32:0012(2)CA - - Agriculture and the Forest Service and NFFE, Forest Service Council - - 1988 FLRAdec CA - - v32 p12



[ v32 p12 ]
32:0012(2)CA
The decision of the Authority follows:


32 FLRA No. 2

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF AGRICULTURE
AND THE FOREST SERVICE
Respondents

and 

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, FOREST SERVICE COUNCIL
Charging Party

Case No. 3-CA-70604

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority under section 2429.1(a) of our Regulations, based on the parties' stipulation of facts. The complaint alleges that the U.S. Department of Agriculture (Agency) violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by interfering with the bargaining relationship between the Forest Service (Activity) and the National Federation of Federal Employees, Forest Service Council (the Union), when the Agency directed the Activity not to furnish the Union with the names and home addresses of bargaining unit employees. The complaint further alleges that the Activity's conduct in refusing to supply the names and home addresses constituted a failure to comply with section 7114(b)(4) and a refusal to negotiate in good faith with the Union in violation of section 7116(a)(1), (5), and (8). The Respondents and the General Counsel filed briefs.

For the reasons stated below, we find that the Agency violated section 7116(a)(1), (5), and (8) by directing the Activity not to furnish the names and home addresses as requested. We further find that the Activity did not violate the Statute because its action was merely ministerial in nature.

II. Facts

The Union is the exclusive representative of a consolidated unit of professional and nonprofessional employees of the Activity. By letters dated July 14, 1987, the Union requested that the Respondents furnish it with the names and home addresses of all the bargaining unit employees. By letter dated July 24, 1987, the Agency denied the Union's request. The Agency's denial was based upon its view that release of names and home addresses is exempt from disclosure under the Privacy Act and, more particularly, 5 U.S.C. º 552b(c)(6). By letter dated July 28, 1987, the Activity informed the Union that "[w]e have been advised by the [Agency] that providing home addresses is prohibited by the Privacy Act as an undue invasion of privacy. Based on this interpretation, the [Agency] has directed us not to release home addresses."

The parties stipulated that the names and home addresses are normally maintained by Respondent Activity in the regular course of business, are reasonably available, and do not constitute guidance, counsel or training provided for management officials or supervisors relating to collective bargaining.

III. Positions of the Parties

The Respondents disagree with the Authority's decision on remand in Farmers Home Administration Finance Office, St.Louis, Missouri, 23 FLRA 788 (1986) (Farmers Home), enforced in part and remanded sub nom. U.S. Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, 836 F.2d 1139 (8th Cir. 1988), in which the Authority concluded that section 7114(b)(4) of the Statute entitled the exclusive representative to the names and home addresses of employees in the bargaining unit.

The Agency also contends that it had no obligation under section 7114(b)(4) of the Statute to provide the names and home addresses of employees to the Union because the bargaining relationship is between the Activity and the Union, not between the Union and the Agency. However, the Agency does admit that it directed the Activity to deny any requests from the Union for the names and home addresses of bargaining unit employees. In the Agency's view, the release of the information, without prior consent of the employees, constitutes a violation of the Privacy Act.

The Agency further contends there is no demonstrated need for home addresses of employees and adequate alternative means of communication exist to contact bargaining unit employees in order to obtain their home addresses.

The General Counsel argues that the Authority's decision on remand in Farmers Home, in which the Authority concluded that section 7114(b)(4) of the Statute entitled the exclusive representative to the names and home addresses of employees in the bargaining unit, and the subsequent cases relying on Farmers Home, are dispositive of the issues in this case. More particularly, as to the issues raised in the complaint here, the General Counsel argues that the Agency violated section 7116(a)(1), (5), and (8) of the Statute by directing the Activity not to furnish the Union with the names and home addresses of bargaining unit employees, which the Union had requested pursuant to section 7114(b)(4) of the Statute. Alternatively, the General Counsel contends that the Activity violated section 7116(a)(1), (5), and (8) of the Statute by failing and refusing to furnish the information.

IV. Analysis and Conclusions

The arguments made by the Respondents, that release of names and home addresses violates the Privacy Act, are similar to the arguments that were raised in Farmers Home. In the Authority's decision and order on remand in Farmers Home, the Authority concluded that the release of the names and home addresses of bargaining unit employees to their exclusive representatives is not prohibited by law, is necessary for unions to fulfill their duties under the Statute, and meets all of the other requirements established by section 7114(b)(4) of the Statute.

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. The Authority also determined that the release of the information is generally required without regard to whether alternative means of communication are available. See United States Department of the Navy and Philadelphia Naval Shipyard v. FLRA, 840 F.2d 1131 (3d Cir. 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), 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), 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).

In this case, therefore, we find that there was an obligation to provide the names and home addresses of the bargaining unit employees under section 7114(b)(4) of the Statute and that the failure to release such information constituted a violation of the Statute.

First, with regard to the conduct of the Activity, we find that the failure to release the names and home addresses did not violate section 7116(a)(1), (5), and (8), as alleged. The parties' stipulation indicates that the Agency directed the Activity to deny the Union's request for the names and home addresses. Therefore, the Activity's action was merely ministerial in nature. Under these circumstances, we find that the Activity did not violate section 7116(a)(1), (5), and (8) of the Statute as alleged in the complaint. See Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Veterans Administration, New Orleans, Louisiana, 29 FLRA 55, 57 (1987), application for enforcement filed sub nom. FLRA v. Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Veterans Administration, New Orleans, Louisiana, No. 87-1605 (D.C. Cir. Oct. 19, 1987); Department of the Interior and Bureau of Reclamation and Engineering and Research Center, Denver, Colorado, 30 FLRA 587, 587 (1987), application for enforcement filed No. 88-1280 (D.C. Cir. Apr. 8, 1988); and Veterans Administration, Washington, D.C. and Dallas Veterans Administration Medical Center, Veterans Administration, Dallas, Texas, 31 FLRA 740, 740 (1988), application for enforcement filed sub nom. FLRA v. Veterans Administration, Washington, D.C., No. 88-1200 (D.C. Cir. Mar. 17, 1988), in which we found the activities had not violated section 7116(a)(1), (5), and (8) by failing to provide requested names and home addresses, since they were simply acting ministerially at the direction of higher level agency management.

Second, as to the conduct of the Agency, we find that the Agency violated section 7116(a)(1), (5), and (8) by interfering with the bargaining relationship between the Activity and the Union when it directed the Activity not to furnish the names and home addresses of all the bargaining unit employees. Therefore, we will order the Agency to direct the Activity to provide the information as requested.

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 U.S. Department of Agriculture shall:

1. Cease and desist from:

(a) Directing the Forest Service to refuse to furnish, upon request of the National Federation of Federal Employees, Forest Service Council, the exclusive representative of certain of its employees, the names and home addresses of all employees in the bargaining units represented by Local 454, Local 763 and Local 376.

(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 National Federation of Federal Employees, Forest Service Council and the Forest Service.

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

(a) Direct the Forest Service to furnish the National Federation of Federal Employees, Forest Service Council, the exclusive representative of certain of its employees, the requested names and home addresses of employees in the bargaining units represented by Local 454, Local 763 and Local 376.

(b) Post at all its facilities where bargaining unit employees represented by the National Federation of Federal Employees, Forest Service Council, 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 Secretary of the U.S. Department of Agriculture, 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 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.

It is further ordered that the allegations in the complaint against the Forest Service be dismissed.

Issued, Washington, D.C.,

______________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

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 Forest Service to refuse to furnish, upon request of the National Federation of Federal Employees, Forest Service Council, the exclusive representative of certain of our employees, the names and home addresses of all employees in the bargaining units represented by Local 454, Local 763 and Local 376.

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 NOT