25:0560(42)CA - Treasury, Financial Management Service and NTEU -- 1987 FLRAdec CA



[ 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,