31:0740(48)CA - VA, Washington, DC and Dallas VA Medical Center, VA, Dallas, TX and AFGE Local 2437 -- 1988 FLRAdec CA



[ v31 p740 ]
31:0740(48)CA
The decision of the Authority follows:


31 FLRA No. 48

VETERANS ADMINISTRATION
WASHINGTON, D.C. AND DALLAS
VETERANS ADMINISTRATION
MEDICAL CENTER, VETERANS
ADMINISTRATION, DALLAS, TEXAS

                    Respondents

      and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2437

                    Charging Party

Case No. 6-CA-70060

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in this case. The Judge found that the Veterans Administration, Washington, D.C. (the Agency) had engaged in the unfair labor practices alleged in the complaint by directing the Respondent Dallas Veterans Administration Medical Center, Dallas, Texas (the Activity) not to provide the Charging Party with the names and home addresses of bargaining unit employees. The Judge found that the Respondent Activity had not committed the unfair labor practices alleged in the complaint 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 the Respondent Agency and recommended that the Agency be ordered to take appropriate remedial action. The Respondent Agency filed exceptions to the Judge's decision. The General Counsel filed exceptions to the Judge's remedy.

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. We find that no prejudicial error was committed and we affirm the rulings. On consideration of the Judge's decision, the exceptions, [PAGE] and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, except as noted below. 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 United States Department of the Navy and Philadelphia Naval Shipyard v. FLRA, No. 87-3005 (3d Cir. Mar. 2, 1988), enforcing Philadelphia Naval Shipyard, 24 FLRA 37 (1986); 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 hearing filed Jan. 8, 1988, affirming Department of Health and Human Services, Social Security Administration, 24 FLRA 583 (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).

With respect to the General Counsel's exception to the Judge's recommended Order, we will modify the Order to direct the Respondent Agency to cease and desist from directing its activities to refuse to furnish on request of the exclusive representative of bargaining units of its employees or designated agents of the exclusive representative for bargaining units of its employees the names and home addresses of employees in the units they represent.

ORDER

A. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, we order that the Veterans Administration, Washington, D.C., shall:

1. Cease and desist from:

(a) Directing the Dallas Veterans Administration Medical Center, Dallas, Texas, to refuse to furnish the American Federation of Government Employees, Local 2437, the designated agent of the exclusive representative for a [ v31 p2 ] bargaining unit of its employees, the names and home addresses of all employees in the unit.

(b) Directing other component activities of the Veterans Administration to refuse to furnish on request of the exclusive representative of bargaining units of its employees or designated agents of the exclusive representative for bargaining units of its employees the names and home addresses of employees in the units they represent.

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

(d) In any like or related manner, interfering with the local bargaining relationship between the American Federation of Government Employees, Local 2437 and the Dallas Veterans Administration Medical Center, Dallas, Texas.

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

(a) Direct the Dallas Veterans Administration Medical Center, Dallas, Texas, to furnish the American Federation of Government Employees, Local 2437, the designated agent of the exclusive representative for a bargaining unit of its employees, the names and home addresses of all employees in the unit.

(b) Post at its facility, Dallas Veterans Administration Medical Center, Dallas, Texas, 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 of the Veterans Administration, Washington, D.C., and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and places where notices to employees are customarily posted. 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. [ v31 p3 ]

B. The allegations in the complaint against the Dallas Veterans Administration Medical Center, Dallas, Texas, are dismissed.

Issued, Washington, D.C., March 9, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v31 p4 ]

                   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 Dallas Veterans Administration Medical Center, Dallas, Texas, to refuse to furnish, upon request of the American Federation of Government Employees, Local 2437, the designated agent of the exclusive representative for a bargaining unit of our employees, the names and home addresses of all employees in the unit.

WE WILL NOT direct other component activities of the Veterans Administration to refuse to furnish on request of the exclusive representative of bargaining units of our employees or the designated agents of the exclusive representative for bargaining units of our employees the names and home addresses of employees in the units they represent.

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

WE WILL NOT, in any like or related manner, interfere with the local bargaining relationship between the American Federation of Government Employees, Local 2437 and the Dallas Veterans Administration Medical Center, Dallas, Texas.

WE WILL direct the Dallas Veterans Administration Medical Center, Dallas, Texas, to furnish the American Federation of Government Employees, Local 2437 the names and home addresses of all the employees in the unit.

                             _______________________________
                                       (Agency)

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 of the Federal Labor Relations Authority, Region VI, whose address is: Federal Office Building, 525 Griffin Street, Suite 926, Dallas, Texas 75202, and whose telephone number is: (214) 767-4996. [ v31 p2 ]

VETERANS ADMINISTRATION
WASHINGTON, D.C. AND DALLAS
VETERANS ADMINISTRATION
MEDICAL CENTER, VETERANS
ADMINISTRATION, DALLAS
TEXAS

              Respondents

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2437

              Charging Party

Case No. 6-CA-70060

Michael E. Bornhouser, Esquire
         For the Respondents

James W. Mast, Esquire
         For the General Counsel, FLRA

Before:  GARVIN LEE OLIVER
         Administrative Law Judge

DECISION

I. Statement of the Case

This decision concerns an unfair labor practice case issued by the Regional Director, Region VI, Federal Labor Relations Authority, Dallas, Texas. The complaint alleged that the Dallas Veterans Administration Medical Center, Veterans Administration, Dallas, Texas (Respondent Activity) violated section 7116(a)(1), (5) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by refusing to provide the Union, the agent of the exclusive representative of units of the Respondent's employees, with the names and home addresses of those employees as requested [PAGE] by the Union. The complaint further alleged that the Veterans Administration, Washington, D.C. (Respondent Agency) violated section 7116(a)(1) and (5) of the Statute by unlawfully interfering with the bargaining relationship between the Respondent Activity and the Union by instructing the Respondent Activity not to furnish the Union with the requested information.

On or about October 6, 1987, Counsel for the General Counsel moved for summary judgment. The Regional Director transferred the motion to the Chief Administrative Law Judge, pursuant to section 2423.22(b)(1) of the Regulations, and it was assigned to the undersigned for disposition pursuant to section 2423.19(k) and section 2423.22(b)(3) of the Regulations. Respondent served its opposition on October 26, 1987. The General Counsel served a memorandum in support of summary judgment on October 28, 1987.

Based upon the entire record, I make the following findings of fact, conclusions of law, and recommendations.

II. Findings of Fact

The American Federation of Government Employees, AFL - CIO (AFGE) is the exclusive representative of nationwide units of certain of the Respondent's professional and non-professional employees. AFGE Local 2437, the Union in this case, is the representative of AFGE for the purpose of representing unit employees at the Dallas Veterans Administration Medical Center, Dallas, Texas. On November 14, 1986, the Union requested that the Respondent Activity provide it with the names and home addresses of the employees in these bargaining units at the Dallas VA Medical Center. On December 2, 1986, the Respondent Activity denied the request based on instructions from the Respondent Agency not to furnish the requested information to the Union. Subsequently on December 10, 1986, and continuing to date, Respondent Activity has failed and refused to furnish the Union with the requested information.

The names and home addresses of bargaining unit employees are normally maintained by Respondent in the regular course of business, are reasonably available, and do not constitute guidance, advice, counsel, or training for management officials or supervisors relating to collective bargaining. [ v31 p2 ]

III. Positions of the Parties

Respondents assert that the case is not appropriate for summary judgment as genuine issues of material fact exist. The Respondents essentially contend that disclosure of the home addresses of employees is prohibited by the Privacy Act; the information is not necessary for the Union to carry out its representational responsibilities under the Statute in view of the reasonable alternative means available to the Union for communicating with the employees; and the information is not data pertaining to negotiation of subjects within the scope of bargaining under the Statute. The Respondents also disagree with the Authority's Decision on Remand in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986) (Farmers Home), petition for review filed sub nom. U.S. Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86-2579 (8th Cir. Dec. 23, 1986), and asserts that the Authority erred in that decision. In summary, the Respondents maintain that the Union does not have a right to the information requested under section 7114(b)(4) of the Statute.

The General Counsel contends that the Authority's Decision on Remand in Farmers Home is controlling in this case and that the Respondent Activity was required, upon request, to supply the Union with the names and home addresses of its bargaining unit employees under section 7114(b)(4). The General Counsel points out that in refusing to provide the Union with the requested information the Activity was acting ministerially at the direction of the Agency and had no discretion in the matter. Nevertheless, the General Counsel argues that the Respondent Activity violated section 7116(a)(1), (5) and (8) of the Statute.

Further, the General Counsel contends that by instructing the Activity not to provide the Union with the information, the Respondent Agency interfered with the bargaining relationship between the Union and the Activity and thereby violated section 7116(a)(1) and (5) of the Statute. The General Counsel also contends that the Respondent Agency is responsible for the Respondent Activity's refusal to comply with section 7114(b)(4) and for the resulting violation of section 7116(a)(1), (5) and (8) of the Statute. [ v31 p3 ]

IV. Discussion and Conclusions

In Farmers Home the Authority held that "the statutory requirement concerning sufficiency of a request under section 7114(b)(4) is satisfied for requests such as that involved here (for names and home addresses) when a general written request for the information is made. A precise explication of the reasons for the request involved here is not necessary." The Authority also emphasized that names and home addresses of bargaining unit employees should be provided whether or not alternative means of communication are available. The Authority stated, "We will not review the adequacy of alternative methods of communication on a case-by-case bases." In view of the Authority's Farmers Home decision it is concluded that facts as to the purpose of the request and whether or not alternative means of communication are available between unit employees and their exclusive representative are not material.

There being no dispute as to any material fact, it is concluded that the General Counsel is entitled to summary judgment as a matter of law under the Authority's decision in Farmers Home. There the Authority gave full consideration to the many issues raised by requiring disclosure of names and home addresses of federal employees. The Authority analyzed the interplay of the Statute, the Privacy Act, and the Freedom of Information Act, and concluded that, "the release of names and home addresses to the Union is not prohibited by law, is necessary for the Union to fulfill its duties under the Statute, and meets the other requirements of section 7114(b)(4)." The Authority's decision in Farmers Home analyzed the two exceptions to the Privacy Act's bar to disclosure of personal information pertinent to the release of employees' names and home addresses: exception (b)(2), concerning the Freedom of Information Act, and exception (b)(3), relating to "routine use" of information. The Authority found that both exceptions to the Privacy Act's bar applied so as to authorize release of the information under the Privacy Act.

Consistent with the Authority's decision in Farmers Home, Respondent Activity was required to furnish the Union with the names and home addresses of the employees in the Bargaining units under section 7114(b)(4). [ v31 p4 ]

With regard to the culpability of the Activity and the Agency in failing and refusing to comply with section 7114(b)(4), it is concluded that the Activity was prevented by the Agency from fulfilling its obligation under the Statute. The Agency instructed the Activity not to furnish the requested information to the Union. Therefore, as the General Counsel points out, the Activity was acting ministerially and without discretion in the matter. In these circumstances, the Authority will not find that the Activity violated section 7116(a)(1), (5) and (8) of the Statute as alleged in the complaint. Veterans Administration, Washington, D.C., Veterans Administration Medical Center, Veterans Administration New Orleans Louisiana (VA, Washington, D.C.), 29 FLRA No. 6 (1987).

As to the Agency's conduct, by directing the Activity not to provide the Union with the requested information, the Respondent Agency improperly prevented the Activity from complying with section 7114(b)(4) of the Statute and improperly interfered with the local bargaining relationship between the Union and the Activity. It is concluded that the Agency was responsible for the failure and refusal to comply with section 7114(b)(4) and that it thereby violated section 7114(a)(1), (5) and (8) of the Statute. Moreover, by improperly interfering with the local bargaining relationship between the Union and the Activity, the Respondent further violated section 7116(a)(1) and (5). VA, Washington, D.C., supra.

Based on the foregoing findings and conclusions, the General Counsel's Motion for summary judgment is granted, and it is recommended that the Authority issue the following Order:

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 Veterans Administration, Washington, D.C. shall:

1. Cease and desist from:

(a) Directing the Dallas Veterans Administration Medical Center, Dallas, Texas, to refuse to furnish, upon request of the American Federation of Government Employees, [ v31 p5 ]

Local 2437, the designated agent of the exclusive representative of bargaining units of its employees, the names and home addresses of employees in the units.

(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.

(c) In any like or related manner, interfering with the local bargaining relationship between the American Federation of Government Employees, Local 2437, and the Dallas Veterans Administration Medical Center, Dallas, Texas.

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

(a) Direct the Dallas Veterans Administration Medical Center, Dallas, Texas to furnish the American Federation of Government Employees, Local 2437, the designated agent of the exclusive representative of bargaining units of its employees, the requested names and home addresses of employees in the units.

(b) Post at its facility, Dallas Veterans Administration Medical Center, Dallas Texas, 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 of the Veterans Administration, Washington, D.C., and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and places where notices to employees are customarily posted. 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 [ v31 p6 ] Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been take to comply herewith.

It is further ordered that the allegations in the complaint against the Dallas Veterans Administration Medical Center, Veterans Administration, Dallas, Texas, are dismissed.

GARVIN LEE OLIVER
Administrative Law Judge

Dated: November 25, 1987
       Washington, D.C.

[ v31 p7 ]

                    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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT direct the Dallas Veterans Administration Medical Center, Dallas, Texas to refuse to furnish, upon request of the American Federation of Government Employees, Local 2437, the designated agent Of the exclusive representative of bargaining units of our employees, the names and home addresses of employees in the units.

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

WE WILL NOT in any like or related manner, interfere with the local bargaining relationship between the American Federation of Government Employees, Local 2437 and the Dallas Veterans Administration Medical Center, Dallas, Texas.

WE WILL direct the Dallas Veterans Administration Medical Center, Dallas, Texas to furnish the American Federation of Government Employees, Local 2437, the requested names and home addresses of employees in the bargaining units.

                             _______________________________
                                   (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 it