[ v31 p717 ]
31:0717(46)CA
The decision of the Authority follows:
31 FLRA No. 46 SUPERVISOR OF SHIPBUILDING CONVERSION AND REPAIR PORTSMOUTH, VIRGINIA Respondent and INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL 10, AFL-CIO Charging Party Case No. 34-CA-60737DECISION AND ORDER
The Administrative Law Judge issued the attached decision in this case, finding that the Supervisor of Shipbuilding Conversion and Repair, Portsmouth, Virginia (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 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 prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision 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. 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, [PAGE] 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 Supervisor of Shipbuilding Conversion and Repair, Portsmouth, Virginia shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the International Federation of Professional and Technical Engineers, Local 10, AFL - CIO, 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 International Federation of Professional and Technical Engineers, Local 10, AFL - CIO, 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 International Federation of Professional and Technical Engineers, Local 10, 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 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. [ v31 p2 ]
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, 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 4, 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 International Federation of Professional and Technical Engineers, Local 10, AFL - CIO, 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 International Federation of Professional and Technical Engineers, Local 10, AFL - CIO, 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 III, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500. [ v31 p4 ]
SUPERVISOR OF SHIPBUILDING CONVERSION AND REPAIR, PORTSMOUTH, VIRGINIA Respondent and INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL 10, AFL-CIO Charging Party Robert J. Gilson For the Respondent Ira Sandron, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge Case No. 34-CA-60737DECISION
Statement of the Case
This case arouse 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. (herein the Statute).
Upon an unfair labor practice charge having been filed by the captioned Charging Party (herein the Union) against the captioned Respondent, the General Counsel of the Labor Relations Authority (herein the Authority), by the Regional Director for Region III, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute by failing and refusing, upon request, to furnish the Union with the names and mailing addresses of bargaining unit employees.
A hearing on the Complaint was conducted in Norfolk, Virginia at which all parties were represented and afforded full opportunity to adduce evidence, call, examine and [PAGE] cross-examine witnesses and argue orally. A brief was filed by Respondent and has been carefully considered.
Upon the entire record in this case, witness demeanor and from my evaluation of the evidence, I make the following:
Findings of Fact
At all times material the Union has been the exclusive collective bargaining representative of approximately 400 employees located at about 10 locations in various Divisions distributed between North Carolina and Philadelphia, Pennsylvania. By letter to Respondent dated June 2, 1986 the Union requested the names and home addresses of all bargaining unit employees so the Union could "properly communicate with the employees." The Union and Respondent met on June 10 concerning the request and Respondent refused to supply the data, indicating case law on the matter was unclear at the present time.
The record reveals that Respondent's labor relations and civilian personnel services are, by agreement, provided by, the Norfolk Naval Shipyard. Pursuant to this agreement, Norfolk Naval Shipyard, as Respondent's agent, physically retains the Official Personnel Files of Respondent's employees, which files contain the home addresses of employees as provided by the employee. Respondent's employees, upon request, have access to these files. If Respondent wishes, it can obtain a list of names of only those employees in the bargaining unit from the Navy Civilian Personnel Data System. Further, Respondent maintains within its custody and control a "7-B" card index system which contains the names and home addresses of all employees, including bargaining unit employees. Since the "7-B" card index is arranged by Department and Division within Department, it was estimated that, if required, a list of unit employees' names and home addresses could be assembled in 12 hours by one clerical employee. 1
With regard to the Union's means of communicating with employees, at the hearing Respondent made an offer of proof, which was rejected, indicating: the Union is provided a directory of employees and their work locations; the Union [ v31 p2 ] has a newsletter which is distributed to all employees through Respondent's mail system; the Union is provided a meeting place on Respondent's property upon request; the Union has access to employees at their work sites; and the Union has bulletin boards available to it to communicate with employees.
Discussion and Conclusions
The General Counsel, relying on the Authority's decision in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986), contends Respondent violated section 7116(a)(1), (5) and (8) of the Statute by refusing and continuing to refuse to supply the Union with the home addresses of all bargaining unit employees. Respondent essentially contends the requirements of section 7114(b)(4) of the Statute 2 have not been met in that the data requested is not maintained by Respondent in a reasonably available form; Respondent is prohibited by law from releasing the information, referring to the application of the Freedom of Information Act and the Privacy Act, 5 U.S.C. 552; and the data is neither relevant nor necessary for the Union to carry out its representational duties. [ v31 p3 ]
In Farmers Home Administration Finance Office, supra# the Authority 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 Authority followed Farmers Home Administration 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); and Department 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).
The facts presented herein and the arguments raised by Respondent are not significantly different from those considered and rejected by the Authority in Farmers Home Administration and cases which followed thereafter, supra. Further, I specifically reject Respondent's contention that it does not maintain the data. The Official Personnel Files, while not technically maintained by Respondent, are available to it for the asking. More importantly, the information sought is contained on the "7-B" cards which are indisputably under Respondent's supervision, custody and control. With regard to the burden for Respondent to obtain the information from the "7-B" cards, this is not a valid defense to producing the data. See Defense Mapping Agency Aerospace Center; Department of Health and Human Services, supra; and 831 Combat Support Group (TAC), George Air Force Base California, 28 FLRA No. 16 (1987). In view of the Authority's holdings in the above cases I conclude Respondent's defenses to its failure and refusal to provide the Union with the names and addresses of unit employees as [ v31 p4 ] requested by the Union on June 2, 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 home addresses of unit employees and accordingly, I conclude Respondent's refusal to furnish such data on June 10, 1986 and at all times thereafter violated section 7116(a)(1), (5) and (8) of the Statute 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 Supervisor of Shipbuilding Conversion and Repair, Portsmouth, Virginia, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the International Federation of Professional and Technical Engineers, Local 10, AFL - CIO, 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:
(a) Furnish the International Federation of Professional and Technical Engineers, Local 10, AFL - CIO, 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 International Federation of Professional and Technical Engineers, Local 10, AFL - CIO, are located, copies of the attached Notice on forms to be furnished by the Federal [ v31 p5 ] 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 III, Federal Labor Relations Authority, 1111 - 16th Street, NW., P.O. Box 33758, Washington, D.C. 20033-0758 in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
SALAVATORE J. ARRIGO Administrative Law Judge Dated: August 14, 1987 Washington, D.C.[ v31 p6 ]
APPENDlX 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 to furnish, upon request of the International Federation of Professional and Technical Engineers, Local 10, AFL - CIO, the exclusive representative 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 International Federation of Professional and Technical Engineers, Local 10, AFL - CIO, the exclusive representative 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 III, whose address is: 1111 - 16th Street, NW., P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (213) 894-3605. [PAGE]
FOOTNOTES
Footnote 1 Respondent's Support Services office employs three clericals while Respondent employs approximately 60 clerical employees throughout the command
Footnote 2 Section 7114(b)(4) of the Statute provides in relevant part: "(b) the duty of an agency and an exclusive repre-sentative 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; "(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining . . ."