, including professional temporary employees whose appointments exceed ninety (90) days, employed by the Indian Health Service Hospital, Clinton, OK; supply clerks, clerk-typists, clerk-stenographers, clerk-transcribers, ward clerks, registered nurses, licensed practical nurses, nursing assistants, cooks, food service workers, janitors, handymen, steam fitters and electricians, U.S. Public Health Service Indian Hospital, Lawton, OK; all nonsupervisory, nonprofessional GS employees of the Indian Health Center, Shawnee, OK; all professional and nonprofessional, nonsupervisory GS and WB employees of U.S. Public Health Service, W. W. Hastings Indian Hospital, Tahlequah, OK; all nonprofessional and professional GS and WB employees employed [ v31 p3 ] by the Pawnee Indian Health Service, Public Health Service, Indian Hospital Service Unit, Pawnee, OK, including temporary professional employees whose appointments exceed ninety (90) days; all professional and nonprofessional hospital employees at U.S. Public Health Service Indian Hospital, Talihina, OK;

EXCLUDED: Management officials, guards and confidential employees at the Indian Health Service Hospital, Clinton, OK; Commissioned Corps Personnel, guards, and temporary employees, U.S. Public Health Service (USPHS) Indian Hospital, Lawton, OK; professional employees and guards at the USPHS Indian Health Center, Shawnee, OK; management officials, supervisors, and employees described in 5 USC 7112(b)(2)(3)(4)(6) and (7), all temporary part time employees, commissioned officers, and guards at USPHS Hastings Hospital, Tahlequah, OK; guards, and nonprofessional temporary employees at Public Health Service, Pawnee Indian Hospital, Pawnee, OK; all supervisors and employees at the foregoing locations engaged in Federal personnel work in other than a purely clerical capacity as defined in 5 USC 7112(b)(3).

At all times material herein, the Union is, and has been, the representative of the Oklahoma City Area Indian Health Service Council, National Federation of Federal Employees (NFFE), Independent, at the W. W. Hastings Indian Hospital, Tahlequah, Oklahoma, for the purposes of collective bargaining, representation of professional and nonprofessional employees in the unit described above, administration of the collective bargaining agreement described below and dealing with Respondent and its agents, management and supervision at the W. W. Hastings Indian Hospital, Tahlequah, Oklahoma.

At all times material herein, Respondent and the Union have been parties to a master collective bargaining agreement effective August 20, 1985, covering employees in the unit described above.

On or about December 30, 1986, the Union, by Diane Jones, Secretary/Treasurer of the Union, submitted to Respondent a written request for the names and home addresses of all bargaining unit employees in the bargaining unit located at W. W. Hastings Indian Hospital, Tahlequah, Oklahoma, who were employed by Respondent. [ v31 p4 ]

On or about January 26, 1987, Respondent, by Thomas C. Long, submitted to the Union a written response to its request for the names and home addresses of bargaining unit employees which denied such request.

The information requested by the Union is normally maintained by Respondent in the regular course of business; reasonably available; necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and not guidance, advice, counsel or training provided for management officials or supervisors relating 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:

"(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 . . ." [ v31 p5 ]

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 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 for 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. [ v31 p6 ]

Accordingly I hereby grant the Motion For Summary Judgment made by the General Counsel of the FLRA, deny Respondent's Cross - Motion 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 Health and Human Services, Public Health Service, Health Resources and Services Administration, Oklahoma City Area, Indian Health Service, W. W. Hastings Indian Hospital, Tahlequah, Oklahoma shall:

1. Cease and desist from:

(a) Refusing to furnish the National Federation of Federal Employees, Local 414, the exclusive representative of its employees at the W. W. Hastings Indian Hospital, the names and home addresses of all employees in such bargaining unit.

(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:

(a) Furnish the National Federation of Federal Employees, Local 414, the exclusive representative of its employees at the W. W. Hastings Indian Hospital, the names and home addresses of all employees in the bargaining unit.

(b) Post at W. W. Hastings Indian Hospital, 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 [ v31 p7 ] 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 VI, Federal Labor Relations Authority, Federal Office Building, 525 Griffin, Street, Suite 926, Dallas, Texas, 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: November 30, 1987
       Washington, D.C.

[ v31 p8 ]

                     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 the National Federation of Federal Employees, Local 414, the exclusive representative of our employees at the W. W. Hastings Indian Hospital, the names and home addresses of all employees in such bargaining unit.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL furnish the National Federation of Federal Employees, Local 414, the exclusive representative of our employees at the W. W. Hastings Indian Hospital, the names and home addresses of all employees in the bargaining unit.

                             _______________________________
                                  (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 VI, whose address is: Federal Office Building, 525 Griffin Street, Suite 926 Dallas, TX 75202, and whose telephone number is: (214) 767-4996. [PAGE]

FOOTNOTES

Footnote 1 Paragraph 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; . . ." and paragraph 8(e) provides "Providing the data described in paragraph 8(a) above i