19:0195(21)CA - Farmers Home Administration Finance Office, St. Louis, MO and AFGE Local 3354 -- 1985 FLRAdec CA
[ v19 p195 ]
The decision of the Authority follows:
19 FLRA No. 21 FARMERS HOME ADMINISTRATION FINANCE OFFICE, ST. LOUIS, MISSOURI Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3354 Charging Party Case No. 7-CA-30560 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. The General Counsel and the Respondent filed exceptions to the Judge's Decision, and the Respondent filed an opposition to the General Counsel's exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order, as modified herein. The Judge concluded that the Respondent had not failed to comply with the requirements of section 7114(b)(4) of the Statute /1/ when it refused to provide the Union, upon request, with the names and home addresses of all the unit employees represented by the exclusive representative. In this regard, the Judge found that such material was not "necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" in view of the alternative means available to the Union by which to communicate with the employees whom it represents. The Authority agrees with the Judge that the actions of the Respondent in this case did not constitute a violation of section 7116(a)(1), (5) and (8) of the Statute. In so concluding, however, the Judge did not address the primary defense raised by the Respondent in this matter, i.e., that the disclosure of the names and home addresses of the unit employees herein was precluded by the provisions of the Privacy Act. /2/ In a recent decision, Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA No. 92 (1985) (hereinafter AAFES), the Authority pointed out that, in addition to requiring a determination on a case by case basis whether data sought pursuant to section 7114(b)(4) of the Statute meets the requirements of that section, i.e., whether it has been requested, whether it is normally maintained, whether it is reasonably available, and whether it is necessary to enable a union to fulfill its representational obligations, section 7114(b)(4) of the Statute also limits an agency's obligation to furnish data "to the extent not prohibited by law," which incorporates the Privacy Act. The Privacy Act regulates the disclosure of any information contained in an agency "record" within a "system of records that is retrieved by reference to an individual name or some other identifier." /3/ The names and home addresses of unit employees constitutes information which is retrievable from an agency's records by reference to an individual's name and therefore would be prohibited from disclosure unless one of the specific Privacy Act exceptions is applicable. See AAFES, supra. One such exception to the Privacy Act's protection is contained in 5 U.S.C. 552a(b)(2) which permits disclosure of information "required" to be released under the Freedom of Information Act (FOIA). /4/ In general, the theory of the FOIA is that Federal Government records should be disclosed in order to enable the public to review the actions of the government. However, there are also exemptions to the general disclosure requirements of the FOIA. Under exemption (b)(6) of the FOIA, an agency is allowed, e.g., to withhold personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy. In determining whether material may be properly withheld in accordance with exemption (b)(6) of the FOIA, the Federal courts have struck a balance between the individual's privacy interest and the possible adverse or harmful effects on the individual which could result from disclosure, on the one hand, against the importance of the public's interest in having the information made available. /5/ In AAFES, supra, the Authority indicated that in determining whether data sought under section 7114(b)(4) is or is not otherwise "prohibited by law," the Authority will use the same test applied by the courts in evaluating FOIA requests under the 5 U.S.C. 552(b)(6) exemption, i.e., balancing the necessity of the data for the union's purposes against the degree of intrusion on the individual's privacy interests caused by disclosure of the data. /6/ In applying the foregoing balancing test to determine whether the Union is entitled to the names and home addresses of unit employees herein, the Authority has been guided by the decision of the Fourth Circuit in American Federation of Government Employees, AFL-CIO, Local 1923 v. United States Department of Health and Human Services, 712 F.2d 931 (4th Cir. 1983) (hereinafter AFGE v. HHS), wherein an exclusive representative sought the home addresses of all unit employees pursuant to the FOIA. In adopting the lower court's conclusion that the balance of all factors favored nondisclosure, the Fourth Circuit stated in pertinent part (712 F.2d at 932): Employees have a strong privacy interest in their home addresses. Disclosure could subject the employees to an unchecked barrage of mailings and perhaps personal solicitations, for no effective restraints could be placed on the range of uses to which the information, once revealed, might be put. Further, even granting that collective bargaining is a matter of grave public concern, any benefits flowing from disclosure of the information sought would inure primarily to the union, in a proprietary sense, rather than to the public at large. Finally, as the District Court noted, alternative means of communication are available to the union, such as its bulletin board and indirect distribution through the employer. (footnote omitted.) The same findings flow from the similar facts of the present case. Thus, for the reasons stated by the Fourth Circuit in AFGE v. HHS, we find that the employees' strong privacy interest in their home addresses outweighs the necessity of the data for the Union's purposes in the circumstances of this case. Moreover, the Court noted that alternative means of communication with unit employees were available to the union in AFGE v. HHS, and the record in this case clearly establishes that the Union herein had alternative means of such communication available. /7/ Further, as noted by the Fourth Circuit in AFGE v. HHS, the records sought by the Union herein, i.e., the names and addresses of unit employees, are not of the type that generally must be disclosed pursuant to the FOIA's (b)(6) exemption for the purposes for which they were sought herein. As the Court stated: The purpose of the (FOIA) is "'to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny . . . . '" . . . . The home addresses sought by appellant have nothing to do with the agency's "work," and disclosure thereof would shed no significant light on the agency's inner workings. (citations and footnote omitted.) 712 F.2d 933. Thus, the Authority finds that the disclosure of unit employees' names and home addresses for the purposes for which they were sought herein was "prohibited by law" and that their release by the Respondent therefore was not required pursuant to section 7114(b)(4) of the Statute. Therefore, the Authority concludes that the Respondent did not fail to comply with section 7114(b)(4) of the Statute in violation of section 7116(a)(1), (5) and (8) of the Statute when it refused to provide the exclusive representative with the names and home addresses of unit employees. /8/ Accordingly, the Authority shall order that the complaint be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 7-CA-30560 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., July 22, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY Case No.: 7-CA-30560 -------------------- ALJ$ DECISION FOLLOWS -------------------- James M. Carroll, Esquire For the Respondent Nicholas J. LoBurgio, Esquire For the General Counsel Mr. Steven M. Hollis For the Charging Party Before: LOUIS SCALZO Administrative Law Judge DECISION Statement of the Case This case arose as an unfair labor practice proceeding under the provisions of the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter referred to as "the Statute"), and the Rules and Regulations issued thereunder. The complaint, based upon a charge filed by the American Federation of Government Employees, Local 3354, AFL-CIO (Charging Party or Union), alleges that since on or about August 18, 1983, the Farmers Home Administration, St. Louis, Missouri (Respondent), has failed and refused to respond to a July 20, 1983, Union request for a list of names and home addresses of bargaining unit employees represented by the Union at Respondent's St. Louis, Missouri facilities. The complaint alleges further that the Union is entitled to the list under the provisions of Section 7114(b)(4) of the Statute, and that Respondent's failure and refusal to respond constitutes an unfair labor practice within the meaning of Sections 7116(a)(1), (5) and (8) of the Statute. Counsel representing the Respondent argues that the refusal to produce the list was not violative of the Statute, and that disclosure of employee home addresses is otherwise prohibited by the Privacy Act, 5 U.S.C. 552. It is contended further that Section 7114(b)(4) of the Statute, exempts disclosures which would be violative of the Privacy Act. Counsel also argues that the list of names sought is not "necessary" for any purpose referred to in Section 7114(b)(4) of the Statute. The parties were represented by counsel during the hearing and were afforded full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses. Based upon the entire record herein, including exhibits, and other relevant evidence adduced at the hearing, /9/ and briefs filed by the parties, I make the following findings of fact, conclusions and recommendations. Findings of Fact Circumstances Surrounding Union Efforts to Obtain Names and Addresses of Bargaining Unit Members The bargaining unit represented by the Union is comprised of Respondent's non-professional general schedule and wage grade employees located in the Finance Home Administration Finance Office in St. Louis, Missouri. The bargaining unit is comprised of about 903 members out of a total of approximately 1050 to 1110 of Respondent's employees assigned to Respondent's St. Louis facilities (Tr. 19-20, 35, 90). A total of 150 employees in the bargaining unit are members of the Union (Tr. 20, 25). Bargaining unit members reside in the St. Louis metropolitan area (Tr. 20). A collective bargaining agreement governing the relations of the parties expired in May of 1983, but remained in effect pending completion of contract negotiations (Tr. 20, G.C. Exh. No. 2). The parties commenced collective bargaining on ground rules in July of 1983, and on August 29, 1983, began negotiations concerning a new collective bargaining agreement (Tr. 20). By letter dated July 20, 1983, Mr. Steve Hollis, President of the Union wrote to Mr. Clarence P. Squellati, Respondent's Director, and requested a list of the names and home addresses of all bargaining unit members (G.C. Exh. No. 3). /10/ The letter requested an early response because of then anticipated contract negotiations, and outlined the following reasons for the Union's request: This information is need (sic) by the local so that we will be able to communicate effectively with the employees in the unit to obtain their views on bargaining priorities, and to learn their problems, thereby allowing the local to frame intelligent collective bargaining proposals for our pending contract negotiations. For a number of reasons such as the low percentage of unit members who are members of the union, the limited number of stewards, the limited number of (bulletin) boards available to the union, the location of unit employees, the limited use of the internal mail system, the limited allowance for desk drop and other (factors, the available communication channels are inadequate for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining. In a letter dated August 18, 1983, the request was denied on the ground that disclosure of home addresses without employee consent would constitute a violation of the Privacy Act (G.C. Exh. No. 4). During the hearing Mr. Hollis explained further that he wished to utilize the mails to communicate with all bargaining unit employees in the privacy of their homes; that he wished to do this during the then pending contract negotiations, and on subsequent occasions (Tr. 21); and that he wished to provide a private atmosphere for bargaining unit members to read and respond to Union requests for opinions and information concerning matters of interest to the Union and bargaining unit members (Tr. 22). Mr. Hollis acknowledged freely that addresses for the purpose of recruiting new members (Tr. 93-94). He testified that employees would more readily join the Union if addressed personally on issues of concern to them (Tr. 94-95). Following denial of the Hollis request an effort was made by the Union to obtain home addresses directly from bargaining unit members. This was effected primarily through the distribution of "contract surveys" designed to obtain a priority ranking of contract issues by employees responding (Tr. 30). Space for a home address was provided on the survey form which was distributed through a "desk drop." /11/ However, the record disclosed no significant effort to go directly to employees specifically for the purpose of obtaining home addresses, although the "desk drop" was available for this purpose (Tr. 93-94). Failure to do so was attributed to the need to accomplish such work on non-duty time, to unwillingness on the part of stewards to contribute non-duty time; and to difficulty encountered in recruiting volunteers (Tr. 92-94). The Union efforts described were specifically associated with Union activity designed to obtain home addresses needed primarily for the recruiting of new members (Tr. 93-94). The efforts made did produce about 100 addresses of bargaining unit members who were not Union members (Tr. 86). After adding home addresses of Union members on file, it was estimated that a maximum of about 650 home addresses of non-Union bargaining unit members would be needed to develop a complete list of bargaining unit member home addresses (Tr. 90). It was established by Mr. Hollis' testimony that Union officials could simply ask bargaining unit members for their home addresses, if they were inclined to do so (Tr. 108). In situations where Union officials have requested employees for their home addresses, employees have refused to comply in only "one or two" instances (Tr. 110). Circumstances Relating to Union Access to Bargaining Unit Members With the exception of about 14 bargaining unit employees, bargaining unit members work in an office building located at 1520 Market Street, St. Louis, Missouri (Tr. 36, 88). /12/ The small group of 14 is located in a warehouse facility in Granite City, Illinois, a community situated within the St. Louis metropolitan area (Tr. 88). The Market Street address is a four story building controlled by the General Services Administration. The first three floors are utilized to house Respondent's employees (Tr. 89). Other federal agencies maintain offices on the fourth floor (Tr. 89). The building has two exits and two entrances (Tr. 37). Most of the employees utilize a single main entrance (Tr. 37, 89). Most of Respondent's employees work at desks in an office environment (Tr. 89). Upper levels of the building are reached by elevators and stairs (Tr. 89). It is a common practice for the Union to pass out literature at building entrances and at other locations inside the building (Tr. 37-38). Although employees from other agencies entering the building wear similar clothing and have similar identification badges (Tr. 90), Respondent's work areas are secure, and require an identification badge issued by the Respondent in order to obtain access (Tr. 38). Union representatives have access to Respondent's work areas (Tr. 38-39). Article 19, Section 19.2 of the collective bargaining agreement provides for the semi-annual disclosure of the names, grades, and organizational locations of all personnel employed by the Respondent in the St. Louis area (G.C. Exh. No. 2 at page 19). Through the use of such lists, or organizational charts, bargaining unit members may be easily identified by name and job title (Tr. 39-40, R. Exh. No. 1). Information of this nature was in the possession of the Union prior to the filing of the charge (Tr. 40-41). Article 4 of the agreement provides for Union officer positions, the position of a Chief Steward, and "up to six stewards to represent specific groups of bargaining employees" (G.C. Exh. No. 2 at pages 4-5). Mr. Hollis testified in rather non-specific terms to representational difficulty stemming from the fact that not all stewards work in organizational elements that they represent; however, the record disclosed minimal geographic separation at most between bargaining unit members and Union officials. Mr. Hollis also stated that by agreement the Respondent had allowed a seventh steward position to cover a night shift (Tr. 91). Reported difficulty encountered as a result of the use of flextime schedules (Tr. 95-96). /13/ As of the date of the filing of the charge one steward position had not yet been filled by the Union (Tr. 41-42). Article 19, Section 1 of the agreement imposes upon the Respondent the duty to provide the Union with conference rooms or other suitable space for internal business meetings; space for the purpose of conducting individual interviews on matters relating to representational duties; tables, chairs; locked file cabinets; a telephone; copier service; and inclusion of the Union president's name and extension number in the Respondent's telephone directory. Evidence adduced at the hearing disclosed that Union meetings are usually not well attended (Tr. 99). However, the Respondent has acted to facilitate attendance at Union meetings by allowing employees to adjust lunch schedules to permit attendance (Tr. 45, 75, 76, 99-100), and meetings during the work day on non-duty time have been facilitated (Tr. 75, R. Exh. No. 9). The record disclosed that the Respondent interceded with the General Services Administration to allow the Union to utilize a building public address system on a case by case basis (Tr. 79). The system has been used by the Union for the purpose of announcing Union meetings (Tr. 79-80). Under the provisions of Article 19, Section 19.13, the Respondent supplies the Union with a 3' x 4' bulletin board located in the elevator lobby on the third floor of the Market Street address. Mr. Hollis expressed the opinion that bargaining unit employees did not read bulletin boards, and discounted their value as a means of access (Tr. 101). However, no probative evidence was adduced to establish that the bulletin board was of slight value. Article 19, Section 19.4 of the collective bargaining agreement provides: The officers and members of the Union who are Employees of the Employer may make personal distribution of their newsletter and other Union publications in the working areas of the Finance Office during non-duty hours of the Employees involved. The quoted language of the agreement gives the Union the right to utilize "desk drops" for the purpose of communicating with bargaining unit members. All bargaining unit members may be reached through the use of this means of communication, which has in the past involved the deposit of newsletters and other Union publications on the desks of employees during non-duty time (Tr. 81-82). The Charging Party contended that messages left in this manner were not protected, and could easily be intercepted by supervisors and non-bargaining unit members (Tr. 84-85). It was also claimed that it would not be possible to ascertain which desks were assigned to bargaining unit employees (Tr. 84-85). Nevertheless, the record did establish that newsletters were distributed through "desk drops" for the purpose of soliciting the opinions of bargaining unit members despite the fact that newsletters and "desk drops" were considered inappropriate formats for the dissemination of confidential information, or for "any sort of detailed solicitation of employee views on detailed bargaining positions" (Tr. 27-28). The Union contended that "desk drops" interfered with employee duties, and that a large percentage of the messages left were discarded (Tr. 84, 87-88). However, the record was quite clear that despite the possibility of work disruption, the Respondent allowed this method of communication during non-duty time under the terms of the collective bargaining agreement. Further, there was no evidence that a direct mailing would have evoked a greater employee response; and claims that a mailing would be more effective, or more confidential in nature were purely speculative in nature as no evidence was introduced to establish either premises. /14/ The record reflected no basis for finding that a wide distribution to all bargaining unit members by mail would produce a greater degree of confidentiality than a similar distribution accomplished through a desk drop. Moreover, information received through "desk drops" might be studied at home by employees (Tr. 104), or during non-duty time, thus refuting contentions that in the absence of mailings to home addresses employees would be precluded from thoroughly studying information distributed. The possibility of a thorough distribution to individual employees through the "desk drop" method was established by the record (Tr. 81) although it appeared that the Union decided not to utilize this method because of a lack of response to "desk drops." As noted, there was no showing that a mailing would have produced a greater response. Furthermore, it was admitted that although there were approximately 900 employees in the unit, only 600 issuances were distributed by the Union through use of the "desk drop" method (Tr. 87-88). G.C. Exh. No. 5, a document entitled "Contract Bulletin #4" is an example of a Union attempt to survey bargaining unit member activities to determine Union bargaining positions. Three similar Bulletins were utilized to reach bargaining unit members (Tr. 84). In G.C. Exh. No. 5, the Union cited principal contract issues, requested employees to rate these issues according to priority, and provided space for employees to insert names and home addresses (Tr. 30, 83). /15/ In addition to the means of access outlined, the record disclosed that the Union regularly participated in new employee orientation sessions, and that on such occasions the Union has opportunity to obtain employee home addresses (Tr. 47). Also, it was clearly established that the Union has had access to employees for the purpose of obtaining employee signatures on petitions relating to issues of concern to the Union (Tr. 85, R. Exh. Nos. 5 and 6). Discussion and Conclusions Section 7114(b)(4) of the Statute provides: (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation-- . . . . (4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data-- (A) which is normally maintained by the agency in the regular course of business; (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining. . . . The record clearly establishes that the names and home addresses of bargaining unit members are maintained by the agency in the regular course of business, that such information is reasonably available, and that such data does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining. However, a key factual issue is posed concerning the question of whether the names and addresses of bargaining unit members are "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" within the meaning of Section 7114(b)(4)(B). It does not appear that the Authority has had occasion to address the issue of requests for names and addresses of bargaining unit members to aid a Union with respect to representation functions relating to the "negotiation of subjects within the scope of collective bargaining." However, this specific question was resolved by the Federal Labor Relations Council in Internal Revenue Service, Office of the District Director, Jacksonville District, Jacksonville, Florida, FLRC No. 72A-50, 2 FLRC 106 (1974). In sustaining the dismissal of a complaint based upon Section 19(a)(6) of Executive Order 11491, the Council followed the private sector view in such cases /16/ and held: . . . (T)he essence of the criteria enunciated by the Assistant Secretary is that an exclusive representative is entitled to and, to the extent necessary, must be provided with effective means of communicating with the employees in the unit. The Council agrees with this determination. Section 10(e) of the Order provides that a labor organization which has been selected as the exclusive bargaining representative is entitled to act for and to negotiate agreements covering all employees in the unit and it is responsible for representing the interests of all employees in the unit without discrimination and without regard to labor organization membership. To this end, in our opinion, the implementation of the provisions of section 10(e) of the Order requires that the exclusive representative have effective means of communicating with unit employees. Moreover, agencies, as a part of their obligation to consult, confer, or negotiate with an exclusive representative, must where appropriate, provide an exclusive representative with means of communicating with unit employees and a failure to do so would constitute a violation of section 19(a)(6). A determination of whether an exclusive representative in fact has effective means of communicating with unit employees must be made on a case-by-case basis. In many instances, little or no action by the agency would be necessary to supplement the means of communication readily available to the union on its own initiative. On the other hand, in some instances where because of such factors as the size of unit, geographic dispersion of employees, isolated duty locations, etc., the union may not have effective means of communicating with the unit employees. In such situations, as stated above, the proper implementation of the Order might require that the agency assist the exclusive representative in facilitating such communication, consistent with law and regulation, e.g., by providing the union with the periodic use of the intraagency mailing system or addressing envelopes containing union material and depositing these envelopes in the U.S. mail for delivery to the employees at their home addresses. A failure to provide the exclusive bargaining representative such access to employees in the unit, where required, would constitute a failure on the part of the agency to meet its obligation to consult, confer, or negotiate with the exclusive representative in violation of section 19(a)(6) of the Order. On the basis of the record developed, the Assistant Secretary and the Council determined that the National Treasury Employees Union did in fact have effective means of communicating with unit employees. Accordingly, it was held that the Internal Revenue Service had no obligation to provide that union with additional means of communication. This rule was applied recently by Administrative Law Judge Isabelle R. Cappello in Defense Mapping Agency Aerospace Center, St. Louis, Missouri, Case No. 7-CA-20482, OALJ-83-85 (May 12, 1983). The facts adduced in this case resulted in a holding favoring disclosure of names and addresses. It was held that the exclusive representative involved did not have adequate access to bargaining unit members, and could not effectively communicate with them. The factual situation presented in Defense Mapping is clearly distinguishable. However, the legal issue relative to the necessity of access is nearly identical to the legal issue posed by the language of Section 7114(b)(4)(B) of the Statute. Although counsel representing the General Counsel herein worked diligently to develop a record to establish a finding that the Union did not have adequate access to bargaining unit members, a careful review of the evidence discloses that this burden was not sustained by a preponderance of the evidence. The Union contended that the names and addresses of bargaining unit members were vitally needed to communicate with individual members to ascertain their problems, and to obtain their views relating to bargaining priorities so that intelligent proposals might be promulgated by the Union. /17/ The record revealed no evidence to support a contention that the Union did not have access to the unit for the purposes outlined. With the exception of a small group of 14 bargaining unit members, all members of the unit were located on three floors of a single office building located at 1520 Market Street in St. Louis. Only about 889 bargaining unit employees were assigned to the three floors which housed the operations of the Respondent. The Union had access to the employees at each of two entrances and two exits to the building, and most of the employees utilized a single main entrance. Since the first three floors housed Respondent's operations, employees assigned to these floors were physically located in a relatively small area for purposes of access. In fact, it was the practice of the Union to pass out literature at the entrances, and at other locations within the building. There was no clear showing that such access was ineffective. Respondent's work areas are secured by an identification system, but it was established that Union representatives had access to secured work areas. The fourteen employees not assigned to the first three floors of the office building address were all located at a separate single address in the St. Louis metropolitan area. Here again, the record reflected that the Union had unimpeded access to these employees. An important element relating to the issue of access is observed in the fact that bargaining unit members worked at desks in an office environment. The names of unit members are regularly disclosed to the Union with information concerning their organizational location. "Desk drops" are authorized by the terms of the collective bargaining agreement, and the Union has in fact utilized this means of access to reach individual bargaining unit members for the purpose of obtaining employee views relating to contract issues. The record also otherwise disclosed that the Union has had opportunity to reach employees directly for the purpose of soliciting their opinions, and/or to obtain their home addresses. There was no persuasive showing that the number of stewards were inadequate to reach the relatively small number of bargaining unit members located at the two work site locations. Instead, the record established that at least one Union steward position had not been filled by the Union. Facilities for Union meetings were provided. The Respondent took special steps to adjust worker lunch schedules to permit attendance, and interceded with the General Services Administration on behalf of the Union in order to obtain Union access to a public address system used at 1520 Market Street, the building housing most of the bargaining unit members. The Union also had access to a 3' x 4' bulletin board located on the third floor of the Market Street address, and the Union had access to employees during new employee orientation sessions. The Union's argument that use of the mails would preclude the Respondent from learning the content of communications to members was seen to be without merit. There would be no guarantee of confidentiality with a mailing to all bargaining unit members in light of the fact that a significant percentage of the unit members do not belong to the Union. In this regard there was no showing of any appreciable difference between depositing sealed envelopes on the desks of unit members; and the much sought after use of the U.S. mail, and/or the use of the Respondent's internal mail system. Evidence to the effect that Union stewards and officers, and members were unwilling to devote sufficient non-duty time to Union work did not relate to the question of access to employees, nor did it constitute a showing that there was an absence of access in this case. Moreover, there was no indication that less non-duty time would be required of Union officials if names and addresses were made available; and, in light of the existing right to "desk drop," there was no showing that the supplying of names and addresses would appreciably increase available access to bargaining unit members. The record indicates that the Union did not in fact make effective use of the "desk drop" because Union officers believed that literature left on desks would be discarded. There was no indication that the discard rate would be lessened by a mailing to employees. Similarly, lack of attendance at Union meetings was not probative on the question of existing available access. In summary, there was no clear showing that the use of "desk drops," direct distributions, meetings, bulletin boards, and direct personal contact were inadequate in the special circumstances presented in this case. That is, in light of the existence of the foregoing, Counsel for the General Counsel did not establish that the list of names and addresses sought was "necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." /18/ Accordingly, it is recommended that the Authority issue the following Order pursuant to 5 C.F.R. 2423.29. ORDER IT IS HEREBY ORDERED, that the complaint in Case No. 7-CA-30560, be, and hereby is, dismissed. LOUIS SCALZO Administrative Law Judge Dated: September 24, 1984 Washington, DC --------------- FOOTNOTES$ --------------- /1/ Section 7114(b)(4) of the Statute provides: Sec. 7114. Representation rights and duties . . . . (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation-- . . . . (4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data-- (A) which is normally maintained by the agency in the regular course of business; (and) (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining(.) /2/ Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified as amended at 5 U.S.C. 552a (1982)). /3/ 5 U.S.C. 552a(a)(4), (5) (1982). /4/ Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256 (codified as amended at 5 U.S.C. 552 (1982)). /5/ See, e.g., Department of the Air Force v. Rose, 425 U.S. 352 (1976). /6/ See also Bureau of Alcohol, Tobacco and Firearms, National Office, Washington, D.C., 18 FLRA No. 74 (1985). /7/ In this regard, the Union could have communicated with unit employees through "desk drops" of information as authorized by the parties' collective bargaining agreement; direct distributions at entrances; meetings in conference rooms provided by management under the negotiated agreement; bulletin boards; and union stewards who had access to unit employees at their workplace. /8/ In so concluding, the Authority does not reach the question of whether the data sought herein meets the other requirements of section 7114(b)(4) of the Statute. /9/ Counsel representing the General Counsel moved to correct errors in the hearing transcript. Under Authority reflected in 5 C.F.R. 2423.19(r), the proposed corrections are approved with the exception of the proposed correction at Tr. 64:10. An examination of this reference in the transcript reflects no error of the type noted in the motion. /10/ The record disclosed that the home addresses sought by the Union are retained by the Respondent in official personnel files, in a card index system, and in a computer file (Tr. 24). /11/ The "desk drop," an approved means of access provided to the Union under the terms of the collective bargaining agreement will be hereinafter discussed in more detail. It involved direct placement of Union literature on the desks of bargaining unit members. /12/ Since the record reflects a total of about 903 unit members, it is determined that approximately 889 members worked at the Market Street address. /13/ The record disclosed use of a "modified flex-tour" with the majority of employees working a day shift commencing during the hours of 6:30 a.m. and 8:30 a.m. (Tr. 89). Night shifts were also utilized. One began between 2:00 p.m. and 4:00 p.m. A second one commenced between 9:00 p.m. and 11:00 p.m. (Tr. 89-90). /14/ The record suggests that the Respondent utilized the "desk drop" method to solicit managerial comments relating to management bargaining proposals (Tr 79). /15/ This document required employees to "(p)lease fill out your name, address, and phone so that we may record your results in our computer and, more importantly, contact you for further discussion." Only sixty-five returned the survey, and only about half of the surveys returned had names and addresses on them (Tr. 30). Most of the surveys in the latter group emanated from Union members whose names and addresses were known to the Union (Tr. 30). The meager response to the Union's request for home addresses within the context outlined is understandable since the survey sought much more than names and home addresses. Completion of the survey, and submission to the Union included substantial employee involvement, and an assurance of future Union efforts to obtain participation from employees who supplied their names and addresses. The insignificant response under the circumstances described would not establish an absence of access to bargaining unit employees. /16/ See A/SLMR No. 214, 2 A/SLMR 523 (1972), and relevant private sector cases cited therein. /17/ Although these reasons for requesting the names and addresses were advanced by the Union, the record also established that Union acquisition of the list was considered vitally necessary in connection with efforts to recruit new members. The language of Section 7114(b)(4) provides no basis for disclosure of the names and addresses of bargaining members for the purpose of recruiting new union members. /18/ In view of this conclusion it is unnecessary to pass upon Respondent's argument that disclosure in this case would contravene the provisions of the Privacy Act.