[ v26 p460 ]
26:0460(56)CA
The decision of the Authority follows:
26 FLRA No. 56
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, REGION V,
CHICAGO, ILLINOIS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 230
Charging Party
Case No. 5-CA-60271
DECISION AND ORDER
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 and recommending
that the Respondent be ordered to take appropriate remedial action.
Thereafter, the Respondent filed exceptions to the Judge's Decision and
a supporting brief. The General Counsel and the Charging Party filed
oppositions to the exceptions.
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, the exceptions, and the entire record, we adopt the Judge's
findings, conclusions and recommended Order. We deny the Respondent's
request for a remand as without basis. We also deny the General
Counsel's motion to strike, noting that we have considered only the
record evidence properly before us.
ORDER
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 Health and Human Services, Region V, Chicago,
Illinois shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Treasury
Employees Union, and National Treasury Employees Union, Chapter 230, the
exclusive representative 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 National Treasury Employees Union and National
Treasury Employees Union, Chapter 230, the exclusive representative of
its employees, the names and home addresses of all employees in the
bargaining unit it represents.
(b) Post at its facilities in Region V where bargaining unit
employees represented by National Treasury Employees Union and National
Treasury Employees Union, Chapter 230, 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
Respondent's Regional Director 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 V, Federal Labor
Relations Authority, Chicago, Illinois, 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 31, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National Treasury
Employees Union and National Treasury Employees Union, Chapter 230, the
exclusive representative 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 the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL, upon request by the National Treasury Employees Union and
National Treasury Employees Union, Chapter 230, the exclusive
representative of our employees, furnish it 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 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.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 5-CA-60271
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
REGION V CHICAGO, ILLINOIS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 230
Charging Party
Judith Ramey, Esq.
For the General Counsel
Edward L. Koven, Esq.
For the Respondent
Angela C. Thomas, Esq.
For the Charging Party
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
This decision involves an unfair labor practice complaint issued by
the Regional Director, Region V, Federal Labor Relations Authority,
Chicago, Illinois, against the Department of Health and Human Services,
Region V, Chicago, Illinois (herein called Respondent), based on a
charge filed by the National Treasury Employees Union and National
Treasury Employees Union, Chapter 230 (herein called Charging Party or
Union). The Complaint alleged, in substance, that Respondent violated
section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. Section 7101, et seq., (herein called the
Statute) by refusing to furnish the Union with the names and home
addresses of all employees within the bargaining unit pursuant to
section 7114(b)(4) of the Statute.
Respondent's Answer denied any violation of the Statute.
A hearing was held in Chicago, Illinois. /1/ The Respondent,
Charging Party, and the General Counsel were afforded full opportunity
to be heard, adduce relevant evidence, examine and cross-examine
witnesses, and file post-hearing briefs. The Respondent and General
Counsel filed timely briefs. Based on the entire record, including my
observation of the witnesses and their demeanor, I make the following
findings of fact, conclusions of law, and recommendations.
Findings of Fact
1. At all times material, the Union has been and remains the
exclusive representative of Respondent's employees in an appropriate
bargaining unit.
2. The bulk of bargaining unit employees are situated in four
buildings located in downtown Chicago. A few other employees are
scattered in other buildings in downtown Chicago, possibly six others
are spread in different locations throughout a six-state area, one in
each state capital.
3. On April 22, 1986, the parties entered a collective bargaining
agreement with a duration of three years. The agreement included an
article entitled "Hours of Work/Alternate Work Schedules" (AWS). Under
Article 37, section 14 the AWS provided that either party may reopen the
article effective May 1, 1987. Assistant Counsel for the Union,
Jefferson D. Friday, testified that it intended to re-open section 14 to
"fine tune" the Article. Consistent with this desire Mr. Friday, on May
19, 1986 wrote Ms. Cindy Soltes, Respondent's Labor Relations Officer,
requesting that Respondent "provide us with a list of the names and
corresponding home addresses for bargaining unit employees. . . ." /2/
4. On May 31, 1986, Ms. Soltes responded to the above-mentioned
correspondence denying the request for home addresses of unit employees
represented by the Union. Respondent's letter relied on the Authority's
holding in Department of Defense, Department of the Navy, Norfolk Naval
Shipyard, Portsmouth, Virginia, 20 FLRA 425 (1985). Respondent also
noted "two conflicting opinions" from circuit court's on the issue.
Further, Respondent contended that the data requested "is not normally
maintained and is not reasonably available"; that a search for the data
would be "burdensome" to it; that the release of the data was
prohibited by law; and, finally that the Union had "other means" of
communication available.
5. The names and home addresses requested by the Union are
maintained in Respondent's Regional Personnel Office at 300 South Wacker
Drive in Chicago. The information is available from the Official
Personnel Files (OPFs) of approximately 500 bargaining unit employees
represented by the Union, with the exception of a dozen, or so, files
kept at 600 West Madison in Chicago. The above mentioned files contain
a home address although it may not be the present address for each
employee. The files are maintained in mechanical (motorized) file
cabinets in alphabetical order. Ms. Soltes testified that it would take
"maybe 20 minutes to locate the file, pull it and replace the file."
Based on this estimate by Ms. Soltes, Respondent says that it probably
would require one person "a good week or two weeks" full-time to
retrieve the requested data from the personnel files. However,
Respondent is currently in the process of updating a computerized
central payroll file with current home addresses of all employees
because of a new requirement regarding distribution of payroll checks.
Conclusions
Since the hearing in this matter, the Authority on October 31, 1986
issued a decision in Farmers Home Administration Finance Office, St.
Louis, Missouri, 23 FLRA No. 101, concluding that the release of names
and home addresses is not prohibited by law, is necessary and meets the
other requirements of section 7114(b)(4) of the Statute. The briefing
schedule was extended to allow the parties to consider its applicability
to this case. In my view, the above case totally disposes of all issues
in this matter. /3/
The General Counsel contends that the information was properly
requested by the Union; that it was relevant and necessary within the
meaning of section 7114(b)(4) of the Statute; that the information
requested was normally maintained by Respondent and reasonably
available; and, finally that the disclosure of the information was not
prohibited by law.
The record disclosed that the requested information which is kept by
Respondent in OPFs in the Regional Office is normally maintained by
Respondent in the regular course of business. Therefore, no
consideration is given to Respondent's contention to the contrary. The
requested data is also "reasonably available" despite Respondent's
argument that it would take one employee about 20 minutes per file to
find and record the name and home address for every bargaining unit
employee. Even if this were the case, the argument that it would be
necessary to pull such personnel files and hand record names and home
addresses has already been rejected by the Authority as creating an
undue burden on an agency. See Defense Mapping Agency Aerospace Center,
St. Louis, Missouri, 19 FLRA No. 85 (1985); Department of the Air
Force, Scott Air Force Base, 24 FLRA No. 28 (1986). Moreover, under
Farmers Home Administration, supra, one apparently need not address the
undue burden argument since the Authority held that information
contained in OPFs is "reasonably available."
Accordingly, it is found that the names and home address requested
were normally maintained by Respondent and reasonably available.
Respondent asserts that the Union failed to demonstrate the necessity
of the names and home addresses herein. The evidence shows that the
Union's request for names and home addresses of May 19, 1986 offered a
reason for needing the information, to prepare for contract
negotiations. Respondent's contention that the Union's motives are
financial could also, in my view, establish a necessity for seeking the
requested information, if one need be articulated. Certainly seeking to
retain membership and strengthening its financial situation re those
members is a valid reason to seek communications with bargaining unit
members it "must" represent. In Farmers Home Administration, supra, the
Authority stated that a written request for names and home addresses
"need not contain an explanation of the reason for the request."
According to the Authority the need is "so apparent and essentially
related to the nature of exclusive representation itself" that the duty
to disclose the information "does not depend upon any separate
explanation by the union of its reasons for seeking the information."
Since a precise explanation is not required, it is found that the
request herein is sufficient to comply with section 7114(b)(4) of the
Statute.
Respondent devotes considerable effort to establishing that the Union
has adequate alternate means of communicating with employees. The
Authority's conclusion in Farmers Home Administration, supra, on that
issue, however, is plainly stated. The Authority held as follows:
. . . we find that the mere existence of alternative means of
communication is insufficient to justify a refusal to release the
information. Further, we find that it is not necessary for us to
examine the adequacy of alternative means in cases involving
requests for names and home addresses because the communication
between unit employees and their exclusive representative which
would be facilitated by release of names and home addresses
information is fundamentally different from other communication
through alternative means which are controlled in whole or in part
by the agency.
All Respondent's effort notwithstanding, I am compelled to find that
the names and home addresses of the bargaining unit employees herein
were necessary and should be provided whether or not the alternative
means of communication, as carefully outlined by Respondent, were
available.
The General Counsel maintains that release of the requested
information is not prohibited by law. On the other hand, Respondent
makes a laborious attempt to establish a substantial privacy, as well as
a public interest against disclosure. The Authority carefully addressed
the provisions of the Privacy Act, the Freedom of Information Act and
the "routine use" exception in Farmers Home Administration, supra,
ultimately finding as follows:
the public interest to be furthered by providing the Union with an
efficient method to communicate with unit employees it must
represent far outweighs the privacy interests of individuals in
their names and home addresses. Disclosure of the requested
information would not constitute a clearly unwarranted invasion of
personal privacy and does not fall within the (b)(6) exemption of
the FOIA. Since the information does not fall within the
exemption, its disclosure is required under the FOIA and, under
exception (b)(2) to the Privacy Act, its release is not prohibited
by law.
Further, the Authority found that the disclosure of the names and
home addresses falls within the "routine use" under exception (b)(3) of
the Privacy Act. Thus, even the disclosure was not authorized under
exception (b)(4), it is authorized under exception (b)(3). Based on
these findings, Respondent's argument that disclosure is prohibited by
law must be rejected.
The Authority in Farmers Home Administration, supra, also stated that
while the presumption favoring disclosure of names and home addresses is
not irrebuttable, contrary evidence necessary to shift the burden of
persuasion of relevancy of the names and home addresses must be
substantial. The Authority cited Shell Oil Co. v. NLRB, 457 F.2d 615
(9th Cir. 1972), as an example of evidence needed to overcome the
presumption. There substantial evidence disclosed imminent danger in
the form of harassment and violence by union sympathizers if the names
and addresses were released. Despite Respondent's vigorous argument to
the contrary there is no evidence on this record forceful enough to
counter the presumption of relevance.
Accordingly, it is found that Respondent was required to furnish the
names and home addresses requested by the Union, which were normally
maintained by it in the regular course of business and were reasonably
available, without regard to whether alternative means of communication
were available or adequate. Respondent's refusal to furnish the
requested information violated section 7116(a)(1), (5) and (8) of the
Statute as alleged.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Department of Health and Human
Services, Region V, Chicago, Illinois shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Treasury
Employees Union and National Treasury Employees Union, Chapter
230, the exclusive representative 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 Federal Service Labor-Management
Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Upon request by the National Treasury Employees Union and
National Treasury Employees Union, Chapter 230, the exclusive
representative of its employees, furnish it with the names and
home addresses of all employees in the bargaining unit it
represents.
(b) Post at its facilities in Region V where bargaining unit
employees represented by National Treasury Employees Union and
National Treasury Employees Union, Chapter 230, 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 Regional Director or equivelant official 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 V, Federal Labor
Relations Authority, Chicago, Illinois, in writing, within 30 days
from the date of this order, as to what steps have been taken to
comply herewith.
/s/ Eli Nash, Jr.
Administrative Law Judge
Dated: January 12, 1987
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Respondent's uncontested Motion for Correction of Record is
granted.
(2) The correspondence also provided as follows:
. . . This information is relevant and necessary in order for the
unit to carry out the collective bargaining function.
Specifically, we want to survey bargaining unit members on the
effect of various provisions of the new agreement. In particular
the survey will be geared toward Alternate Work Schedules . . .
(3) Respondent's brief is replete with arguments concerning its
disagreement with Farmers Home Administration, supra, and also with
American Federation of Government Employees, Local 1760 v. FLRA, 786
F.2d 344 (2nd Cir. 1986). Respondent would, of course, rather the
Authority apply the rationale of American Federation of Government
Employees, Local 1923, and United States Department of Health and Human
Services, 712 F.2d 931 (4th Cir. 1983) to this case. Respondent's
disputation notwithstanding, an Administrative Law Judge is not endowed
with power to disregard precedents and principles once established by
the Authority. While the Authority may, within its sound discretion and
subject to review by the circuit courts, reexamine its policies and
interpretations which it senses are no longer apposite or possibly
erroneous, an Administrative Law Judge, no matter what his personal
inclination might be, has no such power. Where the Authority determines
that it will reexamine and change a precedent, the Administrative Law
Judge is obligated to give the resulting principles conscientious effect
as the applicable law until abandoned or modified. Any application
otherwise would constitute a revision of statutory interpretation which
is contrary to responsible administration of the Statute. Moreover,
this case is unlike, Department of the Air Force Headquarters, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 23 FLRA No. 54
(1986) since in Farmers Home Administration, supra, the Authority noted
that after full consideration of the issues raised in name and home
address case submissions by interested parties pursuant to its notice in
the Federal Register, 51 Fed. Reg. 21, 416 (1986), it intended to
reverse the precedent and require release of the information. The
reversal is without question applicable to the instant case.
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National Treasury
Employees Union and National Treasury Employees Union, Chapter 230, the
exclusive representative 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 the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL, upon request by the National Treasury Employees Union and
National Treasury Employees Union, Chapter 230, the exclusive
representative of our employees, furnish it with the names and home
addresses of all employees in the bargaining unit it represents.
(Agency or Activity)
Dated: By: (Signature)
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region V,
whose address is: 175 W. Jackson Blvd., Suite 1359-A, Chicago, Illinois
60604, and whose telephone number is: (312) 353-6306.