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28 FLRA No. 132

DEPARTMENT OF THE NAVY
AND WASHINGTON NAVY YARD

               Respondents

      and

WASHINGTON AREA METAL
TRADES COUNCIL, AFL-CIO

               Charging Party

Case No. 3-CA-70248

DECISION AND ORDER

I. Statement of the Case

This matter is before the Authority under section 2429.1(a) of our Rules and Regulations based on the parties' stipulation of facts. The complaint alleges that the Respondent Department of the Navy violated section 7116(a)(1), (5), and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by interfering with the bargaining relationship between Headquarters, Naval District of Washington, D.C., Washington Navy Yard and the Charging Party by directing the Navy Yard to refuse the Charging Party's request for the names and home addresses of bargaining unit employees. The complaint alleges further that the Respondent Washington Navy Yard violated section 7116(a)(1), (5), and (8) of the Statute by its refusal. The Respondents and the General Counsel filed briefs.

For the reasons stated below, we find that the Respondent Washington Navy Yard has committed the unfair labor practice alleged, but that the complaint against the Respondent Department of the Navy should be dismissed.

II. Facts

The Washington Area Metal Trades Council (MTC), AFL - CIO, is the exclusive representative of a unit of ungraded employees within the Headquarters, Naval District of Washington, D.C., assigned to various duty stations in the [PAGE] Washington, D.C., metropolitan area, including the Navy Yard. By letter dated January 23, 1987, MTC requested the names and home addresses of the bargaining unit employees. By letter dated March 2, 1987, the Navy Yard refused to furnish the MTC with the data it requested. The letter stated that the denial was based on the position of the Department of the Navy that the request was contrary to law.

In a letter dated May 4, 1987, the Department of the Navy issued guidance to its Regional Heads, Labor and Employee Relations concerning the release of employees' home addresses. The letter stated that the Navy's position was not to prohibit activities from releasing employees' home addresses; rather, the Navy strongly advised that home addresses should not be furnished to unions unless the balancing test, applied prior to the Authority's decision on remand in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986) (Farmers Home), petition for review filed sub nom. U.S. Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86-2579 (8th Cir. Dec. 23, 1986), has been satisfied. The letter noted, however, that no directive had been issued requiring that this guidance be followed.

The parties stipulated that the data requested is normally maintained by the Navy Yard in the normal course of business; is reasonably available and necessary; and does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining.

III. Positions of the Parties

A. The Respondents

The Respondents contend that although it is the position of the Department of the Navy that our decision on remand in Farmers Home is incorrect as a matter of law, the Navy Yard was not compelled to adhere to this position in a mandatory, nondiscretionary manner. Therefore, the Respondents assert that the Respondent Department of the Navy did not interfere with the bargaining relationship existing between the Navy Yard and the MTC and thus did not violate the Statute.

With respect to the Respondent Washington Navy Yard, it is conceded by the Respondents that our decision on remand in Farmers Home is dispositive of this case. However, the Respondents disagree with our rationale. The Respondents assert that the routine disclosure of the information requested is prohibited by law, specifically the Privacy Act, 5 U.S.C. SS 552a. In this regard, the Respondents argue that [ v28 p2 ] the disclosure of employees' home addresses constitutes an unwarranted invasion of employees' privacy and thus the data may not be disclosed. The Respondents also assert that the MTC's request is not relevant and necessary to its representational function.

B. General Counsel

The General Counsel asserts that our decision on remand in Farmers Home is dispositive of this case. The General Counsel argues that the Respondent Department of the Navy should be held to have violated section 7116(a)(1), (5) , and (8) by directing the Navy Yard to refuse the MTC's request and thereby interfering with the bargaining relationship between the MTC and the Navy Yard. Alternatively, the General Counsel alleges that the Respondent Washington Navy Yard violated section 7116 (a) (1), (5), and (8) based on its refusal to furnish the MTC with the requested data.

IV. Analysis and Conclusions

In our decision on remand in Farmers Home, we held that the release of 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 of section 7114(b)(4). Our decision in Farmers Home analyzed the two exceptions to the Privacy Act's bar to disclosure of personal information pertinent to the release of employees' names and home addresses: exception (b)(2), concerning the Freedom of Information Act, and exception (b)(3), relating to "routine use" of information. We found that both exceptions to the Privacy Act's bar applied so as to authorize release of the information under the Privacy Act. We also determined that the release of the information is generally required without regard to whether alternative means of communication are available. Further, from the parties' stipulation, it is evident that the other requirements of section 7116(b)(4)(A), (B), and (C) have been met.

Based on the parties' stipulation and our decision on remand in Farmers Home, we find that the Respondent Washington Navy Yard was required to furnish the MTC with the names and home addresses of the employees in the bargaining unit. Its refusal to do so violated section 7116(a)(1), (5), and (8) of the Statute.

However, we conclude that the General Counsel has not established that the Respondent Department of the Navy violated section 7116(a)(1), (5), and (8) of the Statute by [ v28 p3 ] requiring the Navy Yard to refuse to furnish the data. This allegation was based on the reference in the March 2 letter denying the MTC's request stating that the refusal was based on the Department of the Navy's position concerning the furnishing of this information. The stipulated record does not establish that this reference to Department of Navy policy was based on a specific directive of the Department of the Navy that its subordinate levels were required to follow. Furthermore, the Respondent Department of the Navy asserts that its position regarding furnishing names and home addresses was advisory, and that no subordinate level was required to follow this advice. The May 4 letter of guidance supports this assertion.

We have long held that higher level management would be held responsible for requiring management at the level of recognition to follow its directions. See, for example, United States Department of Defense, United State Department of the Navy, Washington, D.C., 28 FLRA No. 112 (1987). However, as the General Counsel has not established that the Navy Yard's refusal was directed by the Respondent Department of the Navy, we conclude that the General Counsel has not met its burden of proof. Therefore, we shall order that this aspect of the complaint be dismissed.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Washington Navy Yard shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the Washington Area Metal Trades Council, AFL - CIO, the exclusive representative of its employees, the names and home addresses of all unit employees located at the Washington Navy Yard.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Furnish the Washington Area Metal Trades Council, AFL - CIO, the exclusive representative of its employees, with the names and home addresses of all bargaining unit employees located at the Washington Navy Yard. [ v28 p4 ]

(b) Post at the Washington Navy Yard 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 Commander of the Washington Navy Yard and shall be posted and maintained for 60 consecutive days there-after 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 2323.30 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.

Further, that portion of the complaint alleging unlawful interference by the Respondent Department of the Navy is dismissed.

Issued, Washington, D.C., September 18, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v28 p5 ]

                   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 or fail to furnish, upon request of the Washington Area Metal Trades Council, AFL - CIO, the exclusive representative of certain of our employees, the names and home addresses of unit employees located at the Washington Navy Yard.

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 furnish the Washington Area Metal Trades Council, AFL - CIO, the exclusive representative of certain of our employees, with the names and home addresses of all bar-gaining unit employees located at the Washington Navy Yard.

                             ______________________________
                                     (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., 7th Floor (P.O. Box 33758), Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500. [PAGE]

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