[ v27 p119 ]
27:0119(23)CA
The decision of the Authority follows:
27 FLRA No. 23
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, REGION IX,
SAN FRANCISCO, CALIFORNIA
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION
Charging Party
Case No. 9-CA-60369
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint and recommending
that the Respondent be ordered to take appropriate remedial action.
Thereafter, the Respondent filed exceptions to the Judge's Decision.
/1/ The General Counsel and Charging party filed oppositions to the
exceptions. /2/
Pursuant to section 2423.29 of the Authority's Rules and section 7118
of the Federal Service Labor-Management Relations Statute (the Statute),
we have reviewed the rulings of the Judge made at the hearing and find
that no prejudicial error was committed. The rulings are hereby
affirmed. Upon consideration of the Judge's Decision, the exceptions,
and the entire record, we adopt the Judge's findings, conclusions and
recommended Order.
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 Health and Human Services, Region IX, San
Francisco, California, shall:
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 located at its
Region IX offices in San Francisco, California.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of 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 its employees, furnish it with the names and
home addresses of all bargaining unit employees located at its Region IX
offices in San Francisco, California.
(b) Post at all its facilities of its Region IX offices in San
Francisco, California, 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 a senior
official of the Department of Health and Human Services, Region IX, San
Francisco, California, 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 ensure that such
Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with this Order.
Issued, Washington, D.C., May 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 located at our
Region IX offices in San Francisco, California.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of 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 our employees, furnish it with the names and
home addresses of all bargaining unit employees located at our Region IX
offices in San Francisco, California.
(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 IX, Federal Labor Relations Authority, whose address
is: 901 Market Street, Suite 220, San Francisco, California 94103, and
whose telephone number is: (415) 995-5000.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 9-CA-60369
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
REGION IX SAN FRANCISCO, CALIFORNIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Judith E. Scherr, Esq.
For the Respondent
Andrew R. Krakoff, Esq.
For the Charging Party
James Sable, Esq.
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region IX, Federal Labor Relations Authority, San
Francisco, California against the Department of Health and Human
Services, Region IX, San Francisco, California (Respondent), based on a
charge filed by the National Treasury Employees Union (NTEU or Union).
The complaint alleged, in substance, that Respondent violated section
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. Section 7101 et. seq. (the Statute). The
complaint alleged that Respondent failed to comply with the provisions
of section 7114(b)(4) by refusing to provide the Union the names and
home addresses of all employees in the unit.
Respondent's answer admitted the jurisdictional allegations as to
Respondent, the Union, and the charge, and that it had refused to
furnish the names and addresses, but denied that the data fell within
the provisions of section 7114(b)(4) and that it had violated the
Statute.
A hearing was held in San Francisco, California. The Respondent,
Charging Party, and the General Counsel were represented by counsel and
afforded full opportunity to be heard. The parties agreed to a
stipulation of fact, and exhibits of the General Counsel and Joint
Exhibits were also received without objection. Counsel for the General
Counsel moved for summary judgment. The parties argued the motion. It
appearing that there were no issues of material fact and that the
General Counsel was entitled to summary judgment as a matter of law, the
motion was granted with appropriate written findings and conclusions to
follow in this decision.
Based on the entire record, I make the following findings of fact,
conclusions of law, and recommendations.
Findings of Fact
The following facts are found as stipulated by the parties:
1. That at all times material herein, the Union has been
certified as the exclusive representative of an appropriate unit
within the meaning of Section 7112 of the Statute, herein called
the Unit, of the following employees of Respondent:
Included: All professional/nonprofessional employees of the
Department of Health and Human Services, Region IX, located in San
Francisco, California.
Excluded: All Field or District Office employees, Social
Security Administration employees under the Assistant Commissioner
for Field Operations, employees in the 'Stay in School' Program,
Commissioned Officers of the Public Health Service, Social
Security Administration employees under the Assistant Regional
Commissioner for Field Assessment, guards, management officials,
employees engaged in federal personnel work in other than a purely
clerical capacity, and supervisors.
2. At all times material herein, Judith E. Scherr has occupied
the position of Respondent's Labor Relations Officer, and is now,
and has been at all times material herein, a supervisor and/or
management official of Respondent within the meaning of Section
7103(a)(10) and/or (11) of the Statute, respectively, and has been
an agent of Respondent.
3. At all times material herein, Andrew R. Krakoff has
occupied the position of the Union's National Counsel and is now,
and has been at all times material herein, an agent of the Union.
4. That by letter dated July 16, 1986, which is Joint Exhibit
No. 1 in the instant matter, the Union requested the names and
home addresses of all employees in the unit.
5. That by letter dated July 23, 1986, the Respondent, by
Judith Scherr in Joint Exhibit No. 2, furnished the Union with a
list of employees in the unit, but refused to furnish the Union
with the home addresses of employees in the unit.
6. That since July 23, 1986, and continuing to date,
Respondent has failed and refused to provide the Union with the
home addresses which it requested, as described previously.
7. The information requested by the Union in Joint Exhibit No.
1 constitutes data within the meaning of Section 7114(b)(4) of the
Statute. It is normally maintained by Respondent in the regular
course of its business, and is reasonably available within the
meaning of Section 7114(b)(4) of the Statute, and it does not
constitute guidance, advice, counsel or training provided to
management officials or supervisors relating to collective
bargaining.
8. The parties agree that the formal documents and the
stipulations of fact in the instant matter constitute the entire
record in this case, and no oral testimony is necessary or desired
by any of the parties.
9. This stipulation is made without any prejudice to any
objection that any party may have as to the relevance or
materiality of any facts stated herein.
The Union's request of July 16, 1986, Joint Exhibit 1, stated, in
part, that the names and home addresses of all bargaining unit employees
"is necessary to both prepare for and better communicate with bargaining
unit pending the negotiation of the NTEU-Region IX collective bargaining
agreement. It is imperative that both before and during the important
event that we be able to communicate directly with our bargaining unit
members."
Respondent's reply of July 23, 1986, Joint Exhibit 2, stated, in
part, that "a balancing of the rights of the Union and the individual
employees is necessary to determine whether the release of home
addresses would constitute a clearly unwarranted invasion of privacy."
Respondent also asserted that the Union's stated reasons did not
establish that home addresses are necessary in order for the Union to
fulfill its representational responsibilities in negotiations.
Respondent also questioned whether release of such data is prohibited by
law.
Conclusions of Law
The General Counsel takes the position that the Authority's decision
in Farmers Home Administration Finance Office, St. Louis, Missouri, 23
FLRA No. 101 (1986), (FHAFO), appeal docketed sub nom. U.S. Department
of Agriculture and the Farmers Home Administration Finance Office, St.
Louis, Missouri v. FLRA, No. 86-2579 (8th Cir., Dec. 23, 1986) is
dispositive of Respondent's defenses.
Respondent's position is that the release of the home addresses would
constitute a violation of the Privacy Act; the information is not
necessary and relevant; and it must respectfully decline to follow the
Authority's FHAFO decision dealing with these issues pending disposition
of the appeal.
In agreement with the General Counsel, I find that the Authority's
decision in FHAFO is dispositive of all of Respondent's contention and
defenses. The Authority concluded 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). Accordingly, consistent with the
Authority's decision in FHAFO, Respondent's refusal to provide the Union
with the home addresses sought in this case violated section 7116(a)(1),
(5) and (8) of the Statute, as alleged.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Department of Health and Human
Services, Region IX, San Francisco, California shall:
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 employees in the bargaining
unit it represents.
(b) In any like or related manner, interfering with,
restraining, or coercing 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 by the National Treasury Employees Union, the
exclusive representative of its employees, furnish it with the
names and home addresses of all employees in the bargaining unit
it represents.
(b) Post at 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
Authority. Upon receipt of such forms, they shall be signed by a
senior official of the Department of Health and Human Services,
Region IX, San Francisco, California 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 ensure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations notify the Regional Director, Region IX, Federal Labor
Relations Authority, San Francisco, California, in writing, within
30 days from the date of this order, as to what steps have been
taken to comply herewith.
/s/ GARVIN LEE OLIVER
Administrative Law Judge
Dated: March 24, 1987
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The Respondent also submitted a "Reply Memorandum Supporting
Respondent's Exceptions." There is no provision in our Rules for such a
document and Respondent made no attempt to seek permission for filing
its memorandum under Section 2429.26 of our Rules. The reply was not
considered.
(2) The General Counsel sought dismissal of the exceptions for
failure to comply with section 2423.27(a)(3) of our Rules, which
requires precise citation of the page(s) in the record relied on. We
have determined that the exceptions raised by the Respondent do not
require specific reference to the record, and thus citation of page
numbers is not necessary. Accordingly, the General Counsel's opposition
does not preclude consideration of the Respondent's exceptions.
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 employees in the bargaining unit it
represents.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request by the National Treasury Employees Union, the
exclusive representative of our employees, furnish it with the names and
addresses of all employees in the bargaining unit it represents.
(Agency of 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 IX,
whose address is: 901 Market Street, Suite 220, San Francisco, CA
94103, and whose telephone number is: (415) 995-5000.