[ v25 p560 ]
25:0560(42)CA
The decision of the Authority follows:
25 FLRA No. 42
DEPARTMENT OF THE TREASURY
FINANCIAL MANAGEMENT SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION
Charging Party
Case No. 3-CA-60380
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, granting the General Counsel's motion for
summary judgment and finding that the Respondent had engaged in the
unfair labor practices alleged in the complaint and recommending that
Respondent be ordered to take appropriate remedial action. Thereafter,
the Respondent filed exceptions to the Judge's Decision and a supporting
brief. No opposition to the exceptions was filed.
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), we have reviewed the rulings of the Judge made at
the hearing and find that no prejudicial error was committed. The
rulings are hereby affirmed. Upon consideration of the Judge's
Decision, the exceptions, and the entire record, we adopt the Judge's
findings, conclusions and recommended Order.
Issued, Washington, D.C., February 5, 1987..
Jerry L. Calhoun, Chairman
Henry B. Frazier, III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-60380
DEPARTMENT OF THE TREASURY FINANCIAL MANAGEMENT SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Authur S. Rosenzweig, Esquire
For the Respondent
Ira Sandron, Esquire
For the General Counsel
Bryan W. Mellor, Esquire
For the Charging Party
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /*/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns a request for the
names and home addresses of bargaining unit employees.
This case was initiated by a charge filed on June 12, 1986 (G.C. Exh.
1(a)), which alleged violations of Sections 16(a) (1) and (8) of the
Statute and a first ammended charge filed on August 15, 1986 (G.C. Exh.
1(b)), which alleged violations of Sections 16(a)(1), (5) and (8) of the
Statute. The Complaint and Notice of Hearing issued on August 26, 1986
(G.C. Exh. 1(c)), alleged violations of Sections 16(a)(1), (5) and (8)
of the Statute, and set the hearing for November 5, 1986, pursuant to
which a hearing was duly held on November 5, 1986, in Washington, D.C.,
before the undersigned. At the conclusion of the testimony and
evidence, I granted the motion of General Counsel for summary judgment.
All parties were given leave to mail briefs, in support of the granting
of summary judgment or in opposition thereto, on or before November 19,
1986. No post-hearing briefs were filed. On the basis of the entire
record, I make the following findings and conclusions:
Findings
1. The National Treasury Employees Union (NTEU) is the exclusive
representative of Respondent's employees in a nation-wide consolidated
unit consisting of all of Respondent's nonprofessional General Schedule
and Wage Grade employees. NTUE'S Chapter 202 (hereinafter referred to
as the "Union") is the agent of NTEU acting upon its behalf in
representing bargaining unit employees.
2. On, or about April 29, 1986, the Union requested that Respondent
furnish it with the names and home addresses of ". . . all bargaining
unit employees in FMS" (G.C. Exh. 3), and stated that, "The purpose of
this request is for the Union to have an opportunity to reach all of our
employees regardless of restricted or security areas they may work in."
(G.C. Exh. 3).
3. By letter dated May 5, 1986, Respondent refused to furnish the
Union the names and home addresses requested stating,
"this is in response to your April 29, 1986 letter asking for
the names and mailing addresses of all bargaining unit employees.
A recent FLRA decision on this very issue held that the Unions are
not normally entitled to this information. The Authority balanced
the rights of the exclusive bargaining representative and the
privacy rights of the employees. It concluded that as long as
there were other reasonably effective means of contacting the
employees, the Unions were not entitled to this information.
Accordingly, I must deny your request.
"Management is interested in cooperating with NTEU to the
extent permitted by law. Therefore, if you are unable to contact
any FMS employee bargaining unit employee because that person is
either assigned to a remote work site or absent for an extended
period, please contact a Labor Relations Specialist for assistance
in either locating that employee or forwarding documents to that
person." (G.C. Exh. 4).
4. The parties stipulated as follows:
"The information requested by the Union, described in Paragraph
6 of the Complaint, is normally maintained by Respondent, based on
information supplied by bargaining unit employees, in the regular
course of business, is reasonably available and does not
constitute guidance, advice, counsel, or training for management
officials, or supervisors relating to collective bargaining." (Tr.
8; see, also, Respondent's Answer, G.C. Exh. 1(e)).
5. Mr. Clinton Weems, President of Chapter 202 and who made the
request for names and home addresses, testified there was no
correspondence between the Union and Respondent other than General
Counsel Exhibits 3 and 4 (Tr. 7); that he had no conversations bearing
on the purpose of his request with Respondent (Tr. 17-18); and that
Respondent never asked why he wanted the information (Tr. 18).
6. Ms. Virginia Gaye Cook, Labor Relations Officer for the Financial
Management Service (Tr. 23), testified that the Financial Management
Service consists of Headquarters and seven regional financial centers;
that there is a single nationwide bargaining unit represented by NTEU;
that in the headquarters area in Washington there are six different
locations, including the Treasury Annex, Hyattsville, Maryland (where
most of its employees are located), the Shoreham Building, the Premier
Building, and supplies at the Ford plant in Alexandria, Virginia (Tr.
38); and that there are about 2400 employees in Financial Management
Service, not all of whom are in the bargaining unit (Tr. 29). Ms. Cook
testified that, to her knowledge, no Union official had ever complained
about trouble in contacting bargaining unit employees (Tr. 28). General
Counsel's objection to questions directed to Ms. Cook concerning what
methods the Union had employed to communicate with bargaining unit
employees was sustained; Respondent was permitted to make a proffer of
proof, to the effect that the contract of the parties provides various
methods of contact, including official time for Union officials to meet
with employees, permitting use of bulletin boards, desk drops,
"take-one" distribution in the cafeteria area, that Respondent has
provided names, location and office telephone numbers of employees, and
that these methods are reasonable and effective (Tr. 31-32, 33).
General Counsel objected to Respondent's proffers of proof and they were
rejected.
Conclusion
Respondent concedes that the facts are not in dispute and stated,
". . . The operative facts concerning the complaint are not in
issue, the Union submitted a formal request for the names and home
addresses of FMS employees and management refusal to provide it to
them." (Tr. 22).
Respondent's position is, as quite succinctly stated by Mr.
Rosenzweig,
". . . the information requested by the Union was not necessary
for a full and proper discussion understanding and negotiation of
subjects within the scope of collective bargaining . . . that NTEU
has represented FMS for several years and has never complained to
management about difficulty with contacting employees, or about
being constrained in the type of contacts it has . . . that
reasonable and effective alternative means exist to contact
employees without invading their privacy . . . We urge the
Authority to consider the alternative means available to the Union
and then apply the appropriate balancing test." (Tr. 22-23).
The Authority's decision in Farmers Home Administration, Finance
Office, St. Louis, Missouri, 23 FLRA No. 101 (October 31, 1986) (G.C.
Exh. 2) is both controlling and dispositive of Respondent's contentions.
Thus, the Authority held, in part, as follows:
"On balance, we find that the public interest to be furthered
by providing the Union with an efficient method to communicate
with unit employees it must represent far outweighs the privacy
interests of individual employees in their names and home
addresses. Disclosure of the requested information would not
constitute a clearly unwarranted invasion of personal privacy and
does not fall within the (b)(6) exemption to the FOIA. Since the
information does not fall within the exemption, its disclosure is
required under the FOIA and, under exception (b)(2) to the Privacy
Act, its release is not prohibited by law. (23 FLRA No. 101 at
p.6).
". . . we conclude that the disclosure of the names and home
addresses of bargaining unit employees to the Union is necessary
within the meaning of Section 7114(b)(4) of the Statute for the
Union to discharge its statutory obligations. Consistent with
that conclusion, we find that the disclosure of the information
sought here falls within the routine use established by OPM, and
its disclosure is therefore a routine use under exception (b)(3)
of the Privacy Act. Therefore, even if the disclosure was not
authorized under exception (b)(2) of the Privacy Act, relating to
the FOIA, it is authorized under exception (b)(3).
"Release of the requested information is therefore not
prohibited by law. It may be released pursuant to exceptions
(b)(2) and (3) of the Privacy Act. (23 FLRA No. 101 p. 7).
". . . We find that the statutory requirement concerning
sufficiency of a request under section 7114(b)(4) is satisfied for
requests such as that involved here when a general written request
for the information is made. A precise explication of the reasons
for the request involved here is not necessary . . . an exclusive
representative's need for the names and home addresses of the
bargaining unit employees it is required to represent is so
apparent and essentially related to the nature of exclusive
representation itself, that unlike requests for certain types of
other information, an agency's duty to supply names and home
addresses information does not depend upon any separate
explanation by the union, of its reasons for seeking the
information. (23 FLRA No. 101, at p. 8).
"We will not review the adequacy of alternative methods of
communication on a case-by-case basis . . . we find that the mere
existance of alternative means of communication is insufficient to
justify a refusal to release the information. Further, we find
that it is not necessary for us to examine the adequacy of
alternative means in cases involving requests for names and home
addresses because the communication between the unit employees and
their exclusive representative which would be facilitated by the
release of names and home addresses information is fundamentally
different from other communication through alternative means which
are controlled in whole or in part by the agency. When using
direct mailings, the content, timing, and frequency of the
communication completely within the discretion of the union and
there is no possibility of agency interference in the distribution
of the message. Further, direct mailings reach unit employees in
circumstances where those employees may consider the union's
communication without regard to the time constraints inherent in
their work environments, and in which any restraint the employee
may feel as a result of the presence of agency management in the
workplace is not present. We find the names and home addresses of
unit employees are necessary and should be provided whether or not
alternative means of communication are available." (23 FLRA No.
101, at pp. 9-10).
Respondent was required to furnish the names and home addresses
requested by the Union, which were normally maintained by Respondent in
the regular course of business and were reasonably available, without
regard to whether alternative means of communication were available or
adequate. Respondent's refusal to furnish the requested information
violated Sections 16(a)(1), (5) and (8) of the Statutes; the granting
of General Counsel's motion for summary judgment at the conclusion of
the hearing is affirmed; and it is recommended that the Authority adopt
the following:
ORDER
Pursuant to Section 2423.29 of the Authority's Rules and Regulations,
5 C.F.R. Section 2423.29, and Section 18 of the Statute, 5 U.S.C. 7118,
the Authority hereby orders that Department of the Treasury, Financial
Management Service shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of National Treasury
Employees Union, the exclusive representative of its employees,
and its Chapter 202, the names and home addresses of all
bargaining unit employees in Financial Management Service.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
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 names and home addresses as requested by the
National Treasury Employees Union's Chapter 202 by its letter of
April 29, 1986.
(b) Post at all of its facilities where bargaining unit
employees represented the National Treasury Employees Union,
including its National Headquarters and Financial Center,
Washington, D.C. and at its Regional Financial Centers, 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 a senior official of the Financial Management Service
and shall be posted and maintained for 60 consectutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such
notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to Section 2423.30 of the Athority's Rules and
Regulations, notify the Regional Director of Region III, Federal
Labor Relations Authority, 1111 18th Street, N.W., P.O. Box 33758,
Washington, D.C. 20033-0758, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: November 26, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
statutory reference, e.g., Section 7114(b)(4) will be referred to,
simply, as "Section 14(b)(4)".
APPENDIX
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 to furnish, upon request of the National Treasury
Employees Union, the exclusive representative of our employees, the
names and home addresses of all bargaining unit employees in the
Financial Management Service.
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 names and home addresses as requested by the
National Treasury Employees Union's Chapter 202 by its letter of April
29, 1986.
(Agency or Activity)
Dated: . . . By: . . .
(Signature)
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region III,
whose address is: 1111 18th Street, N.W., Suite 700, P.O. Box 33758,
Washington, D.C. 20033-0758, and whose telephone number is: (202)
653-8500.