42:0365(29)CA - - Naval Ship Weapon System, Engineering Station, Port Hueneme, CA and NAGE Local R12-40 - - 1991 FLRAdec CA - - v42 p365
[ v42 p365 ]
The decision of the Authority follows:
42 FLRA No. 29
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The Respondent and the General Counsel filed briefs with the Authority.
The complaint alleges that 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 Union with the names and home addresses of bargaining unit employees represented by the Union. For the following reasons, we find that the Respondent committed the unfair labor practice as alleged.
The Union is the exclusive representative of a unit of Respondent's employees. By memorandum dated March 7, 1991, the Union requested the names and home addresses of the unit employees it represents. By memorandum dated March 14, 1991, the Respondent refused to provide the Union with the home addresses it requested.
III. Positions of the Parties
A. The Respondent
The Respondent contends that the disclosure of employees' home addresses is prohibited by the Privacy Act, 5 U.S.C. § 552a, and the Freedom of Information Act, 5 U.S.C. § 552. The Respondent argues, in this regard, that the requested information "has not yet been established to be necessary" within the meaning of section 7114(b)(4) of the Statute. Respondent's Brief at 1. The Respondent also asserts that the Authority should apply the reasoning of the court in FLRA v. Department of the Treasury, Financial Management Service, 884 F.2d 1446 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 863 (1990), to find that the Respondent was not required to supply the Union with the requested information.
The Respondent asserts that the disclosure of the requested information to the Union "is not a 'permitted routine use' of that information under both the agency and [Office of Personnel Management (OPM)] regulations . . . ." Respondent's Brief at 1. The Respondent also asserts, in this regard, that the "system of records that will be used to supply the union with the requested information is a Navy system . . . not an OPM system and the Navy has consistently taken the position that its record systems do not permit the release of home addressee records . . . under the circumstances present in this case." Id.
The Respondent incorporated in, and attached to, its position before the Authority a brief filed by the U.S. Department of Justice in the U.S. Court of Appeals for the First Circuit in U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), enforcement denied sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Aug. 13, 1991) (FLRA v. Portsmouth Naval Shipyard). In that brief, the Department of Justice argued that (1) employee home addresses may not be disclosed from official personnel files pursuant to the routine use notice published by OPM, and (2) the OPM routine use notice does not apply to "the Department of the Navy's payroll system of records, which would probably be the most accurate source of employees' current home addresses." Attachment to Respondent's Brief at 44 n.38.
B. The General Counsel
The General Counsel argues that the Authority's decisions in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986) (Farmers Home), and Portsmouth Naval Shipyard are dispositive of the issues in this case. The General Counsel asserts that, consistent with these decisions, the Respondent's admitted failure to furnish the Union with the requested information violates section 7116(a)(1), (5), and (8) of the Statute.
IV. Analysis and Conclusions
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and 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. We also determined that the release of the information generally is required without regard to whether alternative means of communication are available. We find that resolution of this case does not require consideration of whether alternative means of communication are available to the Union.
The parties stipulated that the requested information is normally maintained by the Respondent in the regular course of business, is reasonably available, and does not constitute advice, guidance, or counsel provided to management officials or supervisors relating to collective bargaining, within the meaning of section 7114(b)(4) of the Statute. Accordingly, based on the Authority's decision in Portsmouth Naval Shipyard, we conclude that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to furnish the Union with the names and home addresses of unit employees represented by the Union.
We note that, in FLRA v. Portsmouth Naval Shipyard, the United States Court of Appeals for the First Circuit denied the Authority's petition for enforcement of Portsmouth Naval Shipyard. Subsequently, in FLRA v. U.S. Department of the Navy, Navy Ships Parts Control Center, et al., Nos. 90-3690, 90-3724 (3d Cir. September 13, 1991), a divided Court of Appeals for the Third Circuit denied the Authority's petition for enforcement of U.S. Department of the Navy, Navy Ships Parts Control Center and Navy Fleet Material Support Office and NAVSEA Logistics Center and Navy Publishing and Printing Service, 37 FLRA 722 (1990), in which the Authority relied on Portsmouth Naval Shipyard. We respectfully disagree with these courts' decisions and adhere to our decision in Portsmouth Naval Shipyard.
We also note the Respondent's argument that the system of records that will be used to supply the requested information is a "Navy system of records not an OPM system . . . ." Respondent's Brief at 1. The Respondent does not specify the system of records to which it refers. Read in light of the Department of Justice brief attached to, and incorporated in, the Respondent's brief, however, we construe the Respondent's argument to be that the requested information would be supplied from the Respondent's payroll records because official personnel files, which are subject to the OPM routine use notice, are not the most accurate source of current home addresses. See also Stipulation at 3, para. 8(b) (parties stipulated that the requested information is reasonably available in the Respondent's "personnel and payroll files[.]").
This argument is not relevant to our resolution of this case. There is no basis on which to conclude that the Union specifically requested the Respondent to provide the home addresses from its payroll records or from any other specific system of records. Moreover, the Respondent does not dispute that the requested information is available from the OPM system of records. As such, the possible availability of the requested information from other agency systems of records has no bearing on whether the information is properly releasable from the system of records subject to OPM's routine use notice. See Naval Satellite Operations Center, Point Mugu, California and National Association of Government Employees, Local R12-33, AFL-CIO/SEIU, 40 FLRA 1106, 1108-1109 (1991), application for enforcement filed sub nom. FLRA v. Naval Satellite Operations Center, Point Mugu, California, No. 91-70355 & 70387 (9th Cir. May 31, 1991) (cross petition filed June 19, 1991).
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labo