26:0542(64)CA - Air Force District of Washington and AFGE-GAIU Councils of HQUSAF Locals -- 1987 FLRAdec CA
[ 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.