33:0003(1)CA - - Navy, Naval Ordnance Station, Louisville, KY and IAM Local Lodge 830 - - 1988 FLRAdec CA - - v33 p3

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33:0003(1)CA
The decision of the Authority follows:


33 FLRA No. 1

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE NAVY

U.S. NAVAL ORDNANCE STATION

LOUISVILLE, KENTUCKY

(Respondent)

and

LOCAL LODGE 830, INTERNATIONAL

ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, AFL-CIO,

(Charging Party)

4-CA-70797

DECISION AND ORDER

October 7, 1988

Before Chairman Calhoun and Member McKee.

The Administrative Law Judge issued the attached decision in this case, finding that the Department of the Navy, U.S. Naval Ordnance Station, Louisville, Kentucky (the Respondent) had engaged in the unfair labor practices alleged in the complaint by refusing to furnish, upon request of Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), with all the names and home addresses of bargaining unit employees.

The Respondent filed exceptions to the Judge's Decision. The Respondent asserts that this case is distinguishable from 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), petition for cert. filed, 57 U.S.L.W. 3186 (U.S. Aug. 26, 1988) (No. 88-349), because the Union was denied only the home addresses of those individuals who indicated in writing that they did not want this information released. We disagree. We do not find the factual distinction between this case and Farmers Home to be material.

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.

We note that the Agency also has excepted to the refusal of the Administrative Law Judge to consider evidence which the Agency submitted in support of its Motion for Summary Judgment. We agree with the Agency that the Administrative Law Judge erred when he refused to consider the Agency's supporting evidence because he found the "supporting evidence is not a part of the pleadings and, therefore, not admissible to support its Motion for Summary Judgment." ALJ Decision at 1, n.1. Pursuant to section 2423.19 of our Regulations, Administrative Law Judges have the duty and power, among other things, to dispose of motions for summary judgment.

Motions for summary judgment filed with Administrative Law Judges pursuant to section 2423.19 of our Regulations serve the same purpose and have the same requirements as motions for summary judgment filed with United States District Courts pursuant to Rule 56 of the Federal Rules of Civil Procedure. Rule 56(a) provides that a motion for summary judgment may be accompanied by supporting affidavits. The motion is to be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c). Inasmuch as consideration of matters outside the pleadings is the essence of a ruling on a motion for summary judgment, the Administrative Law Judge should have considered the supporting affidavits submitted by the Agency in ruling on the motions for summary judgment.(*)

However, the Judge's error was not prejudicial. The affidavits do not create a material issue of fact which would require him to deny the motion for summary judgment and conduct a hearing. In Farmers Home we indicated that disclosure of home addresses of bargaining unit employees need not be made where "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." (emphasis added) 23 FLRA at 798. There is no such evidence in this case. One affidavit indicates that "[a]bout three years ago my life was threatened at my home by a Naval Ordnance Station, Louisville Union member." Affidavit of Charles Ray at 2. A threat 3 years ago by a union member is not evidence that this affiant, or any other person, believes that he/she would be in imminent danger if the union itself knew where he/she lived.

In Shell Oil Co. v. NLRB, 457 F.2d 615 (9th Cir. 1972), the Ninth Circuit Court of Appeals held that when a clear and present danger of harassment and danger exists, an employer may withhold release of information which would reveal home addresses to a union. Here, there is no evidence of clear and present danger; indeed, the Ray affidavit merely indicates "I would not feel comfortable if the Union had my home address." Affidavit at 2. No other affidavits indicate the presence of imminent danger. Instead, the affiants merely indicate a variety of other reasons for a personal preference of withholding their addresses.

Furthermore, the Agency concedes that while it "is not suggesting that the current officers of the Charging Party will misuse the employee's addresses, there is no guarantee that once released this information will not be misused in the future." Exceptions at 5. Mere speculation that the information might be misused in the future does not equate with a clear and present danger.

Therefore, the supporting evidence submitted by the Agency does not create a material issue of fact which precluded the Administrative Law Judge from finding that as a matter of law the General Counsel was entitled to summary judgment. The rulings of the Administrative Law Judge are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order. See United States Department of the Navy and Philadelphia Naval Shipyard v. FLRA, 840 F.2d 1131 (3d Cir. 1988), petition for cert. filed, 57 U.S.L.W. 3186 (U.S. Aug. 26, 1988) (No. 88-356), enforcing Philadelphia Naval Shipyard, 24 FLRA 37 (1986); See also U.S. Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, 838 F.2d 229 (7th Cir. 1988), petition for cert. filed, 57 U.S.L.W. 3186 (U.S. Aug. 26, 1988) (No. 88-354), 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 cert. filed, 57 U.S.L.W. 3186 (U.S. Aug. 26, 1988) (No. 88-355), 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 the Navy, U.S. Naval Ordnance Station, Louisville, Kentucky, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL-CIO, the exclusive representative of certain of its employees, the names with 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 Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL-CIO, the names with home addresses of all employees in the bargaining unit it represents.

(b) Post at its facilities where bargaining unit employees represented by Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL-CIO, 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 Commanding Officer of the Department of the Navy, U.S. Naval Ordnance Station, Louisville, Kentucky, and shall 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 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.


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 Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL-CIO, the exclusive representative of certain of our employees, the names with 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 Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL-CIO, the names with 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 IV, whose address is: 1371 Peachtree Street, N.E., Suite 736, Atlanta, GA 30367, and whose telephone number is (404) 347-2324.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ We note that if the Administrative Law Judge was considering a motion for judgment on the pleadings or a motion to dismiss the complaint, he properly could have excluded the supporting evidence supplied by the Agency. However, in cases where a party attaches affidavits to such motions, the Judge may also consider matters outside the pleadings, upon notice to all parties. In such circumstances the motion is treated as a motion for summary judgment. See, for example, Sellers v. M. C. Floor Crafters, Inc., 842 F.2d 639 (2d Cir. 1988).