19:0913(108)CA - SSA, Northeastern Program Service Center and AFGE Local 1760 -- 1985 FLRAdec CA
[ v19 p913 ]
19:0913(108)CA
The decision of the Authority follows:
19 FLRA No. 108
SOCIAL SECURITY ADMINISTRATION
NORTHEASTERN PROGRAM SERVICE CENTER
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1760, AFL-CIO
Charging Party
Case No. 2-CA-30643
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 filed exceptions
to the Judge's Decision and the General Counsel filed an opposition to
the Respondent's exceptions. /1/
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, 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: no undue burden would be
imposed on the Respondent to extract a list of unit employees' names and
home addresses from the material reasonably available to Respondent;
the Union was not obligated to establish any specific relevant issue
which particularly required an immediate need for such names and home
addresses; the avenues of communication available to the exclusive
representative did not provide the Union with a proper and effective
means of access to employees and therefore the data sought must be
provided; and, citing private sector precedent, that the Privacy Act
/3/ did not preclude the release of the employees' names and home
addresses.
The Authority disagrees. In a recent decision, Farmers Home
Administration Finance Office, St. Louis, Missouri, 19 FLRA No. 21
(1985), petition for review filed sub nom. American Federation of
Government Employees, AFL-CIO, Local 3354 v. FLRA, No. 95-1493 (D.C.
Cir. Aug. 6, 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), petition
for review filed sub nom. American Federation of Government Employees,
Local 1345 v. FLRA, No. 85-1378 (D.C. Cir. June 21, 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 section 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
individual's 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. 2-CA-30643 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., August 22, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CA-30643
Daniel H. Green, Esq.
Julian Bergman
For the Respondent
Alfred R. Johnson, Esq.
For the General Counsel
Herbert Collender
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on December 23,
1983 by the Regional Director for the Federal Labor Relations Authority,
New York, NY, a hearing was held before the undersigned on March 5, 1984
at New York, NY.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq., (herein called the Statute). It was
based upon a charge filed on September 30, 1983 by American Federation
of Government Employees, Local 1760, AFL-CIO (herein called the Union)
against Social Security Administration and Northeastern Program Service
Center (herein called Respondent).
The Complaint herein alleged, in substance, that on or about August
15, 1983 the Union requested that Respondent furnish it with the names
and addresses of unit employees who are employed at the Northeastern
Program Service Center; that such information was maintained in the
normal course of business; that the data was reasonably available and
necessary for proper discussion, understanding and negotiation of
collective bargaining subjects; and that on or about September 2, 1983
Respondent refused, and has continued to refuse, to furnish such data--
all in violation of Section 7116(a)(5) and (8) of the Statute.
Respondent's Answer, dated January 10, 1984, denied that the data was
maintained in the normal course of business, that it was reasonably
available, and that it was necessary for collective bargaining. /8/ It
also denied the commission of an unfair labor practice.
All parties were represented at the hearing, each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed which have been
duly considered by the undersigned.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all the testimony and evidence adduced at
the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the American Federation of
Government Employees, AFL-CIO has been the exclusive bargaining
representative of a nationwide unit of certain employees of Respondent,
including non-supervisory employees at the Northeastern Program Service
Center.
2. At all times material herein the American Federation of
Government Employees, AFL-CIO, has delegated to the National Council of
SSA Payment Center (Council) authority to act as its representative for
collective bargaining for the aforesaid employees of the Northeastern
Program Service Center.
3. At all times material herein the Union herein has acted as the
agent for the Council for collective bargaining purposes on behalf of
the aforesaid employees of the Northeastern Program Service Center and
has been so recognized by Respondent.
4. Respondent Social Security Administration and American Federation
of Government Employees, AFL-CIO are parties to a Master collective
bargaining agreement which, by its terms, became effective on June 11,
1982 for a period of three years. The said Master Agreement, which
covers the unit employees of the Respondent's Northeastern Program
Service Center (hereinafter designated as NEPSC) was in effect at all
times material herein.
5. Article 12 of said Master Agreement, entitled "Communications,"
provides for the use of union bulletin boards in Section 1 thereof. As
existent in the past, open bulletin boards are provided on each floor of
the NEPSC which is split among three different buildings. Except as to
information containing political propaganda or attacks upon individuals,
no restrictions is placed upon material which may be posted thereon by
the Union. Section 2 of this Article allows for distributing official
publications of the Union during non-duty time if the distribution does
not disrupt operations. Further, the Administration agrees thereunder
to distribute Union newsletters on a desk-to-desk basis up to four times
per year. /9/
Article 11 of the Master Agreement grants the Union the right to use
Respondent's internal mail system but not for mass mailing purposes.
6. Approximately 2,000 employees are employed by NEPSC which is
located at Rego Park, New York. These individuals reside in various
areas of New York, including Queens, Manhattan, Bronx, Long Island,
Westchester, and also in parts of New Jersey. Approximately 900 such
employees are members of the Union.
7. As of August 1983, there were about 45 stewards in the Union as
well as 13 officers above the steward structure. There is not an even
dispersion of stewards throughout NEPSC. At the College Point, New York
location, about 3 miles away, where 300 employees are employed, there
are only 2 Union officials. In the past the Union has utilized the
stewards to distribute literature, i.e., its newspapers.
8. By memo dated August 15, 1983, Herbert Collender, President of
the Union, requested the Respondent furnish the Union the names and
addresses of all unit members employed at NEPSC. Collender stated
therein that it sought this data in order to conduct "information
gathering for an expression of their views among members of the
bargaining unit at the Northeastern Program Service Center." He further
indicated that the information would be used to develop proposals and
positions on such subjects as (A) Performance Audits, (B) Relocation of
NEPSC to Jamaica, New York, (C) Health and Safety.
9. Labor Relations Specialist, Julian Bergman replied in a memo
dated August 29, 1983 wherein he stated the request was not clear and
asked for clarification.
10. Collender wrote another memo dated August 29, 1983 to Respondent
wherein he repeated his request for the information and for the reasons
or utilization expressed therefore.
11. In a memo dated September 2, 1983, Bergman denied the request.
The denial was based on these factors: (a) a release of the data sought
would violate the Privacy Act; (b) the information was not readily
available; (c) it was not shown to be material and necessary to union
proposals; (d) there was no showing why the data could not be obtained
from other sources.
12. By memo dated September 12, 1983, Bergman forwarded to
Collender, pursuant to Article 7 of the OPSC/SSA Agreement, the names of
all bargaining unit employees at NEPSC.
13. Record facts show the Union was concerned about the planned
relocation of NEPSC from Rego Park to Jamaica, New York, /10/ in respect
to parking facilities, transportation, eating facilities, work location
and security /11/ for the employees. In regard to breaks and lunches,
the practice called for their being changed every six months, and the
next change was due on November 2 or 3, 1983. Collender testified the
Union wanted to discuss with management a flexible arrangement, and
hence he sought to obtain employees' views thereon.
14. The record reflects that none of the subjects mentioned by
Collender, in his request for information, was on the bargaining table
at that time or being then effectuated. The Union had not as yet made
proposals re health and safety; a new audit system had been implemented
in October 1982; /12/ and the move to Jamaica was not scheduled until
1986.
15. The Union has been permitted to distribute material desk to desk
to all employees-- any material which does not malign individual's
character. Collender testified that desk distribution has not been
satisfactory in the past; that many do not read all desk material;
that it is difficult to cover three buildings on non-work time due to
flex reporting time and the fact that one building is a few miles away.
Record facts show that in December 1979, the Union attempted to
circulate a questionnaire to employees concerning the proposed
relocation of NEPSC to Jamaica, New York. This was done on desk to desk
basis. Included therein were items relating to the employee's length of
employment and address, as well as questions concerning the possible
effect of the relocation. Collender testified the Union obtained a very
poor response in terms of the number of employees who replied, and the
survey was not successful.
16. The custodian for all personnel records of employees is kept by
the Department of Health and Human Services, Region II, Regional
Personnel Office, Personnel Operations Branch. It is located in the
same building as the main facility of NEPSC at Rego Park. The employees
of NEPSC comprise a little less than one-half of all employees serviced
by the Personnel Operations Branch. There are 38 individuals employed
at the Servicing Entity, of which 10 are clericals. About 5,300
official personnel folders are located in the Personnel Branch, of which
approximately 2,000 are folders for unit employees at NEPSC.
17. The Personnel Branch, which has custody of such personnel
records maintains several documents that reflect the names and addresses
of unit employees: (a) SSA Form 4033 U4 (Employee Locator Record) is
kept in the official personnel folder of the employee. While it is not
necessary for employees to fill out this form, most of them do so when
there is a change of address. The Branch has a form for most employees.
(b) Form 171, filed by employee when first employed by Federal
Government, is located in the employee's personnel folder and contains
his address. (c) Service records cards which are not kept in the folder
but in a separate location. Not all of these cards have addresses
listed therein. (b) Payroll stubs which are computerized, kept for one
year, and contain the employee's address thereon. The Chief of this
Branch testified she does not have access to query this data base; that
she attempted to obtain listings of employees services by her about two
years ago but Central Payroll was unable to furnish such listings. /13/
18. Based upon the Branch Chief's testimony, it would take 40
manhours of work to obtain the addresses. There is one clerical in the
area who maintains the folders and said individual has a busy schedule.
While the Union might conceivably send volunteers to copy the addresses,
Bergman testified he would not be able to permit such copying since he
has no control over the folders. Both union and management officials,
who have received permission, have examined the personnel folders. In
the past the union has been given the folders when its representative
came to examine them in connection with promotion package audit. No
complaints have been received re divulging employees' home addresses.
Conclusions
It is contended by Respondent that the Union is not entitled to the
names and addresses of the unit employees as a matter of right. Based
upon its position opposing the Union's entitlement to the addresses of
the NEPSC employees, the issues for determination are as follows:
(1) Whether the data sought was relevant and necessary to
formulate Union proposals for bargaining purposes, as required
under Section 7115(b) of the Statute.
(2) Whether said information was readily available so as to be
furnished to the Union.
(3) Whether other means of communicating with employees, and
their gaining access to the information requested, were available
to the Union so as to justify Respondent's refusal to supply the
addressed.
(4) Whether the Privacy Act protects any disclosure of these
addresses and warrants Respondent's refusal to furnish them to the
Union.
(1) The basis for the Union's request for the addresses of Respondent
NEPSC's employees is to be found in Section 7114(b)(4) of the Statute.
The statutory language obligates an agency to furnish an exclusive
representative data (1) which is normally maintained in the regular
course of business; (2) which is reasonably available and necessary for
full and proper discussion, understanding and negotiation of collective
bargaining subjects.
While the Authority has not spoken in respect to the duty on the part
of an agency to furnish addresses of employees to a bargaining agent,
decisional law in both the private and public sectors afford some
guidance on this issue. In sustaining the National Labor Relations
Board's determination that an employer was obliged to supply the
bargaining representative with the names and addresses of unit
employees, the Second Circuit Court of Appeals made it clear that such
data was relevant and necessary to perform its representational
functions. See Prudential Insurance Company of America v. NLRB 412 F.2d
77 (2nd Cir. 1969). /14/ The Court commended that such performance by a
union extends to the negotiation of new contracts and also to the
administration of existing contracts. It declared that the union must
be able to communicate with those on whose behalf to act and obtain
their views so that the bargaining will reflect the wishes of the
employees. Moreover, the Court stated, inter alia:
"We reject as legally untenable Prudential's contention that the
Union is not entitled to a list of names and addresses in the unit
it represents unless it can establish that the information is
relevant to a specific bargaining function . . ..
Because this information is therefore so basically related to
the proper performance of the union's statutory duties, we believe
any special showing of specific relevance would be superfluous."
In the public sector the Federal Labor Relations Council had occasion
to consider the right of a bargaining agent to obtain the addresses of
an agency's employees. Although upholding a dismissal on other
grounds-- which will be hereinafter discussed-- the Council stated that
Section 10(e) of Executive Order 11491, as amended /15/ requires that
the exclusive representative have effective means of communicating with
employees. It emphasized that the union must have access to the
employees in the unit; that a failure to provide the labor organization
such means constitutes a breach of an obligation to consult, confer or
negotiate as required under Section 9(a)(6) of the Order. Internal
Revenue Service, Office of the District Director, Jacksonville, Florida,
FLRC No. 72A-50, 2 FLRC 107 (1974).
Although it does not dispute the need on the part of the Union to
communicate with unit employees, Respondent maintains there was no
immediate need for such communication with them. It refers to the fact
that the relocation to Jamaica, New York will not occur until 1986 and
that none of the concerns of the Union is on the bargaining table. This
contention is without merit. It seems apparent that the contemplated
move by the agency gives rise to immediate concerns by the Union to the
safety, security, health and welfare of the employees. Many employees
of NEPSC live in areas far removed from their worksites. Thus it seems
obvious that difficulties will surface re transportation, parking
facilities and reporting times. If the new area is not safe, problems
re crime and attendant safety will have to be resolved. Moreover, it
would be unreasonable to require the bargaining agent to wait until the
eleventh hour before soliciting the information from the 2,000 unit
employees regarding these problems stemming from the relocation.
Further, while no particular demands were on the bargaining table,
proper representation by the Union might well call for preparing
proposals to management during any future negotiation sessions. In
order to frame such proposals a union might well be desirous of
ascertaining the views of the employees who are represented by it.
Note is taken that the Second Circuit Court of Appeals in the
Prudential case, supra, concluded that the information sought, i.e., the
addresses of unit employees, is so basic to proper union representation
that specific relevance need not be established. The statutory language
in Section 7114(b)(4) requires that the data sought be necessary for
full discussion and negotiation of collective bargaining subjects. It
seems clear to the undersigned that, based on the intended and avowed
purpose /16/ by the bargaining agent, any worthwhile and effective
discussion or negotiation with management necessitates eliciting
comments from the employees. To do so, one must reasonably conclude,
calls for obtaining the addresses of said individuals in order to
communicate with them. Thus, prescinding from circumstances which
relieve an agency from its responsibility in this regard, it is
incumbent upon management to furnish such addresses to the bargaining
representative.
(2) To obtain data under 7114(b) of the Statute herein it must be
established that said materials is "reasonably available." In attempting
to demonstrate the unavailability of the data, Respondent adverts to
several factors. It points out that Respondent does not retain the
addresses of unit employees; that the HHS Regional Personnel Office,
Personnel Branch, its servicing body, keeps this information; that,
while Respondent has access to it, the addresses must be extracted
manually from each personnel locator card, and it would take about 40
manhours to accomplish this task. Since the Personnel Branch was short
staffed, the burden so thrust upon Respondent to prove the addresses
would be onerous.
None of the foregoing contentions is persuasive. The names and
addresses of the unit employees as contained in the personnel folders,
and said information is set forth on Forms 4033 and SF 171. They are
also to be found on the payroll stubs of unit employees. While this
data is maintained by the Regional Personnel Office of HHS, Respondent
is merely serviced by such office and may obtain the addresses upon
request. It is urged by Respondent that a heavy administrative burden
would be placed upon the servicing entity to extract the information
from the locator cards or payroll stubs. Chief of Personnel Operations
Potter estimated that 40 manhours would be needed to accomplish the
task.
In Defense Mapping Agency, Aerospace Center, St. Louis, Case No.
7-CA-20482 (OALJ-83-83, May 12, 1983), Judge Cappello was confronted
with the same contention by the agency which argued the task was
burdensome. Judge Cappello concluded that even though it might require
40 manhours to copy the addresses, that factor did not warrant a refusal
to furnish same. Further, since the Authority has held /17/ that data
must be furnished without cost to the bargaining representative, the
limited cost of providing the addresses did not excuse a failure to
supply that information. In the case at bar the Union did not make time
of the essence in obtaining the data. No reason appears why the
addresses would not have been copied in stages since the Personnel
Office was short-handed. The undersigned determines that no undue
burden is imposed in order to extract the addresses of unit employees
and concludes the data was reasonably available as required by 7114(b)
of the Statute. /18/
(3) Particular stress is focused by the Respondent upon its
contention that the Union herein had other ways and means of
communicating with the unit employees. The employer emphasizes the
argument that, based upon existent lines of communication, the
bargaining agent was in a position to reach the unit employees and
obtain the desired information. Reference is made by the Respondent to
certain avenues which the Union could follow: handbilling the
employees, the use of bulletin boards, on-site distribution of
literature through officers and stewards, internal mail system, and desk
distribution. Accordingly, it is urged, the Union has access to the
employees to secure the addresses and, therefore, the Respondent should
not be required to furnish same.
It should be noted, at the outset, that Section 7114(b)(4) makes no
mention of whether the obligation to furnish data to a union falls by
the wayside if the latter has reasonable access of communication with
unit employees. A logical argument could well be advanced that the
agency is charged with such duty providing the information is necessary
for collective bargaining, and that the obligation to furnish it is
absolute or independent of other access afforded the union. No answers
have been provided by the Authority as to whether such access is a
defense to a refusal by an agency to supply the requested data.
While neither the case law under the Statute, nor any legislative
history, indicates whether data must be supplied without considering its
availability elsewhere, it seems reasonable to conclude that alternative
access by the union to the information may relieve an agency of its
obligation under the Statute. However, I am constrained to conclude
that such access should be equitable, in essence, to the agency's
supplying such material. In other words, access to the data should not
be such a problem, or be so imperfect, as to amount to something less
than the information being furnished to the union. If the alternative
means to supplying the data poses such difficulties, or is unlikely to
result in the union obtaining the complete material requested, I would
deem such access as an ineffective means of communication. In such
instances, the employer would not be justified in refusing to comply
with its statutory duty to furnish the information.
Although there is no analogous statutory provisions to 7114(b)(4) in
the private sector, several cases in that area have dealt with the duty
of an employee to supply data to the bargaining agent when the latter
has other means of access to such information. In United Aircraft
Corporation v. NLRB, supra, the Court acknowledging the need by the
union for the names and addresses of unit employees to communicate with
them for proper representation, rejected the employer's contention that
the existing means of communication were adequate to fulfill union
functions. In respect to handbilling employees, the Court deemed this
avenue unsuitable due to the irregular hours of work, the shift changes,
and the fact that many people would be missed by such distribution. As
to bulletin boards, it is concluded that space limitations militated
against its adequacy. Moreover, employees who hurried by the bulletin
boards had little time to read thoroughly, and the notice must compete
for attention with other notices. Finally, the use of shop stewards and
union stewards to reach employees was considered inappropriate as a
means of communication since they must reach the people on non-duty time
which is self-limiting. /19/
In much the same view as the conclusions reached by the Second
Circuit Court of Appeals, the undersigned concludes that the alternative
means to the Union herein of communicating with employees are not
suitable or effective in respect to obtaining the needed information.
Bulletin boards available to the Union are open, and material may not
remain intact. They are unlikely to be scrutinized so closely by 2,000
employees so as to accomplish the same end as direct correspondence
which the bargaining agent addresses to employees. Likewise, attempts
to reach 2,000 employees via handbilling may well be characterized as a
"hit or miss" procedure. The various shifts at Respondent may well
result in a failure to reach many individuals. Further, numerous
employees may bypass the areas where such distribution occurs. Record
testimony reflects this method of access was tried in the past with no
success. While the poor response does not itself render this avenue as
inappropriate, it does tend to support that conclusion in light of the
number of employees to be reached under the prevailing conditions. /20/
In respect to Respondent's agreement to make mail distributions on
behalf of the Union, this means will not suffice since mass mailing is
expected from such agreement.
Note is taken that a case has arisen in the public sector under
Executive Order 11491, as amended, wherein it was decided that the union
had effective means of communicating with employees so as to relieve the
agency of any duty to furnish addresses of employees. See Internal
Revenue Service, Office of the District Director, Jacksonville District,
Jacksonville, Florida, 2 A/SLMR No. 214, affirmed in FLRC No. 72A-50, by
the Federal Labor Relations Council. In the cited case there were about
900 unit employees /21/ employed by the agency, and the unit personnel
were scattered on a number of floors in a federal building of 10 floors.
In concluding that the notices or documents could be distributed to
employees by union officials at their desks, it was also shown that the
union makes available its newspapers to employees at various duty posts.
It was recognized by the Council in the cited case that certain factors
as to the size of the unit, geographic dispersion of employees, isolated
duty stations, etc., may result in a union not having effective means of
communicating with unit employees. In such instances the employer's
duty to consult, confer, or negotiate under the Order would require it
to address enveloped containing union literature and mail them to
employees.
In the opinion of the undersigned the Respondent herein is chargeable
with a duty to furnish the addresses to the Union unless a reliable
source of reaching employees is open to the bargaining agent. The
statutory language in 7114(b)(4) which was not in effect when the IRS
case, supra, was decided, mandates that an agency furnish data which is
necessary and relevant for bargaining. Thus a substituted means of
access should not, it seems, fall short of satisfactory access. While
the Union herein had 45 officials to distribute circulars or material at
the desks of the employees, I do not view that avenue to be an
appropriate or reliable means of access. Of the 1,000 individuals to be
reached-- who were not union members-- it seems likely that some
difficulties would occur in the desk distribution since it must be done
off duty hours. There are three buildings, one of which is several
miles away, and the various shifts as well as the different hours of
access to the buildings could well result in a failure to reach all
desks. Further, employees might not be in attendance due to leave or
illness, and the material so distributed may not come to their
attention.
Based on the foregoing, I am persuaded that the avenues of
communication open to the Union herein did not provide it with a proper
and effective access to the employees. The Union may have been able to
reach some or many of the unit employees utilizing the means such as
handbilling, bulletin boards, or desk distribution. Such means,
however, were most imperfect and not calculated, in my opinion, to be
nearly as reliable in reaching the employees as would be true if their
addresses were furnished by Respondent to the Union.
(4) Any contention that the addresses need not be furnished to the
Union herein based on the Privacy Act must be rejected. I agree with
the General Counsel's assertion that the employee's right to privacy of
his records must be balanced against the needs of a labor organization
for data to effectively represent the unit employees. Nothing in the
Privacy Act detracts from the statutory obligation imposed upon an
agency to supply relevant data necessary for collective bargaining. Nor
was it intended that an employer could refuse to abide by its duty under
Section 7114(b)(4) of the Statute herein merely by invoking the Privacy
Act as a defense to furnishing requested data. Bureau of Alcohol,
Tobacco and Firearms, National Office and Western Region, San Francisco,
California, 8 FLRA 57. Note is taken also that in the private sector
the same defense was raised by the employer therein in United Aircraft
Corporation v. NLRB, supra. The Circuit Court, in rejecting the claim
that supplying addresses violates the employees' right to privacy,
stated:
. . . That claim, however, has little merit in the circumstances
of this case. In determining whether the disclosure of addresses
to a union violates the employees' right to privacy, the crucial
factor appears to be the likelihood of a clear and present danger
to the employees involved . . .
In the case at bar I find no evidence in the record which would
support the conclusion that the employees, whose addresses were sought
by the Union, were in clear and present danger. Moreover, I am
convinced that the need for privacy of an employee's home address is
outweighed by the need of the Union to obtain such data in order to
communicate with employees so as to gain input from them and enter into
intelligent bargaining with Respondent. /22/ See Getman v. NLRB, 450
F.2d 670 (D.C. Circuit, 1971).
The conduct of Respondent herein in refusing to grant the Union's
request for the addresses of unit employees runs counter to its
obligation under Section 7114(b)(4) of the Statute. As such, it
constitutes a violation of Section 7116(a)(8) of the Statute. Further,
the refusal flouts its obligation to bargain and is violative of Section
7116(a)(1) and (5) of the Statute. Accordingly, it is recommended that
the Authority adopt the following:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, the
Authority hereby orders that the Social Security Administration and
Northeastern Program Service Center shall:
1. Cease and desist from:
(a) Refusing and failing to furnish, upon request of the
American Federation of Government Employees, Local 1760, AFL-CIO,
the names and addresses of all unit employees who are employed at
the Northeastern Program Service Center.
(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:
(a) Upon request of the American Federation of Government
Employees, Local 1760, AFL-CIO, furnish it with the names and
addresses of all unit employees who are employed at the
Northeastern Program Service Center.
(b) Post at its facilities of the Northeastern Program Service
Center at Rego Park, New York and College Point, New York, copies
of the attached Notice on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms they shall
be posted and maintained by him for 60 consecutive days thereafter
in conspicuous places, including bulletin boards and other places
where notices to employees are customarily posted. The Director
of Management shall take reasonable steps to insure that such
Notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director, Region II, in writing within
30 days from the date of this Order, as to what steps have been
taken to comply herewith.
WILLIAM NAIMARK
Administrative Law Judge
Dated: November 30, 1984
Washington, D.C.
APPENDIX
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 and fail to furnish, upon request of the American
Federation of Government Employees, Local 1760, AFL-CIO, the names and
addresses of all unit employees who are employed at the Northeastern
Program Service Center. 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, upon request of the American Federation of Government
Employees, Local 1760, AFL-CIO, furnish it with the names and addresses
of all unit employees who are employed at the Northeastern Program
Service Center.
(Agency or Activity)
Dated: . . . By: (Signature) 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 any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region II, whose address is: 26
Federal Plaza, Room 24-102, New York, New York 10278 and whose telephone
number is: (212) 264-4934.
--------------- FOOTNOTES$ ---------------
/1/ On June 3, 1985, the Office of Personnel Management (OPM) filed a
request for permission, pursuant to section 2429.9 of the Authority's
Rules and Regulations, to file a brief as an amicus curiae in the
present case. OPM stated that it wished to present its views with
respect to the question of whether an exclusive representative is
entitled to the home addresses of employees in an exclusive bargaining
unit. A resolution of the central issue sought to be addressed in this
case was imminent at the time the instant request was submitted, and has
now been decided by the Authority in Farmers Home Administration Finance
Office, St. Louis, Missouri, 19 FLRA No. 21 (1985), as discussed herein.
The Authority concludes that the granting of the instant request would
unnecessarily and unduly delay the processing of this case and other
similar cases presently pending before the Authority. Therefore, OPM's
request for permission to file an amicus curiae brief in the present
case is 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 open bulletin boards on each floor
of the Respondent's facilities; through the distribution of its
newsletter which is given out on a desk-to-desk basis four times a year
by the Respondent; through additional on-site distributions of its own
material; and through the use of its network of officers and stewards
with access to unit employees. The extent to which some of these means
of communication were subject to restrictions, such as the use of the
internal mail system for mass mailings and the times during which
publications may be distributed, does not in our opinion detract from
our finding that the Union had alternative means of communication
available, especially as we note the established 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 original Answer admitted these allegations. A motion to
Amend the Answer to deny said allegations (set forth in Paragraph 7b of
the Complaint) was granted at the hearing with no objections thereto.
/9/ Under Article 7 of the agreement between the Office of Program
Service Center of Social Security Administration and the National
Council of Social Security Center Locals, the Program Service Center
must provide a current listing of names, position titles, grades,
salaries, and duty stations of employees.
/10/ Respondent's newsletter of December 6, 1982 reported on the
progress of the new building. Its newsletter of September 23, 1983
announced that the expected date of completion would be in July, 1986.
/11/ Collender testified that since the move was to a crime-ridden
area, the Union was concerned about possible muggings in parking lots as
well as likely robberies.
/12/ The new performance system was the subject of an unfair labor
practice charge filed by the Union in late 1982 or early 1983. A
hearing was held on August 18, 1983. Collender testified the Union
anticipated favorable ruling and wanted to question employees re steps
which would be taken to protect them from any adverse impact of the new
system. Subsequently the Administration Law Judge dismissed the case.
/13/ Record testimony reflects it would take the same amount of time
to extract information (addresses) from either the payroll stubs or the
locator cards.
/14/ See also United Aircraft v. NLRB, 434 F.2d 1198 (2nd Cir. 1970).
/15/ Section 10(e) of the Order accords to the exclusive bargaining
representative the right to act on behalf of all unit employees, to
negotiate agreements covering the latter, and to represent the interests
of such employees.
/16/ Management's contention in the Prudential case, supra, that the
union could use the data and solicit new members was dismissed by the
Court as without merit.
/17/ Veterans Administration Regional Office, Denver, Colorado, 10
FLRA No. 78.
/18/ In the Prudential case, supra, the Court concluded that the
utility of the information (names and addresses of employees) to the
Union outweighs the minimal inconvenience to the employer in having to
supply it.
/19/ The Court in the Prudential case, supra, likewise found these
alternative means of communication to be impracticable and not a
reliable substitute for obtaining names and addresses of unit employees.
/20/ See Magma Copper Co., 208 NLRB 329, 330 which considered the
size of the unit (2,250 employees) as a significant factor in the
determination that addresses should be furnished to the union.
/21/ 427 employees were members of the union.
/22/ Respondent adverts to the case of American Federation of
Government Employees, AFL-CIO, Local 1923 v. HHS, et al., 712 F.2d 931
(1983) where the union attempted to obtain addresses of employees under
the Freedom of Information Act (FOIA). The Court dismissed the action,
stating that the records sought were not the type to be disclosed under
Section 552(a)(3) of that Act. Declaring that the data was just not
obtainable under the FOIA since it is only agency records that are
producible, the Court conceded the union might be entitled to the
addresses under some federal law and it cited the Prudential case,
supra.