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33:0429(59)CA
The decision of the Authority follows:
33 FLRA No. 59
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
U.S. DEPARTMENT OF LABOR
OFFICE OF THE ASSISTANT SECRETARY FOR
ADMINISTRATION AND MANAGEMENT
SAN FRANCISCO, CALIFORNIA
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL OF FIELD LABOR LOCALS
LOCAL 2391
AFL-CIO
(Charging Party)
9-CA-80003
DECISION AND ORDER
October 27, 1988
Before Chairman Calhoun and Member McKee.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists.
The complaint alleges that Department of Labor, Office of the Assistant Secretary for Administration and Management, San Francisco, California (the Respondent) violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to provide the American Federation of Government Employees, National Council of Field Labor Locals, Local 2391, AFL-CIO (the Charging Party or Local 2391), with the names and home addresses of bargaining unit employees located at the Office of the Assistant Secretary for Administration and Management in San Francisco, California. For the reasons discussed below, we find that the Respondent has committed the unfair labor practices as alleged.
II. Facts
The American Federation of Government Employees, National Council of Field Labor Locals, AFL-CIO (NCFLL) is the exclusive representative of a nationwide unit of employees of the Department of Labor, Office of the Assistant Secretary for Administration and Management (Office of Assistant Secretary) including employees at Respondent's Region 9, Office in San Francisco, California. Local 2391 is the agent of NCFLL for the purpose of representing certain employees at Respondent's Region 9, San Francisco, California office.
By letter dated December 12, 1986, NCFLL requested the names and home addresses of all bargaining unit employees it represents within the Office of Assistant Secretary nationwide. In February 1987, the Office of Assistant Secretary stated to NCFLL that it would provide the requested list (Exh. 4), and that all other such requests made at the regional level would not be processed. Stipulation, paragraph 11. Subsequently, by letter dated April 2, 1987, the Office of Assistant Secretary stated that it would not comply with the NCFLL December 12, 1986 request, pending judicial review of the Authority's decision in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986) (Farmers Home), enforced in part and remanded sub nom. U.S. Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, 836 F.2d 1139 (8th Cir. 1988), petition for cert. filed, 57 U.S.L.W. 3186 (U.S. Aug. 26, 1988) (No. 88-349) concerning the release of such information.
On or about July 1, 1987, Local 2391 orally requested that the Respondent provide the names and home addresses of all employees in the Respondent's Region 9, San Francisco, California office. The Respondent denied the Union's request.
No unfair labor practice charge has been filed by Local 2391 or NCFLL in connection with the Office of Assistant Secretary's refusal since April 2, 1987, to provide the NCFLL with the information it requested on December 12, 1986. The charge and complaint herein relate only to the Respondent's denial of Local 2391's request of July 1, 1987.
The parties stipulated that the names and home addresses are normally maintained by Respondent in the regular course of business, are reasonably available and do not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining, all within the meaning of section 7114(b)(4) of the Statute.
III. Positions of the Parties
The Respondent denies it has violated the Statute by failing and refusing to provide the Union with the names and home addresses of bargaining unit employees. It contends that it was merely carrying out the policy of the Office of Assistant Secretary. Consequently, the Respondent maintains it is not a proper Party to the complaint. It also contends that: (a) the information is protected from disclosure by the privacy exemption of the Freedom of Information Act, 5 U.S.C. § 552(b)(6); (b) home addresses are not disclosable under the Office of Personnel Management's notice defining routine uses for records of government personnel; (c) names and home addresses do not come within the framework of section 7114(b)(4) since names and home addresses do not relate to the negotiation of subjects within the scope of bargaining under the Statute; (d) disclosure is not required under section 7114(b)(4) since there is no demonstrated need for the names and home addresses of the employees.
The General Counsel contends that the Authority's decision on remand in Farmers Home in which the Authority concluded that section 7114(b)(4) of the Statute entitled the exclusive representative to the names and home addresses of employees in the bargaining unit, is dispositive of this case. Consequently, the General Counsel contends that the Respondent's failure to furnish the names and home addresses of employees constitutes a refusal to comply with section 7114(b)(4) of the Statute, in violation of section 7116(a)(1), (5), and (8) of the Statute.
IV. Analysis and Conclusions
A. The Farmers Home Decision has Settled the Issue Raised Here Regarding the Obligation to Furnish Names and Home Addresses
In our decision on remand in Farmers Home, we held that the release of the names and home addresses of bargaining unit employees to exclusive representatives is not prohibited by law, is necessary for unions to fulfill their duties under the Statute, and meets all of the other requirements of section 7114(b)(4). Our decision in Farmers Home analyzed the two exceptions to the Privacy Act's bar to disclosure of personal information pertinent to the release of employees' names and home addresses: exception (b)(2), concerning the Freedom of Information Act, and exception (b)(3), relating to "routine use" of information. We found that both exceptions to the Privacy Act's bar applied so as to authorize release of the information under the Privacy Act. We also found that the release of the information is generally required without regard to whether alternative means of communication are available. See United States Department of the Navy and Philadelphia Naval Shipyard v. FLRA, 840 F.2d 1131 (3d Cir. 1988), enforcing Philadelphia Naval Shipyard, 24 FLRA 37 (1986); U.S. Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, 838 F.2d 229 (7th Cir. 1988), affirming Department of the Air Force, Scott Air Force Base, Illinois, 24 FLRA 226 (1986); Department of Health and Human Services, Social Security Administration v. FLRA, 833 F.2d 1129 (4th Cir. 1987), affirming Department of Health and Human Services, Social Security Administration, 24 FLRA 543 (1986); Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, New York Region, 24 FLRA 583 (1986); Department of Health and Human Services, Social Security Administration, 24 FLRA 600 (1986). Therefore, we find that the Respondent was required to furnish Local 2391 with the names and home addresses of the employees in the bargaining unit. Its refusal to do so violated section 7116(a)(1), (5) and (8) of the Statute.
B. Subordinate Level Management Violated the Statute
We reject the Respondent's claim that it was compelled to refuse to provide the requested information and, therefore, should not be found to have violated the Statute. Where, as here, agency management at a higher level is not a named respondent, agency management at a subordinate level will be held to have violated the Statute, even where subordinate level management was merely following orders. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA 1060, 1068 (1987) application for enforcement filed sub nom. FLRA v. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, No. 87-1551 (D.C. Cir. Nov. 7, 1987); United States Department of the Treasury, Internal Revenue Service and Internal Revenue Service, Austin District, and Internal Revenue Service, Houston District, 23 FLRA 774, 779 (1986).
ORDER
Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we order that U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, San Francisco, California shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of Government Employees, National Council of Field Labor Locals, Local 2391, AFL-CIO, the designated agent of the exclusive representative for certain of their 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 their employees in the exercise of the rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Furnish the American Federation of Government Employees, National Council of Field Labor Locals, Local 2391, AFL-CIO, the designated agent of the exclusive representative for certain of their employees, with the names and home addresses of all employees in the bargaining unit it represents.
(b) Post at its facilities in San Francisco, California, where bargaining unit employees represented by the American Federation of Government Employees, National Council of Field Labor Locals, Local 2391, AFL-CIO, 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 the Director, U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, San Francisco, California, and they 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
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, National Council of Field Labor Locals, Local 2391, AFL-CIO, the designated agent of the exclusive representative for certain 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 furnish the American Federation of Government Employees, National Council of Field Labor Locals, Local 2391, AFL-CIO, the designated agent of the exclusive representative for certain of our employees, 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 IX, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103 and whose telephone number is: (415) 995-5000.
FOOTNOTES:
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have footnotes.)