[ v26 p542 ]
26:0542(64)CA
The decision of the Authority follows:
26 FLRA No. 64
AIR FORCE DISTRICT OF WASHINGTON
Respondent
and
AFGE-GAIU COUNCILS OF HQUSAF
LOCALS, AFL-CIO
Charging Party
Case No. 3-CA-60304
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. 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 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, as modified below.
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 Air Force District of Washington shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the AFGE-GAIU Council of
HQUSAF Locals, AFL-CIO, the exclusive representative of a bargaining
unit of its employees, the names and home addresses of all employees in
the unit.
(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) Furnish the AFGE-GAIU Council of HQUSAF Locals, AFL-CIO, the
exclusive representative of a bargaining unit of its employees, the
names and home addresses of all employees in the unit.
(b) Post at its facilities where bargaining employees represented by
the AFGE-GAIU Council of HQUSAF Locals, 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 Commanding Officer of
the Air Force District of Washington 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 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 herewith.
Issued, Washington, D.C., April 7, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier MD
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 AFGE-GAIU Council
of HQUSAF Locals, AFL-CIO, the exclusive representative of a bargaining
unit of our employees, the names and home addresses of all employees in
the bargaining unit.
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 furnish the AFGE-GAIU Council of HQUSAF Locals, AFL-CIO, the
exclusive representative of a bargaining unit of our employees, the
names and home addresses of all employees in the bargaining unit.
(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, Regional
Director of the Federal Labor Relations Authority, Region III, whose
address is: 1111 18th Street, NW, 7th Floor (or P.O. Box 33758),
Washington, DC 20033-0758, and whose telephone number is: (202)
653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-60304
AIR FORCE DISTRICT OF WASHINGTON
Respondent
and
AFGE-GAIU COUNCIL OF HQUSAF LOCALS, AFL-CIO
Charging Party
Lt. Col. Lewis G. Brewer, Esquire
For the respondent
Mr. Frederick L. Small
For the Charging Party
Ira Sandron, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region III, Federal Labor Relations Authority,
Washington, D.C., against the Air Force District of Washington
(Respondent), based on a charge filed by the AFGE-GAIU Council of HQUSAF
Locals, AFL-CIO (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. (the Statute), by refusing to furnish the Union with the
names and addresses of all employees within the bargaining unit pursuant
to section 7114(b)(4) of the Statute.
Respondent's answer admitted the jurisdictional allegations as to
Respondent, the Union, and the charge, but denied any violation of the
Statute.
A hearing was held in Washington, D.C. The Respondent, Charging
Party, and the General Counsel were represented and 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 helpful 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
unit consisting of all General Schedule and Wage Grade nonsupervisory,
nonprofessional employees. On May 12, 1986, the Regional Director,
FLRA, Region III, issued an Amendment of Certification and Clarification
of Unit in Cases 3-AC-60001 and 3-CU-60001, respectively. Employees in
ten additional organizations located at Bolling Air Force Base,
Arlington, Virginia, and Alexandria, Virginia were added to the unit.
This resulted in the addition of approximately 450 employees to an
existing unit of approximately 1,800 employees.
2. Unit employees are located at several locations in the
Washington, D.C. metropolitan area from Andrews Air Force Base, Maryland
on the east to Cameron Station, Alexandria, Virginia on the west. They
are also located at Bolling Air Force Base, the Pentagon, Baileys
Crossroads, and Arlington, Virginia. Employees are spread over a
geographical area of approximately twelve miles. The bulk of unit
employees, approximately 1500, are located at the Pentagon.
Approximately ninety percent of the approximately 450 new employees
added to unit were located at Bolling Air Force Base.
3. Respondent's predecessor and the Union entered into a collective
bargaining agreement effective for three years from the execution date
of September 30, 1977. It was renewed automatically pursuant to its
terms. On May 28, 1986, the parties entered into a "Memorandum of
Understanding for Negotiation of Expired Agreements." No actual
negotiations on the terms of a new contract have taken place to date.
Proposals are scheduled for exchange in December 1986.
4. Edward N. Giddings is the Commander of Respondent and Tom Conner
is Respondent's Labor Relations Officer at its Washington, D.C. location
(G.C. Exh. No. 1(f), par. 4; G.c. Exh. 1(g), par. 1) Prior to April 10,
1986 Respondent's headquarters was located at Bolling Air Force Base,
District of Columbia (G.C. Exh. 5, 6). As of April 10, 1986 Respondent
was using a Washington, D.C. 20330-6420 address which, from later
correspondence, appears to be located at the Pentagon (G.C. Exh. 1(a).
5. By letter dated April 9, 1986 Union president Frederick L. Small
proposed an additional agenda for a scheduled monthly meeting between
the parties in view of the recent expansion of the bargaining unit. He
requested a list of all bargaining unit employees and their home
addresses. By letter dated April 11, 1986, Mr. Small also requested the
names and home addresses of fourteen additional employees who had been
placed under Respondent for personnel servicing as of April 1, 1986.
6. Union president Small advised Respondent's labor relations
officer, Tom Conner, on April 16, 1986 that with the accretion of
bargaining unit employees the Union needed the home addresses in order
to communicate with bargaining unit members.
7. The Union requested the names and home addresses for the primary
purpose of using them to communicate with the bargaining unit members it
represents. Union president Small has also considered using the home
addresses to recruit new Union members.
8. By letter dated April 22, 1986 Respondent, by its agent Tom
Conner, denied the Union's request for the home addresses of all unit
employees. Respondent stated, in part, as follows:
In balancing the employees' right to privacy against the public
interest in disclosure, the Employer must respectfully deny the
Union's request for home addresses. Employees have a strong
privacy interest in their home addresses. Disclosure could
subject the employee to an unchecked barrage of mailings and
perhaps personal solicitations, for no effective restraints can be
placed on the range of uses to which the information, once
revealed might be put. In arriving at such conclusion, it is
noted that the Union had not indicated why the information is
necessary to the fulfillment of its representational obligations.
Additionally, the Union has not indicated how the addresses will
be protected from unauthorized use/release. Moreover, Local 1092
was certified as the exclusive bargaining representative on 7
February 1972 and long standing established alternative means of
communicating directly with unit employees have clearly been
adequate and effective. In this regard, the Union is able to
communicate with unit employees through the use of reserved union
bulletin board space (see MOA, Article 21, Sections 6 and 7),
through the nonduty hour use of meeting facilities (see MOA,
Article 21, Section 4); through the use of a weekly information
bulletin (see MOA Article 21, Section 1), through the use of desk
drops (see MOA, Article 3, Section 4); through on-site
distribution of material during nonduty time of the participants
(see MOA Article 3, Section 4), and through the use of its network
of officers and stewards with access to unit employees (see MOA,
Article 4, Sections 3 and 4).
9. The parties stipulated that the information requested by the
Union is normally maintained by Respondent in the regular course of
business and does not constitute guidance, advice, counsel, or training
for managemant officials or supervisors relating to collective
bargaining, and I so find. (Tr. 7).
10. Respondent does not have a complete list of the names and home
addresses of bargaining unit employees. The Civilian Payroll and
Account System, Randolph Air Force Base Texas maintains the home
addresses of all of Respondent's employees, about 3,900, but not whether
they are in or out of the bargaining unit. Respondent maintains a
separate list of bargaining unit employees, without their home
addresses. In order to compile the home addresses of bargaining unit
members a computer program would have to be written which would extract
that information from the two separate lists. It would take a computer
programmer one or two days to design such a program. Respondent could
also compile the information manually by having a clerical employee
check and reconcile the list of bargaining unit employees (totaling
about 2250 to 2500) against the list of names and addresses of all
employees (totaling approximately 3,900).
11. The Union has the following existing means of communicating with
bargaining unit employees.
a. List of bargaining unit members. In March 1986 the Union
was provided a list of the names and duty station abbreviations of
bargaining unit employees. The duty location was designated by a
four-letter code or abbreviation. Telephone numbers were not
provided. The Union was provided a description of some, but not
all, of the duty locations corresponding to the abbreviations.
The Union did not request Respondent for an explanation of the
unidentified abbreviations.
b. Union use of weekly information bulletin. Under Article
21, Section 1 of the agreement the Union is allotted up to one
half page of each bulletin for appropriate Union correspondence,
notices, and other matters concerning the relationship between
unit employees and the Employer. In September 1986, the Union
president prepared an article for publication requesting employees
to volunteer for a team to deal with contracting out matters and
to submit a proposed name for the team. Respondent rejected the
article as "not appropriate for publication."
c. Union bulletin board space. Article 21, Section 6 of the
agreement provides for Union bulletin board space in the Pentagon
and "other buildings where there are 10 or more unit employees."
The Union has five bulletin boards at the Pentagon. It does not
now have bulletin boards elsewhere.
d. Nonduty hour activity and desk drops. Article 3, Section 4
of the agreement recognizes that employees of the unit may conduct
internal Union activity during nonduty hours. It also provides
that desk drops will be arranged by mutual agreement. The Union
has never attempted desk drops. It attributes this to the fact
that many employees are scattered throughout the Washington area
and much of the working space is locked after duty hours.
e. Union meetings. Article 21, Section 4 of the agreement
provides that whenever practicable meeting facilities will be made
available for Union activities during nonduty hours or during duty
hours as specifically provided for by the agreement. The Union
holds monthly meetings. The average attendance is approximately
ten employees.
f. Officers andstewards. Article 4, Section 3 and 4 of the
agreement provides for Union officers and up to 15 stewards "so
each employee in the unit will have reasonable access to a
steward." The Union has 15 officers and stewards. It does not now
have stewards at the Andrews Air Force Base, Baileys Crossroads,
Cameron Station, or Fern Street Annex locations.
g. Union office space and telephone. Article 21, Section 7
provides office space for use of the Union. The Union office has
a telephone. The Union has not been furnished the telephone
numbers of unit employees. Respondent's telephone book has not
been updated to include all bargaining unit employees.
As of the date of the hearing, Respondent has refused to provide the
Union with the information requested.
Discussion, Conclusions, and Recommendations
The General Counsel contends that the information is "reasonably
available" within the requirement of section 7114(b)(4)(b) of the
Statute, /1/ and the Authority's decision in Farmers Home Administration
Office, St. Louis, Missouri, 23 FLRA No. 101 (1986), which was rendered
after the hearing in this case, is dispositive of Respondent's other
defenses. Therefore, the General Counsel claims that Respondent
violated section 7116(a)(1), (5) and (8) of the Statute by refusing to
provide the Union with the names and home addresses of bargaining unit
employees pursuant to section 7114(b)(4).
Respondent defends on the basis that the information was neither
"normally maintained" nor "reasonably available" within the meaning of
section 7114(b)(4)(A) and (B) of the Statute since the agency must
either write a new computer program or have clerical personnel reconcile
two separate lists. Respondent also argues that the Authority should
follow the decision of the Fourth Circuit Court of Appeals in American
Federation of Government Employees, AFL-CIO, Local 1923 v. United States
Department of Health and Human Services, 712 F.2d 931 (4th Cir. 1983) in
this case since it asserts that the matter arose at the Pentagon located
in the State of Virginia, within the jurisdiction of the Fourth Circuit
Court of Appeals. (See Finding 4).
As found above (Finding No. 9), the parties stipulated at the hearing
that the information requested by the Union "is normally maintained by
Respondent in the regular course of business." Therefore, no
consideration can be given to Respondent's post-hearing argument to the
contrary. It is also concluded that the information is "reasonably
available" despite the fact that Respondent could compile the
information only by having a computer programmer write a new computer
program or by having clerical personnel reconcile two separate lists.
The Authority has rejected identical arguments that such efforts to
compile the information would place an undue burden or expense on an
agency. In Defense Mapping Agency Aerospace Center, St. Louis,
Missouri, 19 FLRA No. 85 (1985), the agency also contended that the home
addresses were not "reasonably available" because it would be necessary
to pull the personnel files and hand record the addresses, with no
guarantee of their accuracy, or develop a program for its computer at a
cost that would go as high as $736. 19 FLRA at 690. The Authority's
decision on remand, 24 FLRA No. 5 (1986), rejected these arguments and
held that "the names and home addresses of the unit employees are
reasonably available to the Respondent and . . . it would not place an
undue burden on the Respondent to provide the Union with the information
requested." In Department of the Air Force, Scott Air Force Base, 24
FLRA No. 28 (1986) the agency made similar arguments. The Authority
again held that the home addresses were "reasonably available."
Respondent claims that disclosure of the home addresses is
"prohibited by law" and is not "necessary" within the meaning of section
7114(b)(4)(B). Respondent asserts that the Union did not submit any
justification for its request and has alternative means to reach the
employees it represents. The Authority's decision in Farmers Home
Administration, Finance Office, St. Louis, Missouri, 23 FLRA No. 101
(October 31, 1986) is both controlling and dispositive of Respondent's
contentions. Thus, the Authority held, in part, as follows:
"On balance, we find that 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 individual employees 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 to 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. (23 FLRA No. 101 at p.
6).
. . . .
". . . we conclude that the disclosure of the names and home
addresses of bargaining unit employees to the Union is necessary
within the meaning of section 7114(b)(4) of the Statute for the
Union to discharge its statutory obligations. Consistent with
that conclusion, we find that the disclosure of the information
sought here falls within the routine use established by OPM, and
its disclosure is therefore a routine use under exception (b)(3)
of the Privacy Act. Therefore, even if the disclosure was not
authorized under exception (b)(2) of the Privacy Act, relating to
the FOIA, it is authorized under exception (b)(3).
"Release of the requested information is therefore not
prohibited by law. It may be released pursuant to exceptions
(b)(2) and (3) of the Privacy Act. (23 FLRA No. 101 at p. 7).
". . . We find that the statutory requirement concerning
sufficiency of a request under section 7114(b)(4) is request
satisfied for requests such as that involved here when a general
written request for the information is made. A precise
explication of the reasons for the request involved here is not
necessary . . . an exclusive representative's need for the names
and home addresses of the bargaining unit employees it is required
to represent is so apparent and essentially related to the nature
of exclusive representation itself, that unlike requests for
certain types of other information, an agency's duty to supply
names and home addresses information does not depend upon any
separate explanation by the union, of its reasons for seeking the
information. (23 FLRA No. 101, at p. 8).
. . . .
"We will not review the adequacy of alternative methods of
communication on a case-by-case basis . . . 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 the unit employees and
their exclusive representative which would be facilitated by the
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. When using
direct mailings, the content, timing, and frequency of the
communication is completely within the discretion of the union and
there is no possibility of agency interference in the distribution
of the message. Further, direct mailings reach unit employees in
circumstances where those employees may consider the union's
communication without regard to the time constraints inherent in
their work environments, and in which any restraint the employee
may feel as a result of of the presence of agency management in
the workplace is not present. We find the names and home
addresses of unit employees are necessary and should be provided
whether or not alternative means of communication are available."
(23 FLRA No. 101, at pp. 9-10).
Respondent was required to furnish the names and home addresses
requested by the Union, which were normally maintained by Respondent 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 Air Force District of Washington shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the AFGE-GAIU Council
of HQUSAF Locals, AFL-CIO, 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.
Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Upon request by the AFGE-GAIU council of HQUSAF Locals,
AFL-CIO, 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 where bargaining unit employees
represented by the AFGE-GAIU Council of HQUSAF Locals, 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 a senior official of the Air Force District of Washington 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 III, Federal
Labor Relations Authority, Washington, D.C., in writing, within 30
days from the date of this order, as to what steps have been taken
to comply herewith.
/s/ Garvin Lee Oliver
Garvin Lee Oliver
Administrative Law Judge
Dated: December 11, 1986
Washington D.C.
--------------- FOOTNOTES$ ---------------
(1) Section 7114(b) provides that the "duty of an agency and an
exclusive representative to negotiate in good faith shall include the
obligation --
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data --
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining(.)"
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 AFGE-GAIU Council
of HQUSAF Locals, AFL-CIO, 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 AFGE-GAIU council of HQUSAF Locals,
AFL-CIO, 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 III,
whose address is: 1111 - 18th Street, N.W., Room 700, P.O. Box 33758,
Washington, DC 20033-0758, and whose telephone number is: (202)
653-8452.