31:0728(47)CA - Navy, Navy Public Works Center, Norfolk, Virginia and Tidewater Virginia FEMTC -- 1988 FLRAdec CA
[ v31 p728 ]
The decision of the Authority follows:
31 FLRA No. 47 DEPARTMENT OF THE NAVY NAVY PUBLIC WORKS CENTER NORFOLK, VIRGINIA Respondent and TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL AFL-CIO Charging Party Case No. 34-CA-60867
The Administrative Law Judge issued the attached decision in this case, finding that the Department of the Navy, Navy Public Works Center, Norfolk, Virginia (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 bargaining unit employees. 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 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. See Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986), enforced in part and remanded sub nom. U.S. Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86-2579 (8th Cir. Jan. 15, 1988) petitions for rehearing filed. See also U.S. Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, No. 87-1143 (7th Cir. Jan. 27, 1988), affirming [PAGE] Department of the Air Force, Scott Air Base, Illinois, 24 FLRA 226 (1986); Department of Health and Human Services, Social Security Administration v. FLRA, 833 F.2d 1129 (4th Cir. 1987), petition for rehearing filed Jan. 8, 1988, affirming Department of Health and Human Services, Social Security Administration, 24 FLRA 543 (1986); Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, New York Region, 24 FLRA 583 (1986); Department of Health and Human Services, Social Security Administration, 24 FLRA 600 (1986).
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the Department of the Navy, Navy Public Works Center, Norfolk, Virginia shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the Tidewater Virginia Federal Employees Metal Trades Council, AFL - CIO, the exclusive representative of certain 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 Tidewater Virginia Federal Employees Metal Trades Council, AFL - CIO, with the names and home addresses of all employees in the bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees represented by the Tidewater Virginia Federal Employees Metal Trades Council, 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 Commanding Officer 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. [ v31 p2 ]
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, 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., March 4, 1988.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v31 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 Tidewater Virginia Federal Employees Metal Trades Council, AFL - CIO, the exclusive representative of certain 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 Tidewater Virginia Federal Employees Metal Trades Council, AFL - CIO, with 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 III, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500. [ v31 p4 ]NAVY PUBLIC WORKS CENTER# NORFOLK, VIRGINIA Respondent and TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO Charging Party Robert J. Gilson For the Respondent Ira Sandron, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge Case No. 34-CA-60867
Statement of the Case
This case arose 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. (herein the Statute).
Upon an unfair labor practice charge having been filed by the captioned Respondent (herein the Union) against the captioned Respondent (herein sometimes NPWC), the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for Region III, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute by failing and refusing, upon request, to furnish the Union with the names and mailing addresses of various bargaining unit employees
A hear ing on the Complaint was conducted in Norfolk, Virginia at which all parties were represented and afforded full Opportunity to adduce evidence, call, examine and [PAGE] cross-examine witnesses and argue orally. A brief was filed by Respondent and has been carefully considered.
Upon the entire record in this case, witness demeanor and from my evaluation of the evidence, I make the following:
Findings of Fact
At all times material the Union has been the exclusive collective bargaining representative of approximately 1800 of Respondent's employees located at various facilities in five Divisions in the Norfolk, Virginia area. By letter dated June 26, 1986 the Union requested that Respondent provide it with an up-to-date listing of all "union members" so the Union could fulfill its duty to represent bargaining unit employees. In a telephone conversation on July 8 the Union clarified its request by indicating that the mailing addresses sought were the employees' home addresses. Respondent replied on July 25 denying the request contending that the production of such information would constitute an invasion of employees' personal privacy and indicating the Union had not supplied enough information to enable Respondent to determine its responsibility to release the data, citing section 7114 of the Statute and the "relevant and necessary" requirement alluded to in Authority decisions regarding the production of such information. 1 On [ v31 p2 ] August 13 the Union further clarified its request by informing Respondent it was seeking a list of all "unit" members, not "union" members. The Union also stated it considered the requested information relevant and necessary to communicate with employees on such issues as negotiations, grievance processing and various programs such as reorganizations and urinalysis. By letter of August 28 Respondent again refused to supply the data requested stating it was ". . . determined that the need for the mailing addresses of unit member does not clearly override the legal rights of the employees to personal privacy."
Respondent NPWC is within the Naval Facilities Engineering Command which is subordinate to the United States Navy Chief of Naval Operations. Pursuant to a servicing agreement the Naval Air Rework Facility (herein NARF) provides various personnel and labor relations functions for NPWC including maintaining the Official Personnel Files (herein OPFs) of NPWC employees. 2 Although the files are under the supervision, custody and control of NARF employees, they are physical retained on NPWC controlled sites. NPWC employees who have a need to review the OPFs are given access to the files under the supervision of NARF personnel or the data will be obtained by NARF personnel and given to the NPWC employees seeking it, with some restrictions. The employees' OPFs contain, inter alia, the employment application originally submitted when the employee first applied for a job (form 171). Except in a rare situation the OPF would contain the home addresses of the employee had when employment was first sought. The record further reveals that each [ v31 p3 ] of Respondent's five Divisions maintains the home address of the employee in that Division on what are designated "7-B" cards. Such cards are completely within Respondent's custody and control. Testimony disclosed that it would take one clerical employee approximately 24 hours to gather the names and addresses of all unit employees from the "7-B" cards in Respondent's Divisions.
With regard to the Union's means of communicating with employees, at the hearing Respondent made an offer of proof, which was rejected, to the effect that the Union: receives from Respondent, quarterly, a list of unit employees by name and work location; has available to it 15 bulletin boards at Respondent's facilities; has an office where employees are permitted to visit; has meeting space provided by Respondent after work hours; and has a newsletter which is distributed on Respondent's property.
Discussion and Conclusions
The General Counsel, relying on the Authority's decision in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986), contends Respondent violated section 7116(a)(1), (5) and (8) of the Statute when on August 28, 1986 it refused to supply the Union with the mailing addresses of all bargaining unit employees. Respondent essentially contends the requirements of section 7114(b)(4) of the Statute have not been met in that: the data requested is not maintained by Respondent in a reasonably available form; Respondent is prohibited by law from releasing the information, referring to the application of the Freedom of Information Act and the Privacy Act, 5 U.S.C. 552; and the data is neither relevant nor necessary for the Union to carry out its representational duties.
In Farmers Home Administration Finance Office, supra, the Authority held: (1) the disclosure of the names and addresses of bargaining unit employees to the exclusive representative was not prohibited by the Privacy Act; (2) an agency's possession of Official Personnel Files wherein can be found employees' addresses satisfies the requirements of section 7114(b)(4)(A) and (B) of the Statute that such data to be normally maintained by the agency and reasonably available; and (3) such data was necessary under section 7114(b)(4)(B) for unions to meet their statutory obligation to represent the interests of all employees in the unit without discrimination as required by section 7114(a)(1) of the Statute, notwithstanding the existence of alternative means by which a union might communicate to unit employees. [ v31 p4 ]
In subsequent decisions the Authority followed Farmers Home Administration in deciding numerous cases which involved substantially the same issues. Philadelphia Naval Shipyard, 24 FLRA 37 (1986); Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 24 FLRA 43 (1986); Social Security Administration, Northeastern Program Service Center, 24 FLRA 108 (1986); Department of the Navy, Portsmouth Naval Shipyard, 24 FLRA 209 (1986); Department of the Air Force, Scott Air Force Base, 24 FLRA 226 (1986); Department of Health and Human Services, Region V, 26 FLRA 460 (1987); Air Force District of Washington, 26 FLRA 542 (1987); and Departments of the Army and Air Force, Army and Air Force Exchange Service Headquarters, Dallas, Texas and Army and Air Force Exchange Service, McClellan Air Force Base, California, 26 FLRA 691 (1987).
The facts presented herein and the arguments raised by Respondent are not significantly different from those considered by the Authority in Farmers Home Administration and cases which followed thereafter, supra. Further, I specifically reject Respondent's contention that it does not maintain the data. The OPFs, while not technically maintained by Respondent, are available to it for the asking. More importantly, the information sought is contained on the "7-B"cards which are indisputably under Respondent's supervision, custody and control. With regard to the burden for Respondent to obtain the information from the "7-B" cards in the five Divisions, this is not a valid defense to producing the data. See Defense Mapping Agency Aerospace Center; Department of Health and Human Services, supra; and 831 Combat Support Group (TAC), George Air Force Base, California, 28 FLRA No. 16 (1987). In view of the Authority's holdings in the above cases concluded Respondent's defenses to its failure and refusal to provide the Union with the names and addresses of unit employees as requested by the Union to be without merit. I further conclude Respondent