19:0195(21)CA - Farmers Home Administration Finance Office, St. Louis, MO and AFGE Local 3354 -- 1985 FLRAdec CA
[ v19 p195 ]
19:0195(21)CA
The decision of the Authority follows:
19 FLRA No. 21
FARMERS HOME ADMINISTRATION FINANCE
OFFICE, ST. LOUIS, MISSOURI
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3354
Charging Party
Case No. 7-CA-30560
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. The General Counsel
and the Respondent filed exceptions to the Judge's Decision, and the
Respondent filed an opposition to the General Counsel's 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), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, as modified herein.
The Judge concluded that the Respondent had not failed to comply with
the requirements of section 7114(b)(4) of the Statute /1/ when it
refused to provide the Union, upon request, with the names and home
addresses of all the unit employees represented by the exclusive
representative. In this regard, the Judge found that such material was
not "necessary for a full and proper discussion, understanding, and
negotiation of subjects within the scope of collective bargaining" in
view of the alternative means available to the Union by which to
communicate with the employees whom it represents.
The Authority agrees with the Judge that the actions of the
Respondent in this case did not constitute a violation of section
7116(a)(1), (5) and (8) of the Statute. In so concluding, however, the
Judge did not address the primary defense raised by the Respondent in
this matter, i.e., that the disclosure of the names and home addresses
of the unit employees herein was precluded by the provisions of the
Privacy Act. /2/ In a recent decision, Army and Air Force Exchange
Service (AAFES), Fort Carson, Colorado, 17 FLRA No. 92 (1985)
(hereinafter AAFES), the Authority pointed out that, in addition to
requiring a determination on a case by case basis whether data sought
pursuant to section 7114(b)(4) of the Statute meets the requirements of
that section, i.e., whether it has been requested, whether it is
normally maintained, whether it is reasonably available, and whether it
is necessary to enable a union to fulfill its representational
obligations, section 7114(b)(4) of the Statute also limits an agency's
obligation to furnish data "to the extent not prohibited by law," which
incorporates the Privacy Act.
The Privacy Act regulates the disclosure of any information contained
in an agency "record" within a "system of records that is retrieved by
reference to an individual name or some other identifier." /3/ The names
and home addresses of unit employees constitutes information which is
retrievable from an agency's records by reference to an individual's
name and therefore would be prohibited from disclosure unless one of the
specific Privacy Act exceptions is applicable. See AAFES, supra. One
such exception to the Privacy Act's protection is contained in 5 U.S.C.
552a(b)(2) which permits disclosure of information "required" to be
released under the Freedom of Information Act (FOIA). /4/ In general,
the theory of the FOIA is that Federal Government records should be
disclosed in order to enable the public to review the actions of the
government. However, there are also exemptions to the general
disclosure requirements of the FOIA. Under exemption (b)(6) of the
FOIA, an agency is allowed, e.g., to withhold personnel and medical
files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of privacy. In determining whether
material may be properly withheld in accordance with exemption (b)(6) of
the FOIA, the Federal courts have struck a balance between the
individual's privacy interest and the possible adverse or harmful
effects on the individual which could result from disclosure, on the one
hand, against the importance of the public's interest in having the
information made available. /5/ In AAFES, supra, the Authority
indicated that in determining whether data sought under section
7114(b)(4) is or is not otherwise "prohibited by law," the Authority
will use the same test applied by the courts in evaluating FOIA requests
under the 5 U.S.C. 552(b)(6) exemption, i.e., balancing the necessity of
the data for the union's purposes against the degree of intrusion on the
individual's privacy interests caused by disclosure of the data. /6/
In applying the foregoing balancing test to determine whether the
Union is entitled to the names and home addresses of unit employees
herein, the Authority has been guided by the decision of the Fourth
Circuit 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) (hereinafter AFGE v. HHS), wherein an exclusive
representative sought the home addresses of all unit employees pursuant
to the FOIA. In adopting the lower court's conclusion that the balance
of all factors favored nondisclosure, the Fourth Circuit stated in
pertinent part (712 F.2d at 932):
Employees have a strong privacy interest in their home
addresses. Disclosure could subject the employees to an unchecked
barrage of mailings and perhaps personal solicitations, for no
effective restraints could be placed on the range of uses to which
the information, once revealed, might be put. Further, even
granting that collective bargaining is a matter of grave public
concern, any benefits flowing from disclosure of the information
sought would inure primarily to the union, in a proprietary sense,
rather than to the public at large. Finally, as the District
Court noted, alternative means of communication are available to
the union, such as its bulletin board and indirect distribution
through the employer. (footnote omitted.)
The same findings flow from the similar facts of the present case.
Thus, for the reasons stated by the Fourth Circuit in AFGE v. HHS, we
find that the employees' strong privacy interest in their home addresses
outweighs the necessity of the data for the Union's purposes in the
circumstances of this case. Moreover, the Court noted that alternative
means of communication with unit employees were available to the union
in AFGE v. HHS, and the record in this case clearly establishes that the
Union herein had alternative means of such communication available. /7/
Further, as noted by the Fourth Circuit in AFGE v. HHS, the records
sought by the Union herein, i.e., the names and addresses of unit
employees, are not of the type that generally must be disclosed pursuant
to the FOIA's (b)(6) exemption for the purposes for which they were
sought herein. As the Court stated:
The purpose of the (FOIA) is "'to pierce the veil of
administrative secrecy and to open agency action to the light of
public scrutiny . . . . '"
. . . .
The home addresses sought by appellant have nothing to do with
the agency's "work," and disclosure thereof would shed no
significant light on the agency's inner workings. (citations and
footnote omitted.) 712 F.2d 933.
Thus, the Authority finds that the disclosure of unit employees'
names and home addresses for the purposes for which they were sought
herein was "prohibited by law" and that their release by the Respondent
therefore was not required pursuant to section 7114(b)(4) of the
Statute. Therefore, the Authority concludes that the Respondent did not
fail to comply with section 7114(b)(4) of the Statute in violation of
section 7116(a)(1), (5) and (8) of the Statute when it refused to
provide the exclusive representative with the names and home addresses
of unit employees. /8/ Accordingly, the Authority shall order that the
complaint be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 7-CA-30560 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., July 22, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No.: 7-CA-30560
-------------------- ALJ$ DECISION FOLLOWS --------------------
James M. Carroll, Esquire
For the Respondent
Nicholas J. LoBurgio, Esquire
For the General Counsel
Mr. Steven M. Hollis
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter referred to as "the
Statute"), and the Rules and Regulations issued thereunder.
The complaint, based upon a charge filed by the American Federation
of Government Employees, Local 3354, AFL-CIO (Charging Party or Union),
alleges that since on or about August 18, 1983, the Farmers Home
Administration, St. Louis, Missouri (Respondent), has failed and refused
to respond to a July 20, 1983, Union request for a list of names and
home addresses of bargaining unit employees represented by the Union at
Respondent's St. Louis, Missouri facilities. The complaint alleges
further that the Union is entitled to the list under the provisions of
Section 7114(b)(4) of the Statute, and that Respondent's failure and
refusal to respond constitutes an unfair labor practice within the
meaning of Sections 7116(a)(1), (5) and (8) of the Statute.
Counsel representing the Respondent argues that the refusal to
produce the list was not violative of the Statute, and that disclosure
of employee home addresses is otherwise prohibited by the Privacy Act, 5
U.S.C. 552. It is contended further that Section 7114(b)(4) of the
Statute, exempts disclosures which would be violative of the Privacy
Act. Counsel also argues that the list of names sought is not
"necessary" for any purpose referred to in Section 7114(b)(4) of the
Statute.
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Based upon the entire record
herein, including exhibits, and other relevant evidence adduced at the
hearing, /9/ and briefs filed by the parties, I make the following
findings of fact, conclusions and recommendations.
Findings of Fact
Circumstances Surrounding Union Efforts to Obtain Names and Addresses
of Bargaining Unit Members
The bargaining unit represented by the Union is comprised of
Respondent's non-professional general schedule and wage grade employees
located in the Finance Home Administration Finance Office in St. Louis,
Missouri. The bargaining unit is comprised of about 903 members out of
a total of approximately 1050 to 1110 of Respondent's employees assigned
to Respondent's St. Louis facilities (Tr. 19-20, 35, 90). A total of
150 employees in the bargaining unit are members of the Union (Tr. 20,
25). Bargaining unit members reside in the St. Louis metropolitan area
(Tr. 20).
A collective bargaining agreement governing the relations of the
parties expired in May of 1983, but remained in effect pending
completion of contract negotiations (Tr. 20, G.C. Exh. No. 2). The
parties commenced collective bargaining on ground rules in July of 1983,
and on August 29, 1983, began negotiations concerning a new collective
bargaining agreement (Tr. 20).
By letter dated July 20, 1983, Mr. Steve Hollis, President of the
Union wrote to Mr. Clarence P. Squellati, Respondent's Director, and
requested a list of the names and home addresses of all bargaining unit
members (G.C. Exh. No. 3). /10/ The letter requested an early response
because of then anticipated contract negotiations, and outlined the
following reasons for the Union's request:
This information is need (sic) by the local so that we will be
able to communicate effectively with the employees in the unit to
obtain their views on bargaining priorities, and to learn their
problems, thereby allowing the local to frame intelligent
collective bargaining proposals for our pending contract
negotiations.
For a number of reasons such as the low percentage of unit
members who are members of the union, the limited number of
stewards, the limited number of (bulletin) boards available to the
union, the location of unit employees, the limited use of the
internal mail system, the limited allowance for desk drop and
other (factors, the available communication channels are
inadequate for full and proper discussion, understanding and
negotiation of subjects within the scope of collective bargaining.
In a letter dated August 18, 1983, the request was denied on the
ground that disclosure of home addresses without employee consent would
constitute a violation of the Privacy Act (G.C. Exh. No. 4).
During the hearing Mr. Hollis explained further that he wished to
utilize the mails to communicate with all bargaining unit employees in
the privacy of their homes; that he wished to do this during the then
pending contract negotiations, and on subsequent occasions (Tr. 21);
and that he wished to provide a private atmosphere for bargaining unit
members to read and respond to Union requests for opinions and
information concerning matters of interest to the Union and bargaining
unit members (Tr. 22). Mr. Hollis acknowledged freely that addresses
for the purpose of recruiting new members (Tr. 93-94). He testified
that employees would more readily join the Union if addressed personally
on issues of concern to them (Tr. 94-95).
Following denial of the Hollis request an effort was made by the
Union to obtain home addresses directly from bargaining unit members.
This was effected primarily through the distribution of "contract
surveys" designed to obtain a priority ranking of contract issues by
employees responding (Tr. 30). Space for a home address was provided on
the survey form which was distributed through a "desk drop." /11/
However, the record disclosed no significant effort to go directly to
employees specifically for the purpose of obtaining home addresses,
although the "desk drop" was available for this purpose (Tr. 93-94).
Failure to do so was attributed to the need to accomplish such work on
non-duty time, to unwillingness on the part of stewards to contribute
non-duty time; and to difficulty encountered in recruiting volunteers
(Tr. 92-94). The Union efforts described were specifically associated
with Union activity designed to obtain home addresses needed primarily
for the recruiting of new members (Tr. 93-94). The efforts made did
produce about 100 addresses of bargaining unit members who were not
Union members (Tr. 86). After adding home addresses of Union members on
file, it was estimated that a maximum of about 650 home addresses of
non-Union bargaining unit members would be needed to develop a complete
list of bargaining unit member home addresses (Tr. 90).
It was established by Mr. Hollis' testimony that Union officials
could simply ask bargaining unit members for their home addresses, if
they were inclined to do so (Tr. 108). In situations where Union
officials have requested employees for their home addresses, employees
have refused to comply in only "one or two" instances (Tr. 110).
Circumstances Relating to Union Access to Bargaining Unit Members
With the exception of about 14 bargaining unit employees, bargaining
unit members work in an office building located at 1520 Market Street,
St. Louis, Missouri (Tr. 36, 88). /12/ The small group of 14 is located
in a warehouse facility in Granite City, Illinois, a community situated
within the St. Louis metropolitan area (Tr. 88). The Market Street
address is a four story building controlled by the General Services
Administration. The first three floors are utilized to house
Respondent's employees (Tr. 89). Other federal agencies maintain
offices on the fourth floor (Tr. 89). The building has two exits and
two entrances (Tr. 37). Most of the employees utilize a single main
entrance (Tr. 37, 89). Most of Respondent's employees work at desks in
an office environment (Tr. 89). Upper levels of the building are
reached by elevators and stairs (Tr. 89). It is a common practice for
the Union to pass out literature at building entrances and at other
locations inside the building (Tr. 37-38).
Although employees from other agencies entering the building wear
similar clothing and have similar identification badges (Tr. 90),
Respondent's work areas are secure, and require an identification badge
issued by the Respondent in order to obtain access (Tr. 38). Union
representatives have access to Respondent's work areas (Tr. 38-39).
Article 19, Section 19.2 of the collective bargaining agreement
provides for the semi-annual disclosure of the names, grades, and
organizational locations of all personnel employed by the Respondent in
the St. Louis area (G.C. Exh. No. 2 at page 19). Through the use of
such lists, or organizational charts, bargaining unit members may be
easily identified by name and job title (Tr. 39-40, R. Exh. No. 1).
Information of this nature was in the possession of the Union prior to
the filing of the charge (Tr. 40-41).
Article 4 of the agreement provides for Union officer positions, the
position of a Chief Steward, and "up to six stewards to represent
specific groups of bargaining employees" (G.C. Exh. No. 2 at pages 4-5).
Mr. Hollis testified in rather non-specific terms to representational
difficulty stemming from the fact that not all stewards work in
organizational elements that they represent; however, the record
disclosed minimal geographic separation at most between bargaining unit
members and Union officials. Mr. Hollis also stated that by agreement
the Respondent had allowed a seventh steward position to cover a night
shift (Tr. 91). Reported difficulty encountered as a result of the use
of flextime schedules (Tr. 95-96). /13/ As of the date of the filing of
the charge one steward position had not yet been filled by the Union
(Tr. 41-42).
Article 19, Section 1 of the agreement imposes upon the Respondent
the duty to provide the Union with conference rooms or other suitable
space for internal business meetings; space for the purpose of
conducting individual interviews on matters relating to representational
duties; tables, chairs; locked file cabinets; a telephone; copier
service; and inclusion of the Union president's name and extension
number in the Respondent's telephone directory.
Evidence adduced at the hearing disclosed that Union meetings are
usually not well attended (Tr. 99). However, the Respondent has acted
to facilitate attendance at Union meetings by allowing employees to
adjust lunch schedules to permit attendance (Tr. 45, 75, 76, 99-100),
and meetings during the work day on non-duty time have been facilitated
(Tr. 75, R. Exh. No. 9). The record disclosed that the Respondent
interceded with the General Services Administration to allow the Union
to utilize a building public address system on a case by case basis (Tr.
79). The system has been used by the Union for the purpose of
announcing Union meetings (Tr. 79-80).
Under the provisions of Article 19, Section 19.13, the Respondent
supplies the Union with a 3' x 4' bulletin board located in the elevator
lobby on the third floor of the Market Street address. Mr. Hollis
expressed the opinion that bargaining unit employees did not read
bulletin boards, and discounted their value as a means of access (Tr.
101). However, no probative evidence was adduced to establish that the
bulletin board was of slight value.
Article 19, Section 19.4 of the collective bargaining agreement
provides:
The officers and members of the Union who are Employees of the
Employer may make personal distribution of their newsletter and
other Union publications in the working areas of the Finance
Office during non-duty hours of the Employees involved.
The quoted language of the agreement gives the Union the right to
utilize "desk drops" for the purpose of communicating with bargaining
unit members. All bargaining unit members may be reached through the
use of this means of communication, which has in the past involved the
deposit of newsletters and other Union publications on the desks of
employees during non-duty time (Tr. 81-82). The Charging Party
contended that messages left in this manner were not protected, and
could easily be intercepted by supervisors and non-bargaining unit
members (Tr. 84-85). It was also claimed that it would not be possible
to ascertain which desks were assigned to bargaining unit employees (Tr.
84-85). Nevertheless, the record did establish that newsletters were
distributed through "desk drops" for the purpose of soliciting the
opinions of bargaining unit members despite the fact that newsletters
and "desk drops" were considered inappropriate formats for the
dissemination of confidential information, or for "any sort of detailed
solicitation of employee views on detailed bargaining positions" (Tr.
27-28).
The Union contended that "desk drops" interfered with employee
duties, and that a large percentage of the messages left were discarded
(Tr. 84, 87-88). However, the record was quite clear that despite the
possibility of work disruption, the Respondent allowed this method of
communication during non-duty time under the terms of the collective
bargaining agreement. Further, there was no evidence that a direct
mailing would have evoked a greater employee response; and claims that
a mailing would be more effective, or more confidential in nature were
purely speculative in nature as no evidence was introduced to establish
either premises. /14/ The record reflected no basis for finding that a
wide distribution to all bargaining unit members by mail would produce a
greater degree of confidentiality than a similar distribution
accomplished through a desk drop. Moreover, information received
through "desk drops" might be studied at home by employees (Tr. 104), or
during non-duty time, thus refuting contentions that in the absence of
mailings to home addresses employees would be precluded from thoroughly
studying information distributed.
The possibility of a thorough distribution to individual employees
through the "desk drop" method was established by the record (Tr. 81)
although it appeared that the Union decided not to utilize this method
because of a lack of response to "desk drops." As noted, there was no
showing that a mailing would have produced a greater response.
Furthermore, it was admitted that although there were approximately 900
employees in the unit, only 600 issuances were distributed by the Union
through use of the "desk drop" method (Tr. 87-88).
G.C. Exh. No. 5, a document entitled "Contract Bulletin #4" is an
example of a Union attempt to survey bargaining unit member activities
to determine Union bargaining positions. Three similar Bulletins were
utilized to reach bargaining unit members (Tr. 84). In G.C. Exh. No. 5,
the Union cited principal contract issues, requested employees to rate
these issues according to priority, and provided space for employees to
insert names and home addresses (Tr. 30, 83). /15/
In addition to the means of access outlined, the record disclosed
that the Union regularly participated in new employee orientation
sessions, and that on such occasions the Union has opportunity to obtain
employee home addresses (Tr. 47). Also, it was clearly established that
the Union has had access to employees for the purpose of obtaining
employee signatures on petitions relating to issues of concern to the
Union (Tr. 85, R. Exh. Nos. 5 and 6).
Discussion and Conclusions
Section 7114(b)(4) of the Statute provides:
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section 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. . . .
The record clearly establishes that the names and home addresses of
bargaining unit members are maintained by the agency in the regular
course of business, that such information is reasonably available, and
that such data does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors, relating to
collective bargaining. However, a key factual issue is posed concerning
the question of whether the names and addresses of bargaining unit
members are "necessary for full and proper discussion, understanding,
and negotiation of subjects within the scope of collective bargaining"
within the meaning of Section 7114(b)(4)(B).
It does not appear that the Authority has had occasion to address the
issue of requests for names and addresses of bargaining unit members to
aid a Union with respect to representation functions relating to the
"negotiation of subjects within the scope of collective bargaining."
However, this specific question was resolved by the Federal Labor
Relations Council in Internal Revenue Service, Office of the District
Director, Jacksonville District, Jacksonville, Florida, FLRC No. 72A-50,
2 FLRC 106 (1974).
In sustaining the dismissal of a complaint based upon Section
19(a)(6) of Executive Order 11491, the Council followed the private
sector view in such cases /16/ and held:
. . . (T)he essence of the criteria enunciated by the Assistant
Secretary is that an exclusive representative is entitled to and,
to the extent necessary, must be provided with effective means of
communicating with the employees in the unit. The Council agrees
with this determination.
Section 10(e) of the Order provides that a labor organization
which has been selected as the exclusive bargaining representative
is entitled to act for and to negotiate agreements covering all
employees in the unit and it is responsible for representing the
interests of all employees in the unit without discrimination and
without regard to labor organization membership.
To this end, in our opinion, the implementation of the
provisions of section 10(e) of the Order requires that the
exclusive representative have effective means of communicating
with unit employees. Moreover, agencies, as a part of their
obligation to consult, confer, or negotiate with an exclusive
representative, must where appropriate, provide an exclusive
representative with means of communicating with unit employees and
a failure to do so would constitute a violation of section
19(a)(6).
A determination of whether an exclusive representative in fact
has effective means of communicating with unit employees must be
made on a case-by-case basis. In many instances, little or no
action by the agency would be necessary to supplement the means of
communication readily available to the union on its own
initiative. On the other hand, in some instances where because of
such factors as the size of unit, geographic dispersion of
employees, isolated duty locations, etc., the union may not have
effective means of communicating with the unit employees. In such
situations, as stated above, the proper implementation of the
Order might require that the agency assist the exclusive
representative in facilitating such communication, consistent with
law and regulation, e.g., by providing the union with the periodic
use of the intraagency mailing system or addressing envelopes
containing union material and depositing these envelopes in the
U.S. mail for delivery to the employees at their home addresses.
A failure to provide the exclusive bargaining representative such
access to employees in the unit, where required, would constitute
a failure on the part of the agency to meet its obligation to
consult, confer, or negotiate with the exclusive representative in
violation of section 19(a)(6) of the Order.
On the basis of the record developed, the Assistant Secretary and the
Council determined that the National Treasury Employees Union did in
fact have effective means of communicating with unit employees.
Accordingly, it was held that the Internal Revenue Service had no
obligation to provide that union with additional means of communication.
This rule was applied recently by Administrative Law Judge Isabelle
R. Cappello in Defense Mapping Agency Aerospace Center, St. Louis,
Missouri, Case No. 7-CA-20482, OALJ-83-85 (May 12, 1983). The facts
adduced in this case resulted in a holding favoring disclosure of names
and addresses. It was held that the exclusive representative involved
did not have adequate access to bargaining unit members, and could not
effectively communicate with them. The factual situation presented in
Defense Mapping is clearly distinguishable. However, the legal issue
relative to the necessity of access is nearly identical to the legal
issue posed by the language of Section 7114(b)(4)(B) of the Statute.
Although counsel representing the General Counsel herein worked
diligently to develop a record to establish a finding that the Union did
not have adequate access to bargaining unit members, a careful review of
the evidence discloses that this burden was not sustained by a
preponderance of the evidence.
The Union contended that the names and addresses of bargaining unit
members were vitally needed to communicate with individual members to
ascertain their problems, and to obtain their views relating to
bargaining priorities so that intelligent proposals might be promulgated
by the Union. /17/ The record revealed no evidence to support a
contention that the Union did not have access to the unit for the
purposes outlined.
With the exception of a small group of 14 bargaining unit members,
all members of the unit were located on three floors of a single office
building located at 1520 Market Street in St. Louis. Only about 889
bargaining unit employees were assigned to the three floors which housed
the operations of the Respondent. The Union had access to the employees
at each of two entrances and two exits to the building, and most of the
employees utilized a single main entrance. Since the first three floors
housed Respondent's operations, employees assigned to these floors were
physically located in a relatively small area for purposes of access.
In fact, it was the practice of the Union to pass out literature at the
entrances, and at other locations within the building. There was no
clear showing that such access was ineffective. Respondent's work areas
are secured by an identification system, but it was established that
Union representatives had access to secured work areas.
The fourteen employees not assigned to the first three floors of the
office building address were all located at a separate single address in
the St. Louis metropolitan area. Here again, the record reflected that
the Union had unimpeded access to these employees.
An important element relating to the issue of access is observed in
the fact that bargaining unit members worked at desks in an office
environment. The names of unit members are regularly disclosed to the
Union with information concerning their organizational location. "Desk
drops" are authorized by the terms of the collective bargaining
agreement, and the Union has in fact utilized this means of access to
reach individual bargaining unit members for the purpose of obtaining
employee views relating to contract issues.
The record also otherwise disclosed that the Union has had
opportunity to reach employees directly for the purpose of soliciting
their opinions, and/or to obtain their home addresses. There was no
persuasive showing that the number of stewards were inadequate to reach
the relatively small number of bargaining unit members located at the
two work site locations. Instead, the record established that at least
one Union steward position had not been filled by the Union.
Facilities for Union meetings were provided. The Respondent took
special steps to adjust worker lunch schedules to permit attendance, and
interceded with the General Services Administration on behalf of the
Union in order to obtain Union access to a public address system used at
1520 Market Street, the building housing most of the bargaining unit
members. The Union also had access to a 3' x 4' bulletin board located
on the third floor of the Market Street address, and the Union had
access to employees during new employee orientation sessions.
The Union's argument that use of the mails would preclude the
Respondent from learning the content of communications to members was
seen to be without merit. There would be no guarantee of
confidentiality with a mailing to all bargaining unit members in light
of the fact that a significant percentage of the unit members do not
belong to the Union. In this regard there was no showing of any
appreciable difference between depositing sealed envelopes on the desks
of unit members; and the much sought after use of the U.S. mail, and/or
the use of the Respondent's internal mail system.
Evidence to the effect that Union stewards and officers, and members
were unwilling to devote sufficient non-duty time to Union work did not
relate to the question of access to employees, nor did it constitute a
showing that there was an absence of access in this case. Moreover,
there was no indication that less non-duty time would be required of
Union officials if names and addresses were made available; and, in
light of the existing right to "desk drop," there was no showing that
the supplying of names and addresses would appreciably increase
available access to bargaining unit members.
The record indicates that the Union did not in fact make effective
use of the "desk drop" because Union officers believed that literature
left on desks would be discarded. There was no indication that the
discard rate would be lessened by a mailing to employees. Similarly,
lack of attendance at Union meetings was not probative on the question
of existing available access.
In summary, there was no clear showing that the use of "desk drops,"
direct distributions, meetings, bulletin boards, and direct personal
contact were inadequate in the special circumstances presented in this
case. That is, in light of the existence of the foregoing, Counsel for
the General Counsel did not establish that the list of names and
addresses sought was "necessary for a full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining." /18/ Accordingly, it is recommended that the
Authority issue the following Order pursuant to 5 C.F.R. 2423.29.
ORDER
IT IS HEREBY ORDERED, that the complaint in Case No. 7-CA-30560, be,
and hereby is, dismissed.
LOUIS SCALZO
Administrative Law Judge
Dated: September 24, 1984
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ Section 7114(b)(4) of the Statute provides:
Sec. 7114. Representation rights and duties
. . . .
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section 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; (and)
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining(.)
/2/ Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified
as amended at 5 U.S.C. 552a (1982)).
/3/ 5 U.S.C. 552a(a)(4), (5) (1982).
/4/ Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256
(codified as amended at 5 U.S.C. 552 (1982)).
/5/ See, e.g., Department of the Air Force v. Rose, 425 U.S. 352
(1976).
/6/ See also Bureau of Alcohol, Tobacco and Firearms, National
Office, Washington, D.C., 18 FLRA No. 74 (1985).
/7/ In this regard, the Union could have communicated with unit
employees through "desk drops" of information as authorized by the
parties' collective bargaining agreement; direct distributions at
entrances; meetings in conference rooms provided by management under
the negotiated agreement; bulletin boards; and union stewards who had
access to unit employees at their workplace.
/8/ In so concluding, the Authority does not reach the question of
whether the data sought herein meets the other requirements of section
7114(b)(4) of the Statute.
/9/ Counsel representing the General Counsel moved to correct errors
in the hearing transcript. Under Authority reflected in 5 C.F.R.
2423.19(r), the proposed corrections are approved with the exception of
the proposed correction at Tr. 64:10. An examination of this reference
in the transcript reflects no error of the type noted in the motion.
/10/ The record disclosed that the home addresses sought by the Union
are retained by the Respondent in official personnel files, in a card
index system, and in a computer file (Tr. 24).
/11/ The "desk drop," an approved means of access provided to the
Union under the terms of the collective bargaining agreement will be
hereinafter discussed in more detail. It involved direct placement of
Union literature on the desks of bargaining unit members.
/12/ Since the record reflects a total of about 903 unit members, it
is determined that approximately 889 members worked at the Market Street
address.
/13/ The record disclosed use of a "modified flex-tour" with the
majority of employees working a day shift commencing during the hours of
6:30 a.m. and 8:30 a.m. (Tr. 89). Night shifts were also utilized. One
began between 2:00 p.m. and 4:00 p.m. A second one commenced between
9:00 p.m. and 11:00 p.m. (Tr. 89-90).
/14/ The record suggests that the Respondent utilized the "desk drop"
method to solicit managerial comments relating to management bargaining
proposals (Tr 79).
/15/ This document required employees to "(p)lease fill out your
name, address, and phone so that we may record your results in our
computer and, more importantly, contact you for further discussion."
Only sixty-five returned the survey, and only about half of the surveys
returned had names and addresses on them (Tr. 30). Most of the surveys
in the latter group emanated from Union members whose names and
addresses were known to the Union (Tr. 30). The meager response to the
Union's request for home addresses within the context outlined is
understandable since the survey sought much more than names and home
addresses. Completion of the survey, and submission to the Union
included substantial employee involvement, and an assurance of future
Union efforts to obtain participation from employees who supplied their
names and addresses. The insignificant response under the circumstances
described would not establish an absence of access to bargaining unit
employees.
/16/ See A/SLMR No. 214, 2 A/SLMR 523 (1972), and relevant private
sector cases cited therein.
/17/ Although these reasons for requesting the names and addresses
were advanced by the Union, the record also established that Union
acquisition of the list was considered vitally necessary in connection
with efforts to recruit new members. The language of Section 7114(b)(4)
provides no basis for disclosure of the names and addresses of
bargaining members for the purpose of recruiting new union members.
/18/ In view of this conclusion it is unnecessary to pass upon
Respondent's argument that disclosure in this case would contravene the
provisions of the Privacy Act.