23:0788(101)CA - FHA Finance Office, St. Louis, MO and AFGE Local 3354 -- 1986 FLRAdec CA
[ v23 p788 ]
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. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remain posted for 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 its provisions, they may communicate directly with the Regional Director, Region VII, Federal Labor Relations Authority, whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose telephone number is: (303) 837-5224.