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42:0406(32)CA
The decision of the Authority follows:
42 FLRA No. 32
Before Chairman McKee and Members Talkin and Armendariz.
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 Respondent and the General Counsel filed briefs with the Authority.
The complaint alleges that 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 Union with the names and home addresses of bargaining unit employees represented by the Union. For the following reasons, we find that the Respondent committed the unfair labor practice as alleged.
II. Facts
The Union is the exclusive representative of a unit of Respondent's employees. By letter dated February 20, 1991, the Union requested the names and home addresses of certain employees of the Respondent.(*) By letter dated February 27, 1991, the Respondent refused to provide the Union with the requested "home addresses of the bargaining unit employees." Stipulation at 2, para. 7.
The parties stipulate that the requested information is normally maintained by the Respondent in the regular course of business, is reasonably available, and does not constitute guidance, advice, counsel or training provided for management officials or supervisors related to collective bargaining.
III. Positions of the Parties
A. The Respondent
The Respondent contends that the disclosure of employees' home addresses is prohibited by the Privacy Act, 5 U.S.C. § 552a. The Respondent relies, in this regard, on the Supreme Court's decision in Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), and the decision of the U.S. Court of Appeals for the D.C. Circuit in FLRA v. Department of the Treasury, Financial Management Service, 884 F.2d 1446 (D.C. Cir. 1989) (Treasury), cert. denied, 110 S. Ct. 863 (1990). The Respondent also asserts, based on Treasury, that the requested home addresses may not be disclosed pursuant to routine use exception to the Privacy Act, 5 U.S.C. § 552a(b)(3). Finally, the Respondent argues that the requested information is not necessary, within the meaning of section 7114(b)(4) of the Statute, because the Union has not explained why it needs the information and because "[o]ther means of communication . . . exist for the Union to contact employees." Respondent's Brief at 4.
B. The General Counsel
The General Counsel argues that the Authority's decisions in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986) (Farmers Home), and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), enforcement denied sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Aug. 13, 1991) (FLRA v. Portsmouth Naval Shipyard), are dispositive of the issues in this case. The General Counsel asserts that, consistent with these decisions, the Respondent's admitted failure to furnish the Union with the requested information violates section 7116(a)(1), (5), and (8) of the Statute.
IV. Analysis and Conclusions
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and concluded that the release of the names and home addresses of bargaining unit employees to their 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 established by section 7114(b)(4) of the Statute. We also determined that the release of the information generally is required without regard to whether alternative means of communication are available. We find that resolution of this case does not require consideration of whether alternative means of communication are available to the Union.
We note that, in FLRA v. Portsmouth Naval Shipyard, the U.S. Court of Appeals for the First Circuit denied the Authority's petition for enforcement of Portsmouth Naval Shipyard. Subsequently, in FLRA v. U.S. Department of the Navy, Navy Ships Parts Control Center, et al., Nos. 90-3690, 90-3724 (3d Cir. Sept. 13, 1991), a divided Court of Appeals for the Third Circuit denied the Authority's petition for enforcement of U.S. Department of the Navy, Navy Ships Parts Control Center and Navy Fleet Material Support Office and NAVSEA Logistics Center and Navy Publishing and Printing Service, 37 FLRA 722 (1990), in which the Authority relied on Portsmouth Naval Shipyard. We respectfully disagree with these courts' decisions and adhere to our decision in Portsmouth Naval Shipyard.
The parties stipulated that the requested information is normally maintained by the Respondent in the regular course of business, is reasonably available, and does not constitute advice, guidance, or counsel provided to management officials or supervisors relating to collective bargaining, within the meaning of section 7114(b)(4) of the Statute. Accordingly, based on the Authority's decision in Portsmouth Naval Shipyard, we conclude that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to furnish the Union with the requested names and home addresses of unit employees represented by the Union.
V. 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 11th Air Force (PACAF), Elmendorf Air Force Base, Alaska, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 1668, AFL-CIO, the exclusive representative of certain of its employees, the requested home addresses of 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 their 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, Local 1668, AFL-CIO, the exclusive representative of certain of its employees, the requested home addresses of employees in the bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 1668, 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 Commanding Officer of the 11th Air Force (PACAF), Elmendorf Air Force Base, Alaska 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, San Francisco Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
WE WILL NOT refuse to furnish, upon request of the American Federation of Government Employees, Local 1668, AFL-CIO, the exclusive representative of certain of our employees, the requested home addresses of 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 their rights assured by the Statute.
WE WILL furnish the American Federation of Government Employees, Local 1668, AFL-CIO, the exclusive representative of certain of our employees, the requested home addresses of 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, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 744-4000.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ The parties stipulated that the list of employees for whom the Union requested home addresses included employees within the bargaining unit for which the Union is certified as the exclusive representative and employees who are not in that unit. Stipulation at 2, para. 6. Consistent with the record as a whole, including the parties' arguments, which are directed solely at disclosure of the home addresses of unit members, we consider here only whether the Respondent violated the Statute by refusing to disclose the requested home addresses of unit employees.