41:0850(73)CA - - Air Force, 56th Combat Support Group ( TAC ), MacDill AFB, FL and NFFE Local 153 - - 1991 FLRAdec CA - - v41 p850
[ v41 p850 ]
The decision of the Authority follows:
41 FLRA No. 73
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.
The complaint alleges that by its actions in terminating an established practice of providing the Union with monthly lists of the names and home addresses of certain employees, the Respondent failed to comply with section 7114(b)(4) of the Federal Service Labor-Management Relations Statute (the Statute) and violated section 7116(a)(1), (5), and (8) of the Statute. For the reasons stated below, we find that the Respondent violated the Statute by failing to comply with section 7114(b)(4) of the Statute and by unilaterally terminating an established past practice. We also find, however, that the record fails to support the General Counsel's allegation that the Respondent repudiated the parties' collective bargaining agreement.
The Union is the exclusive representative of a unit of Respondent's employees. By letter dated May 16, 1989, the Union requested that the Respondent include the home addresses of the new employees on the monthly listing of new employees. In June 1989, the parties "agreed" that the Respondent would furnish such information. Stipulation at 3, para. 13. Specifically, by memorandum dated June 2, 1989, the Respondent informed the Union that "[t]he requested information will be added manually to the monthly listing, beginning with the June listing when it is received." Joint Exh. 5. From April 1989 until December 1990, the Respondent "provided to the Union, on a monthly basis[,] the names and home addresses of newly-hired bargaining unit employees." Stipulation at 3, para. 14. Since January 7, 1991, the Respondent, "without notice to the Union, ceased providing to the Union the monthly lists of home addresses of newly-hired bargaining unit employees." Id., para. 15. In January 1991, the Union inquired about the Respondent's failure to supply the monthly lists and the Respondent informed the Union that it "would no longer provide unit employees' home addresses, due to concerns about violating the Privacy Act." Id., para. 17.
The parties stipulated that the names and home addresses of newly-hired bargaining unit employees are normally maintained by the Respondent in the regular course of business, are reasonably available, and do not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. Id., paras. 18, 19, 21.
III. Position of the Parties
A. General Counsel
The General Counsel argues that the Respondent's refusal to provide the Union the requested names and home addresses violates section 7116(a)(1), (5), and (8) of the Statute. The General Counsel argues that the Authority's decisions in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986) (Farmers Home) and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990), are dispositive of the issues in the case.
The General Counsel also makes the following argument:
Respondent has offered no defense to its unilateral cessation of the practice of providing on a monthly basis the names and home addresses beyond the Privacy Act defense. However, the Authority has held that a union and management may negotiate such arrangements. Thus the unilateral cessation of this valid agreement constitutes a repudiation of the agreement.
Id. (citations omitted). The General Counsel requests that the remedy include an order requiring the Respondent "to immediately provide the requested names and home addresses to the Union, consistent with the past practice." Id. at 4
The Respondent disagrees with the Authority's rationale in its decision in Portsmouth Naval Shipyard. The Respondent contends that disclosure of employees' home addresses is prohibited by the Privacy Act, 5 U.S.C. § 552a, because disclosure would constitute a clearly unwarranted invasion of personal privacy under exemption b(6) of the Freedom of Information Act, 5 U.S.C. § 552(b)(6). The Respondent argues that Portsmouth Naval Shipyard conflicts with U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) and FLRA v. Department of the Treasury, Financial Management Service, 884 F.2d 1446 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 863 (1990). The Respondent also argues that disclosure of the employees' home addresses does not constitute a "routine use" under existing regulations.
The Respondent further contends that the requested information is not necessary, within the meaning of section 7114(b)(4) of the Statute, because the Union "did not ever justify why they needed the home addresses of newly-hired employees" and "[o]ther means of communication . . . exist for the Union to contact employees." Respondent's Brief at 6.
IV. Analysis and Conclusions
A. Section 7114(b)(4)
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and concluded that the release of the names and home addresses of bargaining unit employees to their exclusive representative 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) of the Statute. We also determined that the release of the information is generally required without regard to whether alternative means of communication are available. We find that resolution of this case does not require consideration of whether alternative means of communication are available. It is evident from the parties' stipulation, that the other requirements of section 7114(b)(4)(A), (B), and (C) have been met in this case.
It is undisputed that the Union requested the Agency to provide the names and home addresses of newly-hired employees pursuant to its rights under section 7114(b)(4) of the Statute. Accordingly, based on the Authority's decision in Portsmouth Naval Shipyard and the parties' stipulation, we conclude that the Respondent violated section 7116(a)(1), (5), and (8) by refusing to furnish the Union with the names and home addresses of newly-hired employees in the bargaining unit represented by the Union.
B. Unilateral Change
It is well established that an agency may not change a condition of employment, including a condition of employment established through past practice, without fulfilling its bargaining obligations. See generally, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395-97 (1990). See also U.S. Patent and Trademark Office, 39 FLRA 1477, 1482-83 (1991); U.S. Department of Labor, Washington, D.C., 38 FLRA 899, 910-12 (1990) (DOL). In this case, it is undisputed that the Respondent's provision to the Union of monthly lists of names and home addresses of newly-hired employees constitutes an established practice involving a condition of employment and that the Respondent unilaterally terminated the established practice. Moreover, as noted by the General Counsel, the Respondent's sole justification for termination of the practice is its argument that disclosure of the disputed names and home addresses violates the Privacy Act. Consistent with Portsmouth Naval Shipyard, however, it is clear that the Respondent's practice of providing the Union with certain names and home addresses is not unlawful. Accordingly, we also find that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally terminating the established practice of providing the Union, on a monthly basis, with the names and home addresses of newly-hired unit employees. Compare Department of the Interior, U.S. Geological Survey, Conservation Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA 543 (1982) (agency was required to change method of paying overtime to comply with law).
As noted previously, the parties stipulated that they "agreed" that the Respondent would furnish the Union with the requested information. Stipulation at 3, para. 13. The General Counsel asserts that the Respondent's "unilateral cessation of this valid agreement constitutes a repudiation of the agreement." General Counsel's Brief at 3. We conclude, for the following reasons, that the record in this case does not support the General Counsel's assertion.
In Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211 (1991), we set forth the Authority's framework for determining whether a respondent has repudiated a collective bargaining agreement. We stated, as relevant here, that:
the nature and scope of the failure or refusal to honor an agreement must be considered, in the circumstances of each case, in order to determine whether the Statute has been violated. . . . [I]t is the nature and scope of the breach that are relevant. Where the nature and scope of the breach amount to a repudiation of an obligation imposed by the agreement's terms, we will find that an unfair labor practice has occurred in violation of the Statute.
Id. at 1218-19. See also U.S. Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, Washington, D.C., 41 FLRA 154, 169-72 (1991) (INS); American Federation of Government Employees, AFL-CIO, Local 1909, Fort Jackson, South Carolina, 41 FLRA 18 (1991).
The parties stipulated that they "agreed" that the Respondent would furnish the requested information. Stipulation at 3, para 13. Nothing in the record provides any information concerning this agreement, however. We note, in this regard, that the above-reference portion of the parties' stipulation references Joint Exhibit 4. That exhibit encompasses only the Respondent's answer to the complaint, wherein the Respondent denied the existence of an agreement. Jt. Exh. 4 at para. II. As there is nothing in the record specifying the nature of the agreement, we are unable to conclude that the Respondent's actions constituted a breach of the agreement, or that the nature and scope of such breach constituted a repudiation of the parties' collective bargaining agreement. Accordingly, we will dismiss this allegation in the complaint.(*)
We conclude that a status quo ante remedy is appropriate in this case. Where, as here, management changes a negotiable condition of employment without fulfilling its obligation to bargain on that change, the Authority will grant a status quo ante remedy in the absence of special circumstances. A return to the status quo ante effectuates the purposes and policies of the Statute and ensures that the obligation to bargain is not rendered meaningless.
The Respondent has not established or even asserted any special circumstances to show that a status quo ante remedy is unwarranted in this case. See DOL at 913; United States Army Adjutant General, Publication and Center, St. Louis, Missouri, 35 FLRA 631, 634-35 (1990); Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 35 FLRA 153, 155-56 (1990). Accordingly, we will direct the Respondent to, among other things, reinstitute the established practice of providing the Union, on a monthly basis, with the names and home addresses of newly-hired bargaining unit employees.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the 56th Combat Group (TAC), MacDill Air Force Base, Florida, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Federation of Federal Employees, Local 153, the exclusive representative of certain of its employees, the names and home addresses of newly-hired employees in the bargaining unit it represents.
(b) Unilaterally changing conditions of employment by discontinuing the established practice of providing the National Federation of Federal Employees, Local 153, on a monthly basis, with the names and home addresses of newly-hired employees in the bargaining unit it represents.
(c) 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 National Federation of Federal Employees, Local 153 with the names and home addresses of all employees hired in the Union's bargaining unit since the monthly listing of employees was furnished to the Union in December 1990.
(b) Reinstitute the established past practice of providing the National Federation of Federal Employees, Lo