[ v19 p899 ]
The decision of the Authority follows:
19 FLRA No. 107 PHILADELPHIA NAVAL SHIPYARD Respondent and PHILADELPHIA METAL TRADES COUNCIL Charging Party Case No. 2-CA-40243 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision and the General Counsel filed an opposition to the Respondent's exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendations only to the extent consistent herewith. The Judge concluded that the Respondent failed to comply with the requirements of section 7114(b)(4) of the Statute /1/ in violation of section 7116(a)(1), (5) and (8) of the Statute when it refused to provide the Union, upon request, with the names and home addresses of all unit employees represented by the exclusive representative. In this regard, the Judge, inter alia, found that: an exclusive representative must be able to communicate effectively with its constituency; that the exclusive representative's access to the addresses of unit employees was necessary for it to carry out its representational responsibilities in the area of collective bargaining because it had no other effective means of communication with unit employees; and that the Privacy Act /2/ was not a bar to such disclosure. The Authority disagrees. In a recent decision, Farmers Home Administration Finance Office, St. Louis, Missouri, 19 FLRA No. 21 (1985), petition for review filed sub nom. American Federation of Government Employees, AFL-CIO, Local 3354 v. FLRA, No. 85-1493 (D.C. Cir. Aug. 6, 1985) (hereinafter Farmers Home Administration) the Authority, relying on its prior decision in Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA No. 92 (1985), petition for review filed sub nom. American Federation of Government Employees, Local 1345 v. FLRA, No. 85-1378 (D.C. Cir. June 21, 1985) (hereinafter AAFES), stated that the disclosure of unit employees' names and home addresses, like the disclosure of other data sought pursuant to section 7114(b)(4) of the Statute, requires not only a case by case determination as to whether the data has been requested, whether it is normally maintained, whether it is reasonably available, and whether it is necessary to enable the exclusive representative to fulfill its representational obligations, but also requires a determination that the disclosure of the data sought would not be prohibited by law, including the Privacy Act. In AAFES, the Authority decided that, in determining whether the disclosure of any data sought pursuant to section 7114(b)(4) of the Statute is or is not otherwise "prohibited by law," i.e., the Privacy Act, it will use the same balancing test applied by the courts in evaluating whether information sought under the Freedom of Information Act (FOIA) /3/ should be disclosed or should be protected from disclosure as a clearly unwarranted invasion of privacy under the FOIA exemption set forth at 5 U.S.C. 552(b)(6). The application of the (b)(6) balancing test requires weighing the necessity of the data for the union's purposes against the degree of intrusion on the individuals' privacy interests caused by disclosure of the data. /4/ Guided particularly by the decision of the Fourth Circuit in American Federation of Government Employees, AFL-CIO, Local 1923 v. United States Department of Health and Human Services, 712 F.2d 931 (4th Cir. 1983), wherein the Court adopted the lower court's determination that the balance of all factors led to the conclusion that an exclusive representative was not entitled to the home addresses of unit employees which it had sought pursuant to the FOIA, the Authority in Farmers Home Administration applied the foregoing balancing test and concluded that the exclusive representative there was not entitled to the names and home addresses of unit employees under section 7114(b)(4) of the Statute. As in Farmers Home Administration, the Authority finds that the same findings and conclusions flow from the similar facts of the present case. Thus, for the reasons stated in Farmers Home Administration, we find that the employees' strong privacy interest in their home addresses outweighs the necessity of the data for the Union's purposes in the circumstances of this case. Moreover, the record in this case clearly establishes that alternative means of communication with unit employees were available to the Union herein. /5/ Further, we find that the records sought by the Union herein, as in Farmers Home Administration, i.e., the names and addresses of unit employees, are not of the type that generally must be disclosed pursuant to the FOIA's (b)(6) exemption for the purposes for which they were sought herein. Thus, the Authority finds that the disclosure of unit employees' names and home addresses for the purposes for which they were sought herein was "prohibited by law" and that their release by the Respondent therefore was not required pursuant to section 7114(b)(4) of the Statute. Therefore, the Authority concludes that the Respondent did not fail to comply with section 7114(b)(4) of the Statute in violation of section 7116(a)(1), (5) or (8) of the Statute when it refused to provide the exclusive representative with the names and home addresses of unit employees. /6/ Accordingly, the Authority shall order that the complaint be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 2-CA-40243 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., August 22, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 2-CA-40243 Barbara S. Liggett, Esquire E. A. Jones, Esquire For the General Counsel Elizabeth A. Martinez, Esquire For the Respondent Before: BURTON S. STERNBURG Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq. and the Rules and Regulations issued thereunder. Pursuant to a charge filed on March 6, 1984, by the Philadelphia Metal Trades Council (hereinafter called the Union), a Complaint and Notice of Hearing was issued on May 29, 1984, by the Regional Director for Region II, Federal Labor Relations Authority, New York, N.Y. The Complaint alleges that the Philadelphia Naval Shipyard (hereinafter called the Shipyard or Respondent), violated Sections 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute, (hereinafter called the Statute), by refusing to honor the Union's request for the home addresses of the employees working in a unit represented by the Union. A hearing was held in the captioned matter on July 9, 1984, in Philadelphia, Pennsylvania. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel and the Respondent submitted post hearing briefs on August 30, 1984, which have been duly considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions, and recommendations. Findings of Fact The Union is the exclusive representative "of all non-supervisory ungraded employees of the Philadelphia Naval Shipyard, excluding ungraded employees in units where other labor organizations have been granted exclusive recognition." Of the approximately 7000 employees included in the unit, only about 4400 are dues paying members of the Union. The Union and the Respondent are parties to a collective bargaining agreement which became effective on March 12, 1982. The contract is for a three year period, "and from year to year thereafter", in the absence of a notice from either party to the contrary. On February 16, 1984, Union President Bill Reil wrote a letter to the Commander of the Philadelphia Naval Shipyard which reads in pertinent part as follows: As provided for by public law, the Philadelphia Metal Trades Council is the official bargaining and employee representational organization for all non-supervisory ungraded employees of the Philadelphia Naval Shipyard excluding ungraded employees in units where other labor organizations have been granted exclusive recognition. In order for this organization to carry out it's entitled responsibilities, within the scope of collective bargaining, it is necessary that this Council have the opportunity to carry out full and proper discussions and likewise receive information from all bargaining unit employees. This Council requires feedback from employees of this bargaining unit in order to frame bargaining proposals and to undertake it's multi-faceted representational obligations. Accordingly, we do request that name and address information on all bargaining unit employees be made available to this Council so that we can proceed to fulfill our obligations as provided for under labor statute. Precedent for this request has been determined by the FLRA (reference Defense Mapping Agency Center, St. Louis, Missouri; 7-CA-20482, OALJ No. 83-85). On March 5, 1984, the Commander of the Naval Shipyard replied by memorandum to the Union President's letter of February 16, 1984. The memorandum reads in pertinent part as follows: 1. By reference (a), you requested the home addresses of all employees in the Shipyard who fall within the scope of the bargaining unit represented. You state that you need to receive information from "all" bargaining unit employees in order to frame bargaining proposals and to otherwise undertake your representational obligations. You assert that the Federal Labor Relations Authority has set precedent on this issue in favor of your request, and provided the reference applicable. 2. Although I agree that the union has responsibility to represent the interests of all bargaining unit employees and therefore having access to the employees represented is necessary, the question to resolve is whether or not the union already has such access in order to receive the "feedback" you require. Under the provisions of reference (b), the union has been granted four (4) means of access to and communication with all bargaining unit employees. 3. Article VIII, section 1 of reference (b) provides for the union's designation of one steward for every eighty-five employees, excluding chief stewards. The union is free to designate stewards in such a way as to provide representation in virtually all areas of the Shipyard where bargaining unit employees exist. These stewards are most certainly in a position to have access to and communication with employees in their respective areas. Section 16 of this same article provides that your representatives may distribute union literature to employees in the Shipyard. Surely any polling on questions of concern may be accomplished via this means. 4. Article XXXV, section 1 of reference (b) provides for the union's use of one-half of all unofficial bulletin boards within the bargaining unit. This section also provides for the union's recommendations for the location of such bulletin boards in order to satisfy any inadequacies of access to employees. Section 2 of this same article grants the union the opportunity to publish notices or other appropriate news items of general interest or concern in the Shipyard newspaper which is issued weekly. Once again, this means of communication can be effective in order to receive feedback from employees. 5. In regards to the case reference you provided, I note that it does not represent a case decided by the Authority as you suggest. Instead, the case (decided by an administrative law judge) is pending decision by the Authority. In any event a review of that case reveals dissimilar circumstances between that agency and union, and ourselves. The Shipyard (and it's employees) is situated at one facility, as opposed to being geographically dispersed. Union representatives by and large possess the security clearance necessary to facilitate access to virtually all areas. You publish a monthly news bulletin that your representatives distribute which does not require prior review by management. You maintain an office here on site with both shipyard and commercial telephone lines. 6. In consideration of the foregoing, I have concluded that you have adequate, effective means already available to you in order to accomplish the objective of communication and feedback. Accordingly, your request is denied." With respect to the physical layout of the Philadelphia Naval Shipyard and the Union's avenues of access to the unit employees, the record discloses that some 11,000 individuals are employed at the Shipyard which is approximately three and one-half by two miles in area. The employees work in many buildings, on ships and in outside field areas operating cranes and servicing fuel depots. The employees arrive by ferry from New Jersey, on mass transit buses, private automobiles, walking and bicycles. The shipyard is entered by four gates. The buses do not drop their passengers at such gates, but proceed through the gates and drop their passengers at various locations throughout the Shipyard. The employees composing the work force commute from New York, New Jersey, Delaware and Pennsylvania, an area of approximately 90 miles from the Shipyard. The Union has access to half the 35 unofficial bulletin boards at the Shipyard. However, according to Mr. John Meyer, Vice-President of the Machinists Union and a member of the Metal Trades Council's negotiation team, the bulletin boards are not an effective means of communication because of their location and the fact that there is no way to prevent notices from being ripped off the bulletin boards. There are no bulletin boards on the ships where a majority of the unit employees work. At the time of the hearing, some 2500 of the 7000 unit employees were working on the U.S. Forrestal. The Union has no access to the Shipyard's internal mailing system. The collective bargaining agreement gives the Union access to the Shipyard's weekly newspaper. However, the Shipyard reserves editing control over the Shipyard newspaper. The record is barren of any evidence indicating that the Union has ever been denied the right to publish anything in the Shipyard newspaper. The Shipyard's newspaper is distributed at various drop-off points throughout the Shipyard. The Union publishes a monthly newspaper which is also distributed at various drop-off points throughout the Shipyard. The Union holds monthly meetings both on and off the base. The meetings are generally attended by not more than thirty-five of the unit employees. While the Union has two telephones in its office at the Shipyard, it finds that the telephones are an ineffective means of communication because the telephones in the work areas are too remote from the employees' respective duty stations. Few telephones are located on the ships and the employees do not, in any event, have ready access to such telephones. The Union does not have the right to official time for purposes of soliciting employees' views on working conditions. While the Union is entitled in accordance with the collective bargaining agreement to one steward for every 85 employees, according to the Union, only about twenty-five of such stewards are considered "active". The Union does not have control over where stewards are placed. The Union currently has approximately 124 designated representatives. The unit employees have no break periods during their respective shifts and are entitled to only thirty minutes for lunch. The unit employees work on three shifts. In emergency situations the employees are assigned to "12's", where they "might work from six in the morning to six at night, or six at night to six in the morning." While there are "musters" at the beginning and end of the shifts for about three minutes, the "musters" are generally supervisors' time. Each work gang musters separately. The Union has in the past attempted to reach the unit employees by means of handbilling. However, the handbilling proved unsuccessful due to traffic problems. The Shipyard employees all park in designated parking lots. The Union has the right to distribute literature on the Shipyard premises during non-working time. Discussion and Conclusions Section 7114(b)(4) of the Statute obligates an agency to furnish to the exclusive bargaining representative of its employees, upon request, data which is reasonably available and necessary for free and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. Predicated upon the above cited provision of the Statute the Union requested the addresses of all unit employees for purposes of soliciting their views with respect to possible contractual proposals to be included in the Union's presentation to management in future negotiations for a new collective bargaining agreement. Respondent refused to give the Union the addresses of the unit employees on the sole ground that the addresses of the employees were not necessary since the Union had other effective avenues of communication with the unit employees such as bulletin boards, newspapers, telephone, stewards, etc. In both the private and public sector, it has been recognized that in order for a union to carry out its representational responsibilities flowing from its selection as an exclusive bargaining representative, the union must be able to communicate effectively with its constituency and obtain their respective views with respect to what proposals should be included in any prospective collective bargaining agreement. Internal Revenue Service, Office of the District Director, Jacksonville, Florida, A/SLMR No. 214, Aff'd. FLRC No. 72A-50; United Aircraft v. NLRB, 434 F.2d 1198; Prudential Insurance Co. of America v. NLRB, 412 F.2d 77. The above cited cases, in addition to acknowledging a union's representational responsibility to contact unit members for purposes of ascertaining their comments and desires in order to frame meaningful collective bargaining proposals, make it clear that to the extent that a union is unable through the available channels of communication to effectively reach its constituency and solicit proposals, the union is then entitled to the home addresses of the unit employees for purposes of effectively carrying out its representational responsibilities. According to both the Federal Labor Relations Council, the Authority's predecessor, and the Circuit Courts of Appeal, a determination of whether an exclusive representative has in fact effective means of communication with unit employees, absent their respective addresses, must be made solely on a case-by-case basis. Only after a finding is made that a union lacks an effective means of communication with unit employees is the Union entitled to the addresses of unit employees. If on the other hand a contrary determination is made, i.e. that the union does have an effective means of communication with unit employees, then the union is not entitled to the addresses of unit employees, since such data would not be necessary for purposes of negotiation of subjects within the scope of collective bargaining. While both the General Counsel and the Respondent appear to acknowledge the above conclusions with respect to the state of the law, both urge contrary findings predicated upon their respective analysis of the facts underlying the instant complaint. Thus, the General Counsel would find that the requested information is relevant to the Union's representational responsibilities and necessary since without same the Union has no effective means of communication with unit personnel. Respondent, on the other hand, takes the position (1) that the requested information is not relevant since the collective bargaining contract was some fourteen or fifteen months away from expiration; and (2) even assuming a contrary conclusion with respect to relevance, the requested information is not necessary since the Union has other effective means of communication with unit personnel. Finally, Respondent raises for the first time in its post-hearing brief the Privacy Act as a defense to its failure to make the requested addresses available to the Union. /7/ Contrary to the Respondent and in agreement with the General Counsel, I find that the requested information was indeed relevant to the Union's collective bargaining needs. As noted above, once certified as an exclusive bargaining representative a Union has a responsibility to represent all unit personnel. Such representational responsibility includes, among other things, solicitation of bargaining proposals, etc., sensitive to the unit personnel's respective desires and problems. Without same, a union would be frustrated in its attempt to frame meaningful bargaining proposals for inclusion into any prospective contract. The fact that a collective bargaining contract reopener may be some fourteen or fifteen months away does not serve to diminish the Union's representational responsibilities. It is not for the Respondent to decide when the Union should embark on a course of action designed to serve its unit members and fulfill its representational responsibilities. In the instant case there are some seven thousand employees in the unit. Assuming that each and every employee had a different view on what subjects etc., should be addressed in any final collective bargaining agreement, it can hardly be argued that fourteen months is too long a period to allow for the synthesis of such numerous proposals and/or comments. According to a literal reading of Section 7114(b)(4), if the requested information is relevant to the collective bargaining process, the Union is entitled to the information. Again, contrary to the Respondent, I find, predicated on the facts of the instant case, that union access to the addresses of the unit employees is necessary to carry out its representational responsibilities in the area of collective bargaining, since without same it has no effective means of communication with the unit employees. In reaching this conclusion I rely on the fact that the unit employees are spread out over a vast area working on cranes, in fuel depots, on ships and in a multitude of other buildings, many of which locations do not possess bulletin boards or readily accessible telephones; employees enter the shipyard through four gates and handbilling on the streets leading up to the gates has proven in the past to be an ineffective means of communication; while there are designated parking lots on the premises for unit employees, many of the employees arrive at work by bus, foot or bicycles; the buses do not drop their passengers at one location, but rather proceed through the base and drop off the employees along their respective routes; while the Union possesses the names of unit employees, telephone contact with such employees would be an insurmountable task since the unit employees live in New York, New Jersey, Delaware and Pennsylvania, an area of approximately 90 miles in area; Union access to half of the thirty-five unofficial bulletin boards at the Shipyard is an insufficient means of communication since such bulletin boards are not located at each and every work area and there is no way to prevent notices from being removed from the bulletin boards; there are no bulletin boards on the ships where a majority of the employees work; while the Union is entitled to a steward for every eighty-five employees, the stewards are not allowed official time for purposes of soliciting employees' views on conditions of employment; while both the Union and Respondent publish monthly and weekly newspapers, respectively, such newspapers are not delivered directly to the unit employees but rather are left at various drop off points throughout the base; the unit employees generally work on three shifts and in emergency situations are assigned to shifts of "12's" where they "might work from six in the morning to six at night or six at night to six in the morning." In sum, I find the facts of the instant case to be essentially similar to those appearing in United Aircraft Corporation, supra, Prudential Insurance Company of America, supra, and Magma Copper Co., 208 NLRB 329, wherein the National Labor Relations Board, with Court approval, determined that the Unions involved therein were entitled to have the addresses of unit employees in order to carry out their respective representational responsibilities. Having concluded that Union access to the home addresses of the unit employees is necessary in order for the Union to carry out its representational responsibilities, I find that Respondent's refusal to acquiesce in the Union's request for the home addresses of unit employees violated Sections 7116(a)(1), (5) and (8) of the Statute. Accordingly, it is recommended that the Federal Labor Relations Authority issue the following: ORDER Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Philadelphia Naval Shipyard, shall: 1. Cease and desist from: (a) Refusing or failing to furnish upon request of the Philadelphia Metal Trades Council the addresses of all unit employees. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute. (a) Upon request, make available to the Philadelphia Metal Trades Council, addresses of all unit employees. (b) Post at its facilities at the Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, copies of the Notice To All Employees, attached hereto as Appendix A, on forms to be furnished by the Regional Director, Region II, Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Commander, Philadelphia Naval Shipyard, and shall be posted and maintained by him for sixty (60) consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Commander shall take all reasonable steps to insure 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, Region II, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply herewith. BURTON S. STERNBURG Administrative Law Judge Dated: September 24, 1984 Washington, D.C. APPENDIX A NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT refuse or fail to furnish, upon request, to the Philadelphia Metal Trades Council the addresses of all unit employees. WE WILL, upon request, furnish to the Philadelphia Metal Trades Council addresses of all unit employees. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce any employee in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remain posted for sixty (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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region II, whose address is: 26 Federal Plaza, Room 24-102, New York, New York 10278 and whose telephone number is: (212) 264-4934. --------------- FOOTNOTES$ --------------- /1/ Section 7114(b)(4) of the Statute provides: Sec. 7114. Representation rights and duties . . . . (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation-- . . . . (4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data-- (A) which is normally maintained by the agency in the regular course of business; (and) (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining(.) /2/ Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified as amended at 5 U.S.C. 552a (1982)). /3/ Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256 (codified as amended at 5 U.S.C. 552 (1982)). /4/ The interrelationship of the Privacy Act and the FOIA exemption are set forth more fully in AAFES. /5/ In this regard, the Union could have communicated with unit employees, e.g., through the use of its right, pursuant to the parties' collective bargaining agreement, to one steward for every 85 employees; through access to one-half of all unofficial bulletin boards, which are placed in accordance with Union recommendations; through access to the Respondent's weekly newspaper; through its own monthly newspaper and other literature which is distributed throughout the Shipyard; and through its holding of monthly meetings on and off the base. The extent to which some of these means of communication were subject to restrictions, such as the Respondent's right to approve Union entries in the Respondent's newspaper, or the times during which distributions may be made, does not in our opinion detract from our finding that the Union had alternative means of communication available, especially as we note the established bargaining history of the parties, including matters with regard to means of communication. /6/ In so concluding, the Authority does not reach the question of whether the data sought herein meets the other requirements of section 7114(b)(4) of the Statute. /7/ With respect to Respondent's reliance on the Privacy Act as a defense to its refusal to make the requested information available, I find such defense to be without merit. Bureau of Alcohol, Tobacco and Firearms, National Office and Western Region, San Francisco, California, 8 FLRA 547; Veterans Administration Regional Office, Denver, Colorado, 7 FLRA 629; Local 2047 AFGE v. Defense General Supply Center, 423 F.Supp. 481, 485 fn. 7, 94 LRRM 2058, aff'd. per curiam, 573 F.2d 184, 97 LRRM 3207.