Department of Veterans Affairs, San Diego Regional Office and American Federation of Government Employees, Local 490 (Authority decision, January 29, 1993)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving an unfair labor practice case. 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). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

AFGE Local 490 requested the names and home addresses of employees it represented at the VA's San Diego regional office. The VA refused, arguing that the union had other ways to contact employees and that disclosure required their consent under the Privacy Act. The Authority applied its precedent on union access to bargaining unit contact information and found that the refusal violated federal labor law. It ordered the VA to provide the information, post a notice to employees, and report its compliance. The decision discusses a split among appeals courts over related disclosure orders.

Decision snapshot

• Authority: Information request under 5 U.S.C. § 7114(b)(4); unfair labor practices under § 7116(a)(1), (5), and (8).
• Outcome: Unfair labor practices found; VA ordered to furnish the requested names and addresses and post a notice.
• Key point: The Authority held that the union's alternative means of contacting employees did not excuse the VA's refusal to provide the requested information.

Full text (FLRA public release)

[ v46 p1280 ]
46:1280(120)CA

The decision of the Authority follows:

46 FLRA No. 120

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF VETERANS AFFAIRS

SAN DIEGO REGIONAL OFFICE

SAN DIEGO, CALIFORNIA

(Respondent/Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 490, AFL-CIO

(Charging Party/Union)

98-CA-10441

_____

DECISION AND ORDER

January 29, 1993

_____

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 General Counsel filed a brief and the Respondent did not file a brief with the Authority.

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 to respond to the Union's request for the names and home addresses of bargaining unit employees represented by the Union and by failing and refusing to provide the Union with the requested information. For the following reasons, we find that the Respondent committed the unfair labor practices as alleged.

II. Facts

The American Federation of Employees, AFL-CIO (AFGE) is the exclusive representative of a unit of Respondent's employees. AFGE, Local 490 (Local 490) is an agent for AFGE representing unit employees at Respondent's facilities. On February 8, 1991, Local 490 requested the Respondent to provide it with the names and home addresses of all employees in the bargaining unit at Respondent's San Diego facility. By memorandum dated February 15, 1991, the Respondent refused to provide Local 490 with the data it requested.

The parties stipulated that the requested information is normally maintained by the Respondent in the regular course of business and does not constitute guidance, counsel, or training provided for management officials or supervisors related to collective bargaining. The parties also stipulated that the data is "available only in accordance with law and that alternative means of communication between the Local and the members of the bargaining unit exist." Stipulation, paragraph 9(c).

The parties further stipulated that the Respondent maintains that the Union does not need the requested names and home addresses in order to "communicate with bargaining unit employees or for 'full and proper discussion, understanding and negotiation of subjects within the scope of bargaining.'" Stipulation, paragraph 9(c). In addition, the parties stipulated that written consents were neither requested nor obtained from the bargaining unit employees to release the requested information and that the Respondent asserts that it "does not currently maintain a system of records from which disclosure of employees' names and home addresses is legally authorized in these circumstances under the Privacy Act without the employees' prior written consent." Stipulation, paragraph 9(e).

III. Analysis and Conclusions

In U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), enforcement denied sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 941 F.2d 49 (1st Cir. 1991) (FLRA v. Portsmouth Naval Shipyard), we 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 generally is required without regard to whether alternative means of communication are available. Further, it is evident from the parties' stipulation that the other requirements of section 7114(b)(4)(A), (B), and (C) have been met in this case.

In Department of Veterans Affairs, Medical and Regional Office Center Fargo, North Dakota, 46 FLRA No. 115 (1993) (VA Fargo), we concluded that we would no longer follow Portsmouth Naval Shipyard insofar as that decision held that disclosure of unit employees' names and home addresses was authorized under exception b(3) of the Privacy Act.

Accordingly, consistent with the parties' stipulation and based on the Authority's decision in Portsmouth Naval Shipyard, as modified by VA Fargo, we find that the Respondent was required to furnish the Union with the names and home addresses of employees in the bargaining unit represented by the Union.(*) Its refusal to do so violated section 7116(a)(1), (5), and (8) of the Statute.

IV. 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 Veterans Affairs, San Diego Regional Office, San Diego, California, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, Local 490, AFL-CIO, the requested names and home addresses of employees in the bargaining unit represented by the Union.

(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 American Federation of Government Employees, Local 490, AFL-CIO, the exclusive representative of certain employees of the Department of Veterans Affairs, San Diego Regional Office, San Diego, California, the requested names and home addresses.

(b) Post at its facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 490, 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 Director Department of Veterans Affairs, San Diego Regional Office, San Diego, California, 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, San Francisco 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.

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 to furnish, upon request of the American Federation of Government Employees, Local 490, AFL-CIO, the exclusive representative of certain of our employees, the requested names and home addresses of employees in the bargaining unit represented by the Union.

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 American Federation of Government Employees, Local 490, AFL-CIO, the requested names and home addresses.

_________
(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 of the Federal Labor Relations Authority, San Francisco Regional Office, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 744-4000.

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

*/ Authority decisions based on
Portsmouth Naval Shipyard have been enforced in U.S. Courts of Appeals for the Third, Fifth, and Ninth Circuits. FLRA v. U.S. Department of the Navy, Navy Ships Parts Control Center, 966 F.2d 747 (3d Cir. 1992) (en banc); FLRA v. United States Department of Defense, Department of the Navy, Washington, D.C., 975 F.2d 1105 (5th Cir. 1992); FLRA v. U.S. Department of the Navy, Navy Resale and Services Support Office, Field Support Office, Auburn, Washington, 958 F.2d 1490 (9th Cir. 1992) (petition for rehearing and suggestion for rehearing en banc pending). A panel of the Court of Appeals for the Fourth Circuit also enforced a decision based on Portsmouth Naval Shipyard; the court subsequently vacated the panel's decision and granted a petition for rehearing en banc. FLRA v. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, 954 F.2d 994 (4th Cir. 1992), vacated, petition for reh'g en banc granted (4th Cir. Apr. 22, 1992). However, applications for enforcement of such decisions were denied by U.S. Courts of Appeals for the Second, Sixth, Seventh, and Tenth Circuits. FLRA v. United States Department of Veterans Affairs, Washington, D.C. and United States Department of Veterans Affairs Medical Center, Newington, Connecticut, 958 F.2d 503 (2d Cir. 1992); FLRA v. Department of the Navy, Naval Resale Activity, Naval Air Station-Memphis, Millington, Tennessee, 963 F.2d 124 (6th Cir. 1992); FLRA v. United States Department of the Navy, Navy Exchange, Naval Training Station, Naval Hospital, Great Lakes, Illinois, 975 F.2d 348 (7th Cir. 1992); FLRA v. United States Department of Defense, Army and Air Force Exchange Service, Dallas, Texas, Nos. 90-9561, 90-9569 (10th Cir. Jan 20, 1993). We respectfully adhere to our decision in Portsmouth Naval Shipyard.