[ v26 p479 ]
26:0479(58)CA
The decision of the Authority follows:
26 FLRA No. 58
DEPARTMENT OF THE TREASURY
BUREAU OF ENGRAVING AND PRINTING
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-60332
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent to the attached decision of the Administrative
Law Judge. The issue is whether it is an unfair labor practice under
the Federal Service Labor-Management Relations Statute (the Statute) for
the Respondent to refuse a request, made pursuant to section 7114(b)(4),
to provide the Union with the home addresses of employees in the unit
exclusively represented by the Union.
In our Decision and Order on Remand in Farmers Home Administration
Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986) (FHAFO),
petition for review filed sub nom. U.S. Department of Agriculture and
the Farmers Home Administration Finance Office, St. Louis, Missouri v.
FLRA, No. 86-2779 (8th Cir. Dec. 23, 1986), we held that the release of
the names and home addresses of bargaining unit employees to exclusive
representatives is not prohibited by law, is necessary for unions to
fulfill their duties under the Statute, and meets all of the other
requirements established by section 7114(b)(4). We also determined that
the release of the information is generally required without regard to
whether alternative means of communication are available. Consistent
with our decision on remand in FHAFO, we conclude that the Respondent's
refusal to provide the Union with the home addresses of bargaining unit
employees sought in this case violated section 7116(a)(1), (5) and (8)
of the Statute, as alleged.
II. Facts
The Union is the exclusive representative of a unit of the
Respondent's employees. By letter dated April 16, 1986, the Union
requested that the Respondent furnish it with the names and home
addresses of all employees in the bargaining unit. The Union claimed
that the information was necessary "because of the stringent security
measures within the Bureau's work sites which prohibits necessary
contacts by NTEU representatives(.)"
By letter dated May 6, 1986, the Respondent refused to furnish the
names and home addresses to the Union, noting that there were
conflicting courts of appeals decisions on the matter.
III. Administrative Law Judge's Decision
The Judge concluded that our decision on remand in FHAFO is
dispositive of all issues in this case and after reviewing the facts,
determined that the Respondent's refusal to furnish the information
constituted a violation of section 7116(a)(1), (5) and (8) of the
Statute, as alleged. Thus, he found that (1) FHAFO established that
release of the names and home addresses is not prohibited by law; (2)
the information is normally maintained in the regular course of
business, is reasonably available, and does not constitute guidance
relating to collective bargaining; (3) the information was necessary
for the Union to fulfill its obligation as exclusive representative;
and (4) whether or not alternative means of communication were available
was not dispositive. In view of this disposition, he found it
unnecessary to pass upon the General Counsel's motion for summary
judgment.
IV. Positions of the Parties
In its exceptions, the Respondent takes issue with our decision on
remand in FHAFO, arguing that disclosure is prohibited by law and that
since an alternative means of communication is available, it is not
necessary to disclose home addresses. It also takes issue with our
conclusion in FHAFO that the information was disclosable under the
"routine use" exception of the Privacy Act.
The General Counsel did not file a brief or cross exceptions.
V. Analysis and Conclusions
As noted above, in our decision on remand in FHAFO we concluded that
the release of home addresses of bargaining unit employees to the
exclusive representatives of those employees is not prohibited by law,
is necessary for unions to fulfill their duties under the Statute, and
meets the other requirements of section 7114(b)(4). We also determined
that agencies are required to furnish such information without regard to
whether alternative means of communication are available. Based on our
decision on remand in the FHAFO case, we find that the Respondent in
this case was required to furnish the Union with the home addresses of
the unit employees. Thus, we conclude that the Respondent's refusal to
furnish the requested information in this case constituted a violation
of section 7116(a)(1), (5) and (8) of the Statute.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Department of the Treasury, Bureau of Engraving and
Printing, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the National Treasury
Employees Union, the exclusive representative of a unit of its
employees, the names and home addresses of the employees in the
unit it represents.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights assured them by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Upon request by the National Treasury Employees Union, the
exclusive representative of a unit of its employees, furnish it
with the names and home addresses of all employees in the
bargaining unit it represents.
(b) Post at all its facilities where bargaining unit employees
represented by the National Treasury Employees Union are located,
copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms,
they shall be signed by the Director of the Bureau of Engraving
and Printing, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken 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 Regional Director, Region III, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply.
Issued, Washington, D.C., March 31, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR
RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request by the National Treasury
Employees Union, the exclusive representative of a unit of our
employees, the names and home addresses of the employees in the
bargaining unit it represents.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL, upon request by the National Treasury Employees Union, the
exclusive representative of a unit or our employees, furnish it with the
names and home addresses of all employees in the bargaining unit it
represents.
(Activity)
Dated:
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, N.W., Room 700, P.O. Box 33758, Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 3-CA-60332
DEPARTMENT OF TREASURY BUREAU OF
ENGRAVING AND PRINTING
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
David Scholl, Esq.
For the General Counsel
Brian Mellor
For the Charging Party
Suzanne Wilson, Esq.
For the Respondent
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
section 7101, et seq., (hereinafter called the Statute) and the Rules
and Regulations issued thereunder. Pursuant to a charge originally
filed on May 23, 1986 and amended on June 16, 1986 and again on August
25, 1986 by the National Treasury Employees Union, (hereinafter called
the Union or NTEU), a Complaint and Notice of Hearing was issued on
August 29, 1986 by the Regional Director for Region III, Federal Labor
Relations Authority, Washington, D.C. The Complaint alleges that the
Department of Treasury, Bureau of Engraving and Printing, (hereinafter
called the Respondent or BEP) violated section 7116(a)(1), (5) and (8)
of the Statute by failing and refusing to furnish the Union the names
and home addresses of all employees within the appropriate bargaining
unit. /1/
A hearing was held in the above-captioned matter on December 3, 1986,
in Washington, D.C. At the beginning of the hearing the General Counsel
introduced formal documents consisting of the charge and amended
charges; the Complaint and Respondent's Answer thereto; four Joint
Exhibits consisting of the Union's request for the names and home
addresses of bargaining unit employees; Respondent's refusal to furnish
same; a request for information/General Schedule (GS) Positions which
was a list of names of employees in General Schedule positions; and, a
circular concerning distribution of paychecks and U.S. Savings Bonds.
On the basis of the foregoing documents and the Authority's recent
decision in Farmer's Home Administration Finance Office, St. Louis,
Missouri, 23 FLRA 101 (1986), the General Counsel moved for summary
judgment. The Union subsequently joined in the General Counsel's
motion. Prior to ruling on the motion, the undersigned requested
Respondent's position on the motion. Whereupon, Respondent's Counsel
asserted that it was under no obligation to supply the names and home
addresses of bargaining unit members because (1) the information as
requested by the Union is not normally maintained by the agency and its
extraction and presentation in the form requested by the Union would be
unduly burdensome; (2) the Union had adequate alternate means of
communication with bargaining unit employees; (3) the disclosure of the
requested information would violate the provisions of the Privacy Act,
and Freedom of Information Act; and, (4) the names and home addresses
may not be released under the Office of Personnel Management's "routine
use" provision covering the release of information to labor
organizations. Since inquiry as to whether the requested information is
normally maintained by the agency in the regular course of business is
necessary to determine consistency with section 7114(b)(4), Respondent
was permitted to present evidence on that issue. However, Respondent's
offer of proof as to adequate alternate means of communication was
rejected because Farmers Home Administration, supra, made it clear that
the mere existence of alternative means of communication is insufficient
justification for denying a Union's request for the requested
information. Respondent offered no evidence concerning its remaining
positions. The motion for summary judgment was taken under advisement
and a briefing date set.
The General Counsel made a closing statement in lieu of a brief.
Thereafter, Respondent and the Union submitted timely post-hearing
briefs.
Upon the basis of the described record, including my observation of
the witness and her demeanor, I make the following findings of fact,
conclusions, and recommendations.
Findings of Fact
1. The Union is the exclusive representative of Respondent's
employees "in an appropriate bargaining unit consisting of all general
schedule, non-supervisory employees . . . as certified by the Area
Director of Labor Management Services Administration on May 25, 1977."
2. By letter dated April 16, 1986, the Union requested that
Respondent furnish it with the names and home addresses of all unit
employees within the bargaining unit.
3. The requested names of bargaining unit employees are normally
maintained by Respondent in the regular course of business, is
reasonably available, and does not constitute guidance, counsel or
training provided for management officials or supervisors relating to
collective bargaining. The above information was contained in several
sets of records, such as the Official Personnel Folder; Computerized
Personnel Information; Treausry's Payroll System, and other automated
data bases. Respondent's witness Ms. Joanne Simms, Acting Manager of
the Employee Relations Division, Office of Industrial Relations
testified that a number of operations in several of the records systems
would be required in order to extract the requested data and that she
"had been told by BEP's data processing personnel that such a process
would take two weeks time."
4. By letter dated May 6, 1986, Respondent refused to furnish the
Union the names and home addresses of bargaining unit employees.
Conclusions
In its brief, Respondent merely takes the position that the Authority
"wrongly decided" Farmers Home Administration, supra, and that the
original Farmers Home Administration, 19 FLRA No. 21 (1985), which
supports its view should be applied in this matter. In so doing
Respondent argues that it rejects the findings of American Federation of
Government Employees, Local 1760 v. FLRA, 786 F.2d 344 (2nd Cir. 1986),
and relies on American Federation of Government Employees, Local 1923,
United States Department of Health and Human Services, 712 F.2d 931 (4th
Cir. 1983) as supporting its position herein. As an Administrative Law
Judge, I am constrained to follow existing agency precedent and
consequently must apply case law as decided by the Authority.
I find, in agreement with the General Counsel that Farmers Home
Administration, supra, is dispositive of all Respondent's contentions
and defenses raised in this matter. Contrary to Respondent's arguments
the Authority held in the above case that the release of the names and
home addresses of bargaining unit employees is not prohibited by law and
"even if the disclosure was not authorized by exception (b)(2) of the
Privacy Act, relating to the FOIA, it is authorized under exception
(b)(3)" which permits disclosure as a "routine use."
With regard to whether or not the information sought was normally
maintained by Respondent, the Authority found information contained in
Official Personnel Files and Computer files, such as here, met the
meaning of "normally maintained by the agency in the regular course of
business" under section 7114(b)(4) of the Statute. Further, information
which was kept in a computer file was found by the Authority to be
reasonably "available." While Respondent argues that obtaining the
information would be "burdensome" the evidence offered by it does not
establish burdensomeness. Moreover, Farmers Home Administration case,
supra, seemingly forecloses argument concerning the "burdensome" aspect
as argued herein, see infra, p. 5.
Concerning whether the information was necessary the Authority citing
section 7114(a)(1) of the Statute stated that "a union's statutory
responsibilities extends to all bargaining unit members. It is obvious
that a union must be able to identify and communicate with those
bargaining unit members if it is to adequately represent them."
With respect to Respondent's argument that adequate alternate means
of communication must be considered, the Authority stated, "it is not
necessary for us to examine the adequacy of alternative means in cases
involving requests for names and home addresses because the
communication between unit employees and their exclusive representative
which would be facilitated by release of names and home addresses
information is fundamentally different from other communication through
alternative means which are controlled in whole or in part by the
agency." So different in fact that the Authority found they should be
provided "whether or not alternative means of communication are
available." Such language makes it quite plain that an evidentary
excursion into what alternative means of communication are available
would be unwarranted.
The Authority's decision also makes it clear that in order to rebut
the presumption of relevance of names and home addresses, strong
evidence such as that leading to a conclusion that disclosure would
result in imminent danger if the union knew where employees lived, would
be necessary. Such a finding places a heavy burden of persuasion on a
respondent, which in my opinion, is not met by evidence presented here
that it would take a few weeks to compile the names and home addresses.
Accordingly, based on Farmers Home Administration, supra, it is found
that the Respondent's refusal to furnish the Union with the names and
home addresses of bargaining unit employees constituted a violation of
section 7116(a)(1), (5) and (8) of the Statute. /2/
Having found that Respondent violated the Statute by refusing to
supply the Union the names and home addresses of the bargaining unit
employees, it is hereby 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 Federal
Service Labor-Management Relations Statute, 5 U.S.C. section 7118, it is
ordered that the Department of Treasury, Bureau of Engraving and
Printing:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Treasury
Employees Union, the exclusive representative of its employees,
the names and home addresses of all bargaining 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, furnish the names and home addresses of all
bargaining unit employees to the National Treasury Employees Union
the exclusive representative or our employees.
(b) Post at Department of Treasury, Bureau of Engraving and
Printing, copies of the attached Notice on forms to be furnished
by the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by a responsible official of the
Department of Treasury and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken 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 Regional Director of Region III, Federal
Labor Relations Authority, 1111 - 18th Street, N.W., Suite 700,
P.O. Box 33758, Washington, D.C. 20033-0758, in writing, within 30
days from the date of this Order, as to what steps have been taken
to comply herewith.
/s/ ELI NASH, JR.
Administrative Law Judge
Dated: January 8, 1987
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) At the hearing the General Counsel amended the Complaint in
paragraphs 1(b) and 5(a).
(2) In view of this disposition it is unnecessary to pass on the
General Counsel's and Charging Party's Motion For Summary Judgment.
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 to furnish, upon request of the National Treasury
Employees Union, the exclusive representative of our employees, the
names and home addresses of all bargaining unit employees in the
Department of Treasury, Bureau of Engraving and Printing.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL upon request furnish the names and home addresses of all
bargaining unit employees to the National Treasury Employees Union the
exclusive representative of our employees.
(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 III,
whose address is: 1111 - 18th Street, N.W., Room 700, P.O. Box 33758,
Washington, D.C. 20033-0758, and whose telephone number is: (202)
653-8452.