19:0675(85)CA - Defense Mapping Agency Aerospace Center, St. Louis, MO and NFFE Local 1827 -- 1985 FLRAdec CA
[ v19 p675 ]
The decision of the Authority follows:
19 FLRA No. 85 DEFENSE MAPPING AGENCY AEROSPACE CENTER, ST. LOUIS, MISSOURI Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1827 Charging Party Case No. 7-CA-20482 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent and the General Counsel filed exceptions to the Judge's Decision, and the General Counsel filed an opposition to the Respondent'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, /1/ the Authority hereby adopts the Judge's findings, conclusions and recommendations only to the extent consistent herewith. The Judge concluded that the Respondent failed to comply with the requirements of section 7114(b)(4) of the Statute /2/ in violation of section 7116(a)(1), (5) and (8) of the Statute when it refused to provide the Union, upon request, with the names and home addresses of all unit employees represented by the exclusive representative. In this regard, the Judge, inter alia, found that: the home addresses of unit employees, while not maintained in a discrete list, were available both in employees' personnel files and in the Respondent's data banks and that the cost of retrieving this data was not unreasonable; that it "seems axiomatic" that a union must be able to communicate effectively with the employees it represents, and that the sources of communication available to the Union here being neither effective nor reasonable, the Respondent must supply the Union with names and home addresses; and that, based on private sector precedent, the Privacy Act /3/ is not a bar to such disclosure. The Authority disagrees. In a recent decision, Farmers Home Administration Finance Office, St. Louis, Missouri, 19 FLRA No. 21 (1985) (hereinafter Farmers Home Administration), the Authority, relying on its prior decision in Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA No. 92 (1985) (hereinafter AAFES), stated that the disclosure of unit employees' names and home addresses, like the disclosure of other data sought pursuant to section 7114(b)(4) of the Statute, requires not only a case by case determination as to whether the data has been requested, whether it is normally maintained, whether it is reasonably available, and whether it is necessary to enable the exclusive representative to fulfill its representational obligations, but also requires a determination that the disclosure of the data sought would not be prohibited by law, including the Privacy Act. In AAFES, the Authority decided that, in determining whether the disclosure of any data sought pursuant to section 7114(b)(4) of the Statute is or is not otherwise "prohibited by law," i.e., the Privacy Act, it will use the same balancing test applied by the courts in evaluating whether information sought under the Freedom of Information Act (FOIA) /4/ should be disclosed or should be protected from disclosure as a clearly unwarranted invasion of privacy under the FOIA exemption set forth at 5 U.S.C. 552(b)(6). The application of the (b)(6) balancing test requires weighing the necessity of the data for the union's purposes against the degree of intrusion on the individuals' privacy interests caused by disclosure of the data. /5/ Guided particularly 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), wherein the Court adopted the lower court's determination that the balance of all factors led to the conclusion that an exclusive representative was not entitled to the home addresses of unit employees which it had sought pursuant to the FOIA, the Authority in Farmers Home Administration applied the foregoing balancing test and concluded that the exclusive representative there was not entitled to the names and home addresses of unit employees under section 7114(b)(4) of the Statute. As in Farmers Home Administration, the Authority finds that the same findings and conclusions flow from the similar facts of the present case. Thus, for the reasons stated in Farmers Home Administration, 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 record in this case clearly establishes that alternative means of communication with unit employees were available to the Union herein. /6/ Further, we find that the records sought by the Union herein, as in Farmers Home Administration, 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. 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) or (8) of the Statute when it refused to provide the exclusive representative with the names and home addresses of unit employees. /7/ Accordingly, the Authority shall order that the complaint be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 7-CA-20482 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., August 12, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 7-CA-20482 Louis P. Eaves Representative for Respondent Nicholas J. LoBurgio and Joseph Swerdzewski, Attorneys for the General Counsel Federal Labor Relations Authority Before: ISABELLE R. CAPPELLO Administrative Law Judge DECISION This is a proceeding under Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp. V, 1981), commonly known as the Federal Service Labor-Management Relations Statute, and hereinafter referred to as the "Statute", and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq. Pursuant to a charge filed on September 27, 1982, by the Charging Party, the Acting Regional Director of Region 7 of the Federal Labor Relations Authority (hereinafter, the "Authority") investigated and, on November 10, 1982, filed the complaint initiating this proceeding. The complaint alleges that on or about July 23 and August 4, 1982, the Charging Party requested that Respondent furnish to it the names and addresses of all present bargaining unit employees; that on or about July 29 and August 5, 1982, Respondent failed or refused, and continues to refuse to provide the requested information; that the Charging Party is entitled to such information under the provisions of 5 U.S.C. 7114(b)(4); and therefore Respondent has engaged in unfair labor practices within the meaning of 5 U.S.C. 7116(a)(1), (5), and (8). /8/ Respondent alleges that it routinely provides the Charging Party with the names of bargaining unit employees, and has only refused to provide the home addresses of such employees. It denies that such a refusal violates the Statute. A hearing on the matter was held in St. Louis, Missouri, on January 12, 1983. The parties appeared, adduced evidence, and examined witnesses. Briefs were filed by the General Counsel on March 11, 1983, and by the Respondent on March 8, 1983, pursuant to an order extending the briefing time, for good cause shown, to March 11, 1983. Based upon the record, my observation of the demeanor of the witnesses, and the briefs, I make the following findings of fact, conclusions of law, and recommended order. Findings of Fact /9/ 1. It is admitted that Respondent is an "agency" and the Charging Party is a "labor organization", within the meaning of the Statute, and that since September 9, 1976, the Charging Party has been recognized as the exclusive representative of all general schedule and wage grade employees of Respondent, with certain exceptions not here relevant. See GC 1(b) and (c), pars. 2 and 3. 2. Respondent maintains two facilities-- one at 2nd and Arsenal Street and one at South Broadway. They are about 4 1/2 or 6 miles apart. A bus service is provided between them. Respondent employs a total of approximately 3,900 employees at its two facilities. Of the 3,900, approximately 1,300 are bargaining unit employees. A "great majority" perhaps two-thirds, of the unit employees are employed in the main building at 2nd and Arsenal (TR 62 and see also TR 95). In all, there are some 12 or 13 buildings at 2nd and Arsenal, with multiple exits. Exits from 2nd and Arsenal flow into the Anheuser-Busch brewery. At South Broadway, there are four major buildings, with multiple exits. There are two parking lots at South Broadway, and six or eight at 2nd and Arsenal, with more parking around the docks and at the roadways. Within the main building at 2nd and Arsenal there is a secured wing, some four or five stories high, which has controlled access. At the time the Union made its request for the names and addresses of unit employees, neither its President nor its Chief Steward were cleared for access to the secured areas. Employees live over a 100-mile radius of St. Louis and in two States-- Illinois and Missouri. Maintenance employees, who are in the bargaining unit, sometimes work off the site of the two facilities, in barracks located a "considerable" distance away, perhaps 8 miles (TR 109-110). 3. It is admitted that since approximately 1980, Respondent has provided the Charging Party (also referred to hereinafter as the "Union") with a list of the names of bargaining unit employees, on a recurring basis. 4. On July 23 the Union, by letter, requested that Respondent provide it with "a complete listing of bargaining unit members names and addresses" (GC 3). The letter stated that the request was made "(i)n order for the Union to communicate with bargaining unit members." 5. The Union never told Respondent what, in particular, it wished to communicate to employees; and Respondent never asked. 6. The particular communication which the Union wished to make was revealed at the hearing and, to the surprise of Respondent, it involved a Secrecy Agreement. 7. The Secrecy Agreement was introduced into evidence as Respondent's Exhibit No. 16. It states that the employee has read and understands the Espionage Act and is familiar with its penalties. Twelve paragraphs of that criminal statute are excerpted on the back of the Agreement. The employee has to agree never to "divulge, publish, or reveal, either by word, conduct, or by any other means, any classified information, intelligence, or knowledge, except in the performance of (his or her) official duties and in accordance with the laws of the United States, unless specifically authorized in writing in each use by the Secretary of Defense" (R 16.1). The employee has to agree that the Agreement will be binding even after termination of Government service. The Agreement was developed at the headquarters of the Defense Mapping Agency, in Washington, D.C. (hereinafter, "Hq DMA"). 8. Respondent, by letter, furnished the Union a copy of the Secrecy Agreement on May 26, along with a proposed cover letter which indicated that Hq DMA was requiring "all DMACC (the acronym for Respondent) employees, currently cleared for access to classified information" to execute the Agreement, and that supervisors were to witness the signature (R 17). Respondent's letter to the Union indicated that the Agreement and proposed cover letter were "forwarded for coordination pursuant to Article 11 of the Labor-Management Agreement" (R 15). Article 11 gives the Union 14 calendar days to request negotiations over proposed changes. Failure of the Union to respond within that time frame allows Respondent to implement the proposed changes without bargaining, under the collective bargaining agreement. By July 8, the Union had not responded to Respondent's May 26 letter forwarding the Agreement and the proposed cover letter. So Respondent began distribution to employees in "mid July" (TR 200). But distribution was under a different cover letter than the one which had been furnished to the Union. At least one difference was that the cover letter distributing the Agreement advised "employees to complete the Secrecy Agreement by . . . 30th of September" (TR 200) (The cover letter actually sent to employees was not adduced as an exhibit). 9. The union President was under the impression that the Agreement was "just for top secret people." But then he began to receive complaints and inquiries from unit employees, asking for guidance on how to respond, whether it was mandatory for them to sign it, and what was the Union position on the matter. Thus, the Union came to the realization that there was a need to negotiate over the matter. "(S)ometime right around July 23, Respondent's Labor Relations Officer indicated a "willingness to negotiate on it if (the Union) would give him some kind of proposal so he could make it" (TR 86 and see also TR 71, 105, and 117). The Union made its first proposal to bargain over the matter on August 13 and, in the letter of that date to Respondent, stated that it would "submit proposal at the table" (TR 18). The letter requested that bargaining start on August 23 and that the Union be briefed on the Agreement prior to the start of negotiations. 10. To prepare for negotiations, the Union needed some information, including the number of employees actually involved in classified information, and whether the Agreement was a directive from higher authority than Respondent. It also needed advice from its National Office as to the appropriate bargaining level. The Agreement mentioned that it was replacing another form; and so the Union wanted to find the previous form. The current contract between the parties defines "representational functions" of the Union to include "(p)reparation for and participation in bargaining" (R 1.27, par. 10-5b). 11. The Union wanted to communicate with unit employees to advise them "to stall" signing the Agreement, "if they could," until negotiations were completed and, if forced to sign it, to note that it was being signed under protest and duress (TR 86 and see also TR 73, 76, and 103-104). There was talk of insubordination; and the Union wanted to explain to the unit employees what insubordination was. The Union also wanted to be sure that employees had read the Espionage Act and knew what their rights were. The Union felt the need to communicate by letter so that management would not know what it was telling employees and take steps to force their signing. It also wanted to advise all the unit employees the same thing at the same time (TR 74). 12. On July 29, Respondent responded to the July 23 request by the Union for the complete listing of unit employees' names and addresses. The response was that "(s)uch information (the addresses) is not maintained by DMAAC in a form which is reasonably available" (GC 4). 13. On August 4, the union Chief Steward replied, by letter, to Respondent's July 29 letter. The Union claimed a right to the names and addresses of bargaining unit members; stated that "(s)uch information is necessary for the Union to communicate vital information to such members in a timely fashion;" and expressed the "hope it w(ould) not be necessary to resort to a third party to exercise this right, for such is necessary for Union to discharge its obligation under the statute" (GC 5). 14. On August 5, Respondent replied by letter to the Union's August 4 letter by simply reiterating its prior position, namely that the information was not maintained in a "reasonably available" form. See finding 12, supra. As of August 5, Respondent had apparently not inquired of its Information Systems staff as to the actual availability of such information or the cost of obtaining it. See TR 180-181 and 223-224. 15. Two collective bargaining agreements have been in effect between Respondent and the Union. One was effective 1977. The other became effective February 19, 1982. Neither explicitly provides that Respondent furnish home addresses of employees. 16. The Union maintains the home addresses of dues-paying members, who approximate 343 in number. See R 3.6. 17. The collective bargaining agreement in effect since February 19, 1982 provides, under Article 13, the following means whereby the Union can communicate with unit employees. a. Use of bulletin boards. These boards are dispersed throughout the locations where unit employees work and go to lunch. Whether there are bulletin boards in secured areas was not established. See TR 109. b. Use of Respondent's internal mail system, the stated intent being "to provide an economical and time efficient way for communication between the Union and individual unit employees and the Employer" (R 1.42, pars. 13-5d). It may not be used for "bulk distribution" or for "internal Union business" (R 1.42, pars. 13-5a and d). One of Respondent's witnesses testified that the "permissible" use was "to maintain communication between the Union and the Employer as regards their representation" (TR 159-160). In the past, Respondent has stopped the Union from mailing out information to all employees, on the ground that it was considered "bulk mail" (TR 90). c. Use of Respondent's Administrative Bulletin and Orientor. Material must be submitted 14 days prior to the proposed date of publication. Publication is dependent on availability of space. Material may not deal with such matters as "grievances, unfair labor practices, complaints and organizational drives" (R 1.42, par. 13-6a). The Bulletin is published twice a week. The Orientor is published every two weeks. d. Use of two stations at 2nd Street and one at South Broadway for the distribution of a union newspaper. See R 1.43, par. 13-7. e. Use of meeting space during non-duty hours of unit employees. Such use must be requested at least 14 calendar days in advance. See R 1.43, par. 13-8. Such meetings are held monthly and are attended mostly by union members. f. Use of an office with a private telephone paid for by the Union. The office is at the main building at its 2nd and Arsenal facility. See TR 60. The contact also provides for an office at the South Broadway location. See R 1.40, par. 13-1. Employees may visit the office on official time. 18. The Union has two officers, President and Chief Steward, who spend all their time on official time. Five other Union officials and 22 stewards are authorized to use an additional 2,000 hours of official time. See TR 60 and 63. The stewards are dispersed throughout the work areas of unit employees, but not at the time the requests for home addresses were made by the Union, in July and August. At that time, the Union had "made one request (for access to security areas) and it was denied" (TR 108). 19. In the course of a day, union officials have 9 or 10 contracts with unit members. Basically, the contacts are with the same members, day after day. On a weekly basis, the Chief Steward has contact with "(m)aybe 15" (TR 79). 20. Membership drives are conducted twice a year by the Union and, under the contract may be conducted over the course of 15 workdays. Tables are set up in heavy traffic areas where a lot of employees pass back and forth, and are manned "to tr(y) to catch breaks" (TR 65 (a)). Such drives must be conducted in non-work areas during non-duty hours. Requests for equipment and facilities must be made to Respondent at least 10 days in advance. 21. The Union has never utilized any of the means available to it to compile a list of home addresses for unit employees. 22. In his testimony, the union President established what he deems to be the impracticabilities of compiling home addresses by means available to the Union. The use of bulletin boards is not effective because, in his opinion, employees do not invariably read them and would provide Respondent with the Union's bargaining position. The union President and its Chief Steward did not have access to the boards in secured areas, at the time of the July and August requests for addresses. Respondent does not allow the Union to use the internal mail system for bulk mailing or internal Union mail such as a Union letter to all employees. Use of Respondent's administrative bulletin and internal newspaper by the Union are subject to conditions such as the Respondent's editorial control, space being available, and advance submission of proposed articles at least two weeks prior to publication date. The Union's own newspaper can be distributed at two locations on Respondent's facilities, but its dissemination cannot be controlled to limit that distribution only to unit employees. The Union newspaper is only mailed to members. The Union can use Respondent's facilities during non-duty hours for Union meetings, but must again make a request for use of the space at least two weeks in advance. Individual telephone contacts with unit employees, either to obtain the requested data or in lieu of a letter to the employees, would have resulted in either a disruption of Respondent's mission, if done during duty hours, or would have required the Union to gather over 900 telephone numbers from numerous directories in two different States, so that it could contact the unit employees after work at their homes. The steward system in place in August 1982 was down 17 or 18 such officials; and they did not cover every organizational unit on all shifts in every building. Access to security areas where employees worked was very limited. Attempts to individually contact each unit employee by handbilling was not an effective or efficient means to reach them because unit employees are not identifiable by badge or uniform, and because of the long time span needed to distribute them due to flexible workhours. The Union's last attempt at handbilling was not successful. See TR 81-92. Finally, the Union wanted to send a letter because it wanted the communication to be fast; and it wanted to tell all of the unit employees the same thing. 23. In March 1980, the parties entered into a memorandum of understanding concerning ground rules for the then upcoming negotiations on their current collective bargaining agreement. It included specific provisions that all proposals be submitted in writing, although, in practice, this provision was not always followed. Pursuant to this requirement, the Union submitted to Respondent a written article entitled "Orientation of New Employees." General bargaining began in September 1980 and continued through January 1982. Bargaining over the Union's "Orientation of New Employees" proposal occurred on September 29, 1980. The Assistant Chief Negotiator for the Union, Louis Foster, testified that while the parties were discussing the orientation of new employees, specifically Union attendance at new employee orientation meetings, the lack of supervisory orientation for new employees, and the introduction of new employees to the applicable Union steward, he asked whether the Union could get the home addresses of these new employees so that it could contact them about the Union's goals, objectives and achievements. The union's Chief Negotiator, Virgil Haun, confirmed that the subject of bargaining was new employees and that Mr. Foster asked for the addresses of only new employees. Mr. Haun specifically denied that the bargaining involved any discussion about the names and addresses of all unit employees. The testimony of these two union officials is supported by the Union's bargaining notes. See GC 12. Their recollection was so positive because Mr. Haun, after the bargaining session on new employees, chastised Mr. Foster for interjecting the subject of addresses into the union's proposal. Respondent's sole witness on this bargaining history issue was Employee Relations Specialist, Donna McGlynn, who was employed by Respondent in August 1980, just prior to the beginning of negotiations in which she participated. Her testimony on the bargaining session concerning "Orientation of New Employees" was primarily based upon management's bargaining notes. At the hearing, she characterized these notes, which she prepared at an unspecified time, as "very scanty," not "verbatim," and not "all-encompassing;" instead they were digests of lengthy discussions that caught the "intent" of what was discussed (TR 136). Her notes do not reflect that the union made a request for names and addresses of "all" unit members (TR 149). She, however, recalled that the Union asked for the addresses of all unit employees, based upon a "lengthy discussion" that occurred to which her notes made no reference (TR 149). She admitted to having no independent recollection of the October 8, 1980, bargaining session when the article on orientation of new employees was signed and to difficulty in testifying about events that happened 2 1/2 years ago. Of these three witnesses, Mr. Foster and Mr. Haun seemed to be surer of their facts than Ms. McGlynn. Also their testimony is supported by the Union's bargaining notes. Accordingly, I credit their testimony over that of Ms. McGlynn as to bargaining over addresses, and find that the 1980 bargaining was limited to addresses for new employees. /10/ 24. Article 14 of the current collective bargaining agreement is the only article specifically dealing with information to the union. See R 1.43. There was no discussion about providing addresses to employees during the negotiations over that article. There was a lot of discussion about when Respondent would honor a request for information, with Respondent taking the position that it would honor "specific request for information relating to a specific situation" but not "generalized requests for a lot of information which were not directed or were not necessarily based on a specific situation or circumstance at the time" (R 133). This is not spelled out in the Article. The Articles does require Respondent "to furnish cost free to the Union within thirty (30) calendar days of a specific written request from the Union, all information, data or material, relevant and necessary for the proper discharge of its obligations under Public Law 95-454 and this Agreement" (R. 143, par. 14-1a). This Article was approved by the Department of Defense on February 10, 1982. 25. On April 22, 1981, the Union had made a prior request for addresses of unit employees. On April 28, 1981, Respondent denied the request, and referred the Union to Department of Defense ("DOD") Directive 1426.1, dated October 9, 1974, which specifically states that the home addresses of DOD employees will not be furnished to labor organizations. See TR 129-130 and R 8.A33, par. C-4. DOD Civilian Personnel Manual 1400.25M, effective on November 10, 1981, continued to policy of not releasing home addresses. See TR 131, 1981 (TR 131-132). These DOD directives were issued prior to the current collective bargaining agreement between the parties, which DOD approved, and which recognizes Respondent's obligations under the Statute. See finding 24, supra. The Union made no "response" to this denial (TR 131-132). 26. Respondent's Personnel Office maintains addresses of employees in their OPFs. They are not necessarily up to date. There is no way to verify the accuracy of the home address in the OPF, to the knowledge of Respondent's Supervisory Personnel Systems Manager. To furnish the addresses from the OPFs of the 1,300 bargaining unit employees, a list of unit employees would have to be secured; their folders pulled from two "power files;" their addresses handwritten; and the OPFs then refiled (TR 168-170). The cost of this procedure was apparently not estimated by Respondent. In any event, its cost is not a matter of record. 27. The names and addresses of all employees are also maintained in Respondent's payroll computer system. Two programs exist for utilizing this information-- the check-mailing program and the W-2 mailing program. There is no program which would produce just the names and addresses of employees. To establish such a program, an existing one could be modified, or a new one developed. In an estimated 40 man-hours, a program could be prepared to provide the names and addresses of unit employees. According to Respondent's Information Systems' Branch Chief, the one-time cost would be $736, taking into consideration labor costs and the time of the computer and the keypunching. The cost for each run thereafter would be an estimated $21, for 1,500 employees. This cost estimate was first prepared, on October 26, on the basis of a phone call, a few days earlier, from Respondent's Labor Relations Officer. The primary cost factor, in the $736 figure, is the cost for a GS-12 programmer. Use of a lower-graded employee would not be as "efficient" a way to get the job done (TR 190). This price estimate does not take into account "cannibalizing" existing programs; the priority that the retrieval program had for computer time; the type retrieval, copying or printing; or the retrieval of the names and addresses of all employees, rather than just unit employees. See TR 181, 185-186 and 189-190. The retrieval for all employees would reduce the cost to "maybe $700" (TR 184). There is another program in existence which could be "cannibalized" to pull off information of names and addresses of employees (TR 181-183). But it does not conform to "standards" (TR 187). It could be done "on a crash basis" and then corrected so that it conformed to "standards" (TR 187). One of Respondent's "most experienced" programmers (TR 190), Dorothy Hyduke, established that an existing program requested by another user (to supply mailing address for carpooling purposes) could be used to develop a list of names and addresses of employees, "(w)ith certain changes," at a cost of around $300 (TR 225). Such a list would not distinguish between unit and non-unit employees. Programing to retrieve information solely as to unit employees would apparently be around $36. See TR 178 and 184. 28. On October 23, the Union filed a charge against Respondent for failure to bargain over the implementation of the Secrecy Agreement. On November 9, the Authority approved its withdrawal. It is conceded by both parties that they did meet and discuss the Secrecy Agreement. See TR 41, 67, 71-72, 117, and 199-200. The Union prepared some proposals which were presented and responded to by Respondent. Respondent decided that the Secrecy Agreement was not negotiable. See TR 198-199. This decision was reached after the Union's August 13 letter requesting negotiations. 29. Currently, the Authority has in its hands a petition to determine the negotiability of the content of the Secrecy Agreement. In its brief, Respondent supplied the date of the petition (September 22) and the number (O-NG-747). See RBr 5. 30. The collective bargaining agreement between the parties, which is currently in effect, was submitted to the Department of Defense for prior approval. The Department of Defense approved it, on February 10, 1982. Respondent and the Charging Party signed it on February 19, 1982. See the first and last page of Respondent's Exhibit 1. Discussion and Conclusions The General Counsel has demonstrated, by a preponderance of the evidence, /11/ that Respondent has engaged in the unfair labor practices alleged in the complaint. The act constituting the statutory violations is the refusal of Respondent to provide the home addresses of bargaining unit employees on the ground, initially, that the addresses were not "reasonably available." See findings 12 and 14, supra. The facts show that the addresses are "available," in the personnel files of employees, and in Respondent's computer data bank; but furnishing them would require Respondent to pull the personnel files and hand record the addresses, with no guarantee of their currency, or develop a program for its computer at a cost that could go as high as $736. See finding 26 and 27, supra. Section 7114(b)(4) of the Statute, quoted fully in footnote 8, supra, provides that "data" must be "furnished" by an agency to an exclusive representative of its employees, as a part of its "duty . . . to bargain in good faith," and "to the extent not prohibited by law," if it is "data:" that is (A) "normally maintained by the agency in the regular course of business;" (B) "is "reasonably available and necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining;" and (C) "does not constitute, guidance, advice, and counsel, or training . . . . " In this case, no issue has been raised to subpart (C). See GC (b), par. 7(d) and GC (c), par. 7(d). With this exception, all the other quoted portions of Sections 7114(b)(4) are at issue and will be discussed, infra, along with the defenses now raised by Respondent, in its brief. 1. Home addresses of employees constitute "data," within the statutory meaning. The term "data" is not defined in the Statute. It has been used interchangeably with the word "information," which is a synonym for "data." See page 684 of The Random House College Dictionary and Veterans Administration Regional Office, Denver, Colorado, 7 FLRA No. 1-0, 7 FLRA 629, 637 (1982), treating as "data" the names of employees, and 10 FLRA No. 78, 10 FLRA 453, 465, treating as "data" the counselling record of a grievant. Respondent raises no serious argument that home addresses of employees do not constitute "data," but only that the addresses are not kept in a particular format. The Authority has ruled that an agency need not produce "non-existent data." See Division of Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA No. 71, 8 FLRA 307 at 320 (1982). But the data here does exist. And, as was held in N.L.R.B. v. General Electric, 418 F.2d 736, 753 (C.A. 2, 1969), cert. den. 397 U.S. 965 (1970) the fact that data does not exist in a particular format is an invalid defense to a refusal to provide information when the data exists in some form and could have been furnished in that form, or at least used to advise the union that it did exist in some form. /12/ 2. Home addresses of employees are "normally maintained by (Respondent) in the regular course of business." The record establishes that home addresses are maintained by Respondent in the personnel files of its employees, and in its computer data bank, for a variety of business-related purposes, such as payroll and tax withholdings. See findings 26 and 27, supra. 3. The home addresses of bargaining-unit employees are "reasonably available." The current home addresses are undisputably "available" in Respondent's computer data bank. See finding 27, supra. Storage in the computer data bank was obviously a management choice based upon efficient retrieval for a variety, of business-related purposes. Retrieval, of course, depends upon programs; but the fact that Respondent must develop a program to retrieve home addresses of bargaining-unit employees should not be used as an excuse to deny necessary information to its employees' exclusive bargaining representative. Respondent developed a program for another "user," to retrieve home addresses for purposes of carpooling. See finding 27, supra. It is not unreasonable for it to do the same for the exclusive bargaining representative of its employees, in order that the representative may intelligently represent them. Respondent argues unreasonableness, as to retrieval from the computer data bank, on the ground that it would require approximately 40 manhours to establish a program for retrieval of the addresses of unit employees, at a cost of approximately $736 and a cost of $21, thereafter, for each computer run. See RBr 12 and 19. /13/ Respondent further argues that it is "self-evident" that it had no business use for such information and would thus derive no benefit from the expenditure of such sums (RBr 12). As to the "self-evident" statement, it is observed that private-sector employees with "serious labor relations problems" have used the mails to communicate with unit employees. See the United Aircraft v. N.L.R.B., 434 F.2d 1198 at 1202 (C.A. 2, 1970) cert. den. 401 U.S. 993 (1971). Government agencies might also have some use for an up-to-date list of home addresses of unit employees. As to the costs, Respondent acknowledges that the Authority's decision in Veterans Administration Regional Office, Denver, Colorado, 10 FLRA No. 78, 10 FLRA 453, 456-457 (1982), establishes that data must be furnished without charge to the exclusive representative, under the Statute. Its collective bargaining agreement with the Union also so provides. See finding 24, supra. Nevertheless, Respondent argues that "the cost to an agency in providing requested information should be a heavily weighted factor in determining if information is reasonably available" (RBr 19). Respondent's logic is appealing. If costs were truly astronomic, it might even be persuasive. But here the probable costs are not so high as to defy the mandate of the Statute that its provisions be "interpreted in a manner consistent with the requirement of an effective and efficient Government." See 5 U.S.C. 7101(b), which Respondent cites in support of its position. Throughout Government, agencies are installing computer systems because they are the most effective and efficient way to conduct all manner of Government business. The costs of programing them is obviously taken into account. An agency which chooses to put necessary data into its computer bank, rather than into a file drawer which could be reached without costly programing, should not be able to frustrate legitimate needs of its employees' exclusive bargaining representative on the ground of a programing cost of $736 or less. To allow this would be contrary to the finding of Congress that collective bargaining through labor organizations "safeguards the public interest," "contributes to the effective conduct of public business" and is "in the public interest" (5 U.S.C. 7101(a)). Home addresses are also available in Respondent's personnel office, where they repose in the personnel folder of each employee. The cost of retrieving addresses from this source was not estimated. The effort involved was not shown to be unduly burdensome, however, see finding 26, supra. The fact that the addresses may not all be up to date does not mean that this is not a "reasonably available form," as Respondent argues. See RBr 12. It is common knowledge that first-claim mail is forwarded by the U.S. Postal Service, or returned to sender. It would not be an undue burden for the Union to ascertain the addresses for employees whose mail has been returned, under such circumstances. 4. The home addresses of bargaining-unit employees are "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." It seems axiomatic that a labor organization, to frame intelligent collective bargaining proposals, must be able to communicate effectively with the employees in the unit-- to obtain their views on bargaining priorities; to learn their problems; and obtain information, to name a few reasons. When a low percentage of unit employees are members of the union, the availability of adequate communication channels takes on an added significance, for the membership may not represent a fair sample of the views and problems of the entire bargaining unit on a particular topic. Here, only about 343 of the 1,300 employees in the bargaining unit are members of the Union. See findings 2 and 16, supra. In the private sector, just such considerations have been noted in decisions which have declared that it was an unfair labor practice for an employer to withhold home addresses from the exclusive representative of its employees. See United Aircraft, supra, 434 F.2d at 1205 and Prudential Insurance Company of America v. N.L.R.B., 412 F.2d 77, 83 (C.A. 2, 1969), cert. den. 396 U.S. 928 (1969). /14/ A union has a statutory-imposed duty to represent and bargain for all employees in the unit, not just those who happen to be members. See 5 U.S.C. 7114(a)(1). Effective communication with all unit employees is therefore vital. Also, the Authority has indicated, most recently in Veterans Administration Regional Office, Denver, Colorado, 10 FLRA No. 78, 10 FLRA 453 (1982) that data requested under Section 7114(b)(4) must be furnished not only when necessary to the Union's collective-bargaining duties but, more generally, "to enable the Union to effectively carryout its representational obligations in the processing of an employee grievance" (10 FLRA at 455). A union's "representational obligations" are multifaceted. Under the contract between the parties here, representational functions of the Union expressly include preparation for bargaining. See finding 10, supra. Implicitly, they also include advising unit employees that negotiations are underway and how to protect themselves in the event that an agency acts in a manner adverse to their interests, before bargaining is complete. Such advice is what the union here wished to impart to all unit employees. See finding 11, supra. And it was vital advice, for the Secrecy Agreement, presented to unit employees before bargaining was undertaken, /15/ precluded employees from ever releasing information about their work, under threat of criminal prosecution. Also, a union letter to all unit employees would have permitted feedback from the employees as to the number and types of employees actually involved in classified work, so that the necessity for unit-wide compliance with the Secrecy Agreement, instead of relying upon the haphazard verbal feedback it was receiving. On this point, Respondent argues that the request for addresses was unrelated to collective bargaining. See RBr 5-8 and 16-19. The facts are otherwise. The Union was preparing for negotiations when the requests were made. /16/ See findings 9 and 10, supra. Respondent also makes a point that the Union never told it that the information was needed in connection with the Secrecy Agreement. See RBr 6. In view of Respondent's response, that it was denying the data on the ground that it was not maintained in a "reasonably available form" (see findings 12 and 14, supra), the failure of the Union to explain why it needed the information is understandable. But it is also irrelevant. The Statute nowhere requires a union to state precisely why it wants the data; rather it sets forth the requirements which, if met, entitle it to the data. If the agency wants specificity, it may ask. But an agency acts at its peril if, as Respondent has done, it denies the request on the ground of availability, and never inquires further into the needs of the union for the requested data. At pages 16-17 of its brief, Respondent relies on Internal Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA No. 102, 7 FLRA 654 (1982), where the Authority dismissed a complaint alleging a violation for refusal to furnish a case file and assorted history sheets in connection with a grievance of a revenue officer. The basis for the denial was that the grievance itself was so "vague and ill-defined" that the Authority could not itself determine the necessity of the information sought, even after a hearing. See 6 FLRA at 662-663. (The grievance requested that management recognize the grievant's dignity, cease its disparaging remarks to him, and desist from changing work policies and practices re cases being worked on by the grievant. See fn. 7 at 7 FLRA 659). In that case, Internal Revenue requested clarification and stated that "if the grievance were clarified, the request would be considered anew" (7 FLRA at 661). Here Respondent never asked for clarification; it simply informed the Union that the information was not reasonably available. Respondent also relies upon Director of Administration, Headquarters, U.S. Air Force, 6 FLRA No. 24 (1981), where the Authority dismissed a complaint alleging a violation based on the agency's refusal to furnish information concerning "contracts for services which have been let or which may impact upon bargaining unit employees," in connection with a provision of the union's collective bargaining agreement with the agency that: "Contractor personnel will be used to replace civilian personnel only when it is more economical to do so" (6 FLRA at 110-111). It was not shown that any employee had been displaced, reassigned, subjected to reduction in force, or otherwise adversely affected; and no grievances were pending as a result of a contracting-out action. Thus, the Authority could not find any necessity for the information. The agency, unlike Respondent here, made a "good faith attempt to clarify the request" and "was met with a stubborn insistence on entitlement without explanation" (6 FLRA at 125). Here, it is Respondent who displayed stubbornness, denying the Union's request on the sole ground of non-availability of the information and making no attempt to clarify the need for the request. While the Union would probably not have revealed to Respondent exactly what it wanted to tell employees (see finding 11, supra), there is no evidence to indicate that, if asked by Respondent, the Union would not have given some clarification of its need to pass on vital information to unit employees. 5. Other sources of communication with unit employees are not effective or reasonable, particularly for getting out messages within a short time frame, as here. The Union in this case needed to get word to unit employees to stall signing the Secrecy Agreements, "if they could," until negotiations were concluded, or to indicate that they were signing under protest or duress. /17/ See finding 11, supra. The Authority has reserved consideration of whether an agency may be required to furnish data which is available from another source. See Veterans Administration Regional Office, Denver, Colorado, 10 FLRA No. 78, 10 FLRA 453, 458, fn. 11. Primarily, the General Counsel argues that the alternative sources are neither reasonable nor effective; and the record gives ample support to this position. /18/ a. Bulletin boards are available to the Union, but whether employees conscientiously read them is doubtful. Also, they are ineffective for communicating quickly with all unit employees. And they are an inappropriate means for communicating confidential, complex, or lengthy advice. b. The internal mail system is not available to the Union for bulk mailing. The Union tried this once, and was stopped. See finding 17b, supra. Even if the Union limited the mailing to the 957 or so unit members for whom it lacks home addresses, this would surely be a "bulk" mailing. c. The use of Respondent's bulletins and newspapers is subject to Respondent's editorial control and availability of space. Since material submitted must be submitted several weeks in advance, they are also useless means for getting out urgent messages to all unit employees. d. The right to meeting space during non-duty hours is subject to a 14-calendar day advance request and, thus, is also ineffective to getting across an urgent message. e. While the Union had a network of some 24 or 25 officers and stewards available to contact, personally, unit employees at the time at issue, it would have taken an enormous amount of time from their representational obligations to contact the 957 or so unit employees for whom the Union lacked home addresses. The network did not cover all shifts of all organizational elements in all buildings. And access to employees working in secured areas was very limited. Flextime scheduling in effect also made it difficult for this network to gather information from, or communicate with unit employees. f. Use of the telephone to contact 957 employees, while at work, would have been very time consuming, and would probably have raised the ire of supervisors as well. Calling these employees at home would have been a burdensome task, involving the use of multiple telephone directories to cover the two States and various localities within which the unit employees are dispersed. Although the Union office generally had contact with "maybe 15" unit employees over the course of a week, this would still leave a large number to contact. See finding 19, supra. g. The use by 957 unit employees of the bus service between facilities, combined with their contractual right to visit the Union office or official time, would be impracticable and disruptive, when contact with all unit employees had to be accomplished over a short period. h. Communication during the Union's semi-annual membership drives was of no help to the Union in the situation here at issue, where an immediate need arose. Also, these drives are restricted to non-duty hours and non-work areas, with a requirement of a 10-day advance notice to Respondent for the use of equipment and facilities. See finding 20, supra. i. Union meetings held monthly, in space provided by Respondent (see finding 17e, supra) are attended mostly by members for whom the Union already has home addresses. j. Handbilling of employees have proved difficult because unit employees work flextime hours and are not readily identifiable by badge or uniform. See finding 22, supra. k. While the Union newspaper can be distributed, on site, at three locations, (finding 17d, supra), unit employees not interested enough in the Union to become members can hardly be counted upon to conscientiously read its newspaper. Respondent takes the position that, by all the above means and opportunities, the Union could have compiled the home addresses of all the unit employees. See RBr 9-11. However, such an effort would be considerably more burdensome than that required of Respondent. And, in any event, the fact that the Union had not done so, at the time the urgent need arose in July 1982, does not relieve the Respondent of its statutory responsibilities, under 5 U.S.C. 7114(b)(4). Respondent relies upon a decision which arose under Executive Order 11491, which controlled Federal sector labor-management relations prior to the Statute. /19/ See RBr 16, citing A/SLMR No. 214. This is a case entitled Internal Revenue Service, Office of the District Director, Jacksonville District, Jacksonville, Florida and is reported at page 524 of Volume 2 to Decisions and Reports on Rulings of the Assistant Secretary of Labor for Labor-Management Relations (referred to as "A/SLMR"). The Assistant Secretary adopted conclusions and recommendations of a hearing examiner dismissing a complaint of an unfair labor practice, based upon a refusal to furnish home addresses of unit employees to their exclusive bargaining representatives. The dismissal was based on a finding that the union had other effective means of communicating with unit employees. See 2 A/SLMR at 534. The decision of the Assistant Secretary was upheld by the Federal Labor Relations Council. See Volume 2, page 107 of Decisions and Interpretations of the Federal Labor Relations Council ("FLRC"). Both the Assistant Secretary and FLRC recognized that an exclusive representative was entitled to an effective means of communicating with unit employees and that, when such means were lacking, some agency help could be required even though, under the Executive Order there was no express provision requiring an agency to furnish information. Both the Assistant Secretary and FLRC agreed that decisions must be made on a case-by-case basis. While there are many similarities between the Internal Revenue case and this one, there are also several important distinctions. In Internal Revenue, all unit employees were accessible to union stewards (here some unit employees work in secured areas with restricted access). In Internal Revenue, about half the unit belonged to the union; and the union had their addresses, as it mailed them copies of the union newspaper. See 2 A/SLMR at 530. Here only about 26 percent of the unit belongs to the Union. In Internal Revenue, the agency provided each new employee with a card inviting the employee to furnish the union with a home address. In Internal Revenue, the ratio of stewards to unit employees was much lower-- approximately 1 steward to 40 unit employees contrasted here with 1 to every 72 or 76 unit employees, at the time in issue in this case. And, perhaps of most importance, there was no urgency demonstrated in the Internal Revenue case. /20/ Both parties rely upon Magna Company, 208 NLRB 329 (1974), the Respondent correctly pointing out that the Board does not require the release of home addresses "under any and all circumstances" (RBr 17), and the General Counsel correctly pointing out that the Board weighs the "relative efforts" required of a union and the employer to obtain such information (GCBr 28). In Magna, the Board found the employer "possessed the information, and there (wa)s no indication that its compilation would be unduly onerous" (208 NLRB at 331). In Magna, the Board considered such facts as the wide dispersion of unit employees (90 miles in Magna and 100 miles here), the low membership of unit employees in the union (60 percent of the unit being members in Magna and only 26 percent here), the difficulty of handbilling unit employees in public ways leading into and out of the worksite when they are not easily distinguishable from non-unit employees, and the inadequacy of bulletin boards. See 208 NLRB at 330. Other factors were also considered relevant in Magna that are not present here. But, overall, the similarities between Magna and this case are striking-- and the Board did order the employer to provide the union with the home addresses of unit employees. 6. Respondent also relies upon a position that the Union has "effectively represented unit employees since 1976 without having access to the home addresses of unit employees," and did not challenge Respondent's prior refusals to furnish home addresses (RBr 3 and 13). Respondent rests its "effective" representation allegation on the fact that the Union has negotiated two collective bargaining agreements with it. Just how "effective" these agreements are considered by unit employees who are not members of the Union is a matter for conjecture. The fact that the Union has not lost its status as exclusive representative is the only proof of effectiveness that can be gleaned from this record. In any event, the focus here, cannot be on the general effectiveness of the Union, but on how effectively it could represent non-union members in the unit as to the particular problem which generated the requests at issue here-- the signing of the Secrecy Agreement. Certainly, the Union did not waive its right to the home addresses of unit employees when it did not respond to Respondent's denial of such a request at an earlier time. A waiver of a right "must be clear and unmistakable;" and a "right to bargain need not be exercised at every opportunity." See, e.g., Pages 7 and 8 of the decision of Judge Garvin Lee Oliver in Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2 (1981), which was adopted by the Authority. In this case, the Union did not pursue its right to have addresses of unit employees, in 1981. See finding 25, supra. But this was not a clear and unmistakable waiver of its right to do so when, in 1982, an urgent need arose for it to communicate by letter to the unit employees. No waiver occurred, either, during negotiations over the current contract. See finding 23 and footnote 3, supra. 7. When data meets the criteria of 5 U.S.C. 7114(b)(4), it must be "furnished" cost free. The Authority has so held in Veterans Administration Regional Office, Denver, Colorado, 10 FLRA No. 78, 10 FLRA at 455-457 (1982). And Respondent has so agreed in its collective bargaining agreement. See finding 24, supra. Under these circumstances, I must reject Respondent's argument that the Union should help defray the expenses involved in furnishing the data sought. See RBr 19. 8. No government-wide regulation prohibits Respondent from providing home addresses of unit employees to the Union. In its brief, Respondent relies upon Federal Personnel Manual, Chapter 294, Availability of Official Information, Appendix C, paragraph C-1a(3) as being such a government-wide regulations. See RBr 20. /21/ Appendix C was adduced by Respondent as its Exhibit 12. It is clearly labeled as a "Guide;" and it should be treated as such. While in its "Guide," OPM states that agencies "should not comply with requests from labor organizations for lists of home addresses . . . of employees," it is not OPM, but this Authority upon which Congress placed the responsibility for determining whether, under 5 U.S.C. 7114(b)(4), such information should be furnished. The Authority has not yet ruled on the subject matter of producing home addresses pursuant to 5 U.S.C. 7114(b)(4). Until the Authority does rule, OPM is free to issue any "guide" that seems appropriate to it. But such "guides" do not fetter this Authority, under 5 U.S.C. 7114(b)(4). OPM has seemingly so recognized in 1980 and 1982 issuances, discussed infra. 9. Providing the home addresses of unit employees is not prohibited by the Privacy Act of 1974, 5 U.S.C. 522a. Even before passage of this Statute, it was recognized that "(n)either the language of the Privacy Act nor its legislative history indicate that Congress intended to preclude disclosure to recognized labor unions of relevant information under a collective bargaining agreement." Local 2047, AFGE v. Defense General Supply Agency, 423 F.Supp. 481, 485, fn. 7, 94 LRRM 2058 (E.D. VA 1976), aff'd per curiam, 573 F.2d 184, 97 LRRM 3207 (C.A. 4, 1978). After enactment of the Federal Service Labor-Management Relations Statute, in 1978, OPM issued a "system notice," required under the Privacy Act, for the release of data from official personnel folders; and OPM recognized that the names and addresses of employees could be disclosed to officials of labor organizations recognized under the Federal Service Labor-Management Relations Statute "when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions." (45 FR 78415 and 78417 (11/25/80), recently reaffirmed in 47 FR 16489 (4/16/82)). Respondent relies upon certain, distinguishable private-sector cases, arising under the NLRA (see footnote 5, supra), which hold that "employees are entitled to protections against unwarranted intrusions on their personnel privacy, even in the context of a collective bargaining relationship" (RBr 21). /22/ Accepting this as a given, even in Federal sector cases, no "unwarranted intrusion" is involved in the request for information here at issue. The unit employees here were being asked to sign a document that could forever subject them to possible criminal prosecution. The Union was asking for their home addresses so that it could quickly advise them of their perils and rights, and that it was trying to negotiate some protection for them. Other available means by which the Union could contact them were inadequate, in the particular situation faced by the Union when it made the requests. And there was no evidence that the Union would make any improper use of the home addresses, or that their disclosure to the Union would create a "likelihood of a clear and present danger to employees," a standard that has been used in some private-sector cases. See, e.g., Shell Oil Co. v. NLRB, 457 F.2d 615, 79 LRRM 2997 at 3000 (C.A. 9, 1972). 10. By its refusal to furnish the home addresses of unit employees, Respondent has engaged in unfair labor practices under 5 U.S.C. 7116(a)(1), (5), and (8). Respondent's action has interfered with its employees' right "to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under the (Statute)" (5 U.S.C. 7102(2)), in violation of 5 U.S.C. 7116(a)(1), quoted fully in footnote 8, supra. Signing the Secrecy Agreement was clearly made a "condition of employment" by Respondent. See findings 7 and 8, supra. The Authority has consistently held that, notwithstanding a specific violation of 5 U.S.C. 7116(a)(8), a refusal to provide data is also a failure of the duty to negotiate in good faith, in violation of 5 U.S.C. 7116(a)(5). /23/ See Veterans Administration Regional Office, Denver, Colorado, 10 FLRA No. 78, 10 FLRA 453, 457 (1982) and Bureau of Alcohol, Tobacco and Firearms, National Office and Western Region, San Francisco, California, 8 FLRA No. 108, 8 FLRA 547, 557 (1982). Even in data-request cases where a violation of 5 U.S.C. 7116(a)(8) was not found by the Administrative Law Judge, the Authority sustained a finding that 5 U.S.C. 7116(a)(5) was violated for improperly refusing to provide data. See Veterans Administration Regional Office, Denver, Colorado, 7 FLRA No. 100, 7 FLRA 629 (1982). Respondent's refusal to comply with 5 U.S.C. 7114(b)(4) constitutes an unfair labor practice under 5 U.S.C. 7116(a)(8). Ultimate Findings and Recommended Order Respondent has engaged in the unfair labor practices alleged in the complaint. Accordingly, and pursuant to 5 CFR 2423.29 and 5 U.S.C. 7118, the Authority hereby orders that the Respondent shall: 1. Cease and desist from: (a) Refusing or failing to furnish, upon request of the National Federation of Federal Employees, Local 1827, hereinafter NFFE, the names and addresses of all unit employees. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute. (a) Upon request, make available to NFFE the names and addresses of all unit employees. (b) Post at its facilities at the Defense Mapping Agency Aerospace Center, St. Louis, Missouri, copies of the Notice To All Employees, attached hereto as Appendix B, on forms to be furnished by the Acting Regional Director, Region VII, Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Commander, Defense Mapping Agency Aerospace Center, St. Louis, Missouri, and shall be posted and maintained by him for sixty (60) consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Commander shall take all reasonable steps to insure 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 Acting Regional Director, Region VII, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply herewith. ISABELLE R. CAPPELLO Administrative Law Judge Dated: May 12, 1983 Washington, D.C. APPENDIX B NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT refuse or fail to furnish, upon request, to the National Federation of Federal Employees, Local 1827, hereinafter NFFE, the names and addresses of all unit employees. WE WILL, upon request, furnish to NFFE the names and addresses of all unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remain posted for sixty (60) consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Acting Regional Director of the Federal Labor Relations Authority, Region VII, whose address is: 1531 Stout Street, Suite 301, Denver, Colorado 80202, and whose telephone number is: (303) 837-5224. --------------- FOOTNOTES$ --------------- /1/ In view of our disposition of this case, the Respondent's post-hearing Motion to Reopen Record for the purpose of presenting further testimony and evidence is hereby denied. /2/ 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(.) /3/ Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified as amended at 5 U.S.C. 552a (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/ The interrelationship of the Privacy Act and the FOIA exemption are set forth more fully in AAFES. /6/ In this regard, the Union could have communicated with unit employees, e.g., through the use of bulletin boards; the Respondent's bulletins and newspaper; meeting space during non-duty hours; Union newspapers distributed in non-security areas; semi-annual membership drives; and a network of Union officers and stewards with access to employees in non-security areas. The extent to which some of these means of communication were subject to restrictions, such as the Union's obligation to submit advance requests, does not in our opinion detract from our finding that the Union had alternative means of communication available, especially as we note the long bargaining history of the parties, including matters with regard to means of communication. /7/ 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. /8/ The pertinent statutory provisions are as follows. 5 U.S.C. 7114(b) provides that (t)he duty of an agency and an exclusive representative to negotiate in good faith . . . 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; . . . . 5 U.S.C. 7116(a) provides that, "it shall be an unfair labor practice for an agency - (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; . . . (or) (8) to otherwise fail or refuse to comply with any provision of this chapter. /9/ The following abbreviations will be used herein. "TR" refers to the transcript. "GC" refers to the exhibits of the General Counsel, and "R" refers to those of Respondent. "GCBr" refers to the brief of the General Counsel and "RBr" to that of Respondent. Multipage exhibits and the briefs will be designated by page or paragraph number following the exhibit or brief designation. The transcript is corrected pursuant to unopposed motions filed by the parties. The corrections are set forth in Appendix A to this decision. Unless otherwise noted, all dates refer to events which took place in 1982. /10/ In view of this finding, there is no need to address further the argument of Respondent that the Union waived its right to have addresses of all unit employees because it bargained over the matter, and lost, during negotiations over the current collective bargaining agreement. /11/ This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7). /12/ General Electric is a case which arose under the National Labor Relations Act ("NLRA") which has no express provision for providing data to labor organization. Nevertheless, the courts have found that an employer has a general obligation to provide information that is needed by a union for the proper performance of its representational duties. Such cases are therefore instructional. /13/ The $736 figure appears to be an inflated one. See finding 27, supra. For around half that sum, it appears that an adequate program could be developed. /14/ See footnote 12, supra, on the instructural nature of cases arising under the NLRA, as these two did. /15/ It should be made clear that Respondent was acting within its rights in distributing the Secrecy Agreement to the employees before bargaining began, because Respondent had been led to believe that the Union was not interested in bargaining about it. See finding 8, supra. The only unfair aspect of Respondent's distributing the Agreement when it did was the fact that the Union had never been shown the actual cover letter sent to the employees with the Agreement. /16/ In view of this factual difference, Respondent's reliance upon Division of Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA No. 71, 8 FLRA 307 (1982) is inapposite. See RBr 17. /17/ Such proposed action by the Union does not seemingly violate 5 U.S.C. 7116(b)(6), as Respondent alleges. See RBr 7 and 21. This provision prohibits unions from calling for a "strike, work stoppage, or slowdown." /18/ The harder issue posed by the General Counsel-- whether there is an obligation to furnish even if other sources are available (see GCBr 22)-- need not be reached in this case, in view of the conclusions reached herein. /19/ This order is reprinted in the note at page 312 of 5 U.S.C. 7101 (Supp. V. 1981). /20/ Immediately following the discussion of the Internal Revenue case, Respondent cites and discusses a case identified only as "6 FLRA No. 211." See RBr 16. I could find no such case. /21/ Respondent apparently is not relying on DOD directives, that it not release the addresses of unit employees. See finding 25, supra. In any event, those directives may be taken as modified by DOD's later approval of the collective bargaining agreement entered into in 1982 and which recognizes that release of data is subject to the statutory provisions of Public Law 95-454, i.e., the Federal Service Labor-Management Statute. See finding 24, supra. /22/ For example, in Detroit Edison Co. v. NLRB, 440 U.S. 301, 100 LRRM 2728 (1979) the Court, in a split decision, declined to enforce a Board order which would have required the employer, unconditionally to turn over to the union, among other things, the actual scores received by named employees on aptitude tests, where they had been assured of confidentiality. The union claimed a need for them in order to process a grievance of other applicants denied the jobs on the basis of low scores. The employer agreed only as to those employees who would sign a waiver of confidentiality. And the employer presented evidence that "disclosure of individual scores had in the past resulted in the harassment of some lower-scoring examinees who had, as a result, left the Company." See 100 LRRM at 2735. The Court also noted the "well known" fact of the "sensitivity of any human being to disclosure of information that may be taken to bear on his or her basic competence" (100 LRRM at 2734). No such sensitivity attaches to home addresses, which has been so recognized and tagged as having a "very much lower degree of disclosure." See Getman v. N.L.R.B., 450 F.2d 670, 675 (C.A.D.C., 1971) a case also arising under the NLRA. The Supreme Court in N.L.R.B. v. Getman, denied an application to stay the judgment of a lower court that required the Board to turn over the home addresses. See 404 U.S. 1204 (1971). In Shell Oil Co. v. NLRB, 457 F.2d 615, 79 LRRM 2997 (C.A. 9, 1972), the Court declined to enforce a Board order that the employer furnish the union the home addresses of all unit employees, where there was evidence that 9 1/2 months before the request there had been a strike and harassment of non-strikers at their homes, and that there had also been recent violence by striking employees whom the union could not control. In that case, the employer had made counter proposals, that it would furnish the home addresses of those employees who consented and that it would furnish all names and addresses to an independent mailing service, which would mail all material which the union wanted to submit and certify the mailing to the union, at the expense of the employer. Emeryville Research Center, Shell Development Company v. NLRB, 441 F.2d 880, 77 LRRM 2043 (C.A. 9, 1971) is cited for the refusal of the Court to require an employer to release wage and survey data because the employer had promised confidentiality to area employers surveyed, and compromise of that promise would make the sources of the data (other companies) unavailable in the future. Refusal to enforce was largely based upon the finding that the employer had been cooperative and tried to work with the union to put the information into a form which would have met the union's needs and the employer's concerns. In each of these cases, the employer made a reasonable counter proposal to the union and showed a real basis for not complying with the request of the union. Such is not the circumstance here. /23/ Respondent has not "fully understood" the basis for the 5 U.S.C. 7116(a)(5) allegation. See TR 26.