42:0592(38)CA - - Navy, Naval Weapons Center, China Lake, CA and Intl. Brotherhood of Police Officers, Local 337 - - 1991 FLRAdec CA - - v42 p592



[ v42 p592 ]
42:0592(38)CA
The decision of the Authority follows:


42 FLRA No. 38

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE NAVY

NAVAL WEAPONS CENTER

CHINA LAKE, CALIFORNIA

(Respondent)

and

INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS

LOCAL 337, SEIU, AFL-CIO

(Charging Party/Union)

98-CA-10168

DECISION AND ORDER

September 30, 1991

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 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 reasons stated below, we find that the Respondent committed the unfair labor practice as alleged.

II. Facts

The Union is the exclusive representative of a unit of employees employed by the Respondent. By memorandum dated December 6, 1990, the Union requested the Respondent to provide the Union with the "[n]ames and home mailing addresses of all bargaining unit employees." Stipulation, Exhibit 1(e). By memorandum dated March 18, 1991 the Respondent refused to provide the Union with the names and home addresses of unit employees "based upon Privacy Act considerations." Stipulation, Exhibit 1(f).

The parties stipulated that the names and home addresses of bargaining unit employees are normally maintained by the Respondent in the regular course of business, are reasonably available, and do not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining, within the meaning of section 7114(b)(4) of the Statute.

III. Positions of the Parties

A. The Respondent

The Respondent disagrees with 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 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 case, we reaffirmed the Authority's decision in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986) (Farmers Home), and concluded that a union is entitled, under section 7114(b)(4) of the Statute, to the names and home addresses of bargaining unit employees. The Respondent asserts that the Authority should apply the reasoning of the court in FLRA v. U.S. 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 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 been established to be necessary, within the meaning of section 7114(b)(4) of the Statute, for the discharge of the Union's representational responsibilities.

Finally, the Respondent asserts that "[t]he system of records that will be used to supply the union with the requested information is a Navy system . . . not an OPM system . . . ." Respondent's Brief at 1. According to the Respondent, the "routine use disclosure provisions of the applicable Navy system of records . . . precludes[] the disclosure of employee home addresses to unions, especially if there are alternative means of communications available to the labor organizations." Id. The Respondent incorporated in, and attached to, its statement a brief filed by the U.S. Department of Justice in the U.S. Court of Appeals for the First Circuit in Portsmouth Naval Shipyard, wherein the Department of Justice argues that (1) employee home addresses may not be disclosed from official personnel files pursuant to the routine use notice published by the Office of Personnel Management (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 contends that this case is controlled by the Authority's decisions in Portsmouth Naval Shipyard and Farmers Home. Noting that the Respondent agrees that the information requested by the Union constitutes data within the meaning of section 7114(b)(4) of the Statute, is normally maintained by the Respondent in the regular course of business, is reasonably available, and does not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining, the General Counsel asserts that the Respondent's failure and refusal to provide the names and home addresses of bargaining unit employees to the Union constitutes a refusal to comply with section 7114(b)(4) and is an unfair labor practice under 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 is generally 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 to the Respondent, and does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining. 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, in this regard, the Respondent's argument that OPM's routine use notice does not apply to the "system of records that will be used to supply the union with the requested information . . . ." 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's routine use notice, are not the most accurate source of current home addresses.

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 U.S. Naval Ordnance Station, 40 FLRA 348, 350-51 (1991), application for enforcement filed sub nom. FLRA v. U.S. Naval Ordnance Station, No. 91-2519 (4th Cir. Apr. 24, 1991).

V. 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 U.S. Department of the Navy, Naval Weapons Center, China Lake, California shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the International Brotherhood of Police Officers, Local 337, SEIU, AFL-CIO, 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 International Brotherhood of Police Officers, Local 337, SEIU, AFL-CIO, the exclusive representative of certain of its employees, 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 International Brotherhood of Police Officers, Local 337, SEIU, 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 Commander 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, San Francisco Regional Office, 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 the International Brotherhood of Police Officers, Local 337, SEIU, AFL-CIO, the exclusive representative of certain of our employees, the names and 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 the rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL furnish the International Brotherhood of Police Officers, Local 337, SEIU, AFL-CIO, the exclusive representative of certain of our employees, the names and home addresses of all employees in the bargaining unit it represents.

(Activity)

Dated: By:

(Signature) (Title)

This Notice must remain posted for 60