20:0425(44)CA - DOD, Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council. -- 1985 FLRAdec CA



[ v20 p425 ]
20:0425(44)CA
The decision of the Authority follows:


 20 FLRA No. 44
 
 DEPARTMENT OF DEFENSE 
 DEPARTMENT OF THE NAVY 
 NORFOLK NAVAL SHIPYARD 
 PORTSMOUTH, VIRGINIA 
 Respondent 
 
 and 
 
 TIDEWATER VIRGINIA FEDERAL EMPLOYEES 
 METAL TRADES COUNCIL, AFL-CIO 
 Charging Party
 
                                       Case No. 34-CA-40290
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record, including the stipulation of
 facts, accompanying exhibits, and the parties' contentions, the
 Authority finds:
 
    The complaint alleges that the Respondent violated section
 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute) /1/ by refusing to provide the Charging
 Party (the Union), upon a request made pursuant to section 7114(b)(4) of
 the Statute, /2/ with the home addresses of the unit employees
 represented by the Union.  The Union at all times material herein has
 been the recognized exclusive bargaining representative of a unit of all
 ungraded employees at the Norfolk Naval Shipyard.  The Union sought unit
 employees' home addresses in order to fulfill its broad responsibilities
 under the Statute, and not in connection with a grievance or any
 specific bargaining proposals.  The Union sought employees' home
 addresses on the basis of Judge Cappello's rationale in Case No.
 7-CA-20482, which the Authority has since declined to adopt.  See
 Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 19 FLRA
 No. 85(1985).  The Respondent rejected the Union's request, relying on
 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 the Court adopted the lower court's conclusion that an exclusive
 representative was not entitled to the home addresses of unit employees
 which it had sought pursuant to the Freedom of Information Act (FOIA).
 /3/
 
    In a recent decision, Farmers Home Administration Finance Office, St.
 Louis, Missouri, 19 FLRA No. 21(1985), petition for review filed sub
 nom. American Federation of Government Employees, AFL-CIO, Local 3354 v.
 FLRA, No. 85-1493 (D.C. Cir. Aug. 6, 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), petition for review filed sub nom. American Federation of
 Government Employees, Local 1345 v. FLRA, No. 85-1378 (D.C. Cir. June
 21, 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.  /4/ 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 FOIA 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 AFGE v.
 HHS, 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 home 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' 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 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. 34-CA-40290 be, and it
 hereby is, dismissed in its entirety.
 
    Issued, Washington, D.C., September 30, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1), (5) and (8) provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, 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;
 
                                .  .  .  .
 
          (8) to otherwise fail to refuse to comply with any provision of
       this chapter.
 
 
    /2/ Section 7114(b)(4) 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/ Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256
 (codified as amended at 5 U.S.C. 552(1982)).
 
 
    /4/ Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified
 as amended at 5 U.S.C. 552a(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 its right, pursuant to the parties'
 collective bargaining agreement:  to meet with new employees;  to space
 for regular meetings;  to Union office space;  to a steward system;  to
 exclusive use of bulletin boards located in each shop;  and to access to
 the Respondent's newsletter.  Further, the record indicates that the
 Union also has access to unit employees through the distribution of its
 own newsletter to each shop at the Respondent's facilities.  The extent
 to which some of these means of communication were subject to
 restrictions, such as the Union's obligation to submit advance requests
 for meeting times, does not in our opinion detract from our finding that
 the Union had alternative means