Department of Veterans Affairs, Veterans Affairs Medical Center, Memphis and National Association of Government Employees (Authority decision, January 26, 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

The National Association of Government Employees requested the names and home addresses of employees it represented at the Memphis VA medical center. The VA refused, and an administrative law judge found that refusal to be an unfair labor practice. The VA argued that disclosure was barred by the Privacy Act, citing a Sixth Circuit ruling. The Authority adopted the judge's findings and rejected the VA's argument that it had to follow that ruling. It ordered the medical center to furnish the information on request and post a notice to employees.

Decision snapshot

• Authority: Information request under 5 U.S.C. § 7114(b)(4); unfair labor practices under § 7116(a)(1), (5), and (8).
• Outcome: Judge's unfair labor practice findings affirmed; VA ordered to provide the requested information and post a notice.
• Key point: The Authority adhered to its contact information precedent despite the VA's reliance on a contrary circuit ruling.

Full text (FLRA public release)

[ v46 p1264 ]
46:1264(117)CA

The decision of the Authority follows:

46 FLRA No. 117

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF VETERANS AFFAIRS

VETERANS AFFAIRS MEDICAL CENTER

MEMPHIS, TENNESSEE

(Respondent/Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Charging Party/Union)

AT-CA-20381

_____

DECISION AND ORDER

January 26, 1993

_____

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding 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 furnish the Charging Party with the requested names and home addresses of bargaining unit employees represented by the Charging Party. The Judge granted the General Counsel's motion for summary judgment and recommended that the Respondent be ordered to take appropriate remedial action. 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 Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge and find that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's decision, the exceptions, the opposition, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order for the reasons fully set forth in U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), enforcement denied, 941 F.2d 49 (1st Cir. 1991), as modified by our decision in Department of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, 46 FLRA No. 115 (1993).(*)

We note the Respondent's contention that the Judge "erred as a matter of law in determining that disclosure of home addresses of [F]ederal workers is not prohibited by law" because the United States Court of Appeals for the Sixth Circuit, the circuit which has jurisdiction over this matter, has ruled that "such release was prohibited by the Privacy Act." Exceptions at 4 (citing FLRA v. Department of the Navy). To the extent that the Respondent is arguing that the Authority is required to follow FLRA v. Department of the Navy, we reject that contention. See U.S. Office of Personnel Management, Washington, D.C., 37 FLRA 784, 785 (1990), petition for review granted as to other matters, No. 90-1541 (D.C. Cir. May 2, 1991).

II. 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, Veterans Affairs Medical Center, Memphis, Tennessee, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Association of Government Employees, AFL-CIO, the exclusive representative of certain of its employees, the requested 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 their rights assured by the Statute.

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

(a) Upon request, furnish the National Association of Government Employees, AFL-CIO, the exclusive representative of certain of its employees, the names and home addresses of employees in the bargaining unit it represents.

(b) Post at its facilities where bargaining unit employees represented by the National Association of Government Employees, 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 of the Veterans Affairs Medical Center, and shall be posted in conspicuous places, including 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, Atlanta 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 National Association of Government Employees, 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 their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL furnish, upon request of the National Association of Government Employees, 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, Atlanta Regional Office, Federal Labor Relations Authority whose address is: 1371 Peachtree Street, NE, Suite 122, Atlanta, GA 30367, and whose telephone number is: (404) 347-2324.

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

*/ Authority decisions based on
Portsmouth Naval Shipyard have been enforced in United States Courts of Appeals for the Third, Fifth, and Ninth Circuits. FLRA v. United States 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) petition for cert. filed, -- U.S.L.W. -- (U.S. Jan. 21, 1993) (No. 92-1223); FLRA v. United States 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 for 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. United States 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 United States 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. Department of the Navy); 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, No. 90-9561 (10th Cir. Jan. 20, 1993). We respectfully adhere to our determination in Portsmouth Naval Shipyard that agencies are required to provide exclusive representatives with requested names and home addresses of bargaining unit employees pursuant to section 7114(b)(4) of the Statute.