26:0691(85)CA - Army and Air Force, Army and Air Force Exchange Service, HQ, Dallas, TX and Army and Air Force Exchange Service, McClellan AFB, CA and AFGE Local 1857 -- 1987 FLRAdec CA



[ v26 p691 ]
26:0691(85)CA
The decision of the Authority follows:


 26 FLRA No. 85
 
 DEPARTMENTS OF THE ARMY AND AIR FORCE
 ARMY AND AIR FORCE EXCHANGE SERVICE
 HEADQUARTERS, DALLAS, TEXAS AND
 ARMY AND AIR FORCE EXCHANGE SERVICE
 McCLELLAN AIR FORCE BASE, CALIFORNIA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1857, AFL-CIO
 Charging Party
 
                                            Case No. 9-CA-60288
 
                            DECISION AND ORDER
 
    I.  Statement of the Case
 
    This matter is before the Authority under section 2429.1(a) of our
 Regulations based on the parties' stipulation of facts.  The complaint
 alleges that the Respondent violated section 7116(a)(1) and (8) of the
 Federal Service Labor-Management Relations Statute (the Statute) by
 refusing to provide the Union with the names and home addresses of all
 employees in the McClellan Air Force Base Exchange bargaining unit.  The
 General Counsel and the Respondent have filed briefs with the Authority.
  For the reasons discussed below, we find that the Respondent has
 committed the unfair labor practices as alleged.
 
    II.  Background
 
    By letter dated May 5, 1986, the President of AFGE Local 1857 (the
 Union) requested the Manager of the McClellan Air Force Base Exchange to
 provide the Union with the names and home addresses of all bargaining
 unit employees at the Exchange.  There are 82 employees in the unit, of
 whom 29 are regular full-time and 53 are regular part-time employees.
 In its request for the information, the Union cited American Federation
 of Government Employees, Local 1760 v. FLRA, 756 F.2d 554 (2d Cir.
 1986).  Later in May, the Respondent gave the Union a listing of the
 names, job titles and job locations of employees in the bargaining unit,
 but did not provide the employees' home addresses.  The Respondent has
 continued to refuse to provide the home addresses of employees to the
 Union.
 
    The parties have stipulated that the information requested by the
 Union constitutes data within the meaning of section 7114(b)(4) of the
 Statute which is normally maintained by the Respondent in the regular
 course of business;  is reasonably available and necessary for full and
 proper discussion, understanding, and negotiation of subjects within
 collective bargaining;  and does not constitute guidance, advice,
 counsel, or training provided for local management officials or
 supervisors relating to collective bargaining.
 
    III.  Positions of the Parties
 
    A.  The Respondent
 
    The Respondent asserts that this case presents an issue which
 distinguishes it from our decision on remand in the lead "names and home
 addresses" case, Farmers Home Administration Finance Office, St. Louis,
 Missouri, 23 FLRA No. 101 (1986), petition for review filed sub nom.
 U.S. Department of Agriculture and the Farmers Home Administration
 Finance Office, St. Louis, Missouri v. FLRA, No. 86-2579 (8th Cir. Dec.
 23, 1986).  The Respondent argues that in deciding that release of the
 names and home addresses of bargaining unit employees to the exclusive
 representative was not prohibited by law, the Authority placed great
 weight on an analysis of exception (b)(3) of the Privacy Act, 5 U.S.C.
 section 552a(b)(3), which permits disclosure of information for a
 "routine use." The Respondent further argues that published statements
 of the Office of Personnel Management (OPM), which define routine uses
 of information in personnel records and include labor organizations as
 routine users of that information, were a key factor in the Authority's
 decision that disclosure of employees' home addresses to unions was
 permitted as a routine use under exception (b)(3) of the Privacy Act.
 
    The Respondent notes that the employees in this case are employed by
 the Army and Air Force Exchange Service (AAFES) and are not subject to
 OPM regulations, and therefore the OPM routine use statement does not
 apply to them.  The Respondent also notes that the AAFES routine use
 statements do not include labor organizations as routine users of
 information in AAFES' systems of records, and therefore contends that
 disclosure of employees' home addresses to the Union cannot be made
 under exception (b)(3) of the Privacy Act.  Accordingly, the Respondent
 contends that the "routine user" theory which we applied in Farmers Home
 cannot be applied in this case.
 
    The Respondent asserts that we must decide this case by balancing the
 employees' right to privacy against the public interest in disclosure,
 and that in so doing we should reconsider our Farmers Home decision and
 apply the decision of the court in American Federation of Government
 Employees, Local 1923 v. United States, Department of Health and Human
 Service, 712 F.2d 931 (4th Cir. 1983).  Finally, the Respondent notes
 that in 1985 it had attempted to make a reasonable accommodation to AFGE
 by providing an alternate way for it to obtain the home addresses of
 employees;  however, the Respondent states that it does not pursue this
 point because we ruled on this theory in Farmers Home.
 
    B.  The General Counsel
 
    The General Counsel argues that our decision in Farmers Home is
 controlling in this case.  The General Counsel submits that the
 Respondent's refusal to provide the home addresses of bargaining unit
 employees violates section 7114(b)(4) of the Statute and constitutes the
 unfair labor practices alleged in the complaint.
 
    IV.  Analysis and Conclusions
 
    In our decision on remand in Farmers Home, we held that the release
 of the names and home addresses of bargaining unit employees to
 exclusive representatives is not prohibited by law, is necessary for
 unions to fulfill their duties under the Statute, and meets all of the
 other requirements of section 7114(b)(4).  Our decision in Farmers Home
 analyzed the two exceptions to the Privacy Act's bar to disclosure of
 personal information pertinent to the release of employees' names and
 home addresses:  exception (b)(2) concerning the Freedom of Information
 Act, and exception (b)(3) relating to "routine use" of information.
 
    The Respondent correctly notes that AAFES employees are not subject
 to OPM regulations;  that the employees' personnel files are not
 governed by the OPM's routine use statements;  and that AAFES' routine
 use statements do not include unions as routine users.  Therefore,
 disclosure of McClellan Air Force Base Exchange employees' home
 addresses to the Union may not be authorized under exception (b)(3) of
 the Privacy Act.
 
    However, this distinction does not affect the disclosure of these
 employees' home addresses to the Union under exception (b)(2) of the
 Privacy Act.  Exception (b)(2) states that if the disclosure of the
 requested information is required by the Freedom of Information Act
 (FOIA), the Privacy Act's bar to disclosure is not applicable.  5 U.S.C.
 section 552a(b)(2).  In Farmers Home, we discussed exception (b)(2) and
 applied the necessary balancing test under the FOIA.  We stated in
 Farmers Home (slip op. at 6):
 
          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.
 
    We reaffirm that conclusion here, and find that the information
 sought by the Union could be released by the Respondent under exception
 (b)(2) of the Privacy Act.  For the reasons set forth more fully in
 Farmers Home, we reject the Respondent's suggestion that we adopt the
 approach of the court in AFGE, Local 1923, 712 F.2d 931.
 
    We also find, as we did in Farmers Home, that the release of the
 information is generally required without regard to whether alternative
 means of communication are available.  Further, through the parties'
 stipulation, it is evident that the other requirements of section 7114
 (b)(4)(A), (B) and (C) have been met.  Consistent with our decision in
 Farmers Home, we therefore find that the Respondent was required to
 furnish the Union with the home addresses of the employees in the
 bargaining unit.  Its refusal to do so violated section 7116(a)(1) and
 (8) of the Statute.
 
    V.  Order
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute, the Departments of the Army and Air Force, Army and Air Force
 Exchange Service, Headquarters, Dallas, Texas and the Army and Air Force
 Exchange Service, McClellan Air Force Base, California, shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to furnish, upon request of the American Federation of
 Government Employees, Local 1857, ALF-CIO, the exclusive representative
 of its employees, the names and home addresses of all bargaining unit
 employees located at its McClellan Air Force Base Exchange.
 
    (b) In any like or related manner, interfering with, restraining, or
 coercing its employees in the exercise of 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 1857, AFL-CIO, the exclusive representative of its employees,
 furnish it with the names and home addresses of all bargaining unit
 employees located at its McClellan Air Force Base Exchange.
 
    (b) Post at all its facilities at the McClellan Air Force Base
 Exchange, where bargaining unit employees represented by the American
 Federation of Government Employees, Local 1857, 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 Directors of the Departments of the Army and Air Force,
 Army and Air Force Exchange Service, Headquarters, Dallas, Texas and the
 Army and Air Force Exchange Service, McClellan Air Force Base,
 California, 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 ensure 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 IX, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply with this Order.
 
    Issued, Washington, D.C., April 28, 1987.
 
                                       /s/ Jerry L. Clahoun, 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
 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to furnish, upon request of the American
 Federation of Government Employees, Local 1857, AFL-CIO, the exclusive
 representative of our employees, the names and home addresses of all
 bargaining unit employees located at our McClellan Air Force Base
 Exchange.
 
    WE WILL NOT in an