19:0195(21)CA - Farmers Home Administration Finance Office, St. Louis, MO and AFGE Local 3354 -- 1985 FLRAdec CA



[ v19 p195 ]
19:0195(21)CA
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 Unio