Army and Air Force Exchange Service, Oakland Distribution Center and American Federation of Government Employees, Local 1157 (Authority decision, September 7, 1989)

Final FLRA decision. The Authority dismisses the Exchange Service's late exceptions, making the administrative law judge's order the Authority's order without precedential significance. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

AFGE Local 1157 requested the names and home addresses of bargaining unit employees at an Army and Air Force Exchange Service distribution center in Oakland. The administrative law judge found that the center violated its bargaining obligations by refusing the request and ordered disclosure and a workplace notice. The center's exceptions to that ruling were due August 28, 1989, but Federal Express delivered them to the Authority's docket room on August 29. The Authority dismissed the exceptions as late. Under its rule for unexcepted judge decisions, the judge's order became the Authority's order, and the center was directed to comply with it.

Decision snapshot

• Authority: Unfair labor practice order and exception filing rules under 5 C.F.R. §§ 2423.29(a) and 2429.21(b).
• Outcome: Exceptions dismissed as untimely; judge's disclosure and notice order became the Authority's order.
• Key point: Exceptions delivered by a courier count as filed when the Authority receives them, even when the document is dated on the deadline.

Full text (FLRA public release)

[ v34 p5 ]
34:0005(2)CA

The decision of the Authority follows:

34 FLRA NO. 2

ARMY AND AIR FORCE EXCHANGE SERVICE

AAFES DISTRIBUTION REGION

OAKLAND DISTRIBUTION CENTER

OAKLAND, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1157

(Charging Party)

9-CA-90185

ORDER DISMISSING EXCEPTIONS

September 7, 1989

The Administrative Law judge issued his decision and order in this case on July 28, 1989, finding that the Respondent engaged in unfair labor practices and recommending remedial action. The Administrative Law Judge informed the parties that exceptions to the decision must be filed on or before August 28, 1989. The two methods of filing documents with the Authority are by mail (U.S. Postal Service) or in person (party, agent or

delivery service). 5 C.F.R. 2429.24(e).

Respondent's exceptions, dated August 28, 1989, were filed (hand-delivered by Federal Express) in the Authority's Docket Room on August 29, 1989. Section 2429.21(b) of the Authority's Regulations provides that "(I)f the filing is by personal delivery, it shall be considered filed on the date it is received by the Authority . . . ." Respondent's exceptions were not timely filed. Therefore, Respondent's exceptions are dismissed.

In the absence of timely filed exceptions to the Judge's decision and order, the findings, conclusions and

recommendations of the Administrative Law Judge constitute, without precedential significance, the findings, conclusions, and decision and order of the Authority and all objections and exceptions are waived for all purposes. 5 C.F.R. 2423.29(a).

Accordingly, the Respondent shall comply with the Judge's

order.

For the Authority.

Clyde B. Blandford, Jr.

Acting Executive Director

______

ARMY AND AIR FORCE EXCHANGE

SERVICE, AAFES DISTRIBUTION

REGION, OAKLAND DISTRIBUTION

CENTER, OAKLAND, CALIFORNIA

Respondent

and

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES,

LOCAL 1157, AFL-CIO

Charging Party

Case No. 9-CA-90185

Janis E. Baldwin, Esq.

For the Respondent

Lisa L. Katz, Esq.

For the General Counsel

Before: WILLIAM NAIMARK

Administrative Law Judge

DECISION

This case arises under the Federal Service Labor -Management Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). Pursuant to a charge filed by the American Federation of Government Employees, Local 1157, AFL - CIO (herein called the Union) a Complaint and Notice of Hearing was issued on

March 28, 1989, by the Regional Director, Region IX, Federal Labor Relations Authority against the Army and Air Force Exchange Service, AAFES Distribution Center, Oakland Distribution Center, Oakland, California (herein called the Respondent).

The complaint alleged, in substance, that on or about October 5, and December 12, 1988, the Union requested Respondent to furnish the Union the names and home addresses of employees in the bargaining unit in which the American Federation of Government Employees, AFL - CIO (AFGE) has been certified as the exclusive representative, and the Union has been, as an affiliate of AFGE, designated as the agent to represent such unit employees of Respondent. Further, the complaint alleged that Respondent failed and refused to furnish the data requested by the Union; that by such conduct Respondent failed and refused to bargain in good faith in violation of Section 7116(a)(1), (5) and (8) of the Statute.

Respondent's Answer, duly filed on April 13, 1989, admitted as to the Complaint: (a) the jurisdictional allegations therein; (b) that on or about October 5, 1988 and December 12, 1988 the Union, as the designated agent to represent the appropriate unit of Respondent's employees, requested that Respondent furnish the

Union with the names and home addresses of the bargaining unit employees; (c) that since on or about October 24, 1988, Respondent has failed and refused to furnish the data so requested; (d) that the data so requested is normally maintained by Respondent in the regular course of business; (e) that the data requested is reasonably available; (f) that the data requested is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining, that the data requested does not constitute guidance, advice, counsel or training provided for management officials relating to collective bargaining.

Respondent's Answer denied that the release of the data requested is not prohibited by 5 U.S.C. 552a.

Under date of May 5, 1989, General Counsel filed a Motion For Summary Judgment with a brief in support thereof.

In an order dated May 5, 1989, the Acting Regional Director transferred the Motion to the Chief Administrative Law Judge pursuant to Section 2423.22(b) of the Authority's Rules and Regulations. The case was duly assigned to the undersigned for disposition.

Under date of May 18, 1989, Respondent filed a Motion To Dismiss General Counsel's Motion For Summary Judgment and Respondent's Cross - Motion For Summary Judgment. Along with its motions Respondent submitted a memorandum in support thereof.

Respondent contends that this case is distinguishable from Farmers Home Administration Finance Office, St. Louis, Missouri, 28 FLRA 788 (1986), enforced in part and remanded sub. nom. U.S. Department of Agriculture and Farmers Home Administration Farmers Office, St. Louis, Missouri v. FLRA, 836 F.2d 1139 (8th Cir. 1988). It argues that the Authority, in requiring that names and home addresses be furnished the Union, placed great weight on an analysis of exception (b)(3) of the Privacy Act, 5 U.S.C. 552a(b)(3) which permits disclosure of information for a "routine use." A key factor, it argues, in the Authority's decision that

disclosure of employees' home addresses was permitted as a routine use under exception (b)(3) of the Privacy Act was that the Office of Personnel Management (OPM) regulations included labor organizations as routine users of personnel records.

It is maintained by Respondent that labor unions within AAFES are not routine users of personnel records because AAFES employees are not subject to OPM regulations. Therefore the "routine use" theory which the Authority applied in the Farmers case has no application in the present case. Respondent insists that, given this point of difference, disclosure of employees' home addresses to the Union cannot be made under exception (b)(3) of the Privacy Act.

The exact same contention was made by the respondent in Department of the Army and Air Force, Army and Air Force Exchange Service, Headquarters, Dallas, Texas and Army and Air Force Exchange Service. McClellan Air Force Base, California, 26 FLRA

691. The Authority agreed therein that AAFES employees are not subject to OPM regulations; that the employees' personnel files
     are not governed by the OPM's routine use statements; and that AAFES' routine use statements do not include unions as routine users. Therefore, the Authority held in said case, that disclosure of McClellan Air Force Base Exchange employees' home addresses to the union may not be authorized under exception (b)(3) of the Privacy Act.

However, The Authority declared in the cited case, "this distinction does not affect the disclosure of these employees' home addresses to the union under exception (b)(2) of the Privacy Act." (underscoring supplied). It adhered to its conclusion in the Farmers case, supra, that the information sought by the union could be released under the exception (b)(2) of the Privacy Act. 2 In so doing it also adhered to the statement made in the

Farmers case as follows:

On balance, we find that 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 individual employees in their names and home

addresses. Disclosure of the requested information would not

constitute a clearly unwarranted invasion of personal privacy and

does not fall within the (b)(6) exemption to the FOIA. Since the

information does not fall within the exception, its disclosure is

required under the FOIA and, under exception (b)(2) to the

Privacy Act, its releases not prohibited by law.

In view of the fact that the contentions raised by Respondent herein have already been considered and rejected by the Authority in Department of the Army and Air Force, Army and Air Force Exchange Service, Headquarters et. al., supra, the undersigned concludes that Respondent was obligated to furnish

the Union with the home addresses of the bargaining unit employees. Its refusal to do so constitutes a violation of Section 7116(a)(1), (5) and (8) of the Statute. See U.S. Department of Labor et. al. 33 FLRA 429. Accordingly, the undersigned grants the General Counsel's Motion For Summary Judgment and dismisses the Respondent's Cross - Motion For Summary Judgment.

Based on the foregoing, it is recommended that the Authority

issue the following 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, it is hereby ordered that the Army

and Air Force Exchange Service, AAFES Distribution Region,

Oakland Distribution Center, Oakland, California, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American

Federation of Government Employees, Local 1157, AFL - CIO, the

designated agent of the American Federation of Government

Employees, AFL - CIO, the exclusive representative of its

employees, the names and home addresses of the bargaining unit

employees.

(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 American Federation of Government

Employees, Local 1157, AFL - CIO, the designated agent of the

American Federation of Government Employees, AFL - CIO, the

exclusive representative of its employees, furnish it with the

names and home addresses of all bargaining unit employees.

(b) Post at its facilities where bargaining unit employees

represented by American Federation of Government Employees, Local

1157, 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 Manager of

the Distribution Center, 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.

(d) 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

herewith.

Issued, Washington, D.C. July 28, 1989.

WILLIAM NAIMARK

Administrative Law Judge

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND IN ORDER TO EFFECTUATE THE POLICIES OF

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to furnish upon request of the American

Federation of Government Employees, Local 1157, AFL - CIO, the

designated agent of the American Federation of Government

Employees, AFL - CIO, the exclusive representative of our

employees, the names and home addresses of the bargaining unit

employees.

WE WILL NOT in any like or related manner, interfere with,

restrain, or coerce our employees in the exercise of their rights

assured by them by Statute.

WE WILL upon request, by the American Federation of

Government Employees, Local 1157, AFL - CIO, the designated agent

of the American Federation of Government Employees, AFL - CIO,

the exclusive representative of our employees, furnish it with

the names and home addresses of all bargaining unit employees.

__________

(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 any of its provisions, they may communicate

directly with the Regional Director of the Federal Labor

Relations Authority, Region 9, whose address is: 901 Market

Street, Suite 220, San Francisco, CA 94103, and whose telephone

number is: (415) 995-5000.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

Footnote 1 Under date of May 16, 1989 Respondent amended

paragraph 9 of the Complaint to allege that by such conduct

Respondent failed and refused to comply with Section 7114(b) of

the Statute, and violated Section 7116(a)(1), (5) and (8) of the

Statute. Under date of May 19, 1989, Respondent filed an Answer

to paragraph 9 as amended wherein it denied the aforesaid

allegations.

Footnote 2 The Authority also rejected the suggestion that

it adopt the approach of the court in AFGE Local 1923, 712 F.2d

931.