31:0769(51)CA - HHS, Public Health Service, Indian Health Service, Division of Health Systems Development, Tucson Program Area, Tucson, AZ and NFFE -- 1988 FLRAdec CA



[ v31 p769 ]
31:0769(51)CA
The decision of the Authority follows:


31 FLRA No. 51

DEPARTMENT OF HEALTH AND HUMAN
SERVICES, PUBLIC HEALTH SERVICE
INDIAN HEALTH SERVICE, DIVISION OF
HEALTH SYSTEMS DEVELOPMENT, TUCSON
PROGRAM AREA, TUCSON, ARIZONA

                    Respondent

      and

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES

                    Charging Party

Case No. 8-CA-70471

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in this case. The Judge found that the Department of Health and Human Services, Public Health Service, Indian Health Service, Division of Health Systems Development, Tucson Program Area, Tucson, Arizona (the Respondent) had engaged in the unfair labor practices alleged in the complaint by refusing to furnish the Charging Party with the names and homes addresses of bargaining unit employees. The Charging Party had requested the information on behalf of its constituent locals which represent the 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 did not file an opposition.

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. 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 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 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, Indian Health Service, Division of Health Systems Development, Tucson Program Area, Tucson, Arizona, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Federation of Federal Employees, on behalf of Local 520, the exclusive representative of certain of its employees, the names and home addresses of all employees in the bargaining units it represents.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured 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, on behalf of Local 520, the exclusive representative of certain of its employees, the names and home addresses of all employees in the bargaining units it represents. [ v31 p2 ]

(b) Post at all its facilities where bargaining unit employees represented by Local 520 of the National Federation of Federal Employees 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 of the Department of Health and Human services, Public Health Service, Indian Health Service, Division of Health Systems Development, Tucson Program Area, Tucson, Arizona, 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 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 VIII, 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 10, 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, on behalf of Local 520, the exclusive representative of certain of our employees, the names and home addresses of all employees in the bargaining units it represents.

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 furnish the National Federation of Federal Employees, on behalf of Local 520, the exclusive representative of certain of our employees, the names and home addresses of all the employees in the bargaining units 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 of the Federal Labor Relations Authority, Region VIII, whose address is: 350 S. Figueroa Street, Room 370, Los Angeles, CA 90071, and whose telephone number is: (213) 894-3805. [PAGE]

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, PUBLIC HEALTH
SERVICE, INDIAN HEALTH SERVICE
DIVISION OF HEALTH SYSTEMS
DEVELOPMENT, TUCSON PROGRAM
AREA, TUCSON, ARIZONA

              Respondent

    and

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES

              Charging Party

Case No. 8-CA-70471

Richard M. Friedman, Esq.
         For the Respondent

Jonathan S. Levine, Esq.
         For the General Counsel

Before: SALVATORE J. ARRIGO
         Administrative Law Judge

DECISION

Statement of the Case

This case arose under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. section 7101, et seq. (herein the Statute).

Upon an unfair labor practice charge having been filed by the captioned Charging Party against the captioned Respondent, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for Region VIII, issued a Complaint and Notice of Hearing alleging Respondent violated section 7116(a)(1), (5) and (8) of the Statute when Respondent failed and refused to furnish the National Federation of Federal Employees, (herein NFFE) on behalf of its constituents, Locals 520 and 1569, [PAGE] with the names and home addresses of bargaining unit employees which NFFE had requested. Respondent filed an Answer to the Complaint in which some of the allegations were admitted and others denied.

Subsequently, counsel for the General Counsel filed a Motion for Summary Judgment with supporting documents and the matter was transferred to the Office of Administrative Law Judges for ruling pursuant to section 2423 .22 (b) (1) of the Rules and Regulations of the Authority. Thereupon counsel for Respondent filed a Cross - Motion for Summary Judgment. Both counsel for the General Counsel and counsel for Respondent filed briefs in support of their respective positions. Based upon my review and evaluation of the entire record before me, I make the following:

Findings of Fact

1.(a) In 1968 Local 520 was recognized as the exclusive representative of the following bargaining unit:

INCLUDED: All non-professional employees of the U.S. Public Health Service, Indian Hospital, Sells, Arizona, and the Santa Rosa Health Clinic, Santa Rosa, Arizona.

EXCLUDED: Managers, supervisors, professional employees, confidential employees and employees engaged in personnel work other than in a purely clerical capacity.

(b) In 1969 Local 1569 was recognized as the exclusive representative of the following bargaining unit:

INCLUDED: Non-professional employees of the Division of Health Systems Development and Indian Health Service, San Xavier, Tucson, Arizona.

EXCLUDED: All professional employees, management officials, supervisors and employees described in 5 USC 7112(b)(2), (3), (4), (6) and (7).

(c) On March 18, 1971 Local 520 was certified as the exclusive representative in the following bargaining unit:

INCLUDED: All professional employees of the U.S. Public Health Service, Indian Hospital, Sells, Arizona, and the Santa Rosa Health Clinic, Santa Rosa, Arizona. [ v31 p2 ]

EXCLUDED: Managers, supervisors, guards, commissioned officers, nonprofessional employees and persons performing personnel work except in a purely clerical capacity.

2.(a) On August 8, 1984 by issuance of Amendments of Recognition and Certification, Local 1569 became the exclusive representative of the employees described in paragraphs 1(a) and (c) above.

(b) On October 22, 1986 by issuance of Amendments of Recognition and certification, Local 520 became the exclusive representative of the employees described in paragraphs 1(a) and (c) above.

(c) On May 5, 1987, by issuance of an Amendment of Recognition, Local 520 became the exclusive representative of the employees described in paragraph 1(b) above.

3. At all times material Respondent and Local 1569 and/or Local 520 have been parties to a collective-bargaining agreement covering the employees in the units described in paragraphs 1 and 2 above.

4. By virtue of the Amendments of Recognition/ Certifications described in paragraph 2 above, and the collective-bargaining agreement described in paragraph 3 above, Local 520 has been, and is now, the exclusive representative of the units of employees described in paragraph 1 above.

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

6. At all times material NFFE, Local 1569 and Local 520 (sometimes generally referred to as the Union) have been labor organizations within the meaning of 5 USC 7103(a)(4).

7. Local 1569 and Local 520 are constituents of NFFE.

8. At all times material Mary Campbell (herein Campbell) has occupied the position of Personnel Officer at Respondent's facility, and has been, and is now, a supervisor within the meaning of 5 USC 7103(a)(10), a management official within the meaning of 5 USC 7103(a)(11), and/or an agent of Respondent.

9.(a) By letters dated January 8, 1987, February 2 and May 5, 1987, and at all times since, NFFE, on behalf of [ v31 p3 ] Local 520 and/or 1569, has requested that Respondent furnish it with the names and home addresses of all employees in the bargaining units described in paragraph 1 above.

(b) The information requested in paragraph 9(a), above, is normally maintained by Respondent in the regular course of business.

(c) The information requested in 9(a), above, is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.

(d) The information requested in paragraph 9(a), above, does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining.

(e) Release of the information requested in paragraph 9(a), above, is not prohibited by law.

10. By letter of January 27, 1987 Respondent, through Campbell, has refused, and continues to refuse, to provide NFFE with the information it requested as described in paragraph 9(a) above.

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 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 since the Union has alternative means of communicating with bargaining unit employees. 1 [ v31 p4 ]

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 furni h 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 . . ."

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 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 Proqram 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 Washinqton, 26 FLRA 542 (1987); Departments [ v31 p5 ] of the Army and Air Force, Army and Air Force Exchange Service Headquarters, Dallas, Texas and Army Air Force Exchange Service, McClellan Air Force Base, California, 26 FLRA 691 (1987), 831 Combat Support Group (TAC), George Air Force Base, California, 28 FLRA No. 16 (1987); and 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 Administration, 24 FLRA 543 (1986).

The facts presented herein and the arguments raised by Respondent are not significantly different from those considered by the Authority in Farmers Home Administration and cases which followed thereafter, supra. 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 home addresses of unit employees as requested by NFFE 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 and grant counsel for the General Counsel's motion for summary judgment. Therefore I 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 Department of Health and Human Services, Public Health Service, Indian Health Service Division of Health Systems Development, Tucson Program Area, Tucson, Arizona, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Federation of Federal Employees, on behalf of Local 520, 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 Federal Service Labor - Management Relations Statute. [ v31 p6 ]

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, on behalf of Local 520 the exclusive representative of certain of its employees, the names and home addresses of all employees in the bargaining unit it represents.

(b) Post at all facilities where bargaining unit employees represented by Local 520 of the National Federation of Federal Employees 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 a senior official of the Indial Health Serivce Division of Health Systems Development, Tucson Program Area, Tucson, Arizona, 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 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 VIII, Federal Labor Relations Authority, 350 S. Figueroa Street, Room 370, Los Angeles, CA 90071 in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

SALVATORE J. ARRIGO
Administrative Law Judge

Dated: January 7, 1988
        Washington, D.C.

[ v31 p7 ]

                    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 National Federation of Federal Employees, on behalf of Local 520, 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 the rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL furnish the National Federation of Federal Employees, on behalf of Local 520, the exclusive representative of certain of our employees, the names and home addresses of all employees in the bargaining unit it represents.

                               ____________________________
                                   (Agency or Ac