[ v27 p409 ]
27:0409(58)CA
The decision of the Authority follows:
27 FLRA No. 58
U.S. FOOD AND DRUG
ADMINISTRATION, REGION VII
KANSAS CITY, MISSOURI
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 217
Charging Party
Case No. 7-CA-60471
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.
The General Counsel filed an opposition to the exceptions.
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 findings and conclusions of the Judge and find that
no prejudicial error was committed. The findings 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 U.S. Food and Drug Administration, Region VII, Kansas City,
Missouri, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Treasury
Employees Union, and National Treasury Employees Union, Chapter
217, the exclusive representative of its employees, the names and
home addresses of all bargaining unit employees located in its
Regional Office and Field Offices in Region VII.
(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, and
National Treasury Employees Union, Chapter 217, the exclusive
representative of its employees, furnish it with the names and
home addresses of all bargaining unit employees located in its
Regional Office and Field Offices in Region VII.
(b) Post at all its facilities of its Regional Office and Field
Offices in Region VII, where bargaining unit employees represented
by the National Treasury Employees Union and National Treasury
Employees Uion, Chapter 217 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 Regional Director, Region VII, U.S. Food and Drug
Administration, Kansas City, Missouri, 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 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
with this Order.
Issued, Washington, D.C., June 16, 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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National Treasury
Employees Union, and National Treasury Employees Union, Chapter 217 the
exclusive representative of our employees, the names and home addresses
of all bargaining unit employees located in our Regional Office and
Field Offices in Region VII.
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, and
National Treasury Employees Union, Chapter 217, the exclusive
representative of our employees, furnish it with the names and home
addresses of all bargaining unit employees located at our Regional
Office and Field Offices in Region VII.
(Activity)
By: (Signature) (Title)
Dated:
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 VII, Federal Labor Relations Authority, whose address
is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose
telephone number is: (303) 837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 7-CA-60471
U.S. FOOD AND DRUG ADMINISTRATION, REGION VII
KANSAS CITY, MISSOURI
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
and
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 217
Charging Party
Joseph Swerdzewski, Esquire
For the General Counsel
Paul P. Cacioppo, Esquire
Kristi A. Schmidt, Esquire
For the Respondent
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This matter, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns the refusal of
Respondent to furnish, pursuant to Section 7114(b)(4) of the Statute, a
list of bargaining unit employees and their home addresses, and is
before me on the cross motions of the parties for summary judgment.
This proceeding was initiated by a charge filed on June 23, 1986
(G.C. Exh. 1(a)); the Complaint and Notice of Hearing issued on August
27, 1986 (G.C. Exh. 1(b)), alleged violations of Sections 7116(a)(1),
(5) and (8) as the result of Respondent's failure and refusal to provide
the requested names and home addresses, and set the hearing for November
18, 1986. By Order dated September 12, 1986, the date of hearing was
rescheduled for December 9, 1986. On December 2, 1986, General Counsel
filed with the Regional Director for Region VII a Motion For Summary
Judgment which, by Order dated December 2, 1986, was transferred,
pursuant to Section 2423.22(b)(1) of the Regulations, 5 C.F.R. Section
2423.22(b)(1), to this Office for disposition. The Regional Director's
Order Transferring Motion For Summary Judgment was received by this
Office on December 5, 1986, and duly assigned to the undersigned. In
the meantime, by Order dated December 4, 1986, the hearing, scheduled
for December 9, 1986, was indefinitely postponed.
By Order dated December 8, 1986, Respondent having filed a timely
motion for extension of time to respond to General Counsel's Motion For
Summary Judgment, the time for Respondent to respond was extended to
December 19, 1986, and General Counsel and the Charging Party were given
leave to file a reply to any timely response filed by Respondent on, or
before, December 30, 1986. Respondent timely mailed its Motion For
Summary Judgment on December 19, 1986, received on December 24, 1986;
and General Counsel timely mailed an Opposition To Cross Motion For
Summary Judgment on December 30, 1986, received on January 5, 1987.
Findings and Conclusions
A. Union's Request and Respondent's Denial
National Treasury Employees Union, Chapter 217 (hereinafter referred
to as "NTEU") is the certified exclusive representative for the
following unit:
"All professional and non-professional General Schedule and
Wage Grade employees employed by the Regional Office and Field
Offices of the U.S. Food and Drug Administration, Region VII,
Kansas City, Missouri, excluding management officials,
supervisors, and employees described in 5 USC 7112(b)(2), (3),
(4), (6) and (7)." (Complaint, G.C. Exh. 1(b), Par. 4; admitted,
Answer, G.C. Exh. 1(c)).
By letter dated May 28, 1986, NTEU requested the names and home
addresses of all bargaining unit employees stating, in part, as follows:
". . . Consequently for the purpose of surveying bargaining
unit employees for these upcoming negotiations, NTEU requests the
names and home addresses of all . . . FDA, Region VII bargaining
unit employees." (G.C. Exh. 3). (See, also NTEU's letter dated
June 2, 1986, G.C. Exh. 4).
By letter dated June 12, 1986 (G.C. Exh. 5), Respondent denied NTEU's
request for home addresses of unit employees. Respondent conceded,
however, that home addresses are normally maintained in the regular
course of business in each employee's Official Personnel Folder (OPF),
although, it asserted, ". . . there is no requirement (by employees) to
supply this information or to update the record when an address changes.
. . ." (G.C. Exh. 5); and in its central payroll system, although it
asserted that there was no assurance that central payroll, because of
staff shortages, could timely respond to a request for home addresses
(G.C. Exh. 5). There are 112 employees in the bargaining unit, 45 of
whom are dues paying members of the Union (Memorandum In Support of
Respondents' Motion For Summary Judgment And In Reply To The General
Counsel's Motion For Summary Judgment, p. 9) (hereinafter referred to
"Res. Mem." or "Memorandum"). In its letter of June 12, 1986,
Respondent asserted it would require ". . . an estimated 12-15 days of
staff time" to retrieve the home addresses from the OPFs. /*/
B. No Dispute As To Any Material Fact
Although Respondent in its Answer to the Complaint denied the
allegations of Paragraph 6(b), "The information . . . is normally
maintained by Respondent in the regular course of business" (G.C. Exh.
1(c)) it is clear from Respondent's reply to NTEU that it does in fact
maintain home addresses in the regular course of business. In like
manner, Respondent in its Answer denied the allegation of Paragraph 6(c)
of the Complaint, "The information . . . is readily available. . . ."
(G.C. Exh. 1(c)); but it is also clear from Respondent's reply to NTEU
that the information is, in fact, readily available from either the OPFs
or from its Central Payroll System, notwithstanding that, as Respondent
asserted to NTEU, and General Counsel does not deny, retrieval from OPFs
would require staff time and there was no assurance that Central Payroll
could timely supply home addresses.
Moreover, General Counsel in his Motion For Summary Judgment
specifically stated that,
"10. The names and home addresses of bargaining unit employees
are maintained by Respondent in the bargaining unit employees'
official personnel files and in the Respondent's Central Payroll
System. (Exhibit 5)"
Respondent, in its Memorandum neither disputed General Counsel's
statement that the names and home addresses are maintained in employee
personnel files and the Central Payroll System nor did it even assert
that such data was not normally maintained by it in the regular course
of business or that it was not reasonably available.
Finally, Respondent by filing a Cross Motion For Summary Judgment
necessarily represents that there are no disputed material facts. This
is underscored by Respondent's statement that it accepts, ". . . the
General Counsel's statement of the case . . . with respect to the
chronology of events leading to the filing. . . ." of the unfair labor
practice charge. (Res. Mem., p. 1).
As there are no material facts in dispute, this matter is appropriate
for decision by summary judgment.
C. General Counsel's Motion For Summary Judgment Must Be Granted and
Respondent's Motion For Summary Judgment Must be Denied
Section 7114(b)(4) of the Statute imposes a duty on an agency to
furnish the exclusive 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 collecting bargaining. . . ." (5 U.S.C. Section
7114(b)(4)(A), (B) and (C)).
Respondent normally maintains the home addresses of bargaining unit
employees in the regular course of business; Respondent admits that
such data does not constitute guidance, advice, counsel or training
provided for management officials or supervisors, relating to collective
bargaining (G.C. Exh. 1(c), Par. 6(d)); and, even though Respondent in
its Reply to General Counsel's Motion For Summary Judgment does not
assert or deny that the home addresses are "reasonably available", in
any event, the Authority has held that home addresses are reasonably
available even if they must be extracted, inter alia, from official
personnel files (OPFs), as could be true here, or from a computer file,
as also could be ture here. Farmers Home Administration Finance Office,
St. Louis, Missouri, 23 FLRA No. 101, 23 FLRA 788 (1986) (hereinafter
referred to as "Farmers Home Administration"); Defense Mapping Agency
Aerospace Center, St. Louis, Missouri, 24 FLRA No. 5, 24 FLRA 43 (1986)
(hereinafter referred to as "Defense Mapping"); Social Security
Administration, Northeastern Program Service Center, 24 FLRA No. 13, 24
FLRA 108 (1986) (hereinafter referred to as "Northeastern Program").
Of course, as Respondent concedes the Authority in Farmers Home
Administration, supra, held that Section 7114(b)(4), ". . . requires
disclosure of bargaining unit employees' names and home addresses."
(Res. Mem., p. 2). In Farmers Home Administration, supra, and in
numerous subsequent like decisions, including: Philadelphia Naval
Shipyard, 24 FLRA No. 4, 24 FLRA 37 (1986); Defense Mapping, supra;
Northeastern Program, supra; Department of the Air Force, Scott Air
Force Base, Illinois, 24 FLRA No. 28 FLRA 226 (1986); Department of
Health and Human Services, Social Security Administration, 24 FLRA No.
60, 24 FLRA 543 (1986); Department of Health and Human Services, Social
Security Administration and Social Security Administration Field
Operations, New York Region, 24 FLRA No. 62, 24 FLRA 583 (1986), the
Authority held that disclosure of home addresses was not prohibited by
law and was necessary for full and proper discussion, understanding, and
negotiation of subjects within the scope of collective bargaining. The
Authority held that, ". . . the mere existence of alternative means of
communication is insufficient to justify a refusal to release the
information"; that ". . . the communication between unit employees and
their exclusive representative which would be facilitated by release of
names and home address information is fundamentally different from other
communication through alternative means which are controlled in whole or
in part by the agency . . . we find that the names and home addresses of
unit employees are necessary and should be provided whether or not
alternative means of communication are available." (23 FLRA at 796-797).
The Authority further held that, "On balance, we find that the public
interest to be furthered by providing the Union with an efficient method
to communicate with unit employees it must represent far outweighs the
privacy interests of individuals in their names and home addresses.
Disclosure . . . would not constitute a clearly unwarranted invasion of
personal privacy and does not fall within the (b)(6) exemption of FOIA.
Since the information does not fall within the exemption, its disclosure
is required under the FOIA and, under exception (b)(2) to the Privacy
Act, its release is not prohibited by law . . . we conclude that the
disclosure of the names and home addresses . . . is necessary within the
meaning of section 7114(b)(4) of the Statute for the Union to discharge
its statutory obligations. Consistent with that conclusion, we find
that disclosure . . . falls within the routine use established by OPM,
and its disclosure is therefore a routine use under exception (b)(3) of
the Privacy Act. Therefore, even if the disclosure was not authorized
under exception (b)(2) of the Privacy Act, relating to the FOIA, it is
authorized under exception (b)(3)" (23 FLRA at 793-794).
Respondent's argument that disclosure of home addresses is prohibited
by the Privacy Act (Res. Mem., p. 2) rejected by the Court of Appeals
for the Second Circuit, American Federation of Government Employees,
Local 1760 v. Federal Labor Relations Authority, 786 F.2d 554 (2d Cir.
1986), (hereinafter referred to as "Local 1760") has been considered at
length by the Authority and rejected. The Authority, as set forth
above, further concluded, inter alia, ". . . that the public interest to
be furthered by providing the Union with an efficient method to
communicate with unit employees it must represent far outweighs the
privacy interests of individuals in their names and home addresses";
and that ". . . the communication between unit employees and their
exclusive representative which would be facilitated by release of names
and home address information is fundamentally different from other
communication through alternative means which are controlled in whole or
in part by the agency . . . that the names and home addresses of unit
employees are necessary and should be provided whether or not
alternative means of communication are available." In so concluding, the
Authority acted consistently with relevant case law. Respondent's
argument that the routine use exception to the Privacy Act does not
allow disclosure of home addresses (Res. Mem. p. 11) was considered at
length by the Authority in Farmers Home Administration and was rejected.
Moreover, while the Court of Appeals in Local 1760, supra, did not
reach the "routine use" exemption (5 U.S.C. Section 552a(b)(3), it held
that exception (b)(2) of the Privacy Act authorizes release of
information obtainable under the Freedom of Information Act; that
section (b)(6) of the FOIA does not permit release of data contained in
personnel files if release "would constitute a clearly unwarranted
invasion of personal privacy"; that disclosure of home addresses was
not a "clearly unwarranted" invasion of personal privacy; and that
"release of the employees' addresses is not 'prohibited by law' within
the meaning of the Statute, 5 U.S.C. Section 7114(b)(4)." (786 F.2d at
557). Consequently, it would avail Respondent nought even if disclosure
were not authorized under exception (b)(2) of the Privacy Act, because,
as the Authority has held, names and addresses may be released pursuant
to either exception (b)(2) or (b)(3) of the Privacy Act. Finally,
Respondent's argument that even if the Privacy Act does not prohibit
disclosure of home addresses, disclosure is not required by 5 U.S.C.
7114(b)(4) (Res. Mem. p. 12) has been rejected by the Authority which
held that, ". . . disclosure of the names and home addresses of
bargaining unit employees to the Union is necessary within the meaning
of section 7114(b)(4) of the Statute for the Union to discharge its
statutory obligations." (23 FLRA at 794).
Therefore, Respondent's Motion For Summary Judgment is denied and
General Counsel's Motion For Summary Judgment is granted. Respondent's
refusal to furnish the requested information constituted a violation of
Sections 7116(a)(1), (5) and (8) of the Statute. Accordingly, it is
recommended that the Authority adopt the following:
ORDER
Pursuant to Section 2423.29 of the Authority's Rules and Regulations,
5 C.F.R. Section 2423.29, and Section 18 of the Statute, 5 U.S.C.
Section 7118, the Authority hereby orders that the U.S. Food and Drug
Administration, Region VII, Kansas City, Missouri, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the National Treasury
Employees Union, Chapter 217, the exclusive representative of its
employees, the home addresses of all employees in the bargaining
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,
Chapter 217, the exclusive representative of its employees,
furnish it with the home addresses of all employees in the
bargaining unit it represents.
(b) Post at its facilities at Kansas City, Missouri, Missouri,
and at each of its facilities in Region VII where members of the
bargaining unit 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,
U.S. Food and Drug Administration, Region VII 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, 5 C.F.R. Section 2423.30, notify the Regional
Director, Region VII, Federal Labor Relations Authority, 535 16th
Street, Suite 310, Denver, CO 80202, in writing, within 30 days
from the date of this Order, as to what steps have been taken to
comply herewith.
/s/ WILLIAM B. DEVANEY
Administrative Law Judge
Dated: March 31, 1987
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) I am fully aware that this estimate of staff time also
encompassed the time for 221 Department of Health and Human Services,
Region VII, Kansas City, Missouri, employees for whom the Union had also
requested home addresses, i.e., the time estimate covered a total of 333
OPFs.
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 to furnish, upon request by the National Treasury
Employees Union, Chapter 217, the exclusive representative of our
employees, the 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 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,
Chapter 217, the exclusive representative of our employees, furnish it
with the home addresses of all employees in the bargaining unit it
represents.
(Agency or Activity)
By: (Signature)
Dated:
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 VII,
whose address is: 535 16th Street, Suite 310, Denver, CO 80202, and
whose telephone number is: (303) 837-5224.