32:0369(57)CA - - Justice, INS, Atlanta, GA and National INS Council, AFGE Local 3123 - - 1988 FLRAdec CA - - v32 p369
[ v32 p369 ]
The decision of the Authority follows:
32 FLRA No. 57
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF JUSTICE
U.S. IMMIGRATION AND
NATIONAL IMMIGRATION AND
NATURALIZATION SERVICE COUNCIL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3123
Case No. 4-CA-70772
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 Department of Justice, United States Immigration and Naturalization Service, Atlanta, Georgia (the Respondent), violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to provide the National Immigration and Naturalization Service Council (Council), American Federation of Government Employees (AFGE), AFL-CIO, Local 3123 (the Union) with the names and home addresses of bargaining unit employees at 10 work locations in various Southeastern States. Stipulation at 3. The Respondent and the General Counsel filed briefs. For the reasons stated below, we find that the Respondent committed the unfair labor practices as alleged.
The Council is the exclusive representative for all personnel of Respondent except those professionals, those assigned to Border Patrol Sectors, and those excluded from coverage by the Statute. Local 3123 represents the Council in Respondent's Atlanta Region. By letter dated July 14, 1987, the Union requested that the Respondent provide it with the names and home addresses of all bargaining unit employees of Local 3123. The Union indicated that its request was made pursuant to 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).
The Respondent denied the Union's request by letter dated July 31, 1987. The Respondent reminded the Union that the negotiated agreement provides that the Respondent will furnish the Union with a list of the names, grades, position title, and posts of duty of all employees in the bargaining unit. The Respondent advised the Union that home addresses of Union members should be available through Union sources. The Respondent also informed the Union that if it desired the home addresses of other unit employees, these addresses could be obtained by posting a notice on the Union bulletin board in the District Office.
The parties stipulated that a separate listing of names and home addresses of bargaining unit personnel does not exist. The parties also stipulated that the information requested does not constitute guidance, advice, counsel or training provided for local management officials or supervisors relating to collective bargaining.
III. Positions of the Parties
The Respondent argues that its policy is not to release home addresses pursuant to the Privacy Act and exemption (b)(6) of the Freedom of Information Act. This policy is deviated from only where specific circumstances warrant the disclosure of home addresses, such as: "(1) cases where divorce proceedings are about to be instituted or are in progress, (2) child support for dependents is being sought, and (3) where a pattern of fraud or indebtedness is indicated." Respondent's Brief at 7. The Respondent further contends that the inspectors and other employees who perform investigatory work have a privacy interest in their home locations because they are confronted by intoxicated, rude, angry, loud and sometimes dangerous individuals who are seeking legal or illegal entry into the United States. Respondent's Brief at 11. The Respondent also asserts that the Union has alternative means of communicating with unit employees. The Respondent further contends that the Union "should be estopped from obtaining through litigation that which it has chosen not to negotiate over the years." Respondent's Brief at 10.
The General Counsel argues that the Authority's decision on remand in Farmers Home and the subsequent cases relying on Farmers Home are dispositive of the issues in this case. The General Counsel contends that the Respondent's failure to furnish the Union with the names and home addresses of unit employees violates section 7116(a)(1), (5), and (8) of the Statute.
IV. Analysis and Conclusion
The arguments made by the Respondent are similar to the arguments asserted by the agency in Farmers Home. In the 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.
The Respondent raised concerns regarding the release of names and home addresses of its employees because employees sometimes are confronted with dangerous individuals in the course of their work. The Respondent asserts that the names and home addresses could be susceptible to misuse by the unauthorized release of the home addresses through the hands of the Union due to the change of union officers on an annual basis. The Respondent, however, has not presented evidence that its employees would be in any danger if names and home addresses were released to the Union. In Farmers Home, we stated that "[d]isclosure need not be made in situations where, for example, the evidence discloses that a union has acted in a manner which leads to the conclusion that the employees whose addresses would be disclosed would be in imminent danger if the union knew where they lived. See, for example, Shell Oil Co. v. NLRB, 457 F.2d 615 (9th Cir. 1972.)" The Agency has not presented evidence to support such a conclusion in this case.
Accordingly, based on the parties' stipulation and the Authority's decision on remand in Farmers Home, we find that the Respondent was required to furnish the Union with the names and home addresses of employees in the bargaining unit it represents. The Respondent's refusal to provide the Union with the names and home addresses violated section 7116(a)(1), (5), and (8) of the Statute. 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 v. FLRA, 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).
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 Justice, U.S. Immigration and Naturalization Service, Atlanta, Georgia shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Immigration and Naturalization Service Council, American Federation of Government Employees, AFL-CIO, Local 3123, 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 National Immigration and Naturalization Service Council, American Federation of Government Employees, AFL-CIO, Local 3123, 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 National Immigration and Naturalization Service Council, American Federation of Government Employees, AFL-CIO, Local 3123, 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 Commissioner of the U.S. Immigration and Naturalization Service, 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 IV, 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.,
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