42:0860(59)CA - - Navy, Naval Public Works Center, San Diego, CA and NAGE Local R12-35 - - 1991 FLRAdec CA - - v42 p860

42 FLRA No. 59

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 May 21, 1991, the Union requested the Respondent to provide the Union with the names and home addresses of bargaining

unit employees in accordance with a provision of the parties' collective bargaining agreement. By memorandum of the same date, the Respondent refused to provide the Union with the names and home addresses of unit employees because "compliance with [the parties' agreement] would be in violation of recent case law." Stipulation, Exhibit 1(e).

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. Sept. 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 Portsmout