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46 FLRA No. 115

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF VETERANS AFFAIRS

MEDICAL AND REGIONAL OFFICE CENTER

FARGO, NORTH DAKOTA

(Respondent)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 225

(Charging Party/Union)

7-CA-10570

_____

DECISION AND ORDER

January 26, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish the Union with requested names and home addresses of bargaining unit employees represented by the Union. The Judge granted the General Counsel's motion for summary judgment and recommended that the Respondent be ordered to take appropriate remedial action. The Respondent filed exceptions to the Judge's decision. The General Counsel filed an opposition to the Respondent's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge 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, except as modified below, for the reasons fully set forth in 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, 941 F.2d 49 (1st Cir. 1991) (FLRA v. Portsmouth Naval Shipyard).^(*)

We note that, in Portsmouth Naval Shipyard, we concluded that disclosure of unit employees' names and home addresses was authorized under both exception b(2) and exception b(3) of the Privacy Act, 5 U.S.C. º 552a(b)(2) and (3). With respect to exception b(3), we concluded that labor unions were routine users, under a routine use statement published by the Office of Personnel Management. See id., 37 FLRA at 537-41. In so doing, we rejected OPM's interpretation of the disputed routine use statement. Id. at 539-41.

On September 17, 1992, OPM published Federal Personnel Manual (FPM) Letter 711-164, confirming its previous interpretation of the routine use statement involved in this case and providing, among other things, that home addresses of unit employees are not authorized for release to labor unions in situations where the unions have adequate alternative means of communicating with the employees. Subsequently, the Authority concluded that the FPM Letter would govern interpretation of the routine use statement. National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 46 FLRA 234, 243 (1992) (ATF). Consistent with ATF, we will no longer follow Portsmouth Naval Shipyard insofar as it rejects OPM's interpretation of the relevant routine use statement and holds that disclosure of home addresses is authorized by exception b(3) of the Privacy Act "without regard to the availability of alternative means of communication." 37 FLRA at 539. Accordingly, we do not adopt the Judge's decision insofar as it addresses exception b(3).

II. 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 Department of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Federation of Federal Employees, Local 225, the requested names and home addresses of employees in the bargaining unit represented by the Union.

(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 National Federation of Federal Employees, Local 225, the exclusive representative of certain employees of the Department of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, the requested names and home addresses.

(b) Post at its facilities where bargaining unit employees represented by the National Federation of Federal Employees, Local 225, 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, Department of Veteran Affairs, Medical and Regional Office Center, Fargo, North Dakota, 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, Denver 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.

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 National Federation of Federal Employees, Local 225, the exclusive representative of certain of our employees, the requested names and home addresses of employees in the bargaining unit represented by the Union.

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 Federal Service Labor-Management Relations Statute.

WE WILL furnish the National Federation of Federal Employees, Local 225, the requested names and home addresses.

___________________________
(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 of the Federal Labor Relations Authority, Denver Regional Office, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 94103, and whose telephone number is: (303) 844-5224.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ Authority decisions based on Portsmouth Naval Shipyard have been enforced in U.S. Courts of Appeals for the Third, Fifth, and Ninth Circuits. FLRA v. U.S. Department of the Navy, Navy Ships Parts Control Center, 966 F.2d 747 (3d Cir. 1992) (en banc); FLRA v. United States Department of Defense, Department of the Navy, Washington, D.C., 975 F.2d 1105 (5th Cir. 1992), petition for cert. filed, -- U.S.L.W. -- (U.S. Jan. 21, 1993) (No. 92-1223); FLRA v. U.S. Department of the Navy, Navy Resale and Services Support Office, Field Support Office, Auburn, Washington, 958 F.2d 1490 (9th Cir. 1992) (petition for rehearing and suggestion for rehearing en banc pending). A panel of the Court of Appeals for the Fourth Circuit also enforced a decision based on Portsmouth Naval Shipyard; the court subsequently vacated the panel's decision and granted a petition for rehearing en banc. FLRA v. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, 954 F.2d 994 (4th Cir. 1992), vacated, petition for reh'g en banc granted (4th Cir. Apr. 22, 1992). However, applications for enforcement of such decisions were denied by U.S. Courts of Appeals for the Second, Sixth, Seventh, and Tenth Circuits. FLRA v. United States Department of Veterans Affairs, Washington, D.C. and United States Department of Veterans Affairs Medical Center, Newington, Connecticut, 958 F.2d 503 (2d Cir. 1992); FLRA v. U.S. Department of Naval Resale Activity, Naval Air Station-Memphis, Millington, Tennessee, 963 F.2d 124 (6th Cir. 1992); FLRA v. United States Department of the Navy, Navy Exchange, Naval Training Station, Naval Hospital, Great Lakes, Illinois, 975 F.2d 348 (7th Cir. 1992); FLRA v. United States Department of Defense, Army and Air Force Exchange Service, Dallas, Texas, Nos. 90-9561, 90-9569 (10th Cir. Jan. 20, 1993). We respectfully adhere to our decision in Portsmouth Naval Shipyard that agencies are required to provide exclusive representatives with requested home addresses of unit employees under section 7114(b)(4) of the Statute.

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