[ v29 p1334 ]
29:1334(111)CA
The decision of the Authority follows:
29 FLRA NO. 111
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, AND SOCIAL SECURITY
ADMINISTRATION
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3610
Charging Party
Case No. 2-CA-70163
DECISION AND ORDER
The Administrative Law Judge issued the attached decision in this case, finding that the Department of Health and Human Services and the Social Security Administration (the Respondents) 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 Judge granted the General Counsel's motion for summary judgment and recommended that the Respondents be ordered to take appropriate remedial action. The Respondents 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, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.
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 and the Social Security Administration shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 3610, the exclusive representative of certain of its employees, the names and home addresses of all employees in the Office of Hearings and Appeals, Region III.
(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) Respondent Department of Health and Human Services shall forthwith withdraw its Departmental Policy that an exclusive representative is not entitled to home addresses under 5 U.S.C. 7114(b)(4).
(b) Respondent Social Security Administration will furnish the names and home addresses of all bargaining unit employees as requested by the American Federation of Government Employees, AFL-CIO, Local 3610.
(c) Post at the facilities of the Social Security Administration, Office of Hearings and Appeals, Region III, 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 Secretary, Department of Health and Human Services and by the Commissioner, Social Security Administration 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.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, 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., October 30, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
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 NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the American Federation of Government Employees, Local 3610, the exclusive representative of certain of our employees, the names and home addresses of all employees in the Office of Hearings and Appeals, Region III.
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 forthwith withdraw the Departmental Policy that an exclusive representative is not entitled to home addresses under 5 U.S.C. 7114(b)(4).
WE WILL furnish the names and home addresses of all bargaining unit employees as requested by the American Federation of Government Employees, Local 3610.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Dated:_________________By:______________________________
(Secretary)
SOCIAL SECURITY ADMINISTRATION
Dated:_________________By:______________________________
(Commissioner)
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 II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 3700, New York, New York 10278 and whose telephone number is: (212) 264-4934.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES AFL-CIO
LOCAL 3610
Case No. 2-CA-70163
CERTIFICATE OF SERVICE
I hereby certify that copies of the Decision of the Federal Labor Relations Authority in the subject proceeding have this day been mailed to the following:
FLRA DOCKET CLERK
BARBARA J. LIGGETT COUNSEL FOR THE GENERAL COUNSEL FEDERAL LABOR RELATIONS AUTHORITY 105 SOUTH 7th STREET,5th FLOOR PHILADELPHIA, PA 19106 RICHARD M. FRIEDMAN OFFICE OF THE GENERAL COUNSEL DEPARTMENT OF HEALTH AND HUMAN SERVICES ROOM 5362, HHS NORTH BLDG. 330 INDEPENDENCE AVE., S.W. WASHINGTON, D.C.20201 INEZ E. SNOWDEN, PRESIDENT AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3610 355 5th AVENUE, 5th FLOOR PARK BUILDING PITTSBURGH, PA 15222
THOMAS PARRET, DIRECTOR
LABOR-MANAGEMENT & EMPLOYEE RELATIONS
OFFICE OF HUMAN RELATIONS
DEPARTMENT OF HEALTH AND HUMAN SERVICES
330 C STREET, S.W.
ROOM 2038, SWITZER BLDG.
WASHINGTON, D.C. 20201
DORCAS R. HARDY, COMMISSIONER
SOCIAL SECURITY ADMINISTRATION
6401 SECURITY BLVD.
BALTIMORE, MD 21235
MICHAEL GUTKIND
LABOR RELATIONS OFFICER
DHHS, SOCIAL SECURITY ADMINISTRATION
P.O. BOX 8788
PHILADELPHIA, PA 191101
ROBERT M. BURR
MANAGER
AFGE LIBRARY AND RESOURCE CENTER
80 F STREET, NW.
WASHINGTON, D.C. 20001
ALLAN D. HEUERMAN
ASSISTANT DIRECTOR FOR EMPLOYEE,
LABOR AND AGENCY RELATIONS
OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET, NW., ROOM 7412
WASHINGTON, D.C. 20415
DATED: October 30, 1987
WASHINGTON, D.C.
DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
AND SOCIAL SECURITY
ADMINISTRATION
Respondents
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3610
Charging Party
Case No. 2-CA-70163
Richard M. Friedman, Esquire
For the Respondents
Barbara S. Liggett, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq. 1 and the Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq., concerns the refusal to Respondents to furnish, pursuant to 14(b)(4) of the Statute, a list of bargaining unit employees and their home addresses, and is before me on the cross-motions of the parties for summary judgment.
This proceeding was initiated by a charge filed on February 25, 1987 (G.C. Exh. l(a)) which alleged violations of 16(a)(1), (6) and (8) of the Statute. A First Amended Charge filed on March 30, 1987, (G.C. Exh. 2(a)) which alleged violation of 16(a)(1), (5) and (8) of the statute; and the Complaint and Notice of Hearing issued on April 28, 1987 (G.C. Exh. 3), alleged violations of 16(a)(1), (5) and (8) of the Statute and set the hearing for June 23, 1987. Respondents by their Answer(G.C. Exh. 4) admitted that on January 30, 1987, the Union requested that Respondent Social Security Administration furnish it with home addresses of all employees of the Office of Hearings and Appeals, Region III (Par. 7); admitted that the information requested is maintained by Respondent Social Security Administration in the regular course of business and is reasonably available (Par. 8(a)); denied that the information requested is necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining (Par. 8(b)); admitted that the information requested does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining (Par. 8(c)); and denied that the furnishing of Respondent Social Security Administration of the information requested is not prohibited by law (par. 8(d)). Respondents admit that since February 11, 1987, Respondent Social Security Administration has failed or refused, and continues to fail and refuse, to furnish the Union with the requested names and home addresses. Respondents denied the allegations of Paragraph 10 of the Complaint, that Respondent Department of Health and Human Services has directed Respondent Social Security Administration not to provide the information requested and Respondent Department Department of Health and Human Services therefore prevented, and is preventing, Respondent Social Security Administration from furnishing the information requested; however, Respondents ". . . admitted DHHS established a departmental policy based on its legal position that an exclusive representative is not entitled to home addresses under 5 U.S.C. 7114(b)(4), and that SSA is subject to that departmental policy (G.C. Exh. 4, Par. 10). Respondents denied that any violation of the Statute occurred as alleged in Paragraphs 11-15 of the Complaint (G.C. Exh. 4, Par. 11-15).
On June 9, 1987, General Counsel filed a Motion for Summary Judgment with the Regional Director of Region II of the Federal Labor Relations Authority. On June 10, 1987, an Order issued indefinitely postponing hearing; and on June 10, 1987, the Regional Director, Region II, Federal Labor Relations Authority, by Order, pursuant to 2423.22(b) of the Rules and Regulations, referred the Motion for Summary Judgment to the Chief Administrative Law Judge for ruling, which was duly assigned to the undersigned. Respondents filed a Cross-Motion for Summary Judgment, together with Memorandum Supporting Respondents' Cross-Motion for Summary Judgment and Opposing the General Counsel's Motion for Summary Judgment, received on June 17, 1987. On June 24, 1987, General Counsel mailed an Opposition to Respondents' Cross-motion for summary Judgment, received on June 29, 1987; and on July 28, 1987, Respondents mailed a Supplementary Memorandum Supporting Respondents' Cross-Motion for Summary Judgment and Opposing the General Counsel's Motion for Summary Judgment, received on July 30, 1987.
Findings and Conclusions
The American Federation of Government Employees, AFL-CIO (AFGE) is the certified exclusive representative of a consolidated nationwide unit of certain employees of Respondent Social Security Administration (SSA), including all eligible non-supervisory general schedule field employees employed by the Office of Hearings and Appeals, SSA in Department of Health and Human Services (DHHS) Region III, excluding all other DHHS, Region III employees, temporary employees, managerial and supervisory personnel, professional employees, federal employees engaged in personnel work in other than a purely clerical capacity, and guards (Complaint, G.C. Exh. 3, Par. 6(a)); admitted, Answer, G.C. Exh. 4, Par. 6). AFGE has delegated to the American Federation of Government Employees, AFL-CIO, Council 215 (Council 215) authority to act as its representative for the purposes of collective bargaining for certain of Respondent's SSA employees, including employees of the Field Office of Hearings and Appeals, Region III, and Council 215's delegation has been recognized by Respondent SSA (Complaint, G.C. Exh. 3, Par. 6(b)); admitted, Answer, G.C. Exh. 4, Par. 6). American Federation of Government Employees, AFL-CIO, Local 3610 (the "Union") has acted as agent for Council 215 for the purposes of collective bargaining for certain of Respondent SSA's employees, including employees at the Field Office of Hearings and Appeals, Region III, and the Union's delegation has been recognized by Respondent SSA (Complaint, G.C. Exh. 3, Par. 6(c)); admitted, Answer, G.C. Exh. 4, Par. 6).
A. Union's Request and Respondent's Denial.
The Union's request for the names and home addresses, alleged in Paragraph 7 of the Complaint (G.C. Exh. 3, Par. 7), and admitted in Respondents' Answer (G.C. Exh. 4, Par. 7), was made by letter dated January 30, 1987 (G.C. Exh. 5) which stated, in part, as follows:
"Local 3610/AFGE/OHA-Region 3 requests the names and home addresses of all employees in the Office of Hearings and Appeals, Region 3 represented by the American Federation of Government Employees (AFGE) AFL-CIO.
"This information is necessary to our Local Union #3610/AFGE, so that we may properly conduct labor-management business and live up to our collective bargaining responsibilities." (G.C. Exh. 5).
Respondent SSA's refusal to furnish the requested names and home addresses, alleged in Paragraph 9 of the Complaint (G.C. Exh. 3, Par. 9) and admitted in Respondents' Answer (G.C. Exh. 4, Par. 9) was made by letter dated February 11, 1987 (G.C. Exh. 6), which stated, in part, as follows:
"I am unable to comply with your request and furnish this information in that the release of home addresses would constitute a serious and unwarranted invasion of personal privacy which is protected by the Privacy Act. In addition, there are adequate alternative means available through which you may contact and communicate with the employees whom you represent." (G.C. Exh. 6).
Further, as set forth above, Respondents admit that,
". . . DHHS established a departmental policy based on its legal position that an exclusive representative is not entitled to home addresses under 5 U.S.C. 7114(b)(4), and that SSA is subject to that departmental policy." (Answer, G.C. Exh. 4, Par. 10).
B. No Dispute As to Any Material Fact.
Although Respondents assert that there is "A genuine issue of material fact as to the existence and effectiveness of alternative means of communication . . . ." (Respondent Memorandum Supporting Respondents Cross-Motion for Summary Judgment and Opposing the General Counsel's Motion for Summary Judgment (hereinafter, "Respondent's memorandum"), p. 7), there is no dispute, or "genuine issue" as to any material fact for the reasons that: (a) for the purpose of decision, I assume the existence of alternative means of communication; (b) the Authority in Farmers Home Administration Office, St. Louis, Missouri, 23 FLRA No. 101, 23 FLRA 788 (1986), (Farmers Home) petition in for review filed sub nom. U.S. Department of Agriculture and the Farmers Home Administration Office, St. Louis, Missouri v. FLRA, No. 86-2579 (8th Cir. Dec. 23, 1986), held that, ". . . the names and home addresses are necessary and should be provided whether or not alternative means of communication are available." (23 FLRA at 797), the Authority having specifically found 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 communications 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 the presence of agency management in the workplace is not present." (23 FLRA at 796-797). The Authority has reiterated this holding in numerous subsequent decisions, including: Social Security Administration, Northeastern Program Service Center, 24 FLRA No 13, 24 FLRA 108, 112 (1986); Department of Health and Human Services, Social Security Administration, 24 FLRA No. 60, 24 FLRA 543, 545 (1986); Department of Health and Human Services, Social Security Administration Field Operation, New York Region, 24 FLRA No. 62, 24 FLRA 583, 585 (1986); Department of the Navy, Naval Submarine Base, New London (New London, Connecticut), 27 FLRA No. 85, 27 FLRA 785 (1987); Veterans Administration, Washington, D.C. and Veterans Administration Medical Center (Iron Mountain, Michigan), 28 FLRA No. 12, 28 FLRA 47 (1987); Long Beach Naval Shipyard, Long Beach, California, 28 FLRA No. 20, 28 FLRA 102, 103 (1987); and (c) it is apparent from Respondents' Memorandum that the issue it poses is, in reality, a disagreement as a matter of law with what it views as the trivialization by the Second Circuit Court of Appeals, in American Federation of Government Employees, Local 1760 v. FLRA, 786 F.2d 554 (2nd Cir. 1986), of the privacy interest (Respondent's Memorandum, p. 10) and that the Authority in Farmers Home, supra, ". . . was in error because it under valued the privacy interest in home addresses, and because it ignored case law requiring consideration of alternative means in performing the Exemption 6 to balancing test." (Respondent's Memorandum, pp. 7-8).
As there are no material facts in dispute, this matter is appropriate for decision by summary judgment.
C. General Counsel's Memorandum For Summary Judgment Must Be Granted and Respondents' Motion for Summary Judgment Must Be Denied.
Section 14(b)(4) of the Statute imposes a duty on an agency to furnish the exclusive 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 . . . ." (5 U.S.C. 7114(b)(4)(A), (B) and (C)).
Respondent admitted that it maintains the names and home addresses in the regular course of business; that the names and home addresses are reasonably available; and that such data does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining. Respondents deny that disclosure of names and home addresses is necessary for full and proper discussion, understanding, and negotiations of subjects within the scope of collective bargaining and, while recognizing that the Authority in Farmers Home, supra, held that the relevancy of home addresses to the Union representational function met this requirement (Respondent's Memorandum, p. 16; see 23 FLRA at 797-798), Respondents assert that, ". . . the Authority erred in this holding." (Respondent's Memorandum, p. 16). Respondents also argues that the disclosure of employees' home addresses is "prohibited by law" within the meaning of 14(b)(4), an argument rejected by the Court of Appeals for the Second Circuit, in American Federation of Government Employees, Local 1760 v. FLRA 786 F.2d 554 (2nd Cir. 1986) and which was considered at length by the Authority and rejected in Farmers Home ' supra, and which has been further considered by the Authority and rejected in numerous subsequent decisions, including those cited hereinabove.
In its Supplementary Memorandum, Respondents state, in part, as follows:
". . . Respondents relied on guidelines published in the Federal Personnel Manual (FPM) by the former Civil Service Commission. see Respondents' initial Memorandum, Exhibit A. Respondents have recently learned that OPM deleted these guidelines from the FPM on May 12, 1986 . . .
"However, OPM has announced its current interpretation of its routine use. Under its interpretation, essentially two requirements must be met for the disclosure to be within the routine use. First, the information must be relevant to the collective bargaining process . . . The second requirement is that the information be 'relevant and necessary' for the purpose for which it is requested . . . This requirement is not met, according to OPM, if 'adequate alternative means exist for communicating with bargaining unit employees.'" (Supplementary Memorandum, pp. 2-3).
The Authority addressed the deletion in Department of Health and Human Services, Social Security Administration, 27 FLRA No. 4, 27 FLRA 20, 22 (1987), where it stated, in part, as follows:
"... The instruction from OPM indicated essentially that material from the supplement has been updated and incorporated in FPM Chapter 711 . . . The revised FPM Chapter 711 did not, however, incorporate the former Appendix C guidance nor did it provide new guidance, relating to the routine use. Therefore, there is no need for us to consider such guidance on routine use because it is no longer in effect." (27 FLRA at 22).
See, to like effect, Department of the Navy, Naval Air Station, Moffett Field, California, 28 FLRA No. 10, 28 FLRA 35, 36 (1987).
The "interpretation" of OPM in its amicus brief to the Authority on July 14, 1986, presumably as been considered by the Authority; but such "interpretation" by amicus brief does not have the effect of a regulation or guidance incorporated in the FPM.
In any event, even if exception (b)(3) of the Privacy Act relating to "routine use" did not permit the release of employees' home addresses, because not "relevant and necessary" if "adequate alternate means exist for communicating with bargaining unit employees", and the Authority has decided that alternative means are not adequate, see 23 FLRA at 796-797, nevertheless disclosure of employees' names and home addresses is required pursuant to exception (b)(2) of the Privacy Act. Thus, in 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 No. 85, 26 FLRA 691 (1987), the Authority held, in part, as follows:
"The Respondent correctly notes that AAFES employees are not subject to OPM regulation; that the employees' personnel files are not governed by the OPM's routine use statements; and that AAFES' routine use statements do not include unions as routine users. Therefore, disclosure of McClellan Air Force Base Exchange employees' home addresses to the Union may not be authorized under exception (b)(3) of the Privacy Act.
"However, this distinction does not affect the disclosure of these employees' home addresses to the Union under exception (b)(2) of the Privacy Act. Exception (b)(2) states that if the disclosure of the requested information is required by the Freedom of Information Act (FOIA), the Privacy Act's bar to disclosure is not applicable. 5 U.S.C. 552(b)(2). In Farmers Home, we discussed exception (b)(2) and applied the necessary balancing test under the FOIA. We stated in Farmers Home (slip op. at 6) (23 FLRA at 793):
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 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.
We reaffirm that conclusion here, and find that the information sought by the Union could be released by the Respondent under exception (b)(2) of the Privacy Act. For the reasons set forth more fully in Farmers Home, we reject the Respondent's suggestion that we adopt the approach of the court in AFGE, Local 1923 (American Federation of Government Employees, Local 1923, v. United States Department of Health and Human Services), 712 F.2d 931 (4th Cir. 1983).
". . . consistent with our decision in Farmers Home, we therefore find that the Respondent was required to furnish the Union with the home addresses of the employees in the bargaining unit. Its refusal to do so violated section 7116(a)(1) and (8) of the Statute." (26 FLRA at 694).
Respondents also argue that, "The Union did not present any justification for its request beyond a general reference to 'labor-management business' and its collective bargaining responsibilities" (Respondents' Memorandum p. 1). As set forth hereinabove, the Union's request stated, in material part, that
"This information is necessary to our Local Union 3610/AFGE, so that we may properly conduct labor-management business and live up to our collective bargaining responsibilities." (G.C. Exh. 5).
I am aware that the union's request in Farmers Home, supra, has been "to enable it to prepare for contract negotiations"; but the Union's justification here, "so that we may properly conduct labor-management business and live up to our collective bargaining responsibilities", while it does not mention preparation for contract negotiations, is certainly broad enough to include preparation for contract negotiations. Respondent SSA neither denied the request because the Union had not given a more specific justification, nor was a more specific justification required as the Authority stated in Farmers Home, supra,
". . . We find that the statutory requirement concerning sufficiency of a request under section 7114(b)(4) is satisfied . . . when a general written request for the information is made. A precise explication of the reason for the request involved here is not necessary . . .
" . . . In our view, 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 at 795).
All of Respondents' arguments, whether or not specifically addressed, have been considered and I find that the Authority's decision in Farmers Home, supra, is dispositive of all of Respondents' contentions and, accordingly, the refusal to furnish the Union with the names and home addresses of bargaining unit employees violated the Statute.
D. Remedial Order
Respondent SSA violated 16(a)(1), (5) and (8) of the Statute by its failure and refusal to furnish the requested names and home addresses of employees in the bargaining unit; and Respondent DHHS violated 16(a)(1) and (5) of the Statute by its Departmental Policy, which was that an exclusive representative is not entitled to home addresses under 5 U.S.C. 7114(b)(4), to which Departmental Policy Respondent SSA was subject and Respondent DHHS thereby prevented, and is preventing, Respondent SSA from furnishing the requested names and home addresses of bargaining unit employees.
With full recognition that: (a) the Authority has repeatedly held that:
". . . when agency management at a higher level prevents agency management at a subordinate level of exclusive recognition from complying with its obligation under the Statute by 'directive,' 'requirement,' or 'direction,' the higher-level management entity violates ... the Statute (footnote omitted). The Authority has held further that, where the subordinate entity is thus left with no discretion to comply with statutory obligations, that entity will not also have violated section 7116(a). (footnote omitted)" (Headquarter Department of the Army, Washington, D.C. and U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, 22 FLRA No. 71, 22 FLRA 647, 651-652 (1986); and
(b) Counsel for the General Counsel in her motion for summary judgment states, in part, that:
"5. If the motion for summary judgment is granted against Respondent DHHS, Counsel for the General Counsel moves to conform the pleadings with the judgment by withdrawing the complaint as to Respondent SSA. Alternatively, if the motion for summary judgment is granted against Respondent SSA, Counsel for the General Counsel moves to conform the pleadings with the judgment by withdrawing the complaint as to Respondent DHHS." (Motion for Summary Judgment, p. 3, paragraph 5).
Nevertheless, the record in this case justifies and, to provide complete relief for the violations found, requires that a violation be found against each Respondent and that a remedial order be entered against each Respondent. I fully agree with General Counsel that,
. . . summary judgment be granted . . . and concluding that Respondent DHHS violated section 7116(a)(1) and (5) of the Statute by establishing a policy, to which Respondent SSA is admittedly subject, providing that an exclusive representative is not entitled to home addresses of bargaining unit employees." (Motion for Summary Judgment, p. 3, paragraph 4).
I further agree with General Counsel that,
". . . the establishment of such a policy prevented, and is preventing, Respondent SSA from furnishing the requested information . . . and that such conduct constitutes interference with the bargaining relationship between the Charging Party (Union) and Respondent SSA as alleged in the Complaint." (id.)
Respondent DHHS thereby violated 16(a)(1) and (5) of the Statute. Department of Health and Human Services, Social Security Administration, Region VI, and Department of Health and Human Services, Social Security Administration, Galveston, Texas District, 10 FLRA No. 9, 10 FLRA 26 (1982); Departments of the Army and the Air Force National Guard Bureau and Montana Air National Guard, 10 FLRA No. 96, 10 FLRA 553 (1982); Department of the Treasury and Internal Revenue Service, 22 FLRA No. 89, 22 FLRA 821 (1986); Department of Defense Dependents Schools (Alexandria, Virginia, 27 FLRA No. 72, 27 FLRA 586 (1987).
Although I have found that establishment of a Departmental Policy, "that an exclusive representative is not entitled to home addresses under 5 U.S.C. 7114(b)(4)", to which policy Respondent SSA was subject, did prevent Respondent SSA from furnishing the requested names and home addresses of bargaining unit employees, Respondents nevertheless denied the allegations of Paragraph 10 of the Complaint, namely that Respondent DHHS,
". . . has directed Respondent SSA not to provide to the Charging Party the information . . . and Respondent DHHS therefore prevented, and is preventing, Respondent SSA from furnishing the information. . . ." (Complaint, G.C. Exh. 3, paragraph 10; Answer, G.C. Exh. 4, paragraph 10).
Respondents did not address the matter in either their Memorandum or Supplemental Memorandum. However, from the denial that DHHS ". . . prevented, and is preventing, Respondent from furnishing the information . . . .", Respondents' clearly infer that, notwithstanding Departmental Policy, discretion was left to Respondent SSA to grant, or to deny, the requested names and home addresses. Nor did Respondent SSA in refusing to comply with the Union's request for the names and home addresses make any reference whatever to Departmental Policy (G.C. Exh. 6). Accordingly, to provide full and complete relief, a remedial order must also be entered against Respondent SSA for its conceded refusal to furnish the requested names and home addresses in violation of 16(a)(1), (5) and (8) of the statute. This is not a situation where a subordinate activity has been directed to take action, Department of the Interior, Water and Power Resources Service, Grand Coulee Project, Grand Coulee, Washington, 9 FLRA No. 46, 9 FLRA 385 (1982); nor would finding that Respondent SSA violated 16(a)(1), (5) and (8) be merely cumulative but is essential if the unfair labor practice committed is to be effectively remedied. Cf. United States Department of the Treasury, Internal Revenue Service and Internal Revenue Service, Austin District, and Internal Revenue Service, Houston District, 23 FLRA No. 100, 23 FLRA 774 (1986). Here, each Respondent violated the Statute: (a) Respondent DHHS by establishing a Departmental Policy that an exclusive representative is not entitled to home addresses which policy influenced, if it did not require, and Respondents' Answer avers that Respondent DHHS did not prevent Respondent SSA from furnishing the requested names and home addresses; and (b) Respondent SSA by refusing to furnish the requested names and home addresses. unless both violations are remedied the unfair labor practice can not be effectively remedied. Therefore, General Counsel's motion for Summary Judgment will be denied to the extent that General Counsel requested summary judgment be granted in the alternative against either Respondent DHHS or Respondent SSA, and summary judgment is hereby granted against both Respondents. Respondents' Cross-Motion for Summary Judgment is denied.
Having found that Respondent DHHS violated 16(a)(1) and (5) and the Respondent SSA violated 16(a)(1), (5) and (8) of the Statute, it is recommended that the Authority adopt the following:
ORDER
Pursuant to 2423.29 of the Authority's Rules and Regulations, 5 C.F.R. 2423.29, and 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders that the Department of Health and Human Services and the Social security Administration, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish, upon request to American Federation of Government Employees, AFL-CIO, Local 3610, the exclusive representative of its employees, the names and home addresses of all bargaining unit employees in the Office of Hearings and Appeals, Region 3.
(b) In any like or related manner interfering with, restraining or coercing their employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Respondent Department of Health and Human Services shall forthwith withdraw its Departmental Policy that an exclusive representative is not entitled to home addresses under 5 U.S.C. 7114(b)(4).
(b) Respondent Social Security Administration will furnish the names and home addresses of all bargaining unit employees as requested by American Federation of Government Employees, AFL-CIO, Local 3610.
(c) Post at the facilities of Social Security Administration, Office of Hearings and Appeals, Region 3, 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 Secretary, Department of Health and Human Services and by the Commissioner, Social Security Administration, 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.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, Federal Labor Relations Authority, 26 Federal Plaza, Room 3700, New York, New York 10278, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
WILLIAM B. DEVANEY Administrative Law Judge
Dated: September 4, 1987 Washington, D.C.
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AN AGENCY OF THE UNITED STATES GOVERNMENT
WE HAVE BEEN FOUND GUILTY OF UNFAIR LABOR PRACTICES by the Federal Labor Relations Authority. We have been ordered to post this Notice and to abide by its provisions.
WE WILL NOT fail or refuse to furnish, upon request, to American Federation of Government Employees, AFL-CIO, Local 3610, the exclusive representative of our employees, the names and home addresses of all bargaining unit employees in the Office of Hearings and Appeals, Region 3.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL FORTHWITH WITHDRAW the Departmental Policy that an exclusive representative is not entitled to home addresses under 5 U.S.C. 7114(b)(4).
WE WILL FURNISH the names and home addresses of all bargaining unit employees as requested by American Federation of Government Employees, AFL-CIO, Local 3610.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Dated:____________________By:______________________________
(Secretary)
SOCIAL SECURITY ADMINISTRATION
Dated:____________________By:______________________________
(Commissioner)
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 II, whose address is: 26 Federal Plaza, Room 3700, New York, New York 10278, and whose telephone number is: (212) 264-4934.Footnotes:
Footnote 1: For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, e.g., Section 7116(a)(8) will be referred to, simply, as 16(a)(8)".