[ v19 p675 ]
19:0675(85)CA
The decision of the Authority follows:
19 FLRA No. 85
DEFENSE MAPPING AGENCY AEROSPACE
CENTER, ST. LOUIS, MISSOURI
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1827
Charging Party
Case No. 7-CA-20482
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent and the General
Counsel filed exceptions to the Judge's Decision, and 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 Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, /1/ the Authority hereby adopts
the Judge's findings, conclusions and recommendations only to the extent
consistent herewith.
The Judge concluded that the Respondent failed to comply with the
requirements of section 7114(b)(4) of the Statute /2/ in violation of
section 7116(a)(1), (5) and (8) of the Statute when it refused to
provide the Union, upon request, with the names and home addresses of
all unit employees represented by the exclusive representative. In this
regard, the Judge, inter alia, found that: the home addresses of unit
employees, while not maintained in a discrete list, were available both
in employees' personnel files and in the Respondent's data banks and
that the cost of retrieving this data was not unreasonable; that it
"seems axiomatic" that a union must be able to communicate effectively
with the employees it represents, and that the sources of communication
available to the Union here being neither effective nor reasonable, the
Respondent must supply the Union with names and home addresses; and
that, based on private sector precedent, the Privacy Act /3/ is not a
bar to such disclosure.
The Authority disagrees. In a recent decision, Farmers Home
Administration Finance Office, St. Louis, Missouri, 19 FLRA No. 21
(1985) (hereinafter Farmers Home Administration), the Authority, relying
on its prior decision in Army and Air Force Exchange Service (AAFES),
Fort Carson, Colorado, 17 FLRA No. 92 (1985) (hereinafter AAFES), stated
that the disclosure of unit employees' names and home addresses, like
the disclosure of other data sought pursuant to section 7114(b)(4) of
the Statute, requires not only a case by case determination as to
whether the data has been requested, whether it is normally maintained,
whether it is reasonably available, and whether it is necessary to
enable the exclusive representative to fulfill its representational
obligations, but also requires a determination that the disclosure of
the data sought would not be prohibited by law, including the Privacy
Act. In AAFES, the Authority decided that, in determining whether the
disclosure of any data sought pursuant to section 7114(b)(4) of the
Statute is or is not otherwise "prohibited by law," i.e., the Privacy
Act, it will use the same balancing test applied by the courts in
evaluating whether information sought under the Freedom of Information
Act (FOIA) /4/ should be disclosed or should be protected from
disclosure as a clearly unwarranted invasion of privacy under the FOIA
exemption set forth at 5 U.S.C. 552(b)(6). The application of the
(b)(6) balancing test requires weighing the necessity of the data for
the union's purposes against the degree of intrusion on the individuals'
privacy interests caused by disclosure of the data. /5/
Guided particularly by the decision of the Fourth Circuit 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),
wherein the Court adopted the lower court's determination that the
balance of all factors led to the conclusion that an exclusive
representative was not entitled to the home addresses of unit employees
which it had sought pursuant to the FOIA, the Authority in Farmers Home
Administration applied the foregoing balancing test and concluded that
the exclusive representative there was not entitled to the names and
home addresses of unit employees under section 7114(b)(4) of the
Statute.
As in Farmers Home Administration, the Authority finds that the same
findings and conclusions flow from the similar facts of the present
case. Thus, for the reasons stated in Farmers Home Administration, we
find that the employees' strong privacy interest in their home addresses
outweighs the necessity of the data for the Union's purposes in the
circumstances of this case. Moreover, the record in this case clearly
establishes that alternative means of communication with unit employees
were available to the Union herein. /6/ Further, we find that the
records sought by the Union herein, as in Farmers Home Administration,
i.e., the names and addresses of unit employees, are not of the type
that generally must be disclosed pursuant to the FOIA's (b)(6) exemption
for the purposes for which they were sought herein. Thus, the Authority
finds that the disclosure of unit employees' names and home addresses
for the purposes for which they were sought herein was "prohibited by
law" and that their release by the Respondent therefore was not required
pursuant to section 7114(b)(4) of the Statute. Therefore, the Authority
concludes that the Respondent did not fail to comply with section
7114(b)(4) of the Statute in violation of section 7116(a)(1)(5) or (8)
of the Statute when it refused to provide the exclusive representative
with the names and home addresses of unit employees. /7/ Accordingly,
the Authority shall order that the complaint be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 7-CA-20482 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., August 12, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 7-CA-20482
Louis P. Eaves
Representative for Respondent
Nicholas J. LoBurgio and
Joseph Swerdzewski,
Attorneys for the General Counsel Federal Labor Relations
Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp.
V, 1981), commonly known as the Federal Service Labor-Management
Relations Statute, and hereinafter referred to as the "Statute", and the
rules and regulations issued thereunder and published at 5 CFR 2411 et
seq.
Pursuant to a charge filed on September 27, 1982, by the Charging
Party, the Acting Regional Director of Region 7 of the Federal Labor
Relations Authority (hereinafter, the "Authority") investigated and, on
November 10, 1982, filed the complaint initiating this proceeding.
The complaint alleges that on or about July 23 and August 4, 1982,
the Charging Party requested that Respondent furnish to it the names and
addresses of all present bargaining unit employees; that on or about
July 29 and August 5, 1982, Respondent failed or refused, and continues
to refuse to provide the requested information; that the Charging Party
is entitled to such information under the provisions of 5 U.S.C.
7114(b)(4); and therefore Respondent has engaged in unfair labor
practices within the meaning of 5 U.S.C. 7116(a)(1), (5), and (8). /8/
Respondent alleges that it routinely provides the Charging Party with
the names of bargaining unit employees, and has only refused to provide
the home addresses of such employees. It denies that such a refusal
violates the Statute.
A hearing on the matter was held in St. Louis, Missouri, on January
12, 1983. The parties appeared, adduced evidence, and examined
witnesses. Briefs were filed by the General Counsel on March 11, 1983,
and by the Respondent on March 8, 1983, pursuant to an order extending
the briefing time, for good cause shown, to March 11, 1983. Based upon
the record, my observation of the demeanor of the witnesses, and the
briefs, I make the following findings of fact, conclusions of law, and
recommended order.
Findings of Fact /9/
1. It is admitted that Respondent is an "agency" and the Charging
Party is a "labor organization", within the meaning of the Statute, and
that since September 9, 1976, the Charging Party has been recognized as
the exclusive representative of all general schedule and wage grade
employees of Respondent, with certain exceptions not here relevant. See
GC 1(b) and (c), pars. 2 and 3.
2. Respondent maintains two facilities-- one at 2nd and Arsenal
Street and one at South Broadway. They are about 4 1/2 or 6 miles
apart. A bus service is provided between them. Respondent employs a
total of approximately 3,900 employees at its two facilities. Of the
3,900, approximately 1,300 are bargaining unit employees. A "great
majority" perhaps two-thirds, of the unit employees are employed in the
main building at 2nd and Arsenal (TR 62 and see also TR 95). In all,
there are some 12 or 13 buildings at 2nd and Arsenal, with multiple
exits. Exits from 2nd and Arsenal flow into the Anheuser-Busch brewery.
At South Broadway, there are four major buildings, with multiple exits.
There are two parking lots at South Broadway, and six or eight at 2nd
and Arsenal, with more parking around the docks and at the roadways.
Within the main building at 2nd and Arsenal there is a secured wing,
some four or five stories high, which has controlled access. At the
time the Union made its request for the names and addresses of unit
employees, neither its President nor its Chief Steward were cleared for
access to the secured areas.
Employees live over a 100-mile radius of St. Louis and in two
States-- Illinois and Missouri. Maintenance employees, who are in the
bargaining unit, sometimes work off the site of the two facilities, in
barracks located a "considerable" distance away, perhaps 8 miles (TR
109-110).
3. It is admitted that since approximately 1980, Respondent has
provided the Charging Party (also referred to hereinafter as the
"Union") with a list of the names of bargaining unit employees, on a
recurring basis.
4. On July 23 the Union, by letter, requested that Respondent
provide it with "a complete listing of bargaining unit members names and
addresses" (GC 3). The letter stated that the request was made "(i)n
order for the Union to communicate with bargaining unit members."
5. The Union never told Respondent what, in particular, it wished to
communicate to employees; and Respondent never asked.
6. The particular communication which the Union wished to make was
revealed at the hearing and, to the surprise of Respondent, it involved
a Secrecy Agreement.
7. The Secrecy Agreement was introduced into evidence as
Respondent's Exhibit No. 16. It states that the employee has read and
understands the Espionage Act and is familiar with its penalties.
Twelve paragraphs of that criminal statute are excerpted on the back of
the Agreement. The employee has to agree never to "divulge, publish, or
reveal, either by word, conduct, or by any other means, any classified
information, intelligence, or knowledge, except in the performance of
(his or her) official duties and in accordance with the laws of the
United States, unless specifically authorized in writing in each use by
the Secretary of Defense" (R 16.1). The employee has to agree that the
Agreement will be binding even after termination of Government service.
The Agreement was developed at the headquarters of the Defense Mapping
Agency, in Washington, D.C. (hereinafter, "Hq DMA").
8. Respondent, by letter, furnished the Union a copy of the Secrecy
Agreement on May 26, along with a proposed cover letter which indicated
that Hq DMA was requiring "all DMACC (the acronym for Respondent)
employees, currently cleared for access to classified information" to
execute the Agreement, and that supervisors were to witness the
signature (R 17). Respondent's letter to the Union indicated that the
Agreement and proposed cover letter were "forwarded for coordination
pursuant to Article 11 of the Labor-Management Agreement" (R 15).
Article 11 gives the Union 14 calendar days to request negotiations over
proposed changes. Failure of the Union to respond within that time
frame allows Respondent to implement the proposed changes without
bargaining, under the collective bargaining agreement.
By July 8, the Union had not responded to Respondent's May 26 letter
forwarding the Agreement and the proposed cover letter. So Respondent
began distribution to employees in "mid July" (TR 200). But
distribution was under a different cover letter than the one which had
been furnished to the Union. At least one difference was that the cover
letter distributing the Agreement advised "employees to complete the
Secrecy Agreement by . . . 30th of September" (TR 200) (The cover letter
actually sent to employees was not adduced as an exhibit).
9. The union President was under the impression that the Agreement
was "just for top secret people." But then he began to receive
complaints and inquiries from unit employees, asking for guidance on how
to respond, whether it was mandatory for them to sign it, and what was
the Union position on the matter. Thus, the Union came to the
realization that there was a need to negotiate over the matter.
"(S)ometime right around July 23, Respondent's Labor Relations Officer
indicated a "willingness to negotiate on it if (the Union) would give
him some kind of proposal so he could make it" (TR 86 and see also TR
71, 105, and 117). The Union made its first proposal to bargain over
the matter on August 13 and, in the letter of that date to Respondent,
stated that it would "submit proposal at the table" (TR 18). The letter
requested that bargaining start on August 23 and that the Union be
briefed on the Agreement prior to the start of negotiations.
10. To prepare for negotiations, the Union needed some information,
including the number of employees actually involved in classified
information, and whether the Agreement was a directive from higher
authority than Respondent. It also needed advice from its National
Office as to the appropriate bargaining level. The Agreement mentioned
that it was replacing another form; and so the Union wanted to find the
previous form.
The current contract between the parties defines "representational
functions" of the Union to include "(p)reparation for and participation
in bargaining" (R 1.27, par. 10-5b).
11. The Union wanted to communicate with unit employees to advise
them "to stall" signing the Agreement, "if they could," until
negotiations were completed and, if forced to sign it, to note that it
was being signed under protest and duress (TR 86 and see also TR 73, 76,
and 103-104). There was talk of insubordination; and the Union wanted
to explain to the unit employees what insubordination was. The Union
also wanted to be sure that employees had read the Espionage Act and
knew what their rights were. The Union felt the need to communicate by
letter so that management would not know what it was telling employees
and take steps to force their signing. It also wanted to advise all the
unit employees the same thing at the same time (TR 74).
12. On July 29, Respondent responded to the July 23 request by the
Union for the complete listing of unit employees' names and addresses.
The response was that "(s)uch information (the addresses) is not
maintained by DMAAC in a form which is reasonably available" (GC 4).
13. On August 4, the union Chief Steward replied, by letter, to
Respondent's July 29 letter. The Union claimed a right to the names and
addresses of bargaining unit members; stated that "(s)uch information
is necessary for the Union to communicate vital information to such
members in a timely fashion;" and expressed the "hope it w(ould) not be
necessary to resort to a third party to exercise this right, for such is
necessary for Union to discharge its obligation under the statute" (GC
5).
14. On August 5, Respondent replied by letter to the Union's August
4 letter by simply reiterating its prior position, namely that the
information was not maintained in a "reasonably available" form. See
finding 12, supra. As of August 5, Respondent had apparently not
inquired of its Information Systems staff as to the actual availability
of such information or the cost of obtaining it. See TR 180-181 and
223-224.
15. Two collective bargaining agreements have been in effect between
Respondent and the Union. One was effective 1977. The other became
effective February 19, 1982. Neither explicitly provides that
Respondent furnish home addresses of employees.
16. The Union maintains the home addresses of dues-paying members,
who approximate 343 in number. See R 3.6.
17. The collective bargaining agreement in effect since February 19,
1982 provides, under Article 13, the following means whereby the Union
can communicate with unit employees.
a. Use of bulletin boards. These boards are dispersed throughout
the locations where unit employees work and go to lunch. Whether there
are bulletin boards in secured areas was not established. See TR 109.
b. Use of Respondent's internal mail system, the stated intent being
"to provide an economical and time efficient way for communication
between the Union and individual unit employees and the Employer" (R
1.42, pars. 13-5d). It may not be used for "bulk distribution" or for
"internal Union business" (R 1.42, pars. 13-5a and d). One of
Respondent's witnesses testified that the "permissible" use was "to
maintain communication between the Union and the Employer as regards
their representation" (TR 159-160). In the past, Respondent has stopped
the Union from mailing out information to all employees, on the ground
that it was considered "bulk mail" (TR 90).
c. Use of Respondent's Administrative Bulletin and Orientor.
Material must be submitted 14 days prior to the proposed date of
publication. Publication is dependent on availability of space.
Material may not deal with such matters as "grievances, unfair labor
practices, complaints and organizational drives" (R 1.42, par. 13-6a).
The Bulletin is published twice a week. The Orientor is published every
two weeks.
d. Use of two stations at 2nd Street and one at South Broadway for
the distribution of a union newspaper. See R 1.43, par. 13-7.
e. Use of meeting space during non-duty hours of unit employees.
Such use must be requested at least 14 calendar days in advance. See R
1.43, par. 13-8. Such meetings are held monthly and are attended mostly
by union members.
f. Use of an office with a private telephone paid for by the Union.
The office is at the main building at its 2nd and Arsenal facility. See
TR 60. The contact also provides for an office at the South Broadway
location. See R 1.40, par. 13-1. Employees may visit the office on
official time.
18. The Union has two officers, President and Chief Steward, who
spend all their time on official time. Five other Union officials and
22 stewards are authorized to use an additional 2,000 hours of official
time. See TR 60 and 63. The stewards are dispersed throughout the work
areas of unit employees, but not at the time the requests for home
addresses were made by the Union, in July and August. At that time, the
Union had "made one request (for access to security areas) and it was
denied" (TR 108).
19. In the course of a day, union officials have 9 or 10 contracts
with unit members. Basically, the contacts are with the same members,
day after day. On a weekly basis, the Chief Steward has contact with
"(m)aybe 15" (TR 79).
20. Membership drives are conducted twice a year by the Union and,
under the contract may be conducted over the course of 15 workdays.
Tables are set up in heavy traffic areas where a lot of employees pass
back and forth, and are manned "to tr(y) to catch breaks" (TR 65 (a)).
Such drives must be conducted in non-work areas during non-duty hours.
Requests for equipment and facilities must be made to Respondent at
least 10 days in advance.
21. The Union has never utilized any of the means available to it to
compile a list of home addresses for unit employees.
22. In his testimony, the union President established what he deems
to be the impracticabilities of compiling home addresses by means
available to the Union. The use of bulletin boards is not effective
because, in his opinion, employees do not invariably read them and would
provide Respondent with the Union's bargaining position. The union
President and its Chief Steward did not have access to the boards in
secured areas, at the time of the July and August requests for
addresses. Respondent does not allow the Union to use the internal mail
system for bulk mailing or internal Union mail such as a Union letter to
all employees. Use of Respondent's administrative bulletin and internal
newspaper by the Union are subject to conditions such as the
Respondent's editorial control, space being available, and advance
submission of proposed articles at least two weeks prior to publication
date. The Union's own newspaper can be distributed at two locations on
Respondent's facilities, but its dissemination cannot be controlled to
limit that distribution only to unit employees. The Union newspaper is
only mailed to members. The Union can use Respondent's facilities
during non-duty hours for Union meetings, but must again make a request
for use of the space at least two weeks in advance.
Individual telephone contacts with unit employees, either to obtain
the requested data or in lieu of a letter to the employees, would have
resulted in either a disruption of Respondent's mission, if done during
duty hours, or would have required the Union to gather over 900
telephone numbers from numerous directories in two different States, so
that it could contact the unit employees after work at their homes.
The steward system in place in August 1982 was down 17 or 18 such
officials; and they did not cover every organizational unit on all
shifts in every building. Access to security areas where employees
worked was very limited. Attempts to individually contact each unit
employee by handbilling was not an effective or efficient means to reach
them because unit employees are not identifiable by badge or uniform,
and because of the long time span needed to distribute them due to
flexible workhours. The Union's last attempt at handbilling was not
successful. See TR 81-92. Finally, the Union wanted to send a letter
because it wanted the communication to be fast; and it wanted to tell
all of the unit employees the same thing.
23. In March 1980, the parties entered into a memorandum of
understanding concerning ground rules for the then upcoming negotiations
on their current collective bargaining agreement. It included specific
provisions that all proposals be submitted in writing, although, in
practice, this provision was not always followed. Pursuant to this
requirement, the Union submitted to Respondent a written article
entitled "Orientation of New Employees." General bargaining began in
September 1980 and continued through January 1982. Bargaining over the
Union's "Orientation of New Employees" proposal occurred on September
29, 1980.
The Assistant Chief Negotiator for the Union, Louis Foster, testified
that while the parties were discussing the orientation of new employees,
specifically Union attendance at new employee orientation meetings, the
lack of supervisory orientation for new employees, and the introduction
of new employees to the applicable Union steward, he asked whether the
Union could get the home addresses of these new employees so that it
could contact them about the Union's goals, objectives and achievements.
The union's Chief Negotiator, Virgil Haun, confirmed that the subject
of bargaining was new employees and that Mr. Foster asked for the
addresses of only new employees. Mr. Haun specifically denied that the
bargaining involved any discussion about the names and addresses of all
unit employees. The testimony of these two union officials is supported
by the Union's bargaining notes. See GC 12. Their recollection was so
positive because Mr. Haun, after the bargaining session on new
employees, chastised Mr. Foster for interjecting the subject of
addresses into the union's proposal.
Respondent's sole witness on this bargaining history issue was
Employee Relations Specialist, Donna McGlynn, who was employed by
Respondent in August 1980, just prior to the beginning of negotiations
in which she participated. Her testimony on the bargaining session
concerning "Orientation of New Employees" was primarily based upon
management's bargaining notes. At the hearing, she characterized these
notes, which she prepared at an unspecified time, as "very scanty," not
"verbatim," and not "all-encompassing;" instead they were digests of
lengthy discussions that caught the "intent" of what was discussed (TR
136). Her notes do not reflect that the union made a request for names
and addresses of "all" unit members (TR 149). She, however, recalled
that the Union asked for the addresses of all unit employees, based upon
a "lengthy discussion" that occurred to which her notes made no
reference (TR 149). She admitted to having no independent recollection
of the October 8, 1980, bargaining session when the article on
orientation of new employees was signed and to difficulty in testifying
about events that happened 2 1/2 years ago.
Of these three witnesses, Mr. Foster and Mr. Haun seemed to be surer
of their facts than Ms. McGlynn. Also their testimony is supported by
the Union's bargaining notes. Accordingly, I credit their testimony
over that of Ms. McGlynn as to bargaining over addresses, and find that
the 1980 bargaining was limited to addresses for new employees. /10/
24. Article 14 of the current collective bargaining agreement is the
only article specifically dealing with information to the union. See R
1.43. There was no discussion about providing addresses to employees
during the negotiations over that article. There was a lot of
discussion about when Respondent would honor a request for information,
with Respondent taking the position that it would honor "specific
request for information relating to a specific situation" but not
"generalized requests for a lot of information which were not directed
or were not necessarily based on a specific situation or circumstance at
the time" (R 133). This is not spelled out in the Article. The
Articles does require Respondent "to furnish cost free to the Union
within thirty (30) calendar days of a specific written request from the
Union, all information, data or material, relevant and necessary for the
proper discharge of its obligations under Public Law 95-454 and this
Agreement" (R. 143, par. 14-1a). This Article was approved by the
Department of Defense on February 10, 1982.
25. On April 22, 1981, the Union had made a prior request for
addresses of unit employees. On April 28, 1981, Respondent denied the
request, and referred the Union to Department of Defense ("DOD")
Directive 1426.1, dated October 9, 1974, which specifically states that
the home addresses of DOD employees will not be furnished to labor
organizations. See TR 129-130 and R 8.A33, par. C-4. DOD Civilian
Personnel Manual 1400.25M, effective on November 10, 1981, continued to
policy of not releasing home addresses. See TR 131, 1981 (TR 131-132).
These DOD directives were issued prior to the current collective
bargaining agreement between the parties, which DOD approved, and which
recognizes Respondent's obligations under the Statute. See finding 24,
supra. The Union made no "response" to this denial (TR 131-132).
26. Respondent's Personnel Office maintains addresses of employees
in their OPFs. They are not necessarily up to date. There is no way to
verify the accuracy of the home address in the OPF, to the knowledge of
Respondent's Supervisory Personnel Systems Manager. To furnish the
addresses from the OPFs of the 1,300 bargaining unit employees, a list
of unit employees would have to be secured; their folders pulled from
two "power files;" their addresses handwritten; and the OPFs then
refiled (TR 168-170). The cost of this procedure was apparently not
estimated by Respondent. In any event, its cost is not a matter of
record.
27. The names and addresses of all employees are also maintained in
Respondent's payroll computer system. Two programs exist for utilizing
this information-- the check-mailing program and the W-2 mailing
program. There is no program which would produce just the names and
addresses of employees. To establish such a program, an existing one
could be modified, or a new one developed. In an estimated 40
man-hours, a program could be prepared to provide the names and
addresses of unit employees. According to Respondent's Information
Systems' Branch Chief, the one-time cost would be $736, taking into
consideration labor costs and the time of the computer and the
keypunching. The cost for each run thereafter would be an estimated
$21, for 1,500 employees. This cost estimate was first prepared, on
October 26, on the basis of a phone call, a few days earlier, from
Respondent's Labor Relations Officer.
The primary cost factor, in the $736 figure, is the cost for a GS-12
programmer. Use of a lower-graded employee would not be as "efficient"
a way to get the job done (TR 190). This price estimate does not take
into account "cannibalizing" existing programs; the priority that the
retrieval program had for computer time; the type retrieval, copying or
printing; or the retrieval of the names and addresses of all employees,
rather than just unit employees. See TR 181, 185-186 and 189-190. The
retrieval for all employees would reduce the cost to "maybe $700" (TR
184).
There is another program in existence which could be "cannibalized"
to pull off information of names and addresses of employees (TR
181-183). But it does not conform to "standards" (TR 187). It could be
done "on a crash basis" and then corrected so that it conformed to
"standards" (TR 187). One of Respondent's "most experienced"
programmers (TR 190), Dorothy Hyduke, established that an existing
program requested by another user (to supply mailing address for
carpooling purposes) could be used to develop a list of names and
addresses of employees, "(w)ith certain changes," at a cost of around
$300 (TR 225). Such a list would not distinguish between unit and
non-unit employees. Programing to retrieve information solely as to
unit employees would apparently be around $36. See TR 178 and 184.
28. On October 23, the Union filed a charge against Respondent for
failure to bargain over the implementation of the Secrecy Agreement. On
November 9, the Authority approved its withdrawal. It is conceded by
both parties that they did meet and discuss the Secrecy Agreement. See
TR 41, 67, 71-72, 117, and 199-200. The Union prepared some proposals
which were presented and responded to by Respondent. Respondent decided
that the Secrecy Agreement was not negotiable. See TR 198-199. This
decision was reached after the Union's August 13 letter requesting
negotiations.
29. Currently, the Authority has in its hands a petition to
determine the negotiability of the content of the Secrecy Agreement. In
its brief, Respondent supplied the date of the petition (September 22)
and the number (O-NG-747). See RBr 5.
30. The collective bargaining agreement between the parties, which
is currently in effect, was submitted to the Department of Defense for
prior approval. The Department of Defense approved it, on February 10,
1982. Respondent and the Charging Party signed it on February 19, 1982.
See the first and last page of Respondent's Exhibit 1.
Discussion and Conclusions
The General Counsel has demonstrated, by a preponderance of the
evidence, /11/ that Respondent has engaged in the unfair labor practices
alleged in the complaint.
The act constituting the statutory violations is the refusal of
Respondent to provide the home addresses of bargaining unit employees on
the ground, initially, that the addresses were not "reasonably
available." See findings 12 and 14, supra. The facts show that the
addresses are "available," in the personnel files of employees, and in
Respondent's computer data bank; but furnishing them would require
Respondent to pull the personnel files and hand record the addresses,
with no guarantee of their currency, or develop a program for its
computer at a cost that could go as high as $736. See finding 26 and
27, supra.
Section 7114(b)(4) of the Statute, quoted fully in footnote 8, supra,
provides that "data" must be "furnished" by an agency to an exclusive
representative of its employees, as a part of its "duty . . . to bargain
in good faith," and "to the extent not prohibited by law," if it is
"data:" that is (A) "normally maintained by the agency in the regular
course of business;" (B) "is "reasonably available and necessary for
full and proper discussion, understanding and negotiation of subjects
within the scope of collective bargaining;" and (C) "does not
constitute, guidance, advice, and counsel, or training . . . . " In this
case, no issue has been raised to subpart (C). See GC (b), par. 7(d)
and GC (c), par. 7(d). With this exception, all the other quoted
portions of Sections 7114(b)(4) are at issue and will be discussed,
infra, along with the defenses now raised by Respondent, in its brief.
1. Home addresses of employees constitute "data," within the
statutory meaning.
The term "data" is not defined in the Statute. It has been used
interchangeably with the word "information," which is a synonym for
"data." See page 684 of The Random House College Dictionary and Veterans
Administration Regional Office, Denver, Colorado, 7 FLRA No. 1-0, 7 FLRA
629, 637 (1982), treating as "data" the names of employees, and 10 FLRA
No. 78, 10 FLRA 453, 465, treating as "data" the counselling record of a
grievant. Respondent raises no serious argument that home addresses of
employees do not constitute "data," but only that the addresses are not
kept in a particular format. The Authority has ruled that an agency
need not produce "non-existent data." See Division of Military and Naval
Affairs, State of New York, Albany, New York, 8 FLRA No. 71, 8 FLRA 307
at 320 (1982). But the data here does exist. And, as was held in
N.L.R.B. v. General Electric, 418 F.2d 736, 753 (C.A. 2, 1969), cert.
den. 397 U.S. 965 (1970) the fact that data does not exist in a
particular format is an invalid defense to a refusal to provide
information when the data exists in some form and could have been
furnished in that form, or at least used to advise the union that it did
exist in some form. /12/
2. Home addresses of employees are "normally maintained by
(Respondent) in the regular course of business."
The record establishes that home addresses are maintained by
Respondent in the personnel files of its employees, and in its computer
data bank, for a variety of business-related purposes, such as payroll
and tax withholdings. See findings 26 and 27, supra.
3. The home addresses of bargaining-unit employees are "reasonably
available."
The current home addresses are undisputably "available" in
Respondent's computer data bank. See finding 27, supra. Storage in the
computer data bank was obviously a management choice based upon
efficient retrieval for a variety, of business-related purposes.
Retrieval, of course, depends upon programs; but the fact that
Respondent must develop a program to retrieve home addresses of
bargaining-unit employees should not be used as an excuse to deny
necessary information to its employees' exclusive bargaining
representative. Respondent developed a program for another "user," to
retrieve home addresses for purposes of carpooling. See finding 27,
supra. It is not unreasonable for it to do the same for the exclusive
bargaining representative of its employees, in order that the
representative may intelligently represent them.
Respondent argues unreasonableness, as to retrieval from the computer
data bank, on the ground that it would require approximately 40 manhours
to establish a program for retrieval of the addresses of unit employees,
at a cost of approximately $736 and a cost of $21, thereafter, for each
computer run. See RBr 12 and 19. /13/ Respondent further argues that
it is "self-evident" that it had no business use for such information
and would thus derive no benefit from the expenditure of such sums (RBr
12).
As to the "self-evident" statement, it is observed that
private-sector employees with "serious labor relations problems" have
used the mails to communicate with unit employees. See the United
Aircraft v. N.L.R.B., 434 F.2d 1198 at 1202 (C.A. 2, 1970) cert. den.
401 U.S. 993 (1971). Government agencies might also have some use for
an up-to-date list of home addresses of unit employees.
As to the costs, Respondent acknowledges that the Authority's
decision in Veterans Administration Regional Office, Denver, Colorado,
10 FLRA No. 78, 10 FLRA 453, 456-457 (1982), establishes that data must
be furnished without charge to the exclusive representative, under the
Statute. Its collective bargaining agreement with the Union also so
provides. See finding 24, supra. Nevertheless, Respondent argues that
"the cost to an agency in providing requested information should be a
heavily weighted factor in determining if information is reasonably
available" (RBr 19).
Respondent's logic is appealing. If costs were truly astronomic, it
might even be persuasive. But here the probable costs are not so high
as to defy the mandate of the Statute that its provisions be
"interpreted in a manner consistent with the requirement of an effective
and efficient Government." See 5 U.S.C. 7101(b), which Respondent cites
in support of its position. Throughout Government, agencies are
installing computer systems because they are the most effective and
efficient way to conduct all manner of Government business. The costs
of programing them is obviously taken into account. An agency which
chooses to put necessary data into its computer bank, rather than into a
file drawer which could be reached without costly programing, should not
be able to frustrate legitimate needs of its employees' exclusive
bargaining representative on the ground of a programing cost of $736 or
less. To allow this would be contrary to the finding of Congress that
collective bargaining through labor organizations "safeguards the public
interest," "contributes to the effective conduct of public business" and
is "in the public interest" (5 U.S.C. 7101(a)).
Home addresses are also available in Respondent's personnel office,
where they repose in the personnel folder of each employee. The cost of
retrieving addresses from this source was not estimated. The effort
involved was not shown to be unduly burdensome, however, see finding 26,
supra. The fact that the addresses may not all be up to date does not
mean that this is not a "reasonably available form," as Respondent
argues. See RBr 12. It is common knowledge that first-claim mail is
forwarded by the U.S. Postal Service, or returned to sender. It would
not be an undue burden for the Union to ascertain the addresses for
employees whose mail has been returned, under such circumstances.
4. The home addresses of bargaining-unit employees are "necessary
for full and proper discussion, understanding, and negotiation of
subjects within the scope of collective bargaining."
It seems axiomatic that a labor organization, to frame intelligent
collective bargaining proposals, must be able to communicate effectively
with the employees in the unit-- to obtain their views on bargaining
priorities; to learn their problems; and obtain information, to name a
few reasons. When a low percentage of unit employees are members of the
union, the availability of adequate communication channels takes on an
added significance, for the membership may not represent a fair sample
of the views and problems of the entire bargaining unit on a particular
topic. Here, only about 343 of the 1,300 employees in the bargaining
unit are members of the Union. See findings 2 and 16, supra. In the
private sector, just such considerations have been noted in decisions
which have declared that it was an unfair labor practice for an employer
to withhold home addresses from the exclusive representative of its
employees. See United Aircraft, supra, 434 F.2d at 1205 and Prudential
Insurance Company of America v. N.L.R.B., 412 F.2d 77, 83 (C.A. 2,
1969), cert. den. 396 U.S. 928 (1969). /14/ A union has a
statutory-imposed duty to represent and bargain for all employees in the
unit, not just those who happen to be members. See 5 U.S.C. 7114(a)(1).
Effective communication with all unit employees is therefore vital.
Also, the Authority has indicated, most recently in Veterans
Administration Regional Office, Denver, Colorado, 10 FLRA No. 78, 10
FLRA 453 (1982) that data requested under Section 7114(b)(4) must be
furnished not only when necessary to the Union's collective-bargaining
duties but, more generally, "to enable the Union to effectively carryout
its representational obligations in the processing of an employee
grievance" (10 FLRA at 455).
A union's "representational obligations" are multifaceted. Under the
contract between the parties here, representational functions of the
Union expressly include preparation for bargaining. See finding 10,
supra. Implicitly, they also include advising unit employees that
negotiations are underway and how to protect themselves in the event
that an agency acts in a manner adverse to their interests, before
bargaining is complete. Such advice is what the union here wished to
impart to all unit employees. See finding 11, supra. And it was vital
advice, for the Secrecy Agreement, presented to unit employees before
bargaining was undertaken, /15/ precluded employees from ever releasing
information about their work, under threat of criminal prosecution.
Also, a union letter to all unit employees would have permitted feedback
from the employees as to the number and types of employees actually
involved in classified work, so that the necessity for unit-wide
compliance with the Secrecy Agreement, instead of relying upon the
haphazard verbal feedback it was receiving.
On this point, Respondent argues that the request for addresses was
unrelated to collective bargaining. See RBr 5-8 and 16-19. The facts
are otherwise. The Union was preparing for negotiations when the
requests were made. /16/ See findings 9 and 10, supra.
Respondent also makes a point that the Union never told it that the
information was needed in connection with the Secrecy Agreement. See
RBr 6. In view of Respondent's response, that it was denying the data
on the ground that it was not maintained in a "reasonably available
form" (see findings 12 and 14, supra), the failure of the Union to
explain why it needed the information is understandable. But it is also
irrelevant. The Statute nowhere requires a union to state precisely why
it wants the data; rather it sets forth the requirements which, if met,
entitle it to the data. If the agency wants specificity, it may ask.
But an agency acts at its peril if, as Respondent has done, it denies
the request on the ground of availability, and never inquires further
into the needs of the union for the requested data.
At pages 16-17 of its brief, Respondent relies on Internal Revenue
Service, Buffalo District, Buffalo, New York, 7 FLRA No. 102, 7 FLRA 654
(1982), where the Authority dismissed a complaint alleging a violation
for refusal to furnish a case file and assorted history sheets in
connection with a grievance of a revenue officer. The basis for the
denial was that the grievance itself was so "vague and ill-defined" that
the Authority could not itself determine the necessity of the
information sought, even after a hearing. See 6 FLRA at 662-663. (The
grievance requested that management recognize the grievant's dignity,
cease its disparaging remarks to him, and desist from changing work
policies and practices re cases being worked on by the grievant. See
fn. 7 at 7 FLRA 659). In that case, Internal Revenue requested
clarification and stated that "if the grievance were clarified, the
request would be considered anew" (7 FLRA at 661). Here Respondent
never asked for clarification; it simply informed the Union that the
information was not reasonably available.
Respondent also relies upon Director of Administration, Headquarters,
U.S. Air Force, 6 FLRA No. 24 (1981), where the Authority dismissed a
complaint alleging a violation based on the agency's refusal to furnish
information concerning "contracts for services which have been let or
which may impact upon bargaining unit employees," in connection with a
provision of the union's collective bargaining agreement with the agency
that: "Contractor personnel will be used to replace civilian personnel
only when it is more economical to do so" (6 FLRA at 110-111). It was
not shown that any employee had been displaced, reassigned, subjected to
reduction in force, or otherwise adversely affected; and no grievances
were pending as a result of a contracting-out action. Thus, the
Authority could not find any necessity for the information. The agency,
unlike Respondent here, made a "good faith attempt to clarify the
request" and "was met with a stubborn insistence on entitlement without
explanation" (6 FLRA at 125). Here, it is Respondent who displayed
stubbornness, denying the Union's request on the sole ground of
non-availability of the information and making no attempt to clarify the
need for the request. While the Union would probably not have revealed
to Respondent exactly what it wanted to tell employees (see finding 11,
supra), there is no evidence to indicate that, if asked by Respondent,
the Union would not have given some clarification of its need to pass on
vital information to unit employees.
5. Other sources of communication with unit employees are not
effective or reasonable, particularly for getting out messages within a
short time frame, as here. The Union in this case needed to get word to
unit employees to stall signing the Secrecy Agreements, "if they could,"
until negotiations were concluded, or to indicate that they were signing
under protest or duress. /17/ See finding 11, supra.
The Authority has reserved consideration of whether an agency may be
required to furnish data which is available from another source. See
Veterans Administration Regional Office, Denver, Colorado, 10 FLRA No.
78, 10 FLRA 453, 458, fn. 11. Primarily, the General Counsel argues
that the alternative sources are neither reasonable nor effective; and
the record gives ample support to this position. /18/
a. Bulletin boards are available to the Union, but whether employees
conscientiously read them is doubtful. Also, they are ineffective for
communicating quickly with all unit employees. And they are an
inappropriate means for communicating confidential, complex, or lengthy
advice.
b. The internal mail system is not available to the Union for bulk
mailing. The Union tried this once, and was stopped. See finding 17b,
supra. Even if the Union limited the mailing to the 957 or so unit
members for whom it lacks home addresses, this would surely be a "bulk"
mailing.
c. The use of Respondent's bulletins and newspapers is subject to
Respondent's editorial control and availability of space. Since
material submitted must be submitted several weeks in advance, they are
also useless means for getting out urgent messages to all unit
employees.
d. The right to meeting space during non-duty hours is subject to a
14-calendar day advance request and, thus, is also ineffective to
getting across an urgent message.
e. While the Union had a network of some 24 or 25 officers and
stewards available to contact, personally, unit employees at the time at
issue, it would have taken an enormous amount of time from their
representational obligations to contact the 957 or so unit employees for
whom the Union lacked home addresses. The network did not cover all
shifts of all organizational elements in all buildings. And access to
employees working in secured areas was very limited. Flextime
scheduling in effect also made it difficult for this network to gather
information from, or communicate with unit employees.
f. Use of the telephone to contact 957 employees, while at work,
would have been very time consuming, and would probably have raised the
ire of supervisors as well. Calling these employees at home would have
been a burdensome task, involving the use of multiple telephone
directories to cover the two States and various localities within which
the unit employees are dispersed. Although the Union office generally
had contact with "maybe 15" unit employees over the course of a week,
this would still leave a large number to contact. See finding 19,
supra.
g. The use by 957 unit employees of the bus service between
facilities, combined with their contractual right to visit the Union
office or official time, would be impracticable and disruptive, when
contact with all unit employees had to be accomplished over a short
period.
h. Communication during the Union's semi-annual membership drives
was of no help to the Union in the situation here at issue, where an
immediate need arose. Also, these drives are restricted to non-duty
hours and non-work areas, with a requirement of a 10-day advance notice
to Respondent for the use of equipment and facilities. See finding 20,
supra.
i. Union meetings held monthly, in space provided by Respondent (see
finding 17e, supra) are attended mostly by members for whom the Union
already has home addresses.
j. Handbilling of employees have proved difficult because unit
employees work flextime hours and are not readily identifiable by badge
or uniform. See finding 22, supra.
k. While the Union newspaper can be distributed, on site, at three
locations, (finding 17d, supra), unit employees not interested enough in
the Union to become members can hardly be counted upon to
conscientiously read its newspaper.
Respondent takes the position that, by all the above means and
opportunities, the Union could have compiled the home addresses of all
the unit employees. See RBr 9-11. However, such an effort would be
considerably more burdensome than that required of Respondent. And, in
any event, the fact that the Union had not done so, at the time the
urgent need arose in July 1982, does not relieve the Respondent of its
statutory responsibilities, under 5 U.S.C. 7114(b)(4).
Respondent relies upon a decision which arose under Executive Order
11491, which controlled Federal sector labor-management relations prior
to the Statute. /19/ See RBr 16, citing A/SLMR No. 214. This is a case
entitled Internal Revenue Service, Office of the District Director,
Jacksonville District, Jacksonville, Florida and is reported at page 524
of Volume 2 to Decisions and Reports on Rulings of the Assistant
Secretary of Labor for Labor-Management Relations (referred to as
"A/SLMR"). The Assistant Secretary adopted conclusions and
recommendations of a hearing examiner dismissing a complaint of an
unfair labor practice, based upon a refusal to furnish home addresses of
unit employees to their exclusive bargaining representatives. The
dismissal was based on a finding that the union had other effective
means of communicating with unit employees. See 2 A/SLMR at 534. The
decision of the Assistant Secretary was upheld by the Federal Labor
Relations Council. See Volume 2, page 107 of Decisions and
Interpretations of the Federal Labor Relations Council ("FLRC"). Both
the Assistant Secretary and FLRC recognized that an exclusive
representative was entitled to an effective means of communicating with
unit employees and that, when such means were lacking, some agency help
could be required even though, under the Executive Order there was no
express provision requiring an agency to furnish information. Both the
Assistant Secretary and FLRC agreed that decisions must be made on a
case-by-case basis. While there are many similarities between the
Internal Revenue case and this one, there are also several important
distinctions. In Internal Revenue, all unit employees were accessible
to union stewards (here some unit employees work in secured areas with
restricted access). In Internal Revenue, about half the unit belonged
to the union; and the union had their addresses, as it mailed them
copies of the union newspaper. See 2 A/SLMR at 530. Here only about 26
percent of the unit belongs to the Union. In Internal Revenue, the
agency provided each new employee with a card inviting the employee to
furnish the union with a home address. In Internal Revenue, the ratio
of stewards to unit employees was much lower-- approximately 1 steward
to 40 unit employees contrasted here with 1 to every 72 or 76 unit
employees, at the time in issue in this case. And, perhaps of most
importance, there was no urgency demonstrated in the Internal Revenue
case. /20/
Both parties rely upon Magna Company, 208 NLRB 329 (1974), the
Respondent correctly pointing out that the Board does not require the
release of home addresses "under any and all circumstances" (RBr 17),
and the General Counsel correctly pointing out that the Board weighs the
"relative efforts" required of a union and the employer to obtain such
information (GCBr 28). In Magna, the Board found the employer
"possessed the information, and there (wa)s no indication that its
compilation would be unduly onerous" (208 NLRB at 331). In Magna, the
Board considered such facts as the wide dispersion of unit employees (90
miles in Magna and 100 miles here), the low membership of unit employees
in the union (60 percent of the unit being members in Magna and only 26
percent here), the difficulty of handbilling unit employees in public
ways leading into and out of the worksite when they are not easily
distinguishable from non-unit employees, and the inadequacy of bulletin
boards. See 208 NLRB at 330. Other factors were also considered
relevant in Magna that are not present here. But, overall, the
similarities between Magna and this case are striking-- and the Board
did order the employer to provide the union with the home addresses of
unit employees.
6. Respondent also relies upon a position that the Union has
"effectively represented unit employees since 1976 without having access
to the home addresses of unit employees," and did not challenge
Respondent's prior refusals to furnish home addresses (RBr 3 and 13).
Respondent rests its "effective" representation allegation on the fact
that the Union has negotiated two collective bargaining agreements with
it. Just how "effective" these agreements are considered by unit
employees who are not members of the Union is a matter for conjecture.
The fact that the Union has not lost its status as exclusive
representative is the only proof of effectiveness that can be gleaned
from this record. In any event, the focus here, cannot be on the
general effectiveness of the Union, but on how effectively it could
represent non-union members in the unit as to the particular problem
which generated the requests at issue here-- the signing of the Secrecy
Agreement.
Certainly, the Union did not waive its right to the home addresses of
unit employees when it did not respond to Respondent's denial of such a
request at an earlier time. A waiver of a right "must be clear and
unmistakable;" and a "right to bargain need not be exercised at every
opportunity." See, e.g., Pages 7 and 8 of the decision of Judge Garvin
Lee Oliver in Department of the Air Force, Scott Air Force Base,
Illinois, 5 FLRA No. 2 (1981), which was adopted by the Authority. In
this case, the Union did not pursue its right to have addresses of unit
employees, in 1981. See finding 25, supra. But this was not a clear
and unmistakable waiver of its right to do so when, in 1982, an urgent
need arose for it to communicate by letter to the unit employees.
No waiver occurred, either, during negotiations over the current
contract. See finding 23 and footnote 3, supra.
7. When data meets the criteria of 5 U.S.C. 7114(b)(4), it must be
"furnished" cost free.
The Authority has so held in Veterans Administration Regional Office,
Denver, Colorado, 10 FLRA No. 78, 10 FLRA at 455-457 (1982). And
Respondent has so agreed in its collective bargaining agreement. See
finding 24, supra. Under these circumstances, I must reject
Respondent's argument that the Union should help defray the expenses
involved in furnishing the data sought. See RBr 19.
8. No government-wide regulation prohibits Respondent from providing
home addresses of unit employees to the Union.
In its brief, Respondent relies upon Federal Personnel Manual,
Chapter 294, Availability of Official Information, Appendix C, paragraph
C-1a(3) as being such a government-wide regulations. See RBr 20. /21/
Appendix C was adduced by Respondent as its Exhibit 12. It is clearly
labeled as a "Guide;" and it should be treated as such. While in its
"Guide," OPM states that agencies "should not comply with requests from
labor organizations for lists of home addresses . . . of employees," it
is not OPM, but this Authority upon which Congress placed the
responsibility for determining whether, under 5 U.S.C. 7114(b)(4), such
information should be furnished. The Authority has not yet ruled on the
subject matter of producing home addresses pursuant to 5 U.S.C.
7114(b)(4). Until the Authority does rule, OPM is free to issue any
"guide" that seems appropriate to it. But such "guides" do not fetter
this Authority, under 5 U.S.C. 7114(b)(4). OPM has seemingly so
recognized in 1980 and 1982 issuances, discussed infra.
9. Providing the home addresses of unit employees is not prohibited
by the Privacy Act of 1974, 5 U.S.C. 522a.
Even before passage of this Statute, it was recognized that
"(n)either the language of the Privacy Act nor its legislative history
indicate that Congress intended to preclude disclosure to recognized
labor unions of relevant information under a collective bargaining
agreement." Local 2047, AFGE v. Defense General Supply Agency, 423
F.Supp. 481, 485, fn. 7, 94 LRRM 2058 (E.D. VA 1976), aff'd per curiam,
573 F.2d 184, 97 LRRM 3207 (C.A. 4, 1978).
After enactment of the Federal Service Labor-Management Relations
Statute, in 1978, OPM issued a "system notice," required under the
Privacy Act, for the release of data from official personnel folders;
and OPM recognized that the names and addresses of employees could be
disclosed to officials of labor organizations recognized under the
Federal Service Labor-Management Relations Statute "when relevant and
necessary to their duties of exclusive representation concerning
personnel policies, practices, and matters affecting working
conditions." (45 FR 78415 and 78417 (11/25/80), recently reaffirmed in
47 FR 16489 (4/16/82)).
Respondent relies upon certain, distinguishable private-sector cases,
arising under the NLRA (see footnote 5, supra), which hold that
"employees are entitled to protections against unwarranted intrusions on
their personnel privacy, even in the context of a collective bargaining
relationship" (RBr 21). /22/ Accepting this as a given, even in Federal
sector cases, no "unwarranted intrusion" is involved in the request for
information here at issue. The unit employees here were being asked to
sign a document that could forever subject them to possible criminal
prosecution. The Union was asking for their home addresses so that it
could quickly advise them of their perils and rights, and that it was
trying to negotiate some protection for them. Other available means by
which the Union could contact them were inadequate, in the particular
situation faced by the Union when it made the requests. And there was
no evidence that the Union would make any improper use of the home
addresses, or that their disclosure to the Union would create a
"likelihood of a clear and present danger to employees," a standard that
has been used in some private-sector cases. See, e.g., Shell Oil Co. v.
NLRB, 457 F.2d 615, 79 LRRM 2997 at 3000 (C.A. 9, 1972).
10. By its refusal to furnish the home addresses of unit employees,
Respondent has engaged in unfair labor practices under 5 U.S.C.
7116(a)(1), (5), and (8).
Respondent's action has interfered with its employees' right "to
engage in collective bargaining with respect to conditions of employment
through representatives chosen by employees under the (Statute)" (5
U.S.C. 7102(2)), in violation of 5 U.S.C. 7116(a)(1), quoted fully in
footnote 8, supra. Signing the Secrecy Agreement was clearly made a
"condition of employment" by Respondent. See findings 7 and 8, supra.
The Authority has consistently held that, notwithstanding a specific
violation of 5 U.S.C. 7116(a)(8), a refusal to provide data is also a
failure of the duty to negotiate in good faith, in violation of 5 U.S.C.
7116(a)(5). /23/ See Veterans Administration Regional Office, Denver,
Colorado, 10 FLRA No. 78, 10 FLRA 453, 457 (1982) and Bureau of Alcohol,
Tobacco and Firearms, National Office and Western Region, San Francisco,
California, 8 FLRA No. 108, 8 FLRA 547, 557 (1982). Even in
data-request cases where a violation of 5 U.S.C. 7116(a)(8) was not
found by the Administrative Law Judge, the Authority sustained a finding
that 5 U.S.C. 7116(a)(5) was violated for improperly refusing to provide
data. See Veterans Administration Regional Office, Denver, Colorado, 7
FLRA No. 100, 7 FLRA 629 (1982).
Respondent's refusal to comply with 5 U.S.C. 7114(b)(4) constitutes
an unfair labor practice under 5 U.S.C. 7116(a)(8).
Ultimate Findings and Recommended Order
Respondent has engaged in the unfair labor practices alleged in the
complaint.
Accordingly, and pursuant to 5 CFR 2423.29 and 5 U.S.C. 7118, the
Authority hereby orders that the Respondent shall:
1. Cease and desist from:
(a) Refusing or failing to furnish, upon request of the
National Federation of Federal Employees, Local 1827, hereinafter
NFFE, the names and addresses of all unit employees.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured 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) Upon request, make available to NFFE the names and
addresses of all unit employees.
(b) Post at its facilities at the Defense Mapping Agency
Aerospace Center, St. Louis, Missouri, copies of the Notice To All
Employees, attached hereto as Appendix B, on forms to be furnished
by the Acting Regional Director, Region VII, Federal Labor
Relations Authority. Upon receipt of such forms they shall be
signed by the Commander, Defense Mapping Agency Aerospace Center,
St. Louis, Missouri, and shall be posted and maintained by him for
sixty (60) consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. The Commander shall take all
reasonable steps to insure 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 Acting Regional Director, Region VII,
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.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: May 12, 1983
Washington, D.C.
APPENDIX B
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 or fail to furnish, upon request, to the National
Federation of Federal Employees, Local 1827, hereinafter NFFE, the names
and addresses of all unit employees. WE WILL, upon request, furnish to
NFFE the names and addresses of all unit employees. WE WILL NOT in any
like or related manner interfere with, restrain, or coerce any employee
in the exercise of rights assured by the Federal Service
Labor-Management Relations Statute.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for sixty
(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 Acting Regional
Director of the Federal Labor Relations Authority, Region VII, whose
address is: 1531 Stout Street, Suite 301, Denver, Colorado 80202, and
whose telephone number is: (303) 837-5224.
--------------- FOOTNOTES$ ---------------
/1/ In view of our disposition of this case, the Respondent's
post-hearing Motion to Reopen Record for the purpose of presenting
further testimony and evidence is hereby denied.
/2/ Section 7114(b)(4) of the Statute provides:
Sec. 7114. Representation rights and duties
. . . .
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section 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; (and)
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining(.)
/3/ Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified
as amended at 5 U.S.C. 552a (1982)).
/4/ Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256
(codified as amended at 5 U.S.C. 552 (1982)).
/5/ The interrelationship of the Privacy Act and the FOIA exemption
are set forth more fully in AAFES.
/6/ In this regard, the Union could have communicated with unit
employees, e.g., through the use of bulletin boards; the Respondent's
bulletins and newspaper; meeting space during non-duty hours; Union
newspapers distributed in non-security areas; semi-annual membership
drives; and a network of Union officers and stewards with access to
employees in non-security areas. The extent to which some of these
means of communication were subject to restrictions, such as the Union's
obligation to submit advance requests, does not in our opinion detract
from our finding that the Union had alternative means of communication
available, especially as we note the long bargaining history of the
parties, including matters with regard to means of communication.
/7/ In so concluding, the Authority does not reach the question of
whether the data sought herein meets the other requirements of section
7114(b)(4) of the Statute.
/8/ The pertinent statutory provisions are as follows.
5 U.S.C. 7114(b) provides that (t)he 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; . . . .
5 U.S.C. 7116(a) provides that, "it shall be an unfair labor
practice for an agency -
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter; . . . (or)
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/9/ The following abbreviations will be used herein. "TR" refers to
the transcript. "GC" refers to the exhibits of the General Counsel, and
"R" refers to those of Respondent. "GCBr" refers to the brief of the
General Counsel and "RBr" to that of Respondent. Multipage exhibits and
the briefs will be designated by page or paragraph number following the
exhibit or brief designation.
The transcript is corrected pursuant to unopposed motions filed by
the parties. The corrections are set forth in Appendix A to this
decision.
Unless otherwise noted, all dates refer to events which took place in
1982.
/10/ In view of this finding, there is no need to address further the
argument of Respondent that the Union waived its right to have addresses
of all unit employees because it bargained over the matter, and lost,
during negotiations over the current collective bargaining agreement.
/11/ This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7).
/12/ General Electric is a case which arose under the National Labor
Relations Act ("NLRA") which has no express provision for providing data
to labor organization. Nevertheless, the courts have found that an
employer has a general obligation to provide information that is needed
by a union for the proper performance of its representational duties.
Such cases are therefore instructional.
/13/ The $736 figure appears to be an inflated one. See finding 27,
supra. For around half that sum, it appears that an adequate program
could be developed.
/14/ See footnote 12, supra, on the instructural nature of cases
arising under the NLRA, as these two did.
/15/ It should be made clear that Respondent was acting within its
rights in distributing the Secrecy Agreement to the employees before
bargaining began, because Respondent had been led to believe that the
Union was not interested in bargaining about it. See finding 8, supra.
The only unfair aspect of Respondent's distributing the Agreement when
it did was the fact that the Union had never been shown the actual cover
letter sent to the employees with the Agreement.
/16/ In view of this factual difference, Respondent's reliance upon
Division of Military and Naval Affairs, State of New York, Albany, New
York, 8 FLRA No. 71, 8 FLRA 307 (1982) is inapposite. See RBr 17.
/17/ Such proposed action by the Union does not seemingly violate 5
U.S.C. 7116(b)(6), as Respondent alleges. See RBr 7 and 21. This
provision prohibits unions from calling for a "strike, work stoppage, or
slowdown."
/18/ The harder issue posed by the General Counsel-- whether there is
an obligation to furnish even if other sources are available (see GCBr
22)-- need not be reached in this case, in view of the conclusions
reached herein.
/19/ This order is reprinted in the note at page 312 of 5 U.S.C. 7101
(Supp. V. 1981).
/20/ Immediately following the discussion of the Internal Revenue
case, Respondent cites and discusses a case identified only as "6 FLRA
No. 211." See RBr 16. I could find no such case.
/21/ Respondent apparently is not relying on DOD directives, that it
not release the addresses of unit employees. See finding 25, supra. In
any event, those directives may be taken as modified by DOD's later
approval of the collective bargaining agreement entered into in 1982 and
which recognizes that release of data is subject to the statutory
provisions of Public Law 95-454, i.e., the Federal Service
Labor-Management Statute. See finding 24, supra.
/22/ For example, in Detroit Edison Co. v. NLRB, 440 U.S. 301, 100
LRRM 2728 (1979) the Court, in a split decision, declined to enforce a
Board order which would have required the employer, unconditionally to
turn over to the union, among other things, the actual scores received
by named employees on aptitude tests, where they had been assured of
confidentiality. The union claimed a need for them in order to process
a grievance of other applicants denied the jobs on the basis of low
scores. The employer agreed only as to those employees who would sign a
waiver of confidentiality. And the employer presented evidence that
"disclosure of individual scores had in the past resulted in the
harassment of some lower-scoring examinees who had, as a result, left
the Company." See 100 LRRM at 2735. The Court also noted the "well
known" fact of the "sensitivity of any human being to disclosure of
information that may be taken to bear on his or her basic competence"
(100 LRRM at 2734). No such sensitivity attaches to home addresses,
which has been so recognized and tagged as having a "very much lower
degree of disclosure." See Getman v. N.L.R.B., 450 F.2d 670, 675
(C.A.D.C., 1971) a case also arising under the NLRA. The Supreme Court
in N.L.R.B. v. Getman, denied an application to stay the judgment of a
lower court that required the Board to turn over the home addresses.
See 404 U.S. 1204 (1971).
In Shell Oil Co. v. NLRB, 457 F.2d 615, 79 LRRM 2997 (C.A. 9, 1972),
the Court declined to enforce a Board order that the employer furnish
the union the home addresses of all unit employees, where there was
evidence that 9 1/2 months before the request there had been a strike
and harassment of non-strikers at their homes, and that there had also
been recent violence by striking employees whom the union could not
control. In that case, the employer had made counter proposals, that it
would furnish the home addresses of those employees who consented and
that it would furnish all names and addresses to an independent mailing
service, which would mail all material which the union wanted to submit
and certify the mailing to the union, at the expense of the employer.
Emeryville Research Center, Shell Development Company v. NLRB, 441
F.2d 880, 77 LRRM 2043 (C.A. 9, 1971) is cited for the refusal of the
Court to require an employer to release wage and survey data because the
employer had promised confidentiality to area employers surveyed, and
compromise of that promise would make the sources of the data (other
companies) unavailable in the future. Refusal to enforce was largely
based upon the finding that the employer had been cooperative and tried
to work with the union to put the information into a form which would
have met the union's needs and the employer's concerns.
In each of these cases, the employer made a reasonable counter
proposal to the union and showed a real basis for not complying with the
request of the union. Such is not the circumstance here.
/23/ Respondent has not "fully understood" the basis for the 5 U.S.C.
7116(a)(5) allegation. See TR 26.