20:0425(44)CA - DOD, Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council. -- 1985 FLRAdec CA
[ v20 p425 ]
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 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.