[ v37 p1160 ]
37:1160(100)CA
The decision of the Authority follows:
37 FLRA No. 100
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
UNITED STATES DEPARTMENT OF THE AIR FORCE
TACTICAL AIR COMMAND
LANGLEY AIR FORCE BASE, VIRGINIA
AND
TACTICAL AIR COMMAND
27TH COMBAT SUPPORT GROUP (TAC)
CANNON AIR FORCE BASE, NEW MEXICO
(Respondents)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2308
(Charging Party)
6-CA-70450
DECISION AND ORDER
October 24, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Chief Administrative Law Judge issued the attached decision in this case. He found that the United States Department of Defense, Department of the Air Force, Tactical Air Command, Langley Air Force Base, Virginia (Respondent Command) and the United States Department of Defense, Department of the Air Force, Tactical Air Command, 27th Combat Support Group (TAC), Cannon Air Force Base, New Mexico (Respondent Activity) had engaged in the unfair labor practices alleged in the complaint by refusing to furnish the Union the names and home addresses of employees in the bargaining unit represented by the Union. The Union is the exclusive representative of a unit of Respondent Activity's non-professional 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 and the General Counsel filed an opposition to the exceptions.
For the reasons stated below, we adopt in part and reverse in part the Judge's Decision. We find that the Respondent Activity violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) as alleged. However, we will dismiss the complaint as to the Respondent Command.
II. Background
On December 10, 1986, by letter addressed to Cruz Madrid, Chief of Employee and Labor Relations Management of Respondent Activity, the Union requested that Respondent Activity furnish the names and home addresses of bargaining unit employees represented by the Union. By letter dated December 30, 1986, Madrid informed the Union that the requested information would not be released until a court decision was rendered in the appeal of the Authority's decision in Farmers Home Administration Finance Office, St. Louis Missouri, 23 FLRA 788 (1986).(1) By letter dated April 17, 1987, addressed to Madrid, the Union again requested the names and home addresses of bargaining unit employees. By letter dated April 20, 1987, Madrid informed the Union that the requested information would not be released because current home addresses of unit employees are not maintained by Respondent Activity and release of the information would violate the Privacy Act.
On September 16, 1987, the General Counsel issued a complaint alleging that both Respondent Command and Respondent Activity had engaged in unfair labor practices. The complaint alleged that Madrid was an agent of Respondent Activity and Respondent Command and had acted on their behalf. The complaint alleged that Respondents violated section 7116(a)(1), (5), and (8) of the Statute by Madrid's refusal to furnish the Union the requested information and that Respondent Command violated section 7116(a)(1), (5), and (8) by: (1) establishing policy and issuing advice, instructions, and directions that caused Respondent Activity to refuse to furnish the requested information; and (2) interfering with the bargaining relationship between Respondent Activity and the Union.
In their answer to the complaint, the Respondents denied all allegations that they had committed any unfair labor practices. The Respondents admitted in their answer that Madrid was an agent of both Respondent Activity and Respondent Command and acted on their behalf.
On December 15, 1987, the General Counsel filed a motion for summary judgment and attached an affidavit of the Union's president which stated that: (1) after receiving the April 20 letter, she telephoned Madrid; and (2) during the call, Madrid stated that he had been advised by Respondent Command not to furnish the Union the requested information. Affidavit of Jackelyn A. Zimmerman. The General Counsel maintained that all material facts had been established and that summary judgment should be granted finding that the Respondents committed the unfair labor practices as alleged in the complaint.
In their opposition to the General Counsel's motion, the Respondents included an affidavit of their attorney stating that, to his knowledge, Respondent Command does not "make any decisions by themselves on the releasability" of the home addresses of unit employees to their exclusive representatives. Affidavit of James A. Harper. The attorney also stated that Madrid advised the attorney that Madrid did not have the telephone conversation with the Union's president as alleged in the president's affidavit. Id. at 2.
On January 6, 1988, the Chief Administrative Law Judge issued an order requesting the General Counsel to show cause "why the allegation against the Respondent Command should not be dismissed for failure to establish a prima facie case that the Command issued any unconditional directive or instruction that the information sought not be released." The Judge also requested that Respondent Activity state whether it consents to an entry of judgment against it.
In response to the order, the General Counsel maintained that based on the Union president's affidavit, it was clear that Respondent Activity was acting at the direction of Respondent Command. The General Counsel argued that the only evidence in the record to refute the Union president's affidavit was the affidavit submitted by Respondents. The General Counsel contended that this affidavit should not be considered because it contained "secondhand information." General Counsel's Response at 8.
The General Counsel also noted that the Respondents admitted that Madrid was an agent of both Respondents. The General Counsel maintained Madrid was acting for both Respondents when he refused to furnish the Union the requested information. The General Counsel argued that Respondent Activity was acting at the direction of Respondent Command and that, consequently, Respondent Command violated section 7116(a)(1) and (5) by interfering with the bargaining relationship between the Union and Respondent Activity. The General Counsel also argued that Respondent Command violated section 7116(a)(1), (5), and (8) by ordering Respondent Activity not to comply with section 7114(b)(4).
In response to the order, the Respondents stated that Respondent Activity did not consent to summary judgment and that, if the Judge did not dismiss the complaint against Respondent Command, a hearing was necessary to resolve the allegations against Respondent Command.
III. The Judge's Decision
The Judge found that no material issue of fact existed with respect to the actions of Respondent Activity. The Judge also found that because the Respondents admitted in their answer to the complaint that Madrid was the agent of both Respondents, both Respondents "are liable for his failure to provide the names and home addresses." Judge's Decision at 5 (footnote omitted). For these reasons, the Judge granted the General Counsel's motion for summary judgment and recommended that the Respondents be ordered to take appropriate remedial action.
The Judge's recommended order did not address, however, the allegations that Respondent Command violated the Statute by establishing policy and issuing advice, instructions, and directions that caused Respondent Activity to refuse to furnish the requested information, and by interfering with the bargaining relationship between Respondent Activity and the Union. He noted that in granting summary judgment he did not rely on the Union president's affidavit. He determined that the affidavit did "not meet the General Counsel's burden of proof" because: (1) the affidavit stated only that Respondent Command "advised" Madrid not to comply with the Union's request; and (2) "'[a]dvising' does not constitute an agency directive against providing data." Id. at 5 n.3.
IV. Positions of the Parties
A. The Respondents
The Respondents except to the Judge's findings that (1) disclosure of the names and home addresses of bargaining unit employees is not prohibited by the Privacy Act; (2) the requested information is normally maintained and reasonably available; (3) the information should be furnished without evidence that it is necessary for the full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (4) all the elements of a violation of the Statute were established.
The Respondents also except to the granting of a summary judgment against Respondent Command. The Respondents contend that there is no evidence that Respondent Command was involved in the decision not to furnish the requested information. The Respondents note that the Judge did not rely on the Union president's affidavit, but instead based his decision on the admission that Madrid was an agent for both Respondents. The Respondents acknowledge that Madrid was an agent of Respondent Command for certain purposes at certain times. However, the Respondents argue that there is no evidence that Madrid acted as an agent of Respondent Command when he refused to furnish the requested information.
B. The General Counsel
The General Counsel opposes the Respondents' exceptions. The General Counsel submitted its response to the Judge's order to show cause, which maintained that both Respondents violated section 7116(a)(1), (5), and (8) of the Statute, for the reasons set forth above.
V. Analysis and Conclusions
We adopt, in part, and reverse, in part, the Judge's Decision granting the General Counsel's motion for summary judgment. We find, for reasons fully set forth in U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990), that Respondent Activity violated section 7116(a)(1), (5) and (8) of the Statute as alleged. We reverse the summary judgment against Respondent Command because we conclude that the evidence on which the Judge relied does not establish that Respondent Command violated the Statute.
The Judge granted the motion for summary judgment against Respondent Command based solely on the Respondents' admission in their answer that Madrid "was the agent of both the Activity and the Command." Judge's Decision at 5. In rejecting the basis for the Judge's Decision granting summary judgment against Respondent Command, we agree with the Respondents that their admission that Madrid was an agent of Respondent Command for certain purposes at certain times does not necessarily establish that Madrid was acting as an agent of Respondent Command when he refused to furnish the requested information. Consequently, that admission does not establish that, solely as a result of Madrid's refusal to furnish the requested information, Respondent Command violated the Statute as alleged in the complaint. Accordingly, we conclude that a question of material fact remains on this issue.
We also find that there is insufficient evidence to establish that Respondent Command violated section 7116(a)(1), (5) and (8) by establishing policy and issuing advice, instructions, and directions that caused Respondent Activity to refuse to furnish the requested information and by interfering with the bargaining relationship between Respondent Activity and the Union as alleged in the complaint. The Respondents denied the interference. The only evidence submitted by the General Counsel to support summary judgment against the Respondent Command on this allegation was the Union president's affidavit. However, the Judge disclaimed any reliance on the Union president's affidavit and determined that it failed to meet the General Counsel's burden of proof to establish that Respondent Activity acted at the direction of Respondent Command. The Judge's recommended order did not address these allegations.(2)
Normally, when there is a material question of fact, we would remand the case to the judge to reopen the record to resolve that question. However, we find that under the unique circumstances of this case, it would not effectuate the purposes and policies of the Statute to remand. In our view, the record establishes a clear violation against Respondent Activity as found by the Judge. See Portsmouth Naval Shipyard. We conclude that remanding this case to the Judge to determine the role, if any, of Respondent Command would unduly delay remedying the clear violation found. Accordingly, we will dismiss the complaint as it relates to Respondent Command.
VI. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the United States Department of Defense, Department of the Air Force, Tactical Air Command, 27th Combat Support Group (TAC), Cannon Air Force Base, New Mexico, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of Government Employees, AFL-CIO, Local 2308, the exclusive representative of certain of its employees, the names and home addresses of all employees in the unit bargaining unit it represents.
(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights assured them 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, AFL-CIO, Local 2308, the exclusive representative of certain of its employees, the names and home addresses of all employees in the bargaining unit it represents.
(b) Post at Cannon Air Force Base, New Mexico, 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 Commanding Officer of Cannon Air Force Base, New Mexico, 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VI, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
The allegations in the complaint against the United States Department of Defense, Department of the Air Force, Tactical Air Command, Langley Air Force Base, Virginia are dismissed.
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, AFL-CIO, Local 2308, the exclusive representative of 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 rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees, AFL-CIO, Local 2308, the exclusive representative of certain of our employees, 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 VI, Federal Labor Relations Authority, whose address is: 525 Griffin Street, Suite 926, Dallas, Texas 75202 and whose telephone number is: (214) 767-4996.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Subsequently, Farmers Home Administration was enforced in part by the Eighth Circuit. Farmers Home Administration Finance Office, St. Louis Missouri, 23 FLRA 788 (1986) enf'd in part sub nom. U.S. Department of Agriculture v. FLRA, 836 F.2d 1139 (8th Cir. 1988), vacated on other grounds and remanded, U.S. Department of Agriculture v. FLRA, 109 S. Ct. 831 (1989).
2. It is not clear what the Judge found in granting summary judgment against Respondent Command. He did not address directly the allegations of the complaint that Respondent Command violated section 7116(a)(1), (5) and (8) by establishing policy and issuing advice, instructions, and directions that caused Respondent Activity to refuse to furnish the requested information, and by interfering with the bargaining relationship between Respondent Activity and the Union. In unconditionally granting summary judgment, however, the Judge did not specifically dismiss those allegations nor did he recommend an order to remedy such violations.