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41:0306(33)CA
The decision of the Authority follows:
41 FLRA No. 33
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists.
The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to provide the Charging Party (the Union) with the names and home addresses of bargaining unit employees represented by the Union. For the reasons stated below, we find that the Respondent committed the unfair labor practice as alleged.
II. Facts
The Union is the exclusive representative of a unit of employees employed by the Respondent. By letter dated October 18, 1990, the Union requested the Respondent to provide the Union with "a list of names and addresses of all members of the bargaining unit." Stipulation, Joint Exhibit 5. By letter dated October 26, 1990, and continuing to date, the Respondent has refused to provide the Union with the names and home addresses of unit employees.
The parties stipulated that the names and home addresses of bargaining unit employees are normally maintained by the Respondent in the regular course of business, are reasonably available, and do not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. The parties also stipulated that alternative means of communication are available to the Union to contact unit employees. The General Counsel asserts that it is not necessary to determine if alternative means of communication are available in order to reach a decision in this case.
III. Positions of the Parties
A. The Respondent
The Respondent disagrees with the Authority's rationale in its decision on remand in Farmers Home Administration Finance Office, St, Louis, Missouri, 23 FLRA 788 (1986) (Farmers Home), where the Authority concluded that a union is entitled, under section 7114(b)(4) of the Statute, to the names and home addresses of bargaining unit employees. The Respondent asserts that the Authority's decision in Farmers Home is in conflict with "the proper application of law of its circuit as contained in [American Federation of Government Employees, Local 1923 v. United States, Department of Health and Human Services, 712 F.2d 931 (4th Cir. 1983) (AFGE v. DHHS)]." Respondent's Brief at 2. The Respondent further asserts that the Authority should apply the reasoning of the court in FLRA v. Department of the Treasury, Financial Management Service, 884 F.2d 1446 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 863 (1990) (FLRA v. Department of the Treasury), to find that the Respondent was not required to supply the Union with the requested information.
The Respondent contends that the release of employees' home addresses is prohibited by law, specifically, certain provisions of the Freedom of Information Act, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. The Respondent argues that where, as in this case, there are "substantial alternative means of communication" available to the Union, "[t]hese alternative means obviate the need for release of such information under 5 U.S.C. 7114(b)(4)(B)." Id. at 1.
B. The General Counsel
The General Counsel argues that the Authority's decision in Farmers Home, which was reaffirmed by the Authority in U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990), is dispositive of the issue in the case. The General Counsel contends that the Respondent's admitted failure to furnish the employees' names and home addresses constitutes a clear violation of section 7116(a)(1), (5), and (8) of the Statute.
IV. Analysis and Conclusions
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and concluded that the release of the names and home addresses of bargaining unit employees to their 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) of the Statute. We also determined that the release of the information is generally required without regard to whether alternative means of communication are available. We find that resolution of this case does not require consideration of whether alternative means of communication are available.
The parties stipulated that the requested information is normally maintained by the Respondent in the regular course of business, is reasonably available, and does not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. Accordingly, based on the Authority's decision in Portsmouth Naval Shipyard, we conclude that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to furnish the Union with the names and home addresses of unit employees represented by the Union.
We reject the Respondent's contention that the Fourth Circuit's decision in AFGE v. DHHS is the proper application of law in this matter. In U.S. Department of Health and Human Services v. FLRA, 833 F.2d 1129, 1133 (4th Cir. 1987) (DHHS v. FLRA), cert. dismissed, 488 U.S. 880 (1988), where the court enforced three Authority decisions directing the agency to release the names and home addresses of unit employees to the union, the court distinguished its decision in AFGE v. DHHS. In so doing, the court explained that, in the three consolidated cases under review in DHHS v. FLRA, the disclosure was sought under the Statute. See Portsmouth Naval Shipyard, 37 FLRA at 517.
V. 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. Department of Veterans Affairs, Medical Center, Hampton, Virginia shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 2328, AFL-CIO, the exclusive representative of certain 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 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) Furnish the American Federation of Government Employees, Local 2328, AFL-CIO, the exclusive representative of certain of its employees, 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 American Federation of Government Employees, Local 2328, AFL-CIO 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 Medical Director and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. 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, Washington, D.C. Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
WE WILL NOT refuse to furnish, upon request of the American Federation of Government Employees, Local 2328, AFL-CIO, the exclusive representative of certain 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 our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees, Local 2328, AFL-CIO, the exclusive representative of certain of our employees, 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, Washington, D.C. Regional Office, 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.
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