24:0108(13)CA - SSA, Northeastern Program Service Center and AFGE Local 1760 -- 1986 FLRAdec CA



[ v24 p108 ]
24:0108(13)CA
The decision of the Authority follows:


 24 FLRA No. 13
 
 SOCIAL SECURITY ADMINISTRATION 
 NORTHEASTERN PROGRAM SERVICE CENTER
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1760, AFL-CIO
 Charging Party
 
                                            Case No. 2-CA-30643 
                                               (19 FLRA No. 108)
 
                       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 Second Circuit.  American
 Federation of Government Employees, Local 1760 v. FLRA, 786 F.2d 554 (2d
 Cir. 1986).  The question in this case 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 home addresses of employees of the Respondent who
 are part of a national, exclusive bargaining unit represented by the
 American Federation of Government Employees.
 
    In a recent Decision and Order on Remand in another case, Farmers
 Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101
 (1986) (FHAFO), we reviewed the Authority's previous decision concerning
 the release of the names and home addresses of bargaining unit employees
 to exclusive representatives.  We concluded that the release of the
 information is not prohibited by law, is necessary for unions to fulfill
 their duties under the Statute, and meets all of the other requirements
 established by section 7114(b)(4).  We also determined that the release
 of the information is generally required without regard to whether
 alternative means of communication are available.  Consistent with our
 decision on remand in FHAFO, with the Second Circuit's reversal of our
 previous decision in this case, and with the Administrative Law Judge's
 decision in this case, we conclude that the Respondent's refusal to
 provide the Union with the home addresses of bargaining unit employees
 violated section 7116(a)(1), (5) and (8) of the Statute.
 
                                II.  Facts
 
    The Union acts as the representative of the Respondent's employees as
 part of a nationwide bargaining unit.  The Union requested the names and
 home addresses of the unit employees it represents.  The Respondent
 denied the request for the home addresses on the grounds that the
 release of such information would violate the Privacy Act;  that the
 information was not readily available because it would require the
 compilation of addresses from many sources;  and that the Union had not
 established why the information was relevant and necessary.
 
                 III.  Administrative Law Judge's Decision
 
    The Judge concluded that the Respondent failed to comply with the
 requirements of section 7114(b)(4) of the Statute in violation of
 section 7116(a)(1), (5) and (8) when it refused to provide the Union,
 upon request, with the home addresses of the unit employees.  In
 reaching that conclusion, the Judge found that:  (1) the information was
 relevant and necessary for the Union to communicate effectively with the
 unit employees in order to formulate proposals for collective bargaining
 purposes;  (2) no undue burden would be imposed on the Respondent to
 extract the information from sources that were reasonably available;
 (3) the alternative means of communication that were available to the
 Union did not provide appropriate and reliable access to the employees;
 and (4) the Privacy Act /1/ was not a bar to disclosure of the
 information.
 
                       IV.  Positions of the Parties
 
    The parties' positions were set forth in the Respondent's exceptions
 and the General Counsel's response in the original case.  The Respondent
 contended that the Judge's conclusion that an agency must provide a
 union with home addresses of bargaining unit employees unless
 alternative access to the information exists and is equal to the access
 which could be achieved through the use of home addresses is unsupported
 by section 7114(b)(4) of the Statute.  The Respondent also excepted to
 the Judge's conclusion that the Privacy Act did not bar disclosure of
 the information.  Finally, the Respondent contended that the disclosure
 of home addresses would violate employees' rights under section 7102 of
 the Statute to refrain from activity supporting a labor organization.
 
    The General Counsel argued that the Judge's decision was correct and
 urged the Authority to adopt his findings.
 
                 V.  Previous Decision of the Authority.
 
    In its previous decision in this case, Social Security
 Administration, Northeastern Program Service Center, 19 FLRA No. 108
 (1985), the Authority followed the precedent established in the original
 decision in the FHAFO case, 19 FLRA No. 21 (1985).  The Authority found,
 contrary to the Judge, that the Respondent did not commit an unfair
 labor practice when it denied the Union's request for the unit
 employees' home addresses.  The Authority ruled that release of the
 information was "prohibited by law," specifically the Privacy Act.  The
 Union appealed.  American Federation of Government Employees, Local 1760
 v. FLRA, No. 85-4144 (2d Cir.).  The Authority requested that the court
 remand the case to address whether disclosure of the information sought
 by the Union was "prohibited by law," i.e., the Privacy Act, because of
 the applicability of the Privacy Act's "routine use" exception, 5 U.S.C.
 552a(b)(3), and such other issues arising under the Statute as might be
 appropriate.  /2/ The court denied the Authority's request and issued a
 decision.
 
                    VI.  Decision of the Second Circuit
 
    The court reversed the Authority's holding that the release of the
 employees' home addresses was "prohibited by law," i.e., the Privacy
 Act, under section 7114(b)(4) of the Statute.  The court agreed with the
 Authority that it was necessary to apply a balancing test under
 exemption (b)(6) of the Freedom of Information Act (FOIA), /3/ to
 resolve the case, but found that the "privacy interest of the average
 employee in his address is not particularly compelling." AFGE Local
 1760, 786 F.2d at 556.  The court noted Congress' determination that
 collective bargaining is in the public interest and also noted its prior
 holdings in private sector cases that the mere existence of alternative
 means of communication with unit employees is not sufficient to justify
 the refusal of a union's request for home addresses.  The court agreed
 with the Administrative Law Judge in this case that the alternative
 means of communication available to the Union were inadequate, and that
 the other requirements for the release of home addresses pursuant to
 section 7114(b)(4) of the Statute had been met.  The court therefore
 remanded this case to the Authority to find a violation and require the
 Respondent to disclose the unit employees' home addresses to the Union.
 The court did not address the "routine use" issue.
 
    The Authority decided to review the entire issue of the release of
 employees' names and home addresses, and invited agencies, unions, and
 interested persons to submit amicus briefs addressing the issue.  A
 number of amicus submissions were received.  Although the parties in
 this case did not submit amicus briefs, the Department of Health and
 Human Services and the American Federation of Government Employees did
 file amicus briefs outlining their positions.
 
                       VII.  Analysis and Conclusion
 
    As noted above, the Authority in the decision on remand in FHAFO
 concluded that the release of the names and home addresses of bargaining
 unit employees to the exclusive representative of those employees is not
 prohibited by law, is necessary for unions to fulfill their duties under
 the Statute, and meets the other requirements of section 7114(b)(4).  We
 determined that agencies are required to furnish such information
 without regard to whether alternative means of communication are
 available.  Based on the court's decision in this case and our decision
 on remand in the FHAFO case, we find that the Respondent was required to
 furnish the Union with the home addresses of the employees in the
 bargaining unit.  Further, we find that the home addresses of the unit
 employees are reasonably available to the Respondent and that it would
 not place an undue burden on the Respondent to provide the Union with
 the information requested.  Finally, we conclude that the Respondent's
 refusal to furnish the requested information in this case constituted a
 violation of 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 Social Security Administration,
 Northeastern Program Service Center. shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to furnish, upon request by the American Federation of
 Government Employees, Local 1760, AFL-CIO, the exclusive representative
 of its employees, the 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,
 Local 1760, AFL-CIO, the exclusive representative of its employees,
 furnish it with the home addresses of 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, Local
 1760, AFL-CIO 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 Social
 Security Administration, Northeastern Program Service Center, and shall
 be posted and maintained for 60 consecutive 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 II, 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., November 19, 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) The Authority also sought remands in three other cases then
 pending in other circuits presenting substantially identical issues.
 The review proceedings involved were American Federation of Government
 Employees, Local 3354 v. FLRA, No. 85-1493 (D.C. Cir.) (reviewing the
 Authority's original decision in the FHAFO case, 19 FLRA No. 21);
 Philadelphia Metal Trades Council v. FLRA, No. 85-1625 (D.C. Cir.)
 (reviewing 19 FLRA No. 107);  and National Federation of Federal
 Employees, Local 1827 v. FLRA, No. 85-2202 (8th Cir.) (reviewing 19 FLRA
 No. 85).  The courts granted the Authority's motions for remand in those
 cases.
 
    (3) Freedom of Information Act, 5 U.S.C. Section 552 (1982).
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN OR