44:1390(114)CA - - VA Medical Center, Marion, IL and AFGE Local 2483 - - 1992 FLRAdec CA - - v44 p1390
[ v44 p1390 ]
The decision of the Authority follows:
44 FLRA No. 114
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
May 28, 1992
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 General Counsel and the Respondent 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. On March 25, 1991, the Union requested the names and home addresses of certain employees of the Respondent. On April 19, 1991, the Respondent refused to provide the Union with the data it requested.
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 guidance, advice, counsel or training provided for management officials or supervisors related to collective bargaining. The parties also stipulated that: (1) the collective bargaining agreement "provides . . . alternative means of communication;" and (2) the General Counsel argues that "it is not necessary to determine if alternative means of communication . . . are available . . . . Stipulation at 3, paras. 10 and 11.
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 further argues that it has provided adequate alternative means for the Union to communicate with 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.
B. 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 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, 941 F.2d 49 (1st Cir. 1991), (FLRA v. 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.
On May 26, 1992, the Court of Appeals for the Third Circuit, in an en banc decision, granted the Authority's application 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. FLRA v. U.S. Department of the Navy, Navy Ships Parts Control Center, No. 90-3690. Similarly, the Authority's applications for enforcement of decisions based on Portsmouth Naval Shipyard have been granted by panels of the Courts of Appeals for the Ninth and Fourth Circuits. FLRA v. U.S. Department of the Navy, Navy Resale and Services Support Office, Field Support Office, Auburn, Washington, No. 90-70511 (9th Cir. Mar. 18, 1992) (petition for rehearing and suggestion for rehearing en banc pending); FLRA v. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, 954 F.2d 994 (4th Cir. 1992), petition for rehearing en banc granted Apr. 22, 1992. But see FLRA v. United States Department of Veterans Affairs, Washington, D.C. and United States Department of Veterans Affairs Medical Center, Newington, Connecticut, No. 91-4049 (2d Cir. Mar. 5, 1992) (petition for rehearing and suggestion for rehearing en banc pending) (panel denied enforcement of Authority decision); FLRA v. Department of the Navy, Naval Resale Activity, Naval Air Station-Memphis, Millington, Tennessee, No. 91-3450 (6th Cir. Apr. 29, 1992) (majority of panel denied enforcement of Authority decision). We respectfully adhere to our decision in Portsmouth Naval Shipyard.
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 Veterans Affairs Medical Center, Marion, Illinois, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 2483, the exclusive representative of certain of its employees, the requested names and home addresses of all employees in the bargaining unit represented by the Union.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Upon request, furnish the Union the requested names and home addresses of employees in the bargaining unit represented by the Union.
(b) Post at its facilities where bargaining unit employees represented by the Union 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 Director and shall be posted in conspicuous places, including 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, Chicago 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 American Federation of Government Employees, Local 2483, the exclusive representative of certain of our employees, the names and home addresses of all employees in the bargaining unit represented by the Union.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL furnish, upon request of the Union, the names and home addresses of all employees in the bargaining unit represented by the Union.
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Chicago Regional Office, w