41:0543(54)AR - - FDIC and NTEU - - 1991 FLRAdec AR - - v41 p543



[ v41 p543 ]
41:0543(54)AR
The decision of the Authority follows:


41 FLRA No. 54

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FEDERAL DEPOSIT INSURANCE CORPORATION

CHICAGO REGION

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Union)

0-AR-2067

DECISION

July 10, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Elliott H. Goldstein filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The Union filed a grievance alleging that the Agency's refusal to provide the Union with the names and home addresses of bargaining unit employees violated Article 10, Section 4 of the parties' collective bargaining agreement and constituted an unfair labor practice under section 7116(a)(1) and (5) of the Statute. The Arbitrator sustained the grievance. The Arbitrator found, based on the Authority's decision in U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990), that the Agency violated the parties' agreement by failing to supply the Union with the names and home addresses of unit employees. The Arbitrator, therefore, ordered the Agency to cease and desist from refusing to supply that information to the Union, upon proper request, and to comply with the terms of the parties' agreement.

For the reasons stated below, we deny the Agency's exceptions.

II. Background

The Union and the Agency are parties to a collective bargaining agreement effective from 1989 until 1992. Article 10, Section 4 of the agreement provides that:

The EMPLOYER agrees to provide the UNION a list of the names and corresponding home addresses of bargaining unit employees within thirty (30) days of the effective date of this agreement and on a semi-annual basis thereafter.

Award at 4. The Union represents approximately 350 bank examiners and assistant bank examiners employed by the Agency's Chicago Region and assigned to various field offices in a five-state area.

On March 6, 1990, the Agency notified the Union that it would no longer comply with Article 10, Section 4 of the parties' agreement. Based on the court's decision in FLRA v. Department of the Treasury, Financial Management Service, 884 F.2d 1446 (D.C. Cir. 1989) (Financial Management Service), cert. denied, 110 S. Ct. 863 (1990), the Agency determined that the disclosure of unit employees' home addresses to unions was prohibited under the Privacy Act, 5 U.S.C. § 552a. The Agency asserted that its decision was in accordance with Article 2, Section 1 of the parties' agreement, which provides that "[i]n the administration of all matters covered by [the] agreement, the Parties are governed by existing or future laws." Award at 3 and 8. The Agency asserted that Financial Management Service was controlling.

On March 26, 1990, the Union filed a grievance alleging that the Agency had repudiated Article 10, Section 4 and that such action constituted an unfair labor practice under section 7116(a)(1) and (5) of the Statute. The grievance was denied and arbitration was invoked.

III. Arbitrator's Award

As the parties were unable to agree on the issue, the Arbitrator framed the issue as follows:

Did the Employer violate the provisions of the Collective Bargaining Agreement or applicable law when it notified the Union on March 6, 1990 that it would no longer provide a list of the names and addresses of bargaining unit employees to the Union? If so, what is the appropriate remedy?

Award at 3. The Arbitrator found that unit employees do not use the field offices as a primary place of work, and that examiners assigned to a particular field office are only assembled at the same time for four official meetings during the course of a normal year. The Arbitrator noted that the field office is primarily set up to store reports, examinations, work papers and supplies. The Arbitrator also noted that management communicates with the examiners almost exclusively by mail to their personal residences. The Arbitrator further found that the Union was frustrated in its efforts to contact new employees prior to their orientation by the lack of addresses for such employees, as well as by "glitches in disseminating Union materials at the field offices." Id. at 29. The Arbitrator noted that the Union's inability to contact unit employees had a negative effect on the Union's ability to function as the exclusive bargaining agent for the unit.

The Arbitrator found, among other things, that an "Official Personnel File" (OPF) is maintained for each Federal employee, and that such file is the property of the Office of Personnel Management (OPM). Id. at 13. The Arbitrator also found that in this case the Agency "is the custodian of the OPFs" during an employee's period of employment. Id. The Arbitrator noted that the OPF normally contains an employee's current home address. The Arbitrator also noted that the record showed that the regulations governing the custody of the OPF, 5 C.F.R. Part 293, permit disclosure of information contained therein to labor organizations as a routine use.

The Arbitrator considered the Authority's decision in Portsmouth Naval Shipyard, and the court's decision in Financial Management Services, and determined that "the FLRA precedent controls . . . the outcome of this arbitration." Id. at 26 (emphasis in original). Based on Portsmouth Naval Shipyard and the record evidence, the Arbitrator found that the release of unit employees' names and home addresses was necessary for the proper and effective functioning of the collective bargaining relationship. The Arbitrator also: (1) found that the disclosure of such information was not prohibited by the Privacy Act; and (2) based on Portsmouth Naval Shipyard, rejected the Agency's contention that an alternative means test should be applied to determine whether the Agency was required to disclose the information.

Accordingly, the Arbitrator concluded that Article 10, Section 4 was "valid and enforceable" and, therefore, directed the Agency to comply with the provision and supply the names and home addresses of unit employees to the Union. Award at 31. The Arbitrator also found that the Agency's refusal to supply this information was an "illegal practice" under section 7116(a)(1) and (5) of the Statute and ordered the Agency to "cease and desist" from refusing to provide the information to the Union, on proper request, and to comply with the terms of Article 10, Section 4. Id.

IV. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the award is deficient because it is contrary to law. The Agency contends that the award would require it to violate the privacy of individuals in contravention of the Privacy Act and the court's decision in Financial Management Services. The Agency states that under Financial Management Services, a determination of whether release of information is appropriate as a routine use exception to the Privacy Act requires a determination of whether the Union has "sufficient alternate means of communicating with the employees." Exceptions at 6. The Agency states that by limiting the analysis to the "Portsmouth Naval Shipyard test for routine use, the Arbitrator failed to make the necessary alternate means finding." Id. Citing U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990) (Fort Campbell), the Agency also asserts that the award is contrary to existing Agency regulations which do not provide for the release of information from employees' "Unofficial Personnel File system of records" to unions as a "routine use." Exceptions at 8 and 9 and Attachment C to Exceptions at 2218.

B. Union's Opposition

The Union states that the Arbitrator correctly held that the Agency's refusal to honor its contractual and statutory obligation to provide the home addresses of unit employees was both a breach of the agreement and an unfair labor practice. The Union asserts that the arguments presented by the Agency have been specifically rejected by the Authority in Portsmouth Naval Shipyard. The Union also contends that the Agency's argument that the award is contrary to Agency regulations provides no basis for finding the award deficient. The Union states that the record demonstrates that the Agency can obtain the names and home addresses of unit employees from their official personnel files. The Union further notes that the regulations governing custody of the OPFs, 5 C.F.R., Part 293, permit disclosure of information to labor organizations as a routine use.

The Union also argues that even if the disclosure of unit employees' names and home addresses did conflict with Agency regulations governing release of information from employees' unofficial files, the award would still be valid under Fort Campbell.

V. Analysis and Conclusions

We conclude that the Agency has not established that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute.

A. Applicable Law

In Portsmouth Naval Shipyard, we reaffirmed the Authority's decision in Farmers Home Administration Finance Office, St. Louis Missouri, 23 FLRA 788 (1986), in which the Authority concluded that section 7114(b)(4) of the Statute entitled the exclusive representative to receive from an agency, upon request, the names and home addresses of bargaining unit employees. We concluded that the release of the names and home addresses of bargaining unit employees to their exclusive representative is necessary for unions to fulfill their duties under the Statute, meets the requirements established by section 7114(b)(4) of the Statute, and is not prohibited by law. We also determined that the release of the information is generally required under the "routine use" exception to the Privacy Act without regard to whether alternative means of communication are available.

The Arbitrator applied the rationale in Portsmouth Naval Shipyard to the facts of this case. The Arbitrator found, based on the evidence, that the Agency's action in repudiating Article 10, Section 4 of the agreement and refusing to supply the names and home addresses of unit employees to the Union violated the parties' agreement and constituted an unfair labor practice under the Statute. We find that the Arbitrator properly rejected the Agency's arguments based on the court's decision in Financial Management Services and correctly applied the Authority's decision in Portsmouth Naval Shipyard.

Consequently, we conclude that the Arbitrator's award is not contrary to law and that the Agency's contention provides no basis for finding the award deficient.

B. Agency Regulations

The Agency also contends that the award is deficient because it is contrary to existing Agency regulations which govern release of information from employees' unofficial personnel files. We reject this contention.

First, we note that the Arbitrator found that the requested information is available from the Agency's OPFs, which are governed by OPM's regulations, 5 C.F.R. Part 293. The Arbitrator found that these regulations permit disclosure of information contained in an employee's OPF to labor organizations under the routine use exception to the Privacy Act. In light of this finding, we conclude that the availability of the requested information from other systems of records maintained by the Agency--unofficial personnel files--has no bearing on whether the information is properly releasable from the system of records subject to OPM's routine use requirement. See U.S. Department of the Navy, Naval Resale Activity, Construction Battalion Center, Port Hueneme, California, 41 FLRA No. 12 (1991), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Naval Resale Activity, Construction Battalion Center, Port Hueneme, California, No. 91-70376 (9th Cir. June 12, 1991).

Moreover, even assuming that the unofficial personnel files were the relevant files applicable to this case, the award would still not be deficient under the Statute.

In our decision in Fort Campbell, we held that where an arbitrator's award conflicts with agency rules or regulations, such a conflict will provide a basis for finding the award deficient under section 7122(a) of the Statute only when those rules or regulations govern the disposition of the matter resolved by the arbitration award and the rules or regulations do not conflict with provisions of an applicable collective bargaining agreement. In so holding, however, we noted that a provision in a collective bargaining agreement takes precedence over agency rules and regulations with respect to matters to which they both apply.

In this case, we note the Agency's claim that the regulations governing the release of information from employees' unofficial personnel files do not provide for the release of employees' names and home addresses to unions as a routine use. We also note that the Arbitrator found that Article 10, Section 4 of the parties' agreement requires the Agency to supply the names and home addresses of unit employees to the Union. Thus, if we were to apply the rationale in Fort Campbell to these circumstances, we would