40:0926(75)CA - - Customs Service, Region IV, Miami District, Miami, FL and NTEU - - 1991 FLRAdec CA - - v40 p926
[ v40 p926 ]
The decision of the Authority follows:
40 FLRA No. 75
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to furnish the Charging Party with the names and home addresses of bargaining unit employees represented by the Charging Party. The Judge granted the General Counsel's motion for summary judgment and recommended that the Respondent be ordered to take appropriate remedial action. The Respondent filed exceptions to the Judge's decision. The General Counsel filed an opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations, we have reviewed the rulings of the Judge and find that no prejudicial error was committed. On consideration of the entire record, we adopt the Judge's findings, conclusions and recommended Order.
In particular, we reject the Respondent's argument that the Judge erred in granting the General Counsel's motion for summary judgment without conducting an evidentiary hearing over physical safety and privacy interests of unit employees. Although we recognize the special circumstances in which the Agency seeks to withhold the requested information in this case, the Agency presents no evidence satisfying the conditions set forth in section 7114(b)(4) for withholding the information.
The Respondent asserts that the disclosure of "Customs inspectors identity [sic] to the public is not recommended" and that unit employees' safety could be jeopardized "if their home addresses became available to the public." Exceptions at 7-8 (emphasis added). In support of its claim, the Respondent cites a Customs Service Information Notice and Directive advising inspectors and other employees that they need only be required to provide their badge numbers to the public due to the possibility of harassment and reliatory measures. Composite Exhibit "A" to Exceptions.
The Respondent's assertions are not sufficient either to raise an issue of material fact requiring a hearing or to support the withholding of the requested information under applicable Authority case law. In Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788, 798 (1986) (Farmers Home), the Authority stated that home addresses of unit employees need not be disclosed where "the evidence discloses that a union has acted in a manner which leads to the conclusion that the employees whose addresses would be disclosed would be in imminent danger if the union knew where they lived." Id. (citing Shell Oil Co. v. NLRB, 457 F.2d 615 (9th Cir. 1972)) (emphasis added). Farmers Home was reaffirmed by the Authority in U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 523 (1990), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, Nos. 90-1948 & 90-2015 and consolidated cases (1st Cir. Oct. 1, 1990). See also Department of Energy and Department of Energy, Pittsburgh Energy Technology Center, 33 FLRA 249, 251 (1988), rev'd on other grounds sub nom. Department of Energy and Department of Energy, Pittsburgh Energy Technology Center v. FLRA, No. 88-1813 (D.C. Cir. Aug. 9, 1990); Department of the Navy, U.S. Naval Ordnance Station, Louisville, Kentucky, 33 FLRA 3, 5 (1988), rev'd on other grounds sub nom. Department of the Navy, U.S. Naval Ordnance Station, Louisville, Kentucky v. FLRA, No. 88-1861 (D.C. Cir. Aug. 9, 1990).
The record in this case is devoid of any evidence that employees would be placed in imminent danger if their home addresses were released to the Union. All the Agency's arguments concern the consequences of disclosure to the public at large. In this regard, the Agency's contentions, based on its Directive, center on possible threats to or harassment of unit employees which could result from disclosure of the employees' names to members of the public in connection with their job duties. These contentions do not address the consequences of disclosure of employees' home addresses to the Union, which is determinative of the issues here. Accordingly, based on the record before us, we agree with the Judge that the Respondent's argument is "nothing more than mere speculation." Judge's Decision at 4.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Customs Service, Region IV, Miami District, Miami, Florida, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Treasury Employees Union, 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 th