34:0005(2)NG - - ARMY AND AIR FORCE EXCHANGE - - 1989 FLRAdec NG - - v34 p5

34 FLRA NO. 2

ARMY AND AIR FORCE EXCHANGE SERVICE
AAFES DISTRIBUTION REGION
OAKLAND DISTRIBUTION CENTER
OAKLAND, CALIFORNIA
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1157
(Charging Party)

9-CA-90185

ORDER DISMISSING EXCEPTIONS

September 7, 1989

The Administrative Law judge issued his decision and order in this case on July 28, 1989, finding that the Respondent engaged in unfair labor practices and recommending remedial action. The Administrative Law Judge informed the parties that exceptions to the decision must be filed on or before August 28, 1989. The two methods of filing documents with the Authority are by mail (U.S. Postal Service) or in person (party, agent or
delivery service). 5 C.F.R. 2429.24(e).

Respondent's exceptions, dated August 28, 1989, were filed (hand-delivered by Federal Express) in the Authority's Docket Room on August 29, 1989. Section 2429.21(b) of the Authority's Regulations provides that "(I)f the filing is by personal delivery, it shall be considered filed on the date it is received  by the Authority . . . ." Respondent's exceptions were not timely  filed. Therefore, Respondent's exceptions are dismissed.

In the absence of timely filed exceptions to the Judge's decision and order, the findings, conclusions and 
recommendations of the Administrative Law Judge constitute, without precedential significance, the findings, conclusions, and decision and order of the Authority and all objections and exceptions are waived for all purposes. 5 C.F.R. 2423.29(a). 

Accordingly, the Respondent shall comply with the Judge's
order.

For the Authority.

Clyde B. Blandford, Jr.
Acting Executive Director


______________________________

ARMY AND AIR FORCE EXCHANGE
SERVICE, AAFES DISTRIBUTION
REGION, OAKLAND DISTRIBUTION
CENTER, OAKLAND, CALIFORNIA

Respondent

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1157, AFL-CIO

Charging Party

Case No. 9-CA-90185

Janis E. Baldwin, Esq.
For the Respondent

Lisa L. Katz, Esq.
For the General Counsel

Before: WILLIAM NAIMARK
Administrative Law Judge

DECISION

This case arises under the Federal Service Labor -Management Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). Pursuant to a charge filed by the American Federation of Government Employees, Local 1157, AFL - CIO (herein called the Union) a Complaint and Notice of Hearing was issued on
March 28, 1989, by the Regional Director, Region IX, Federal Labor Relations Authority against the Army and Air Force Exchange Service, AAFES Distribution Center, Oakland Distribution Center, Oakland, California (herein called the Respondent). 

The complaint alleged, in substance, that on or about October 5, and December 12, 1988, the Union requested Respondent to furnish the Union the names and home addresses of employees in the bargaining unit in which the American Federation of Government Employees, AFL - CIO (AFGE) has been certified as the exclusive representative, and the Union has been, as an affiliate of AFGE, designated as the agent to represent such unit employees of Respondent. Further, the complaint alleged that Respondent failed and refused to furnish the data requested by the Union; that by such conduct Respondent failed and refused to bargain in good faith in violation of Section 7116(a)(1), (5) and (8) of the Statute. 

Respondent's Answer, duly filed on April 13, 1989, admitted as to the Complaint: (a) the jurisdictional allegations therein; (b) that on or about October 5, 1988 and December 12, 1988 the Union, as the designated agent to represent the appropriate unit of Respondent's employees, requested that Respondent furnish the
Union with the names and home addresses of the bargaining unit employees; (c) that since on or about October 24, 1988, Respondent has failed and refused to furnish the data so requested; (d) that the data so requested is normally maintained by Respondent in the regular course of business; (e) that the data requested is reasonably available; (f) that the data requested is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining, that the data requested does not constitute guidance, advice, counsel or training provided for management officials relating to collective bargaining.

Respondent's Answer denied that the release of the data requested is not prohibited by 5 U.S.C. 552a.

Under date of May 5, 1989, General Counsel filed a Motion For Summary Judgment with a brief in support thereof.

In an order dated May 5, 1989, the Acting Regional Director transferred the Motion to the Chief Administrative Law Judge pursuant to Section 2423.22(b) of the Authority's Rules and Regulations. The case was duly assigned to the undersigned for disposition.

Under date of May 18, 1989, Respondent filed a Motion To Dismiss General Counsel's Motion For Summary Judgment and Respondent's Cross - Motion For Summary Judgment. Along with its  motions Respondent submitted a memorandum in support thereof.

Respondent contends that this case is distinguishable from Farmers Home Administration Finance Office, St. Louis, Missouri, 28 FLRA 788 (1986), enforced in part and remanded sub. nom. U.S. Department of Agriculture and Farmers Home Administration Farmers Office, St. Louis, Missouri v. FLRA, 836 F.2d 1139 (8th Cir. 1988). It argues that the Authority, in requiring that names and home addresses be furnished the Union, placed great weight on an analysis of exception (b)(3) of the Privacy Act, 5 U.S.C. 552a(b)(3) which permits disclosure of information for a "routine use." A key factor, it argues, in the Authority's decision that
disclosure of employees' home addresses was permitted as a routine use under exception (b)(3) of the Privacy Act was that the Office of Personnel Management (OPM) regulations included labor organizations as routine users of personnel records.

It is maintained by Respondent that labor unions within AAFES are not routine users of personnel records because AAFES employees are not subject to OPM regulations. Therefore the "routine use" theory which the Authority applied in the Farmers case has no application in the present case. Respondent insists that, given this point of difference, disclosure of employees' home addresses to the Union cannot be made under exception (b)(3) of the Privacy Act.

The exact same contention was made by the respondent in Department of the Army and Air Force, Army and Air Force Exchange Service, Headquarters, Dallas, Texas and Army and Air Force Exchange Service. McClellan Air Force Base, California, 26 FLRA  691. The Authority agreed therein that AAFES employees are not subject to OPM regulations; that the employees' personnel files are not governed by the OPM's routine use statements; and that AAFES' routine use statements do not include unions as routine users. Therefore, the Authority held in said case, that disclosure of McClellan Air Force Base Exchange employees' home addresses to the union may not be authorized under exception (b)(3) of the Privacy Act.

However, The Authority declared in the cited case, "this distinction does not affect the disclosure of these employees' home addresses to the union under exception (b)(2) of the Privacy Act." (underscoring supplied). It adhered to its conclusion in the Farmers case, supra, that the information sought by the union could be released under the exception (b)(2) of the Privacy Act. 2 In so doing it also adhered to the statement made in the
Farmers case as follows:

    On balance, we find that public interest to be furthered by
    providing the Union with an efficient method to communicate with
    unit employees it must represent far outweighs the privacy
    interests of individual employees in their names and home
    addresses. Disclosure of the requested information would not
    constitute a clearly unwarranted invasion of personal privacy and
    does not fall within the (b)(6) exemption to the FOIA. Since the
    information does not fall within the exception, its disclosure is
    required under the FOIA and, under exception (b)(2) to the
    Privacy Act, its releases not prohibited by law.

In view of the fact that the contentions raised by Respondent herein have already been considered and rejected by the Authority in Department of the Army and Air Force, Army and Air Force Exchange Service, Headquarters et. al., supra, the undersigned concludes that Respondent was o