45:0112(11)CA - - VA, Long Beach Medical Center, Long Beach, CA and AFGE Local 3943 - - 1992 FLRAdec CA - - v45 p112



[ v45 p112 ]
45:0112(11)CA
The decision of the Authority follows:


45 FLRA No. 11

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

LONG BEACH MEDICAL CENTER

LONG BEACH, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3943, AFL-CIO

(Charging Party/Union)

98-CA-10457

DECISION AND ORDER

June 11, 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 to respond to the Union's request for the names and home addresses of bargaining unit employees represented by the Union and by failing and refusing to provide the Union with the requested information. For the following reasons, we find that the Respondent committed the unfair labor practices as alleged.

II. Facts

The American Federation of Employees, AFL-CIO (AFGE) is the exclusive representative of a unit of Respondent's employees. AFGE, Local 3943 (Local 3943) is an agent for AFGE representing unit employees at Respondent's facilities. On June 13, 1991, Local 3943 requested the Respondent to provide it with, among other things, "[a] complete current listing of bargaining unit members['] names and addresses." Stipulation, Exhibit 1(e). Since June 13, 1991, the Respondent has failed to respond to Local 3943's request for the information and to provide Local 3943 with the data it requested.

The parties stipulated that the requested information is normally maintained by the Respondent in the regular course of business and does not constitute guidance, counsel, or training provided for management officials or supervisors related to collective bargaining. The parties also stipulated that the data is not updated by the Respondent. Further, the parties stipulated that the Respondent maintains that the data is "available only in accordance with law." Stipulation, paragraph 8(c).

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 the Union has alternative means to communicate with bargaining unit employees and claims that, absent proof that alternative means of communication are unavailable to the Union, the Office of Personnel Management's (OPM's) routine use exception does not authorize the release of Federal employees' names and home addresses to the Union. The Respondent claims that "the only up-to-date list of employees' home addresses is contained in a Department of Veterans Affairs . . . system of records . . . . [which] also contain[s] Social Security numbers." Respondent's Brief at 7-8. The Respondent asserts that "[t]here is no 'routine use' within the [Respondent's] system of records that permits release of such information to [u]nions for any purpose." Id. at 8. The Respondent 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 employee home addresses may not be disclosed from official personnel files pursuant to the routine use notice published by OPM. See Attachment to Respondent's Brief at 44 n.38.

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.

Further, the General Counsel argues that the Respondent's admission that it "never responded to the Charging Party's request for the employees' names and home addresses" constitutes "a separate violation [of the Statute] in the name and home address context where Respondent fails to respond to the request for this data." General Counsel's Brief at 3 (citing U.S. Naval Supply Center, San Diego, California, 26 FLRA 324 (1987)).

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. Further, it is evident from the parties' stipulation that the other requirements of section 7114(b)(4)(A), (B), and (C) have been met in this case.

Accordingly, consistent with the parties' stipulation and based on the Authority's decision in Portsmouth Naval Shipyard, we find that the Respondent was required to furnish the Union with the names and home addresses of employees in the bargaining unit represented by the Union. Its refusal to do so violated section 7116(a)(1), (5), and (8) of the Statute.

We note, in this regard, the Respondent's argument that "the information requested [by the Union] cannot be released to the Union under OPM's routine use [notice]." Respondent's Brief at 7. The Respondent claims that "the only up-to-date list of employees' home addresses" is contained in its "'Personnel and Accounting [P]ay System' 27VA047," which is not subject to OPM's routine use notice. Id. at 7-8.

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, for example, Naval Facilities Engineering Command, Southwest Division, San Diego, California, 41 FLRA 1143, 1146 (1991), application for enforcement filed sub nom. FLRA v. Naval Facilities Engineering Command, Southwest Division, San Diego, California, No. 91-70501 (9th Cir. Aug. 13, 1991).

We also note that 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 reh'g 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) (denying 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.

Further, we find that the Respondent committed a separate violation of the Statute when it failed to respond to the Charging Party's data request. Section 7114(b)(4) of the Statute requires an agency to respond to a request from an exclusive representative for information. See Social Security Administration, Baltimore, Maryland and Social Security Administration, Area II, Boston Region, Boston Massachusetts, 39 FLRA 650, 656 (1991) and cases cited therein. Therefore, the Respondent's failure to respond to Local 3943's request for the names and addresses of bargaining unit employees violated section 7116(a)(1), (5), and (8) of the Statute.

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 Veterans Affairs, Long Beach Medical Center, Long Beach, California, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 3943, AFL-CIO, an agent of 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) Failing and refusing to respond to requests for information from the American Federation of Government Employees, Local 3943, AFL-CIO, an agent of the exclusive representative of certain of its employees, which is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

(c) 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) Furnish the American Federation of Government Employees, Local 3943, AFL-CIO, an agent of the exclusive representative of certain of its employees, the requested names and home addresses of employees in the bargaining unit represented by the Union.

(b) Respond to requests for information from the American Federation of Government Employees, Local 3943, AFL-CIO, an agent of the exclusive representative of certain of its employees, which is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

(c) 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.

(d) 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 American Federation of Government Employees, Local 3943, AFL-CIO, an agent of the exclusive representative of certain of our employees, the requested names and home addresses of all employees in the bargaining unit represented by the Union.

WE WILL NOT fail and refuse to respond to requests for information from the American Federation of Government Employees, Local 3943, AFL-CIO, an agent of the exclusive representative of certain of our employees, which is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

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 American Federation of Government Employees, Local 3943, AFL-CIO, an agent of the exclusive representative of certain of our employees, the requested names and home addresses of employees in the bargaining unit represented by the Union.

WE WILL respond to requests for information from the American Federation of Government Employees, Local 3943, AFL-CIO, an agent of the exclusive representative of certain of our employees, which is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

(Activity)

Dated: By:

(Signature) (Title)

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, San Francisco Regional Office, Federal Labor Relations Auth