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24:0037(4)CA
The decision of the Authority follows:
24 FLRA No. 4
PHILADELPHIA NAVAL SHIPYARD
Respondent
and
PHILADELPHIA METAL TRADES COUNCIL
Charging Party
Case No. 2-CA-40243
(19 FLRA No. 107)
DECISION AND ORDER ON REMAND
I. Statement of the Case
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit.
The question before the Authority is whether it is an unfair labor
practice under the Federal Service Labor-Management Relations Statute
(the Statute) for the Respondent (Agency) to refuse a request, made
pursuant to section 7114(b)(4) of the Statute, to provide the Charging
Party (Union) with the names and home addresses of employees in a
bargaining unit which the Union exclusively represents.
In a recent Decision and Order on Remand in another case, Farmers
Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101
(1986) (FHAFO), we reviewed the Authority's previous decision concerning
the release of the names and home addresses of bargaining unit employees
to exclusive representatives. We concluded that the release of the
information is not prohibited by law, is necessary for unions to fulfill
their duties under the Statute, and meets all of the other requirements
established by section 7114(b)(4). We also determined that the release
of the information is generally required without regard to whether
alternative means of communication are available. Consistent with our
decision on remand in FHAFO, we conclude that Respondent's refusal to
provide the Union with the names and home addresses sought in this case
violated section 7116(a)(1), (5) and (8) of the Statute. We therefore
vacate the Authority's previous decision in this case.
II. Facts
The Union requested the names and home addresses of the unit
employees it represents. The Respondent denied the request. The
Respondent took the position that release of the information was not
necessary because the Union had adequate alternative means available for
communicating with the unit employees through Union stewards, bulletin
boards, publication of items in the Respondent's newspaper, and
distribution of literature within the Shipyard.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondent failed to comply with the
requirements of 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 Union, upon request, with the names and home addresses of
all unit employees represented by the exclusive representative. The
Judge found that an exclusive representative must be able to communicate
effectively with its constituency; that the exclusive representative's
access to the addresses of unit employees was necessary for it to carry
out its representational responsibilities in collective bargaining
because it had no other effective means of communication with the
employees; and that the Privacy Act /*/ was not a bar to disclosure of
the information.
IV. Positions of the Parties
The parties' positions were set forth in the Respondent's exceptions
and the General Counsel's response in the original case. The Respondent
contended that it acted properly in denying the Union's request for the
names and home addresses of employees because the Union's request did
not specify why home addresses were necessary within the meaning of
section 7114(b)(4). The Respondent maintained that a request which
states that home addresses are necessary because such information will
enable the Union to better perform its general representational
responsibilities is not specific enough to warrant the release of home
addresses. The Respondent also contended that the Union had other
appropriate means available for communicating with unit employees, and
it excepted to the Judge's conclusion that the alternative means were
inadequate. Finally, the Respondent argued that the disclosure of home
addresses would constitute an invasion of employee privacy in violation
of the Privacy Act.
The Counsel for the General Counsel argued that the factual and legal
conclusions of the Judge were correct and urged the Authority to affirm
the Judge's decision.
V. Previous Decision of the Authority
In its previous decision in this case, Philadelphia Naval Shipyard,
19 FLRA No. 107 (1985), the Authority followed the precedent established
in the original FHAFO case, 19 FLRA No. 21 (1985). The Authority
concluded that the release of home addresses was not required pursuant
to section 7114(b)(4) of the Statute because the disclosure of such
information was "prohibited by law," specifically the Privacy Act. The
Union appealed. Philadelphia Metal Trades Council v. FLRA, No. 85-1625
(D.C. Cir.). The Authority requested that the court remand the case.
The Authority also sought remand from the courts in FHAFO and two other
cases which had been appealed and presented substantially identical
issues. The courts granted the Authority's requests in the FHAFO case,
American Federation of Government Employees, Local 3354 v. FLRA, No.
85-1493 (D.C. Cir.) (reviewing 19 FLRA No. 21); in National Federation
of Federal Employees, Local 1827 v. FLRA, No. 2202 (8th Cir.) (reviewing
19 FLRA No. 85); and in this case. The U.S. Court of Appeals for the
Second Circuit, however, denied the Authority's remand request in one
case, Social Security Administration Northeastern Program Service
Center, 19 FLRA No. 108 (1985), and issued a decision. The Second
Circuit reversed the Authority's holding that the release of names and
home addresses was "prohibited by law," i.e., the Privacy Act, under
section 7114(b)(4) of the Statute. American Federation of Government
Employees, Local 1760 v. FLRA, 786 F.2d 554 (2nd Cir. 1986). The
Authority then decided to review the entire issue of the release of
employees' names and home addresses and invited agencies, unions, and
interested persons to submit amicus briefs addressing the issue. A
number of amicus submissions were received. Although the parties in
this case did not submit amicus briefs, the Navy Department and the
American Federation of Government Employees did file amicus briefs
outlining their positions.
VI. Analysis and Conclusions
As noted above, the Authority in the decision on remand in FHAFO
concluded that the release of the names and home addresses of bargaining
unit employees to the exclusive representative of those employees is not
prohibited by law, is necessary for unions to fulfill their duties under
the Statute and meets the other requirements of section 7114(b)(4). We
also determined that agencies are required to furnish such information
without regard to whether alternative means of communication are
available or adequate. Based on our decision on remand in the FHAFO
case, we find that the Respondent in this case was required to furnish
the Union with the names and home addresses of the employees in the
bargaining unit. We conclude that the Respondent's refusal to furnish
the requested information constituted a violation of section 7116(a)(1),
(5) and (8) of the Statute.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, it is ordered that the Philadelphia Naval Shipyard,
Philadelphia, Pennsylvania, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the Philadelphia Metal
Trades Council, the exclusive representative of its employees, the names
and home addresses of all employees in the bargaining unit it
represents.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights assured them by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request by the Philadelphia Metal Trades Council, the
exclusive representative of its employees, furnish it with the names and
home addresses of employees in the bargaining unit it represents.
(b) Post at all its facilities where bargaining unit employees
represented by the Philadelphia Metal Trades Council are located, copies
of the attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be signed
by a senior official of the Philadelphia Naval Shipyard, Philadelphia,
Pennsylvania, 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 insure 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 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., November 13, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) Privacy Act of 1974, 5 U.S.C. Section 552a (1982).
APPENDIX
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request by the Philadelphia Metal
Trades Council, 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 Philadelphia Metal Trades Council, the
exclusive representative of our employees, furnish it with the names and
home addresses of all employees in the bargaining unit it represents.
(Activity)
Dated: By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 3700, New York, N.Y. 10278 and whose
telephone number is: (212) 264-4934.