[ v24 p583 ]
24:0583(62)CA
The decision of the Authority follows:
24 FLRA No. 62
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION AND
SOCIAL SECURITY ADMINISTRATION FIELD OPERATIONS
NEW YORK REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 2-CA-50222
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Charging Party (Union) to the attached decision of the
Administration Law Judge. The issue is whether it is 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 Union with
the home addresses of employees of the Respondent's New York Regional
District and Branch Offices who are represented by the Union's Local
3369 (AFGE Local 3369) as part of a national exclusive unit represented
by the Union.
In a recent Decision and Order on Remand, 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, we conclude that the Respondent's refusal to provide
the Union with the home addresses of bargaining unit employees sought in
this case violated section 7116(a)(1), (5) and (8) of the Statute.
II. Facts
The Union is the exclusive representative for many of the
Respondent's employees, who are grouped in various nationwide bargaining
units. AFGE Local 3369, which acts as an agent for the Union in
representing New York Region employees who work within Areas I, II, III,
and IX, requested the names and home addresses of all the Respondent's
New York Regional District and Branch Office bargaining unit employees
within its jurisdiction. The Respondent contended that the disclosure
of home addresses would violate the Privacy Act, /1/ but it offered to
provide the Union with the names and work addresses of all the unit
employees represented by AFGE Local 3369.
III. Administrative Law Judge's Decision
The Judge concluded that the General Counsel had not established that
the Respondent failed to comply with section 7114(b)(4) of the Statute
in violation of section 7116(a)(1), (5) and (8) of the Statute, as
alleged, when it refused to give the Union the home addresses of unit
employees. In reaching that conclusion, the Judge found that the strong
privacy interest of employees in their home addresses outweighed the
interest of their exclusive representative in disclosure of the
information. The Judge also found that with the work addresses of the
unit employees the Union had been provided with an adequate and
reasonable alternative means of communicating with those employees.
IV. Positions of the Parties /2/
The Union's position was set forth in its exceptions. The Union
contends that the Judge misinterpreted the parties' stipulations and
that sending union mail to employees at their work addresses is not a
reasonable alternative means of communication. The Respondent did not
file a response to the exceptions.
V. Analysis and Conclusion
As noted above, in our decision on remand in FHAFO we concluded that
the release of home addresses of bargaining unit employees to the
exclusive representatives 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 also determined
that agencies are required to furnish such information without regard to
whether alternative means of communication are available. Based on our
decision on remand in the FHAFO case, we find that the Respondent in
this case was required to furnish the Union with the home addresses of
the unit employees sought herein. Thus, we conclude that the
Respondent's refusal to furnish the requested information in this case
constituted a violation of section 7116(a)(1), (5)8 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 Department of Health and Human Services,
Social Security Administration and the Social Security Administration
Field Operations, New York Region, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the American Federation of
Government Employees, AFL-CIO, the exclusive representative of its
employees, and its agent, American Federation of Government Employees,
Local 3369, AFL-CIO, the names and home addresses of all New York
Regional District and Branch Office employees in the bargaining unit
represented by AFGE Local 3369.
(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, the exclusive representative of its employees, and its agent,
American Federation of Government Employees, Local 3369, AFL-CIO,
furnish them with the names and home addresses of all New York Regional
District and Branch Office employees in the bargaining unit represented
by AFGE Local 3369.
(b) Post at all its New York Regional District and Branch Office
facilities where bargaining unit employees represented by the American
Federation of Government Employees, Local 3369, 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 the Regional Commissioner, New York Region, Social Security
Administration, Department of Health and Human Services, 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., December 18, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 by the American
Federation of Government Employees, AFL-CIO, the exclusive
representative of our employees, and its agent, American Federation of
Government Employees, Local 3369, AFL-CIO, the names and home addresses
of all New York Regional District and Branch Office employees in the
bargaining unit represented by AFGE Local 3369.
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, the exclusive representative of our employees, and
its agent, American Federation of Government Employees, Local 3369,
AFL-CIO, furnish them with the names and home addresses of all New York
Regional District and Branch Office employees in the bargaining unit
represented by AFGE Local 3369.
(Activity)
Dated:
By: (Signature) (Title)
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 II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 3700, New York, N.Y. 10278 and whose
telephone number is: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CA-50222
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION AND SOCIAL
SECURITY ADMINISTRATION FIELD OPERATIONS, NEW
YORK REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party/Union
Irving L. Becker and Melvin Steverman,
For the Respondent
Charles Fahlikman,
For the Charging Party
E.A. Jones and Susan M. Roche,
For the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the Statute, and the rules and
regulations issued thereunder and published to 5 CFR 2411 et seq.
Pursuant to a charge of an unfair labor practice filed on March 26,
1985, the Regional Director, Region II, of the Federal Labor Relations
Authority (Authority) investigated and, on May 29, served the complaint
initiating this proceeding.
The complaint alleges that Respondent violated Sections 7116(a)(1),
(5) and (8) of the Statute, /3/ by refusing to provide the Charging
Party with the names and home addresses of bargaining-unit employees
within the jurisdiction of Local 3369 of the American Federation of
Government Employees (AFGE).
On July 16, 1985, in New York City, a hearing was held at which the
parties appeared, submitted a stipulation of facts with exhibits
(hereinafter referred to as Jt. Exh. 1), and presented a short
presentation of their legal positions. The General Counsel also
submitted a proposed order and notice for entry in this case. Briefs
were filed by the Respondent on August 7 and by the General Counsel on
August 15. Based upon the stipulated facts and the briefs, I enter the
following findings of fact and conclusions of law.
Findings of Fact
1. The charge herein was filed by the Charging Party on March 26,
1985, and a copy thereof was served upon the Respondent by certified
mail on March 27, 1985.
2. The General Counsel of the Authority, by the Regional Director of
Region II, acting pursuant to Section 7104(f)(2) of the Statute, and 5
CFR 2423.9a(4) issued a Complaint and Notice of Hearing dated May 29,
1985. Respondent, on June 19, 1985, served an Answer to the Complaint
on the Union and the Regional Director.
3. At all times material herein, the Charging Party has been, and is
now, a labor organization within the meaning of Section 7103(a)(4) of
the Statute.
4(a). At all times material herein, Department of Health and Human
Services, Social Security Administration (SSA) has been, and is now, an
agency within the meaning of Section 7103(a)(3) of the Statute.
(b). At all times material herein, SSA's Field Operations component,
New York Region, has been, and is now, a constituent entity within the
Department of Health and Human Services, SSA, and an agent acting on its
behalf.
5(a). At all times material herein, Alex Bussey occupied the
position of Assistant Regional Commissioner, at SSA's Field Operations,
New York Region.
(b). At all times material herein, Peter DiSturco has occupied the
position of Regional Commissioner at SSA, New York Region.
6. At all times material herein, the individuals named above in
paragraph 5, have been, and are now, supervisors or management officials
as defined in Section 7103(a)(10) and (11), respectively, of the Statute
and have been, and are now, agents of Respondent acting on its behalf.
7(a). At all times material herein, the Charging Party has been, and
is now, the certified exclusive representative of a consolidated
nationwide unit of certain employees of Respondent, including all
employees in the District and Branch Offices of SSA in the States of New
York and New Jersey, excluding all management personnel, professional
employees, employees engaged in Federal personnel work in other than a
purely clerical capacity, guards and supervisors.
(b). At all times material herein, the Charging Party has delegated
to the National Council of SSA Field Operations Locals (Council)
authority to act as its representative for purposes of collective
bargaining for certain of Respondent's employees, and the Council's
delegation has been recognized by Respondent.
(c). At all times materials herein, American Federation of
Government Employees, Local 3369, AFL-CIO (AFGE Local 3369), has acted
as agent for the Council for the purposes of collective bargaining for
certain of Respondent's employees in the New York Region, and AFGE Local
3369's delegation has been recognized by Respondent.
8. AFGE Local 3369's delegated representational jurisdiction covers
Areas I, II, III and IX within Respondent's New York Region. There are
therein approximately 2400 bargaining unit employees represented by AFGE
Local 3369, who work in 52 of Respondent's New York Region district
offices and branch offices. The size of the district offices and branch
offices within AFGE Local 3369's jurisdiction range from approximately 8
employees to approximately 110 employees.
9. On December 21, 1984, John Riordan, President, AFGE Local 3369,
requested in a letter to Mr. DiSturco the names and home addresses for
all bargaining unit employees within the jurisdiction of AFGE Local
3369. This information was requested in order to communicate with and
learn the views of bargaining unit employees so that bargaining
conducted by AFGE Local 3369 will reflect the views of the unit
employees. The information was also requested to monitor compliance
with the parties' collective bargaining agreement.
10. On January 21, 1985, Mr. Bussey wrote a letter to Mr. Riordan.
In paragraph 4 of his letter Mr. Bussey responded to Mr. Riordan's
December 21, 1984, request by stating that the unit employees' names and
home addresses were not releasable because this would unduly invade the
privacy of the employees. Mr. Bussey referred Mr. Riordan to Federal
litigation in which another AFGE Local was denied a similar request for
information. In tthe alternative Mr. Bussey offered to provide the
employees' work addresses to Mr. Riordan.
11. On February 1, 1985, Mr. Riordan wrote a letter to Mr. Bussey.
In paragraph 3 Mr. Riordan stated that he did want employees' office
addresses included in the information requested. In paragraphs 4 and 5
of the letter Mr. Riordan reiterated his reasons for requesting the
information, as stated above in finding 9. Mr. Riordan stated that the
information requested was clearly releasable and referred Mr. Bussey to
another unfair labor practice case, Case No. 2-CA-30643, in which an
Authority Administrative Law Judge ordered the respondent to provide
employees' names and home addresses to the charging party in that case.
He also informed Mr. Bussey that his reference to Federal litigation by
another AFGE Local involved a Freedom of Information Act (FOIA) request
rather than a request made pursuant to Section 7114(b)(4) of the
Statute.
12. On March 15, 1985 Mr. Bussey wrote Mr. Riordan. Mr. Bussey
summarized his January 21 letter to Mr. Riordan and also explained that
subsequent to that correspondence the Respondent received a request for
a legal opinion regarding the relationship between the Privacy Act, 5
USC 552a, and the release of information under Section 7114(b)(4) of the
Statute. Mr. Bussey stated that the reason for the request of a legal
opinion was that Respondent's line managers were concerned that they may
incur legal liability if employees perceived that their rights under the
Privacy Act had been violated by the release of unauthorized personal
information. Mr. Bussey stated that a decision on the release of
information pursuant to Mr. Riordan's December 21 request would be
deferred until the Respondent's legal opinion was issued. Mr. Bussey
also responded to Mr. Riordan's reference to the Administrative Law
Judge decision in Case No. 2-CA-30643 by stating that since the decision
had been appealed, the Respondent would continue to maintain, until
there is a decision on that appeal, that the release of employees' names
and home addresses would unduly invade the privacy of the employees.
Mr. Bussey also explained his view that Respondent's MIS data does not
include home address information so that it would be extremely
burdensome and costly to gather this information. The abbreviation
"MIS" in paragraphs 7 and 8 of Bussey's letter refers to the
Respondent's "management information system" which is comprised of
personnel and personal data on Respondent's employees and clientele.
Enclosed with Mr. Bussey's correspondence was the name of the office in
which every unit employee was working. This then allowed Mr. Riordan to
identify the work location of every unit employee since the Union
already possessed the addresses of the offices.
13. The Charging Party and Respondent are parties to a collective
bargaining agreement covering the nationwide bargaining unit described
in finding 7 above.
14(a). The information requested in the December 21, 1984, request
is maintained on each employee's Standard Form 7B card and on each
employee's payroll check stub. The 7B cards are maintained in each
employee's 7B Extension File which is located at the district office or
branch office in which the employee is employed. A list of the names
and home addresses could be prepared by a clerical employee in each
office writing each employee's name and address as it appears on the 7B
card. It is estimated that it would take no more than one minute to
write the name and address for each employee. An Administrative
Assistant maintains a copy of each employee's payroll check stub in the
district or branch office in which they are employed. A list of the
employees' names and home addresses could be developed from the
Administrative Assistant photocopying all pay stubs, while sanitizing by
covering all information except the employee's name and home address.
It is estimated that it would take no more than one and one-half minutes
to photocopy the name and address from each employee's check stub.
(b). The information requested in the December 21 request is
normally maintained by Respondent in the regular course of business and
does not constitute guidance, advice, counsel, or training provided for
management officials or supervisors relating to collective bargaining.
15. The Charging Party requested the names and home addresses of
bargaining unit employees within the jurisdiction of AFGE Local 3369 in
order to communicate with and learn the views of the employees so that
bargaining by AFGE Local 3369 will reflect the views of unit employees
on such issues as computerization of offices; office openings, closings
and relocations; continuous performance audits of employees; use of
medical release forms; changes in front-end client interviewing
procedures; and employees' counseling services. Employees views may
pertain to the impact and implementation of Respondent initiated
on-going and future changes involving these and other issues relating to
bargaining unit working conditions with regard to which the Charging
Party has an obligation to fairly represent its bargaining unit members.
The information was also requested to monitor compliance with the
parties' collective bargaining agreement referred to in finding 13
above. Issues involving contract compliance on which the Charging Party
may wish to communicate with and obtain the views of unit employees may
include: performance audits under Article 21; health and safety under
Article 13; maternity leave under Article 31; and part-time employment
under Article 33. Prior to the formulation of the parties' stipulation
of facts, the Respondent was never specifically and expressly informed
by the Charging Party that the above examples constituted the reason for
the request for unit employees' names and home addresses.
16. The Charging Party has the names and home addresses for all
employees who are members of AFGE Local 3369 who wrote their home
address on the Form 1187 when they made application to join the Union.
However, some Union members used their office address on the Form 1187
and others have changed their addresses without notifying the Union.
About 45 percent of the bargaining unit employees within the
jurisdiction of AFGE Local 3369 are members of the Union. Other than
the above data in its own files, the information sought by the Charging
Party in the December 21, 1984, request was not available to the
Charging Party from any other source. The Charging Party did not have
any reasonable alternative means of communication with its bargaining
unit members. Neither Respondent nor the Charging Party raised or
addressed the issue of reasonable alternative means of communication
prior to the formulation of the parties' stipulation of facts.
17. On or about January 21, 1985, and at all times thereafter
including March 15, 1985, Respondent, through Mr. Bussey, failed and
refused to furnish to the Charging Party the requested information
described in finding 9 above.
(a). The basis for the refusal was first stated in Mr. Bussey's
letter to Mr. Riordan dated January 21, 1985. In this letter, Mr.
Bussey stated, in pertinent part, that:
Your second letter dated December 21, 1984, requests names and
addresses of all bargaining unit members under the jurisdiction of
Local 3369. If you are requesting home addresses, this
information is not releasable under the authority cited in your
request as it would unduly invade the privacy of employees. In
this regard, AFGE Local 1923 unsuccessfully sought similar
information in Federal litigation in 1983. If you intended to
request work addresses, as stated in the second paragraph of this
letter, that information could be furnished.
See Exhibit 3 to the parties Stipulation of Facts, which is Joint
Exhibit 1 (Jt. Exh. 1).
(b). The basis was again stated in Mr. Bussey's letter to Mr.
Riordan of March 15, 1985. In this letter, Mr. Bussey stated, in
pertinent part, that:
Subsequent to January 21, 1985, this office received a request
for a legal opinion regarding the relationship between the Privacy
Act and the release of information under 5 USC 7114(b)(4). A part
of the reason for the requested clarification was the concern by
line managers of legal liability in the event an employee
perceived that his/her rights under the Privacy Act had been
violated if personal information is released without their
authorization. Since union officials have often expressed their
concerns about potential liability in duty to fair representation
situations, we are sure you can appreciate line management's
concerns about their potential liability under the Privacy Act.
While we are fully aware of emerging case law regarding 7114
requests, we believe all interests would be served by obtaining a
legal opinion regarding the relationship of the two laws.
Therefore, we have submitted this question for review and
response. . . .
Regarding your continued request for home addresses, you advise
this information is clearly releasable based on FLRA Case No.
2-CA-30643. The case to which you refer, involving the
Northeastern Program Service Center, has been appealed. Until
there is a decision regarding that appeal, the Social Security
Administration believes release of such information would unduly
invade the privacy of employees. In addition, our MIS data does
not include home address information, therefore it would be
extremely burdensome and costly to gather this information. Since
the attached listings identify the duty locations of bargaining
unit members within Local 3369's jurisdiction, such information
provides the Local access to bargaining unit members.
See Exhibit t to Jt. Exh. 1.
18. Other than the correspondence referred to in findings 9 through
12 and 17, above, there were no other communications between Respondent
and the Charging Party regarding the Charging Party's information
request of December 21, 1984.
19. No evidence was adduced as to any problems associated with
bargaining-unit employees receiving personal mail at their work
addresses.
Discussion and Conclucions
The Charging Party/Union is this case sought the names and home
addresses of bargaining-unit under Section 7114(b)(4) of the Statute
which provides that:
(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;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining. . . .
The parties here have stipulated that the information sought is
normally maintained by Respondent in the regular course of business, and
does not constitute guidance, advice, counsel, or training provided for
management officials or supervisors relating to collective bargaining.
See finding 14(b), above.
It is undisputed, and clear that such information constitutes "data"
within the meaning of the Statute. And Respondent does not raise an
issue, in its brief, as to the information being "readily available."
Based upon finding 14(a), I conclude that it was, indeed, readily
available.
Since the complaint in this case was filed, the Authority has issued
a line of decisions setting forth its approach to deciding cases wherein
unions request management to furnish them with the names and home
addresses of bargaining-unit employees. See Farmers Home Administration
Finance Office, St. Louis, Missouri, 19 FLRA No. 21, 19 FLRA 195 (July
22, 1985, hereinafter Farmers), petition for review filed sub nom.
American Federation of Government Employees, AFL-CIO, Local 3354 v.
FLRA, No. 85-1493 (D.C. Cir., August 6, 1985); Defense Mapping Agency
Aerospace Center, St. Louis, Missouri, 19 FLRA No. 85, 19 FLRA 675
(August 12, 1985, hereinafter, Defense Mapping); Philadelphia Naval
Shipyard, 19 FLRA No. 107, 19 FLRA 899, (August 22, 1985); Social
Security Administration Northeastern Program Service Center, 19 FLRA No.
108, 19 FLRA 913 (August 22, 1985, hereinafter SSA NEPSC); and
Department of Defense, Department of the Navy, Norfolk Naval Shipyard,
Norfolk, Virgina, 20 FLRA No. 44 (September 30, 1985, hereinafter
Norfolk Naval Shipyard).
In each of these cases the Authority has dismissed the complaints on
the ground that the Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat.
1896 (codified as amended at 5 U.S.C. Section 552a (1982)) prohibited
the disclosure by law. In each of these cases, the Authority first
performed "a balancing test," which weighs the necessity of the data for
the union's purposes against the degree of intrusion on the individuals'
privacy interests caused by the disclosure of the data. See, e.g. SSA
NEPSC, 19 FLRA at 915. In each of these cases, the Authority has noted
the "employees' strong privacy interest in their home addresses." See,
e.g. SSA NEPSC, ibid. And, in each, the Authority has noted that the
Union had alternative means of communicating with the unit employees.
In this case it has been stipulated that the Union did not have any
reasonable alternative means of communication with the bargaining unit
employees. See finding 16, above. I interpret this stipulation to mean
that the Union lacked any reasonable alternative means as of the date it
made its December 21, 1984 request for the names and home addresses of
unit employees. However, after the Union made its request, Respondent,
on January 21, 1985, offered to give to the Union the names and work
addresses of unit employees. See finding 10, above. And, on March 15,
1985 Resondent gave the Union this information. See finding 12, above.
No evidence was offered of any problems connected with employees
receiving personal mail at their work addresses. While receiving mail
at home may be more desirable, from the Union's viewpoint, I cannot
conclude on this record, that receipt of personal mail at the office
does not provide the Union with an adequate and reasonable means of
communicating with all the employees it represents. Under the line of
Authority decisions cited above, I am constrained to hold that what the
Authority perceives to be the strong privacy interest of employees in
their home addresses, even vis-a-vis their exclusive representative,
tips the scales in favor of nondisclosure, in this particular case.
In view of this conclusion, other issues raised by the parties need
not be resolved.
Ultimate Findings and Recommended Order
The General counsel has not established, by the preponderance of the
evidence, /4/ that Respondent has committed the unfair labor practices
alleged in the complaint.
Accordingly, the complaint in this case should be, and it hereby is
DISMISSED.
/s/ ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: November 5, 1985
Washington, DC
--------------- FOOTNOTES$ ---------------
(1) Privacy Act of 1974, 5 U.S.C. Section 552a (1982).
(2) When the Authority decided, for reasons discussed more fully in
FHAFO, 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, this case was one of those
listed as being under consideration. The Union and the Respondent filed
amicus briefs in response to the Authority's invitation. The Union
contends that the Respondent's submission should not be accepted because
it was filed one day late. The Authority accepted and considered some
amicus submissions that were received shortly after the date set in the
Authority's Federal Register notice, including the Respondent's amicus
brief. We note that there is nothing in the disputed submission that
would alter our decision in this matter.
(3) Section 7116 provides, in pertinent part, that:
(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; . . . . (or)
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
(4) This is the statutory burden of proof. See 5 U.S.C. 7118 (7) and
(8).