32:0968(138)CA - - DOD, Army and Air Force Exchange Service, Dallas, TX and NFFE - - 1988 FLRAdec CA - - v32 p968



[ v32 p968 ]
32:0968(138)CA
The decision of the Authority follows:


32 FLRA No. 138

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

UNITED STATES DEPARTMENT OF DEFENSE

DEPARTMENTS OF THE ARMY AND AIR FORCE

ARMY AND AIR FORCE EXCHANGE SERVICE

DALLAS, TEXAS

Respondent

and 

NATIONAL FEDERATION OF FEDERAL

EMPLOYEES

Charging Party

Case No. 6-CA-70555

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 United States Department of Defense, Departments of the Army and Air Force, Army and Air Force Exchange Service, Dallas, Texas (the Respondent) violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide the National Federation of Federal Employees (the Union) with the names and home addresses of the consolidated bargaining unit employees employed by the Respondent. 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. Facts

The Union is the exclusive collective bargaining representative of a nationwide consolidated unit of the Respondent's employees. By letter dated April 7, 1987, the Union requested that the Respondent provide it with the names and home addresses of the consolidated bargaining unit employees. By letter dated May 13, 1987, the Respondent responded to the Union's request by submitting only the names of the bargaining unit employees.

The Union requested the home addresses a second time by letter dated May 22, 1987. By an undated letter, the Respondent advised the Union that the listing of bargaining unit employees intentionally did not contain the home addresses of the bargaining unit employees because the Respondent was concerned about the possibility of violating the Privacy Act. The Respondent further advised the Union that it "preferred to withhold the employees' addresses pending the outcome of litigation with another labor organization over the same issue." (Stipulation at 3.)

The parties stipulated that the home addresses of the employees: (1) constitute data within the meaning of section 7114(b)(4) of the Statute which is maintained by the Respondent in the regular course of business; (2) are reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (3) do 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 a "unique question of law" which was not addressed or resolved by the Authority's decision on remand in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986) (Farmers Home), enforced in part and remanded sub nom. U.S. Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, 836 F.2d 1139 (8th Cir. 1988). The Respondent argues that in Farmers Home, the Authority placed great weight on an analysis of the routine use exemption of the Privacy Act, 5 U.S.C. § 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 the Privacy Act. Accordingly, the Respondent contends that the "routine user" theory 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.

B. The General Counsel

The General Counsel argues that our decision in Farmers Home is controlling in this case. The General Counsel further argues that the Respondent violated 5 U.S.C. § 7116 (a)(1), (5), and (8) when it refused to comply with the provisions of 5 U.S.C. § 7114(b)(4) when it failed and refused to provide to the Union the names and home addresses of bargaining unit employees.

IV. Analysis and Conclusions

The issues in this case are similar to the issues presented in 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, 26 FLRA 691 (1987) (AAFES, McClellan AFB), application for enforcement filed sub nom. FLRA v. Department 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, No. 87-1201 (D.C. Cir. May 4, 1987).

In this case, as in AAFES, McClellan AFB, the AAFES employees are not subject to OPM regulations; the employees' personnel files are not governed by the OPM's routine use statements; and AAFES' routine use statements do not include unions as routine users. Therefore, disclosure of the home addresses of Respondent's employees to the Union may not be authorized under exception (b)(3) of the Privacy Act.

We concluded in AAFES, McClellan AFB and we reaffirm that conclusion here: these distinctions do not affect the disclosure of the 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. § 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, 23 FLRA at 793:

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.

In this case, we reach the same conclusion that the information sought by the Union could be released by the Respondent under exception (b)(2) of the Privacy Act. Based on the parties' stipulation, it is evident that the other requirements of section 7114(b)(4)(A), (B) and (C) have been met. 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), (5), and (8) of the Statute. See United States Department of the Navy and Philadelphia Naval Shipyard v. FLRA, 840 F.2d 1131 (3d Cir. 1988), enforcing Philadelphia Naval Shipyard, 24 FLRA 37 (1986); U.S. Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, 838 F.2d 229 (7th Cir. 1988), affirming Department of the Air Force, Scott Air Force Base, Illinois, 24 FLRA 226 (1986); Department of Health and Human Services, Social Security Administration v. FLRA, 833 F.2d 1129 (4th Cir. 1987), affirming Department of Health and Human Services, Social Security Administration, 24 FLRA 543 (1986); Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, New York Region, 24 FLRA 583 (1986); Department of Health and Human Services, Social Security Administration, 24 FLRA 600 (1986).

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 United States Department of Defense, Departments of the Army and Air Force, Army and Air Force Exchange Service, Dallas, Texas, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Federation of Federal Employees, the exclusive representative of certain 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) Furnish the National Federation of Federal Employees, the names and home addresses of all employees in the bargaining unit it represents.

(b) Post at its facilities where bargaining unit employees represented by the National Federation of Federal Employees 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 Commanding Officer of the United States Department of Defense, Departments of the Army and Air Force, Army and Air Force Exchange Service, Dallas, Texas, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and 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 VI, 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.,

__________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to furnish, upon request of the National Federation of Federal Employees, the exclusive representative of certain 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 their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL furnish the National Federation of Federal Employees, the exclusive representative of certain of our employees, with the names and home addresses of all employees in the bargaining unit it represents.

__________________________
(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 comm