29:0027(2)CA - VA, Washinton, DC and VA Medical Center, Cleveland, OH and AFGE Local 31 -- 1987 FLRAdec CA
[ v29 p27 ]
The decision of the Authority follows:
29 FLRA No. 2
VETERANS ADMINISTRATION WASHINGTON, D.C. AND VETERANS ADMINISTRATION MEDICAL CENTER, CLEVELAND, OHIO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 31, AFL-CIO Charging Party Case No. 5-CA-70106
The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent had engaged in the unfair labor practices alleged in the complaint by refusing to furnish, upon request of the Charging Party, the names and home addresses of employees in the bargaining units. The Respondent filed exceptions to the Judge's Decision.
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 and the entire record, we adopt the Judge's findings, conclusions and recommended Order. [PAGE]
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the Veterans Administration, Washington, D.C., and the Veterans Administration Medical Center, Cleveland, Ohio, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 31, AFL - CIO, the exclusive representative of certain of its employees, the names and home addresses of all employees in the bargaining units employed at the Veterans Administration Medical Center, Cleveland, Ohio.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them 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 31, AFL - CIO, the exclusive representative of bargaining units of certain of its employees, the names and home addresses of all employees in the bargaining units it represents.
(b) Post at the Veterans Administration Medical Center, Cleveland, Ohio, where bargaining unit employees represented by the American Federation of Government Employees, Local 31, AFL - CIO, 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, Veterans Administration Medical Center, Cleveland, Ohio, and shall be posted in conspicuous places, including all 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. [ v29 p2 ]
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region V, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
Issued, Washington, D.C., September 25, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v29 p3 ]
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 31, AFL - CIO, the exclusive representative of certain of our employees, the names and home addresses of all employees in the bargaining units employed at the Veterans Administration Medical Center, Cleveland, Ohio.
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 31, AFL - CIO, the exclusive representative of bargaining units of certain of our employees, the names and home addresses of all employees in the bargaining units it represents.
______________________________ (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, Region V, Federal Labor Relations Authority, whose address is: 175 West Jackson Blvd., Suite 1359-A, Chicago, Illinois 60604 and whose telephone number is: (312) 353-6306. [PAGE]
VETERANS ADMINISTRATION, WASHINGTON, D.C. AND VETERANS ADMINISTRATION MEDICAL CENTER, CLEVELAND, OHIO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 31, AFL-CIO Charging Party Case No. 5-CA-70106 Sandra J. LeBold, Esquire For the General Counsel Charles Kendricks For the Charging Party George Bauer, Esquire For the Respondent Before: RANDOLPH D. MASON Administrative Law Judge
Statement of the Case
This proceeding was initiated under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq., and the Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq. Pursuant to a second amended charge filed [PAGE] by the American Federation of Government Employees, Local 31, AFL - CIO ("Union"), the General counsel of the Federal Labor Relations Authority issued a Complaint and Notice of Hearing on February 23, 1987, alleging that Respondent violated sections 7114(b)(4) and 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the Union with the names and home addresses of all bargaining unit employees at the Respondent Activity. In a timely filed Answer, Respondent denies any violation of the Statute.
The undersigned was selected by the Office of Personnel Management to conduct this proceeding under the authority of 5 U.S.C. 3344 and 5 CFR 930.213.
A hearing was held by the undersigned in Cleveland, Ohio, on April 8, 1987. The General Counsel and Respondent were represented by counsel and all parties were given full opportunity to be heard, adduce evidence, and examine and cross-examine witnesses. The parties elected not to file briefs. After consideration of the entire record, including the pleadings, documentary evidence, and stipulations of the parties, I make the following findings of fact, conclusions of law, and recommended order:
At all times material hereto, the American Federation of Government Employees, Local 31, AFL - CIO, ("Union") has been the exclusive representative of appropriate units of about 1700 professional and nonprofessional employees assigned to the Veterans Administration Medical Center, Cleveland, Ohio, ("Activity"). The Activity is composed of an inpatient unit in Brecksville, Ohio, an inpatient unit in Cleveland, Ohio, ("Wade Park Unit"), and an outpatient clinic in canton, Ohio. The Union represents only nonprofessional employees at the Canton Clinic.
On November 18, 1986, the Union President, Maggie Jean Larry, sent a letter to P. Stajduhar, M. D., Director of the Activity, requesting the names and last known home addresses of all bargaining unit employees of the Activity. Ms. Larry stated that the information was needed "so that we can communicate with all members in reference to the new drug testing law" and that feedback from employees was needed prior to negotiations. Subsequently, the request was denied and Respondent's Employee Relations Supervisor informed the Union that the Union's need to communicate did not outweigh the privacy interests of the bargaining unit members. Respondent admits that the drug testing law will ultimately [ v29 p2 ] result in negotiations at the local level herein, but asserts that such negotiations would follow national level negotiations which had not been completed at the time of the hearing. However, management has admittedly provided the local union with other information on the drug prevention program before the conclusion of national negotiations and as soon as they received it.
The names and home addresses of the bargaining unit employees are maintained in the regular course of business by the Respondent and are reasonably available (Tr. 8; Ans. VIa).
In the past, the Activity attempted to set up a car pool service and sent out listings of employees' names and home addresses. The personnel service received strong complaints from employees who complained about their home addresses being distributed to a large number of people.
The Union does have some alternative means of communicating with the employees in the bargaining unit. The Union receives an employee locator listing that contains the employee's name, service, payroll unit, and duty station. This list contains the names of all employees and does not indicate which ones are in the bargaining unit. The Union also has an official bulletin board located at all three of the Activity's units; however, such communications are not private, and lengthy documents cannot be posted. Upon request, the Union may be provided with space for meeting with employees, but such meetings are not on official time. Distribution of literature may be permitted provided it takes place outside the duty hours of the employees distributing and receiving the literature. In some instances where the supervisor gives permission, the Union will be permitted to go into the work areas and give communications to an employee. The Union has no access to certain working areas which are locked. Employees work various shifts during the 24 hour day, and stewards are not always available. The Union attends orientations of new employees, but a management offical would be present when the union official addressed the employees. Finally, many home addresses may be found in the commercial telephone directory.
VA regulations state that for purposes of the Privacy Act, one of the "routine uses" of personnel and payroll records is for "federal, state and local agencies and organizations authorized by law or regulation to have access to such information." MP-1, Part II, Chap. 21, Appendix B. There is no probative evidence that this routine use was intended to restrict disclosures to labor organizations. [ v29 p3 ]
The primary issue for consideration is whether Respondent's refusal to furnish the Union with the names and home addresses of bargaining unit employees constituted a violation of sections 7114(b)(4) and 7116(a)(1), (5), and (8) of the Statute. Section 7114(b)(4) requires an agency to furnish to an exclusive representative, upon request and to the extent not prohibited by law, data which is (1) normally maintained by the agency in the regular course of business; and (2) reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. Respondent admittedly refused to comply with the Union's request for the home addresses of the employees in the bargaining unit.
The General Counsel argues that Respondent's refusal constitutes a violation of section 7114(b)(4) and 7116(a)(1), (5), and (8) in view of the Authority's decision on remand in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986) ("FHAFO"), petition for review filed sub nom. U. S. Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86-2779 (8th Cir. Dec. 23, 1986). In FHAFO the Authority concluded that the release of names and home addresses of bargaining unit employees to the exclusive representatives of those employees 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).
Respondent argues that the release of the home addresses is prohibited by the Privacy Act and Freedom of information Act because Respondent's employees have a particular reluctance to release their addresses. In FHAFO, the Authority analyzed these statutes and balanced the privacy interests of federal employees against the public interest in disclosure and concluded that the privacy interests were not particularly compelling. Respondent has failed to present evidence which distinguishes the interests of Respondent's employees from the employees in FHAFO. The fact that some employees might have been upset in the past by having their home addresses disseminated to the universe of potential car pool participants is not indicative of their attitude toward having these addresses furnished solely to the Union for the purpose of mailings.
Respondent's reliance on Heights Community Congress v. Veterans Administration, 732 F.2d 526 (8th Cir. 1984), cert. [ v29 p4 ] denied 469 U. S. 1034 (1984), is misplaced. That case balanced the disclosure of home addresses and loan amounts against public interests which are distinguishable from those involved in the instant case. Also, the Court found that the disclosure might result in the individual homeowners being subjected to involuntary interrogation and personal involvement in an investigation of racial steering. No such invasion of personal privacy existed herein. Moreover, assuming arguendo that the Court of Appeals for the Sixth Circuit considers the privacy right in one's home address to be more compelling than the Authority has found it, I would be bound by the Authority's decision in FHAFO, supra.
Respondent also contends that disclosure of the home addresses would not be permissible as a "routine use" under exception (b)(3) of the Privacy Act. Respondent argues that the aforementioned balancing test provided by exception (b)(2) of the Privacy Act and the Freedom of information Act ("FOIA") should also be applied to the routine use exception. Even if it were applicable, the result would be the same herein. However, the Authority has concluded that the home addresses may be released under the routine use exception even if disclosure was not authorized by exception (b)(2) of the Privacy