30:0181(22)CA - Navy, Navy Resale Activity, Charleston, SC and AFGE Local 2298 -- 1987 FLRAdec CA
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The decision of the Authority follows:
30 FLRA No. 22 DEPARTMENT OF THE NAVY, AND NAVY RESALE ACTIVITY, CHARLESTON, SOUTH CAROLINA Respondents and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2298, AFL-CIO Charging Party Case No. 4-CA-70162
The Administrative Law Judge issued the attached decision in this case, finding that the Respondents 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 bargaining-unit employees. The Judge granted the General Counsel's motion for summary judgment and recommended that the Respondent Activity be ordered to take appropriate remedial action. The Respondents filed exceptions to the Judge's decision and the General Counsel filed an opposition to those exceptions.
Pursuant to section 2423.29 of our Regulations and section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), we have reviewed the rulings of the Judge made in his decision and find that no prejudicial error was committed. The rulings are affirmed. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order as modified to specifically include Respondent Department of the Navy.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Department of the Navy and the Navy Resale Activity, Charleston, South Carolina, shall: [PAGE]
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 2298, AFL - CIO, the exclusive representative of a unit of its employees, the names and home addresses of all employees in the bargaining unit it represents.
(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 2298, AFL - CIO, the exclusive representative of a unit of its employees, the names and home addresses of all employees in the bargaining unit it represents.
(b) Post at all its facilities where bargaining-unit employees represented by American Federation of Government Employees, Local 2298, AFL - CIO, are located, copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Officer in Charge, Navy Resale Activity, Charleston, South Carolina, and shall be posted and maintained for 60 consecutive 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 ensure 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 IV, 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., November 24, 1987.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v30 p2 ]
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 2298, AFL - CIO, the exclusive representative of a bargaining unit of our employees, the names and home addresses of all employees in the bargaining unit it represents.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor - Management Relations Statute.
WE WILL furnish the American Federation of Government Employees, Local 2298, AFL - CIO, the exclusive representative of a bargaining unit of our employees, the names and home addresses of all employees in the bargaining unit 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 IV, Federal Labor Relations Authority, whose address is: 1371 Peachtree Street, N.E., Suite 736, Atlanta, Georgia 30367 and whose telephone number is: (404) 347-2324. [PAGE]
DEPARTMENT OF THE NAVY AND NAVY RESALE ACTIVITY CHARLESTON, SOUTH CAROLINA Respondents and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2298, AFL-CIO Charging Party Case No. 4-CA-70162 Richard S. Jones, Esquire For the General Counsel Nona J. Jordon, Esquire Robert J. Gilson 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 an amended charge filed by the American Federation of Government Employees, Local 2298, AFL - CIO ("Union"), the General Counsel of the Federal Labor Relations Authority issued a complaint and Notice of Hearing on March 26, 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 [PAGE] addresses of all bargaining unit employees at the Activity. In a timely filed Answer, Respondent admitted most of the material allegations of the complaint but denied any violation of the Statute.
On June 5, 1987, Counsel for the General Counsel filed a Motion for Summary Judgment together with a supporting memorandum. On that date the Regional Director transferred the Motion to the Chief Administrative Law Judge for appropriate action. On June 15, 1987, Respondent filed a Motion to Dismiss General Counsel's Motion for Summary Judgment. Thereafter, the General Counsel filed a response to the latter motion.
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.
After consideration of the entire record, including the pleadings, briefs, and stipulations of the parties, I make the following findings of fact, conclusions of law, and recommended order:
Findings of Fact
At all times material hereto, the American Federation of Government Employees, Local 2298, AFL - CIO ("Union") has been the exclusive representative of certain employees of the Navy Resale Activity, Charleston, South Carolina ("Respondent" or "Activity").
On or about November 12, 1986, the Union President made a request to Respondent for the names and home addresses of all employees in the bargaining unit. This information is reasonably available and normally maintained by Respondent in the regular course of business. On November 21, 1986, Respondent denied the Union's request.
Conclusions of Law
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 [ v30 p2 ] 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 only remaining issues are whether the disclosure of the requested information is "prohibited by law" and "necessary" under 7114(b)(4).
The General Counsel argues that Respondent's refusal constitutes a violation of the above sections of the Statute 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 first argues that the release of the home addresses is prohibited by the Privacy Act and Freedom of Information Act (FOIA). Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the information is required under the FOIA. Exemption (b)(6) of the FOIA provides that information contained in personnel files may be withheld if disclosure would constitute a "clearly unwarranted invasion of personal privacy." 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. The Authority concluded that the release of the names and home addresses was permissible under exception (b)(2) of the Privacy Act.
Respondent contends that the Authority erred in FHAFO by not giving greater consideration to the fact that employees might be subjected to harassment or other potential abuse by the Union. Respondent does not suggest that the current officers of the Union will misuse the employees' addresses, but states that there is no guarantee that the information will not be misused in the future. This argument is rejected. In weighing the privacy interests in FHAFO, the Authority clearly considered potential inconvenience and abuse to the employees. Moreover, the Authority's consideration of potential abuse was also demonstrated when it noted its holding was consistent with private sector [ v30 p3 ] law. In one case mentioned by the Authority, the addresses could be properly withheld from the union when there was evidence that their disclosure would put the employees in imminent danger. Id. at 11. Assuming arguendo that the Authority would be guided by the private sector law on this point, it is noted that Respondent admittedly does not have any probative evidence of potential abuse in the instant case.
Respondent also disagrees with the Authority's conclusion in FHAFO that exception (b)(3) of the Privacy Act, the routine use exception, constitutes a separate legal basis for releasing the names and home addresses to the Union. The Authority, following an OPM notice defining routine uses of government personnel records (49 Fed. Reg. 36949, 36956), held that such a disclosure would constitute a "routine use" of information contained in the personnel records when the information was necessary for the Union to discharge its statutory obligations. Id.
Respondent contends that the employees' home addresses were only "incidental to the actual records" and that the routine use exception applies only to information for which the agency is specifically required, presumably by law or higher authority, to maintain an accurate record. It has been stipulated that the home addresses in issue are normally maintained in the ordinary course of business by the Respondent. Respondent's argument has no merit. In the first place, the Privacy Act protects "any item . . . of information" about an individual that is maintained, collected, used, or disseminated by an agency, and this information may be released under the routine use exception. 5 USC 552a(a) and (b)(3). The OPM notice provides that personnel records may include the employee's home address. 49 Fed. Reg. 36949, 36954. It states that "information in these records" may be disclosed under the routine use exception. Id. at 36955. Thus there is no indication in the law or regulations that disclosure should be limited to information specifically "required" to be maintained by the agency.
Accordingly, the names and home addresses herein may be disclosed under exceptions (b)(2) and (b)(3) of the Privacy Act. Therefore, the release of this information is not prohibited by law. FHAFO, supra.
Respondent argues that the information was not "necessary" within the meaning of section 7114(b)(4) because alternative means of communication with unit members were available to the Union. Respondent requests a hearing so [ v30 p4 ] that it can provide evidence of these alternative means. However, the Authority has concluded that names and home addresses are "necessary" and should be provided to the Union whether or not alternative means of communication are available. FHAFO, supra. Accordingly, no hearing is necessary for this purpose.
Finally, Respondent argues that the record fails to demonstrate that the requested information is relevant to the Union's representational duties. However, the Authority concluded in FHAFO that the Union's need for the names and home addresses of bargaining unit employees is so apparent and essentially related to the nature of exclusive representation itself that the Union need not even explain the reasons for its request.
Accordingly, Respondents' arguments are rejected and the Motion for Summary Judgment filed by the General Counsel is granted. In view of the above, I conclude that Respondent violated sections 7114(b)(4) and 7116(a)(1), (5), and (8) of the Statute, and recommend that the Authority adopt the Order which follows. It is not necessary to reach the alternative argument of the General Counsel.
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Navy Resale Activity, Charleston, South Carolina, shall:
1. Cease and desist from: