31:1078(87)CA - HHS, Office of the General Counsel and AFGE Local 1923 -- 1988 FLRAdec CA



[ v31 p1078 ]
31:1078(87)CA
The decision of the Authority follows:


31 FLRA No. 87

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, OFFICE OF
THE GENERAL COUNSEL

                    Respondents

      and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1923

                    Charging Party

Case No. 3-CA-70568

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in this case, finding that the Department of Health and Human Services, Office of the General Counsel had engaged in the unfair labor practices alleged in the complaint by refusing to furnish, upon request of the American Federation of Government Employees, Local 1923 (the Union), 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.

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. See Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986), enforced in part and remanded subnom. 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 [PAGE] 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, 838 F.2d 229 (7th Cir. 1988), petition for rehearing filed Mar. 16, 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, Office of the General Counsel, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 1923, the exclusive representative of its employees, the names and home addresses of all bargaining unit employees employed at the Department of Health and Human Services, Office of the General Counsel.

(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 names and home addresses of all bargaining unit employees as requested by the American Federation of Government Employees, Local 1923.

(b) Post at the Department of Health and Human Services, Office of the General Counsel, 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 General Counsel of the Department of Health and Human Services, Office of the General Counsel, and shall [ v31 p2 ] 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 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 30,1988.

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 American Federation of Government Employees, Local 1923, 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 American Federation of Government Employees, Local 1923, 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 ]

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, OFFICE OF
THE GENERAL COUNSEL

              Respondent.

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1923

              Charging Party

Case No. 3-CA-70568

Patricia Eanet Dratch, Esquire
         For the General Counsel

Richard M. Friedman, Esquire
         For the Respondent

Before: ELI NASH, JR.
        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. section 7101, et seq. (hereinafter called the Statute) and the Rules and Regulations issued thereunder. Pursuant to a charge filed on July 27, 1987, by the American Federation of Government Employees, Local 1923 (hereinafter called the Union), a Complaint and Notice of Hearing was issued on September 30, 1987, by the Regional Director for Region III, Federal Labor Relations Authority, Washington, D.C. The Complaint alleges that the Department of Health and Human Services, Office of the General Counsel (hereinafter called Respondent) violated section 7116(a)(1), (5) and (8) of the Statute by failing and refusing to provide [PAGE] the Union the names and home addresses of bargaining unit employees.

On October 19, 1987 Respondent filed an Answer to Complaint. Thereafter on October 27, 1987, Respondent filed a Motion For Summary Judgment And, In The Alternative, Motion In Limine And Motion To Postpone Hearing. On October 30, 1987, the Chief Administrative Law Judge issued an Order indefinitely postponing the hearing and setting a date for filing of briefs in the matter. On November 4, 1987, the Regional Director issued an Order Referring Respondents Motion For Summary Judgment and, In the Alternative, Motion in Limine, and motion to Postpone and General Counsel's Opposition to Respondent's Motion for Summary Judgment and, In the Alternative, Motion in Limine, and Motion to Postpone to the Chief Administrative Law Judge. Subsequently, on November 5, 1987 the Chief Administrative Law Judge recognized that his Order of October 30, 1987 was premature. He, therefore, rescinded the Order and allowed the hearing to proceed as scheduled. Respondent submitted A Reply to General Counsel's Opposition to Respondent's Motion for Summary Judgment And, In the Alternative, motion in Limine, 1 and Motion to Postpone dated November 12, 1987.

A hearing was held before the undersigned on November 17, 1987. At the hearing, the General Counsel submitted that the matter was controlled by Farmer's Home Administration Finance Office, 23 FLRA No. 101 (1986) (hereinafter called FHAFO) and moved for summary judgment.

On December 7, 1987 Respondent filed a Notice of Filing Recommended Decision. The General Counsel did not file a brief in the matter.

Findings of Fact

The Union is the exclusive representative of a unit of Respondent's employees. By letter delivered to Respondent on June 26, 1987, the Union requested that Respondent furnish it with the names and home addresses of all bargaining unit employees employed by Respondent. The Union asserted that the information was necessary in order for it to directly and timely communicate with unit employees about (1) specific [ v31 p2 ] representational issues such as proposed changes in the conditions of employment, mid-term negotiations, health and safety conditions on the worksite and (2) so that the Union may solicit employee input on these matters for the purpose of structuring bargaining proposals and positions.

By letter dated July 8, 1987, Respondent refused to furnish the names and home mailing addresses to the Union, noting its position that "a blanket disclosure of employees' names and home addresses on request from a union would violate the Privacy Act and that the 'routine use' the Office of Personnel Management has published does not permit disclosure as ordered by FLRA." Also the Respondent asserted that "the Union's stated reasons for the home addresses does not outweigh the individuals' rights to privacy."

Conclusions

Respondent asserts only that "there are ample means of communication that the Union can use to communicate with its members." This position has been ruled on by the Authority in numerous cases since FHAFO, supra. The Authority has consistently held that this is no bar to producing the requested names and home addresses. Furthermore, at this writing, several courts have agreed with the Authority's interpretation. See United States Department of Health and Human Services, Social Security Administration v. FLRA, Nos. 87-3513(L). 87-3514, 873515 (4th Cir. November 25, 1987); American Federation of Government Employees, Local 1760 v. FLRA, 786 F.2d 344 (2nd Cir. 1986). Thus, it is clear that all existing case law is contrary to Respondent's position and its innovation regarding alternative means of communication is squandered.

Inasmuch as there is no dispute as to any other material fact, it is concluded that this matter can be handled through the summary judgment procedure as proposed by the parties. See Department of Energy, Western Area Power Administration, Golden, Colorado, 27 FLRA No. 90 (1987); Department of Health and Human Services, Region VII, Kansas City, Missouri, 27 FLRA No. 59 (1987); U.S. Food and Drug Administration, Region VII, Kansas City, Missouri, 27 FLRA No. 58 (1987).

Since the Union's request herein meets all the requirements established by section 7114(b)(4) of the Statute, Respondent's refusal to provide it with the names and home [ v31 p3 ] addresses in this matter violated section 7116(a)(1), (5) and (8) of the statute.

In light of the foregoing, the Respondent's Motion for Summary Judgment is denied and the General Counsel's Motion for Summary Judgment is granted. Accordingly, it is recommended that the Authority issue the following:

ORDER

Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Federal Service Labor - Management Relations Statute, 5 U.S.C. Section 7118, it is ordered that the Department of Health and Human Services, Office of the General Counsel, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 1923, the exclusive representative of its employees, the names and home addresses of all bargaining unit employees.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their 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 names and home addresses of all bargaining unit employees as requested by the American Federation of Government Employees, Local 1923.

(b) Post at the Department of Health and Human Services, Office of the General Counsel 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 responsible official of the Department of Health and Human Services, Office of the General Counsel, 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. [ v31 p4 ]

(c) Pursuant to Section 2423.30 Of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, 1111 - 18th Street, N.W., 7th Floor, 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.

ELI NASH, JR.
Administrative Law Judge

Dated: December 23, 1987
       Washington, D.C.

[ v31 p5 ]

                   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 or fail to furnish, upon request, to the American Federation of Government Employees, Local 1923, the exclusive representative of our employees, the names and home addresses of all bargaining unit employees.

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 names and home addresses of all bargaining unit employees as requested by the American Federation of Government Employees, Local 1923.

                               ____________________________
                                      (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