23:0788(101)CA - FHA Finance Office, St. Louis, MO and AFGE Local 3354 -- 1986 FLRAdec CA



[ v23 p788 ]
23:0788(101)CA
The decision of the Authority follows:


 23 FLRA No. 101
 
 FARMERS HOME ADMINISTRATION FINANCE 
 OFFICE, ST. LOUIS, MISSOURI
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 3354
 Charging Party
 
                                            Case No. 7-CA-30560 
                                              (19 FLRA No. 21)
 
                        DECISION AND ORDER ON REMAND
 
                         I.  Statement of the Case
 
    This case is before the Authority pursuant to a remand from the
 United States Court of Appeals for the District of Columbia Circuit.
 The question before the Authority is whether it was an unfair labor
 practice under the Federal Service Labor-Management Relations Statute
 (the Statute) for the Respondent (Agency) to refuse a request, made
 pursuant to section 7114(b)(4) of the Statute, to provide the Charging
 Party (Union) with the names and home addresses of employees in a
 bargaining unit which the Union exclusively represents.
 
    For the reasons which follow, we conclude that Respondent's refusal
 to provide the information violated the Statute, and we reverse the
 Authority's previous decision in this matter.
 
                        II.  Procedural Background
 
    In a previous decision in this case, Farmers Home Administration
 Finance Office, St. Louis, Missouri, 19 FLRA No. 21 (1985), the
 Authority, relying on the decision of the United States Court of Appeals
 for the Fourth Circuit in American Federation of Government Employees,
 Local 1923 v. United States Department of Health and Human Services, 712
 F.2d 9931 (4th Cir. 1983), held that the release of home addresses was
 not required pursuant to section 7114(b)(4) of the Statute because the
 disclosure of such information was "prohibited by law," specifically the
 Privacy Act.  /1/
 
    The Charging Party/Union in this case, and the unions involved in
 other cases in which the Authority followed the precedent established by
 this case, petitioned the courts for review of the Authority's
 decisions.  In the course of the litigation that ensued, it became
 apparent that an issue raised before the Authority regarding the
 applicability of the Privacy Act had not been addressed by the Authority
 in rendering its decision in this case -- namely, whether the union was
 entitled to the names and home addresses of unit employees under the
 routine use exception of the Privacy Act, 5 U.S.C. Section 552a(b)(3).
 The Authority therefore sought remand of this case and three other
 substantially identical cases awaiting judicial review in order to
 reconsider its decisions and to address in the first instance the issue
 of whether disclosure of the names and home addresses of unit employees
 was or was not prohibited by law because of the applicability of the
 "routine use" exception of the Privacy Act, and such other issues
 arising under the Statute as might be appropriate.  The remand requests
 were granted in this case, American Federation of Government Employees,
 Local 3354 v. FLRA, No. 85-1493 (D.C. Cir.) (reviewing 19 FLRA No. 21),
 and in two others, National Federation of Federal Employees, Local 1827
 v. FLRA, No. 85-2202 (8th Cir.) (reviewing 19 FLRA No. 85) and
 Philadelphia Metal Trades Council v. FLRA, No. 85-1625 (D.C. Cir.)
 (reviewing 19 FLRA No. 107).
 
    In contrast to the D.C. and Eighth Circuits, the United States Court
 of Appeals for the Second Circuit denied the Authority's remand request
 and issued a decision.  In that decision the Second Circuit reversed the
 Authority's holding that the release of names and home addresses was
 "prohibited by law," i.e., the Privacy Act, under section 7114(b)(4) of
 the Statute.  American Federation of Government Employees, Local 1760 v.
 FLRA, 786 F.2d 554 (2nd Cir. 1986).  The Second Circuit applied the same
 balancing test used by the Authority.  Contrary to the Authority and the
 Fourth Circuit, however, the court found that "the privacy interest of
 the average employee in his address is not particularly compelling." Id.
 at 556.  Instead, the court noted Congress' determination that
 collective bargaining is in the public interest, and the court's prior
 holdings in private sector cases that the mere existence of alternative
 means of communication is not sufficient to justify the refusal to
 release home addresses.  The court also noted that it agreed with the
 Administrative Law Judge that the alternative means available to the
 union were inadequate, and that the other requirements of the Statute
 for release had been met.  The court therefore remanded that case (19
 FLRA No. 108) to the Authority to find a violation and require the
 Respondent to disclose unit employees' home addresses to the union.  The
 court did not address the "routine use" issue.
 
    In order to give full consideration to the issues raised as to the
 disclosure of names and home addresses to exclusive representatives in
 the instant case, and in the other cases remanded by the D.C. and Eighth
 Circuits as well as other pending cases, the Authority issued a notice
 in the Federal Register, 51 Fed. Reg. 21,416 (1986), providing an
 opportunity for all interested agencies, labor organizations, and other
 interested persons to file amicus briefs dealing with these issues.  The
 Authority has considered these submissions, as well as the entire record
 in this case, in reaching its decision.  Although the parties in this
 case did not submit supplementary statements in response to the Federal
 Register notice, the American Federation of Government Employees did
 file an amicus brief outlining its position on the issues presented by
 these cases.
 
             III.  Analytical Framework and Previous Decision
 
    As relevant to this case, section 7114(b)(4) of the Statute requires
 an agency to furnish to an exclusive representative, upon request and to
 the extent not prohibited by law, data which is (1) normally maintained
 by the agency in the regular course of business;  and (2) reasonably
 available and necessary for full and proper discussion, understanding,
 and negotiation of subjects within the scope of collective bargaining.
 In the previous decision in this case, the Authority held that the
 release of names and home addresses was not required pursuant to section
 7114(b)(4) because disclosure was "prohibited by law," specifically the
 Privacy Act.
 
    The Privacy Act generally prohibits the disclosure of personal
 information about Federal employees without their consent.  Section
 (b)(2) of the Privacy Act provides that the prohibition against
 disclosure is not applicable if disclosure of the information is
 required under the Freedom of Information Act (FOIA).  /2/ Exemption
 (b)(6) of the FOIA provides that information contained in personnel
 files (as well as medical and other similar files) may be withheld if
 disclosure of the information would constitute a "clearly unwarranted
 invasion of personal privacy(.)"
 
    Applying the balancing test developoed by the Federal courts in cases
 l concerning the (b)(6) exemption to the FOIA, the Authority weighed the
 public interest which would be served by providing the Union with names
 and home addresses against the employees' interests in maintaining their
 privacy.  The Authority concluded 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." 19 FLRA No. 21
 at 4.  Since the information requested by the Union fell within the
 (b)(6) exemption, disclosure of the information was not required under
 the FOIA.  Therefore, the Authority found that the requirements of the
 (b)(2) exception to the Privacy Act were not met and disclosure of the
 information was prohibited.  The Authority also found that the record
 established that the Union had "alternative means of . . . communication
 available." Id.  Because of the finding that disclosure of the
 information was prohibited by law, the Authority did not address whether
 the Union's request met the other requirements of section 7114(b)(4).
 
                          IV.  Analysis on Remand
 
    Consistent with the requirements of section 7114(b)(4), it is
 necessary to determine whether (1) disclosure of the names and home
 addresses of bargaining unit employees is prohibited by law, (2) the
 information is normally maintained by the Agency in the regular course
 of busines, (3) the Union properly requested the information, and (4)
 the information is reasonably available and necessary within the meaning
 of that section.  These issues will be addressed in turn.
 
                           A.  Prohibited by Law
 
    Provisions of the Privacy Act and the Freedom of Information Act are
 relevant to the determination of whether the disclosure of the
 information is prohibited by law.  The Authority previously held that
 disclosure was prohibited by the Privacy Act.  There are two exceptions
 to the Privacy Act's bar to disclosure which are applicable to this
 discussion:  exception (b)(2) concerning the Freedom of Information Act,
 and exception (b)(3) relating to "routine use" of information.
 
                                 1.  FOIA
 
    If the disclosure of the requested information is required by the
 FOIA, the Privacy Act's bar to disclosure is not applicable.  5 U.S.C.
 Section 552a(b)(2).  Under the FOIA, requested information must be
 disclosed unless it falls within one of the enumerated exemptions.  The
 exemption pertinent to this case is exemption (b)(6) which authorizes
 withholding information in "personnel and medical files and similar
 files the disclosure of which would constitute a clearly unwarranted
 invasion of personal privacy(.)"
 
    In the previous decision in this case, the Authority balanced
 employees' privacy interests against the public interest in disclosure
 and found that the requested information fell within exemption (b)(6).
 In doing so, the Authority relied on the decision of the Court of
 Appeals for the Fourth Circuit in AFGE Local 1923, 712 F.2d 931.  For
 the following reasons, we reverse our previous decision on this point
 and find that the requested information may not be withheld pursuant to
 exemption (b)(6).
 
    It is necessary to balance competing interests to determine whether
 requested information falls within exemption (b)(6).  It is also
 important to recognize, as emphasized in the amicus submissions filed by
 various labor organizations, that the FOIA embodies "a general
 philosophy of full agency disclosure unless information is exempted
 under clearly delineated statutory language." Department of Air Force v.
 Rose, 425 U.S. 352, 360-61 (1976).  Further, exemption (b)(6)'s
 limitations to "clearly unwarranted" disclosures instructs us to "tilt
 the balance in favor of disclosure." Getman v. NLRB, 450 F.2d 6770, 674
 (D.C. Cir. 1971).
 
    Consistent with this framework, we find that the balance favors
 disclosure of the names and home addresses sought by the Union.  In
 section 7101 of the Statute Congress found that collective bargaining in
 the Government is in the public interest and safeguards that interest.
 The disclosure of the information sought would enable the Union to
 identify the members of the bargaining unit which it is required to
 represent. Disclosure also would contribute to the Union's ability to
 communicate with its bargaining unit members and thereby enable it to
 better fulfill its responsibilities under the Statute.  If employees are
 to exercise their statutory rights, they must be aware of the issues
 affecting them.  By providing the Union with an efficient method of
 communication, disclosure of names and home addresses will facilitate
 the fullest exercise of employee rights.
 
    On further consideration of this case, we also agree with the Court
 of Appeals for the Second Circuit that "the privacy interest of the
 average employee in his address is not particularly compelling." 786
 F.2d at 556.  For example, while amicus submissions by individuals
 indicate that some employees do not favor the release of their names and
 home addresses, many of the submissions also show that these employees
 already receive and often discard unsolicited mail.  There is, of
 course, nothing to prevent these employees from handling communications
 from the Union in the same way, nor are employees prevented from
 requesting that they be deleted from the Union's mailing list.  As noted
 by the Second Circuit, a union already has access to information such as
 salary levels that is more likely to implicate privacy concerns rather
 than the information sought here.  Id.
 
    On balance, we find that the public interest to be furthered by
 providing the Union with an efficient method to communicate with unit
 employees it must represent far outweighs the privacy interests of
 individual employees in their names and home addresses.  Disclosure of
 the requested information would not constitute a clearly unwarranted
 invasion of personal privacy and does not fall within the (b)(6)
 exemption to the FOIA.  Since the information does not fall within the
 exemption, its disclosure is required under the FOIA and, under
 exception (b)(2) to the Privacy Act, its release is not prohibited by
 law.
 
                              2.  Routine Use
 
    Exception (b)(3) of the Privacy Act permits disclosure of information
 for a "routine use." Section (a)(7) of the Privacy Act defines routine
 use as "the use of such record for a purpose which is compatible with
 the purpose for which it was collected." The Office of Personnel
 Management (OPM) publishes notices defining the routine uses of
 personnel records of Federal employees.  One notice defines a routine
 use as the disclosure of information to "officials of labor
 organizations recognized under 5 U.S.C. Chapter 71 when relevant and
 necessary to their duties of exclusive representation(.)" 49 Fed. Reg.
 36,956 (1984).  This standard is effectively the same as section
 7114(b)(4)'s limitation of an agency's obligation to provide information
 to that which is "necessary for full and proper discussion,
 understanding, and negotiation of subjects within the scope of
 collective bargaining(.)"
 
    As discussed below, we conclude that the disclosure of the names and
 home addresses of bargaining unit employees to the Union is necessary
 within the meaning of section 7114(b)(4) of the Statute for the Union to
 discharge its statutory obligations.  Consistent with that conclusion,
 we find that disclosure of the information sought here falls within the
 routine use established by OPM, and its disclosure is therefore a
 routine use under exception (b)(3) of the Privacy Act.  Therefore, even
 if the disclosure was not authorized under exception (b)(2) of the
 Privacy Act, relating to the FOIA, it is authorized under exception
 (b)(3).
 
    Release of the requested information is therefore not prohibited by
 law.  It may be released pursuant to exceptions (b)(2) and (3) of the
 Privacy Act.
 
                   B.  Normally Maintained by the Agency
 
    The Administrative Law Judge found that the names and home addresses
 sought by the Union were maintained by the Respondent in Official
 Personnel Files (OPFs), a card index system, and a computer file.  He
 concluded that the information was normally maintained in the regular
 course of business.  We agree and find that the requested information is
 normally maintained by the Agency in the regular course of business
 within the meaning of section 7114(b)(4) of the Statute.
 
    We note that although OPM retains responsibility for OPFs, they are
 physically maintained by employing agencies.  While agency amici
 question whether OPFs are the best source for current home addresses,
 the Department of Justice notes in its amicus submission that there is
 "no question that the home addresses of federal employees . . . are in
 their personnel files."
 
                             C.  Union Request
 
    The Union requested in writing the names and home addresses of
 bargaining unit employees to enable it to prepare for contract
 negotiations. Although not raised in this case, some amicus submissions
 questioned whether a request must be tied to a specific issue about
 which the union needs to communicate with its bargaining unit members.
 
    As discussed throughout this decision, a union's statutory
 obligations involve a broad range of representational activities.  We
 find that the statutory requirement concerning sufficiency of a request
 under section 7114(b)(4) is satisfied for requests such as that involved
 here when a general written request for the information is made.  A
 precise explication of the reasons for the request involved here is not
 necessary.  The requirement for a request was met in this case.
 
    Our conclusion that a written request for names and home addresses
 need not contain an explanation of the reason for the request is
 consistent with previous decisions where we held that an agency's duty
 to furnish other information under section 7114(b)(4) of the Statute
 turns on the nature of the request and the circumstances of each case.
 For example, Department of Health and Human Services, Social Security
 Administration and Social Security Administration, Field Operations, New
 York Region, 21 FLRA No. 35 (1986).  In our view, an exclusive
 representative's need for the names and home addresses of the bargaining
 unit employees it is required to represent is so apparent and
 essentially related to the nature of exclusive representation itself,
 that unlike requests for certain types of other information, an agency's
 duty to supply names and home addresses information does not depend upon
 any separate explanation by the union of its reasons for seeking the
 information.
 
                  D.  Reasonably Available and Necessary
 
    As discussed previously in connection with the statutory requirement
 that the requested information be normally maintained by the agency, the
 names and home addresses of bargaining unit employees are contained in
 OPFs and, in this case, the ALJ found that the information was also
 available through an index system and a computer file.  The information
 is reasonably available within the meaning of section 7114(b)(4).
 
    As for whether the information is necessary for unions to discharge
 their responsibilities under the Statute, the amicus submissions show
 disagreement among the parties.  Generally, unions argued that the
 disclosure of names and home addresses is necessary for them to meet
 their statutory obligations.  Agencies contended that these obligations
 could be fulfilled without disclosure of the information, through
 effective alternative means of communication.
 
    Section 7114(a)(1) of the Statute provides that an exclusive
 representative is responsible for representing the "interests of all
 employees in the unit it represents without discrimination and without
 regard to labor organization membership." Under this provision, a
 union's statutory responsibilities extend to all bargaining unit
 members.  It is obvious that a union must be able to identify and
 communicate with those bargaining unit members if it is to adequately
 represent them.
 
    Consistent with the amicus submissions of many agencies, the ALJ in
 this case found that the disclosure of names and home addresses was
 unnecessary because other means of communication, such as desk drops,
 direct distributions, meetings, bulletin boards, and direct personal
 contacts were available to the Union and provided adequate means of
 communication.  We disagree.  The disclosure of names and home addresses
 will enable the Union to communicate effectively and efficiently,
 through direct mailings to individual employees.  The information is
 readily available within Agency files and its disclosure will enhance
 the exercise of employee rights as well as the communication process
 between employees and the Union.
 
    We will not review the adequacy of alternative methods of
 communication on a case-by-case basis.  Consistent with the view of the
 Court of Appeals for the Second Circuit discussed above, we find that
 the mere existence of alternative means of communication is insufficient
 to justify a refusal to release the information.  Further, we find that
 it is not necessary for us to examine the adequacy of alternative means
 in cases involving requests for names and home addresses because the
 communication between unit employees and their exclusive representative
 which would be facilitated by release of names and home addresses
 information is fundamentally different from other communication through
 alternative means which are controlled in whole or in part by the
 agency.  When using direct mailings, the content, timing, and frequency
 of the communication is completely within the discretion of the union
 and there is no possibility of agency interference in the distribution
 of the message.  Further, direct mailings reach unit employees in
 circumstances where those employees may consider the union's
 communication without regard to the time constraints inherent in their
 work environments, and in which any restraint the employee may feel as a
 result of the presence of agency management in the workplace is not
 present.  We find that the names and home addresses of unit employees
 are necessary and should be provided whether or not alternative means of
 communication are available.
 
    Our decision that names and home addresses information should be
 released is consistent with private sector precedent.  /3/ The National
 Labor Relations Board has held that names and addresses of unit
 employees are "prersumptively relevant to (a) (u)nion's role as
 bargaining agent either during contract negotiations or during the term
 of an agreement." Georgetown Holiday Inn, 235 NLRB 485, 486 (1978).  /4/
 The Board has not treated the presumption favoring the disclosure of
 names and home addresses as an irrebuttable one.  Disclosure need not be
 made in situations where, for example, the evidence discloses that a
 union has acted in a manner which leads to the conclusion that the
 employees whose addresses would be disclosed would be in imminent danger
 if the union knew where they lived.  See, for example, Shell Oil Co. v.
 NLRB, 457 F.2d 615 (9th Cir. 1972).  There is no such contention in this
 case.
 
                              V.  Conclusion
 
    We have considered the entire record in this case as well as the
 amicus submissions filed in response to our notice in the Federal
 Register.  We conclude that the release of names and home addresses to
 the Union is not prohibited by law, is necessary for the Union to
 fulfill its duties under the Statute, and meets the other requirements
 of section 7114(b)(4).
 
    Respondent was required to furnish the names and home addresses
 requested by the Union without regard to whether alternative means of
 communication were available or adequate.  Respondent's refusal to
 furnish the requested information violated section 7116(a)(1), (5) and
 (8) of the Statute.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute, it is ordered that the Farmers Home Administration Finance
 Office, St. Louis, Missouri shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to furnish, upon request of the American Federation of
 Government Employees, AFL-CIO, Local 3354, the exclusive representative
 of its employees, the names and home addresses of all employees in the
 bargaining unit it represents.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of the rights assured them by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request by the American Federation of Government Employees,
 AFL-CIO, Local 3354, the exclusive representative of its employees,
 furnish it with the names and home addresses of all employees in the
 bargaining unit it represents.
 
    (b) Post at all its facilities where bargaining unit employees
 represented by the American Federation of Government Employees, AFL-CIO,
 Local 3354 are located, copies of the attached Notice on forms to be
 furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by a senior official of the Farmers
 Home Administration Finance Office, St. Louis, Missouri, and shall be
 posted and maintained for 60 consecutived days thereafter, in
 conspicuous places, including all bulletin boards and other places where
 notices to employees are customarily posted.  Reasonable steps shall be
 taken 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 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.
 
    Issued, Washington, D.C., October 31, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Privacy Act of 1974, 5 U.S.C. Section 552a (1982).
 
    (2) Freedom of Information Act, 5 U.S.C. Section 552 (1982).
 
    (3) The National Labor Relations Act (NLRA) does not contain a
 provision equivalent to section 7114(b)(4) of the Statute.  Rather,
 unions' rights to receive information are an outgrowth of the obligation
 to bargain in good faith under section 8(a)(5) of the NLRA.  For a
 discussion of the private sector obligation see NLRB v. Acme Industrial
 Company, 385 U.S. 432 (1967).  See also Prudential Insurance Co. v.
 NLRB, 412 F.2d 77 (2d Cir.), cert. denied, 396 U.S. 928 (1969), where
 the court rejected the company's arguments that providing names and home
 addresses was unnecessary because adequate alternative means of
 communication (bulletin boards, grievance committees, hand
 distributions, and union meetings) were available to the union.  As for
 the relevance of the information, the court stated that "(i)t seems
 manifest beyond dispute that the Union cannot discharge its obligation
 unless it is able to communicate with those in whose behalf it acts."
 Id. at 84.
 
    (4) See also Armstrong World Industries, Inc., 254 NLRB 1239, 1244
 (1981), where the Administrative Law Judge, whose decision was adopted
 by the Board, cited the Board's previous decision in Autoprod, Inc., 223
 NLRB 773 (1973), and stated that the Autoprod decision "appears to state
 flatly that a union is entitled to the addresses of unit employees,
 whether or not those addresses could be obtained by other means and, a
 fortiori, whether or not the union might be able to disseminate
 information to unit employees by other means than mailing." This
 statement also appears in the ALJ's decision in Harco Laboratories,
 Inc., 271 NLRB 1397, 1398 (1984), which was also adopted by the Board.
 
 
 
 
 
                                 APPENDIX
 
                          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
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to furnish, upon request of the American
 Federation of Government Employees, AFL-CIO, Local 3354, the exclusive
 representative of our employees, the names and home addresses of all
 employees in the bargaining unit it represents.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of the rights assured them by
 the Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request by the American Federation of Government
 Employees, AFL-CIO, Local 3354, the exclusive representative of our
 employees, furnish it with the names and home addresses of all employees
 in the bargaining unit it represents.