47:0110(7)CA - - Transportation, Washington, DC and FAA, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, CT and National Air Traffic Controllers Association Y90 Local - - 1993 FLRAdec CA - - v47 p110

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[ v47 p110 ]
47:0110(7)CA
The decision of the Authority follows:


47 FLRA No. 7

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

and

FEDERAL AVIATION ADMINISTRATION

NEW ENGLAND REGION

BRADLEY AIR TRAFFIC CONTROL TOWER

WINDSOR LOCKS, CONNECTICUT

(Respondents)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

Y90 LOCAL, MEBA/NMU, AFL-CIO

(Charging Party)

1-CA-10020

DECISION AND ORDER

March 9, 1993

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent U.S. Department of Transportation, Washington, D.C. (DOT) to the attached decision of the Administrative Law Judge. The General Counsel and Charging Party filed oppositions to the exceptions. The General Counsel also filed a cross-exception. The Respondent filed an opposition to the General Counsel's cross-exception. The General Counsel filed a motion to strike certain portions of DOT's opposition to the General Counsel's cross-exception.

The complaint alleges that Respondent Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower (Bradley ATCT), Windsor Locks, Connecticut (FAA) violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO (NATCA), with an unsanitized copy of the list of names used by FAA for the random drug testing of its employees on August 29, 1990, at Bradley ATCT. The complaint also alleges that DOT violated section 7116(a)(1) and (5) of the Statute by prohibiting FAA from disclosing to NATCA an unsanitized copy of the list of names used by FAA for the random drug testing of its employees on August 29, 1990.

The Judge concluded that because the record established that FAA refused to provide the information to NATCA pursuant to DOT policy and instructions and that FAA had no discretion in the matter, FAA did not violate section 7116(a)(1), (5), and (8) of the Statute. However, the Judge also concluded that, by preventing FAA from complying with its obligations under section 7114(b)(4) of the Statute, DOT unlawfully interfered with FAA's collective bargaining relationship with NATCA and, thereby, violated section 7116(a)(1) and (5) of the Statute.

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.

II. Background

The facts of this case are not in dispute and are set out fully in the Judge's decision. The facts will be referenced only as needed to resolve the issues raised by the parties' exceptions, opposition, cross-exceptions, and opposition to cross-exceptions.

III. Administrative Law Judge's Decision

The Judge concluded that under section 7114(b)(4) of the Statute, NATCA was entitled to the complete list of names used by FAA for the random drug testing of its employees on August 29, 1990, including the names of employees not in the bargaining unit. The Judge stated that because the record established that FAA deleted the names of employees not in the unit pursuant to DOT policy and instructions and that FAA had no discretion in the matter, he was "constrained to conclude that FAA did not violate the Statute because its actions were ministerial in nature." Judge's Decision at 11. The Judge concluded, however, that DOT violated section 7116(a)(1) and (5) of the Statute by unlawfully interfering with the FAA's collective bargaining relationship with NATCA by preventing FAA, at Bradley ATCT, from complying with its obligations under section 7114(b)(4) of the Statute.

Specifically, the Judge found that the annotated random drug testing list requested by NATCA, including the names of the nonunit employees, was necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining, within the meaning of section 7114(b)(4) of the Statute. The Judge stated that it is not disputed that the list requested by NATCA was maintained by DOT and FAA in the regular course of business; was reasonably available; and does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining.

The Judge noted the Respondents' argument that the Privacy Act prohibits disclosure of the names of nonunit employees that appeared on the drug testing list. The Judge also noted the Respondents' reliance on the Office of Personnel Management (OPM) notice concerning routine uses for certain records maintained in systems of records governed by the Privacy Act, 5 U.S.C. § 552a. See Office of Personnel Management, Privacy Act of 1974: Publication of Notices of Systems of Records and Proposed New Routine Uses, 55 Fed. Reg. 3802 (1990).

The Judge stated that the Authority analyzed the Privacy Act's application to information requested under section 7114(b)(4) of the Statute in U.S. Department of Transportation, Federal Aviation Administration, New England Region, Burlington, Massachusetts, 38 FLRA 1623, 1630-32 (1991) (FAA Burlington). The Judge stated that in FAA Burlington the Authority discussed section (b)(2) of the Privacy Act, which allows disclosure of information if disclosure is required by the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). The Judge also stated that in FAA Burlington, the Authority recognized that the FOIA provides that records must be disclosed, upon request, unless the records are subject to a specific exemption, and that exemption (b)(6) of the FOIA provides that information contained in personnel files may be withheld if disclosure would constitute a clearly unwarranted invasion of privacy. 5 U.S.C. § 552(b)(6). The Judge noted that the Authority held that in determining whether the disclosure of information would constitute a clearly unwarranted invasion of privacy, the individual's right of privacy must be balanced against the public's interest in disclosure.

The Judge applied that balancing test, as set forth in FAA Burlington, and found that the public's interest in the disclosure of the names of the nonunit employees and supervisors whose names were on the drug testing list outweighed the personal privacy interests of the employees and supervisors involved. The Judge also found that the names, as they appeared on the list, were necessary for NATCA adequately to perform its representational duties and that disclosure of the names to NATCA promoted important public interests.

Moreover, the Judge concluded that even if disclosure of the random drug testing list is prohibited under exception (b)(2) of the Privacy Act, it is authorized under exception (b)(3), which permits disclosure of information for a "routine use." The Judge noted that 5 U.S.C. § 552a(a)(7) confines routine use disclosures to ones that are compatible with the purpose for which the information is collected. The Judge also noted that, in addition to the requirement in 5 U.S.C. § 552a(a)(7), the use must be within the uses described under 5 U.S.C. § 552a(e)(4)(D). The Judge found that the subject lists were compiled by DOT to make sure that the random drug tests were administered in a truly random and equitable manner. Thus, the Judge concluded that the release of the requested list to NATCA, so that it could ensure that the drug testing was administered in a fair and equitable manner, is fully consistent with the purposes for which the list was collected.

The Judge rejected the Respondents' argument that disclosure of the data is prohibited by the "routine use" notice published by OPM. The Judge stated that the Authority balances and reconciles the interests of the parties under the Privacy Act, the FOIA, and the Statute, and determines the applicability of OPM's interpretation and application of the Privacy Act and its (b)(3) "routine use" exception. The Judge concluded that under Authority precedent, NATCA was entitled to the list it requested, containing both the names of unit members and nonunit members. The Judge stated, however, that if the Authority determines that OPM is the appropriate agency to interpret and reconcile the Privacy Act, the FOIA, and the Statute, and that OPM's interpretation and application of the Privacy Act and the (b)(3) "routine use" exception is controlling, he would be compelled to conclude that NATCA was not entitled to the requested list because the OPM notice provides that the records requested by NATCA are disclosable as a routine use only pursuant to an order of a court of competent jurisdiction to defend a challenge against an adverse personnel action.

The Judge found that the record established that FAA deleted the names of employees not in the unit pursuant to DOT policy and instructions, that FAA had no discretion in this matter, and that FAA's action in denying NATCA's request for the data was ministerial. Therefore, the Judge concluded that FAA did not violate section 7116(a)(1), (5), and (8) of the Statute. However, the Judge found that DOT unlawfully interfered with its subordinate activity's collective bargaining relationship with NATCA, and its agent NATCA Y90 Local, by preventing FAA from complying with its obligations under section 7114(b)(4) of the Statute. Accordingly, the Judge concluded that DOT violated section 7116(a)(1) and (5) of the Statute. The Judge recommended that DOT be ordered to direct FAA to furnish NATCA the complete list of names used by FAA to administer its random drug testing at Bradley ATCT on August 29, 1990, and that in the future, upon request by NATCA, DOT furnish the complete lists used in its random drug testing of employees.

IV. Positions of the Parties

A. DOT's Exceptions

DOT excepts to the Judge's conclusion that DOT violated section 7116(a)(1) and (5) of the Statute by preventing FAA from fulfilling its obligation under section 7114(b)(4) of the Statute to furnish information to the Union. DOT asserts that its directive to FAA concerning release of the drug testing list was consistent with the Privacy Act and Government-wide regulations that prohibit disclosure of the list. DOT argues that the Judge erroneously relied on the Authority's interpretation of the Privacy Act to find that disclosure was required in this case. DOT asserts that in FLRA v. U.S. Department of Treasury, Financial Management Service, 884 F.2d 1446 (D.C. Cir. 1989) (Financial Management Service), cert. denied, 493 U.S. 1055 (1990), the court held that the Authority is not entitled to deference in its interpretation of the Privacy Act and the FOIA. DOT argues that the Authority has no special authority or expertise to interpret or apply Government-wide regulations promulgated by other Federal agencies contrary to the plain meaning of those regulations. DOT maintains that it is bound by OPM's regulations concerning the maintenance and release of medical records. DOT contends, therefore, that it did not violate section 7116(a)(1) and (5) of the Statute by requiring FAA to comply with law and OPM's Government-wide regulation.

DOT also excepts to the Judge's conclusion that the drug testing list must be disclosed under section 7114(b)(4) of the Statute because disclosure is permitted under exception (b)(3) of the Privacy Act and exemption (b)(6) of the FOIA. DOT argues that the Judge's "conclusion and application of the (b)(3) exception as defined in the Privacy Act is on its face incorrect and a misreading of the law itself." DOT's Exceptions at 6. DOT states that OPM has established in its regulation the routine uses for the drug testing lists. DOT asserts that "[o]nly the OPM has statutory and regulatory authority to authorize routine use exceptions to the disclosure of protected personnel records under its jurisdiction." Id.

DOT challenges the Judge's findings that: (1) the public interest in facilitating collective bargaining outweighed employees' privacy interests; and (2) because the list would not be widely disseminated, disclosure of the list to NATCA would not have a stigmatizing effect on employees. DOT argues that the Judge's findings are without legal foundation and contrary to established public employment policies. According to DOT, the Judge was bound by the principles stated in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee) governing an agency's determinations as to the release of information under FOIA exemptions (b)(6) and (b)(7)(C). DOT maintains that the Judge erroneously considered the public interest embodied in the Statute when he balanced the public interest in disclosure of the list against the employees' privacy interest. DOT asserts that even if the Judge applied Reporters Committee to the facts of this case "the end result would be nondisclosure due to the [U]nion's 'public interest' falling outside the zone of the FOIA and any nonconsensual disclosure being a clearly 'unwarranted invasion of privacy.'" Id. at 12.

DOT also contends that the Judge's decision is arbitrary, capricious, and in disregard of OPM regulations for the implementation and maintenance of systems of records. DOT maintains that drug testing lists are classified as employee medical records and are specifically prohibited from nonconsensual disclosure except for routine use "u," which only allows disclosure pursuant to a court order. DOT argues, therefore, that disclosure of the list is contrary to the OPM routine use notice and OPM regulations.

Finally, DOT excepts to the Judge's decision because, according to DOT, the Judge failed to consider or address DOT's alternative disclosure of information in response to the Union's request. DOT concedes that it "limited its subordinate FAA to only release a 'sanitized' list that excluded the names of the [nonunit] employees and other Privacy Act protected information." Id. at 15. DOT asserts, however, that it did not completely ignore the Union's request for information. DOT states that it offered to provide the Union the names of all employees in the alternative format of an alphabetical listing of employees who were eligible for testing that was drawn from the same data base at the same time that the drug testing list requested by the Union was drawn. DOT acknowledges that the alphabetical listing "does not respond to the Union's alleged need . . . to know who was not tested and to determine whether . . . or not the entries on the list under 'reasons for not tested' were 'really true.'" Id. DOT argues that the Judge's finding that the documents were releasable as a compatible routine use without first addressing whether the Union's representational needs were met by DOT's alternative information was inconsistent with OPM's Privacy Act regulations.

B. General Counsel's Opposition and Cross-Exception

The General Counsel accepts the Judge's rulings and findings of fact and agrees with the Judge's analysis of NATCA's need for the drug testing list. The General Counsel agrees with the Judge's application of the balancing test under exemption (b)(6) of the FOIA. Further, although the General Counsel does not rely on the routine use exception to the Privacy Act, the General Counsel does not object to the Judge's consideration of the exception and his conclusion that disclosure is supportable as a routine use. The General Counsel also agrees with the Judge's conclusion that DOT unlawfully interfered with the bargaining relationship between FAA and NATCA, in violation of the Statute.

In the General Counsel's cross-exception, the General Counsel disagrees with the Judge's alternative conclusion that, if the Authority determines that OPM's interpretation of the Privacy Act and the routine use exception is controlling, disclosure of drug testing lists may be proscribed by OPM's routine use notice. The General Counsel argues, for the reasons expressed in U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 539-41 (1990) (Portsmouth), application for enforcement denied, 941 F.2d 49 (1st Cir. 1991) (FLRA v. Portsmouth Naval Shipyard), that the Authority should not defer to OPM's determination of routine uses. The General Counsel states that the Authority considered the implications of Financial Management Service and Reporters Committee and has continued to follow the approach articulated in Portsmouth.

The General Counsel argues that Portsmouth and its progeny "answer the Respondent's argument for narrowly construing the 'public interest' under the FOIA to exclude any consideration of the purposes served by the Statute." General Counsel's (GC's) Brief at 4-5. The General Counsel maintains that DOT and the Judge are mistaken in reading OPM's routine use notice as prohibiting the disclosure of the random drug testing list. The General Counsel asserts that routine use "u," referred to by DOT, "doesn't restrict the disclosure of all records relating to drug testing, but only those records that contain 'the results of a drug test.'" Id. at 10 (emphasis omitted). The General Counsel also asserts that it is "not evident that 'the results of a drug test' includes 'lists of who has been tested, who failed to report for testing, and related documents[.]'" Id. (emphasis omitted). The General Counsel also contends that the disclosure of the entries on the drug testing lists does not constitute an unwarranted intrusion upon personal privacy, because the entries do not indicate the "'results of a test'" and employees are aware they are all subject to random drug testing. Id. at 11. According to the General Counsel, DOT "exaggerates the scope" of routine use "u." Id. at 12. The General Counsel argues that routine use "u" must be read consistent with the "established policy of protecting the confidentiality of 'the results of a drug test.'" Id.

C. NATCA's Opposition and Cross-Exception

NATCA states that it joins the General Counsel's opposition and cross-exception. NATCA argues, for the reason stated in its brief and for the reasons set forth in the General Counsel's brief, that the decision of the Judge should be affirmed, as modified, consistent with the General Counsel's cross-exception. NATCA asserts that the "Respondent's exceptions are premised in large part on [Respondent's] own and/or OPM's definition of annotated random drug test[ing] lists as 'medical records.'" NATCA's Brief at 1. NATCA also asserts that "[t]he annotations on the lists, if any, do not contain any information of a medical nature about the named individuals." Id. at 2. NATCA states that on the "extremely rare occasions" when an annotation concerns medical information about an individual on the list, "NATCA would have no objection to the medical information being sanitized from the list." Id. NATCA argues that "[c]haracterization of the annotated drug testing lists as employee medical records . . . impermissibly expands the scope of that term so as to attempt to justify Respondent's failure to release the lists to NATCA." Id.

NATCA also argues that Johns-Manville Sales Corporation, 252 NLRB 368 (1980) (Johns-Manville), which was cited by DOT to support its position that the random drug testing list should not be provided NATCA, is distinguishable from this case. NATCA states that in Johns-Manville, the National Labor Relations Board (NLRB) found that the employer was not required to release information that identified employees as having certain medical conditions because the NLRB found that there was "'a legitimate aura of confidentiality in the identities of those individuals who have been identified as having a certain medical disorder.'" Id. at 3 (quoting Johns-Manville, 252 NLRB at 368) (emphasis omitted). NATCA argues that the instant case is distinguishable because "no medical condition or disorder of any FAA employee will be revealed on the requested lists." Id. (footnote omitted).

D. DOT's Opposition to Cross-Exceptions

DOT asserts that the Judge correctly determined the meaning of the regulatory prohibition against disclosure of the list requested by NATCA, but chose to disregard it and rely on the Authority's policy. DOT argues that as the Judge's interpretation and application of the prohibition in the OPM notice is consistent with OPM's interpretation and application of the notice, the General Counsel's cross-exception should be denied. DOT asserts that the OPM notice is binding on the Agency and the Authority in any determination concerning the release or retention of personnel records. DOT also asserts that only OPM has the authority and expertise to determine how Government personnel records are classified and retained.

DOT states that in an official interpretation of the regulatory prohibition on nonconsensual disclosure of annotated drug testing lists, "OPM has confirmed . . . that the prohibition on nonconsensual disclosure of records includes any listing that shows, '. . . any reasons why an employee, although scheduled for testing, may not in fact have actually been tested.[']" DOT's Opposition at 4 (quoting Opposition, Attachment No. 1; emphasis supplied by DOT). DOT also states that OPM noted that, in its view, there is "'no Privacy Act prohibition against release of mere listings of employee[s] who have been called randomly from the agency's total employee population for drug testing." Id. (quoting Opposition, Attachment No. 1).

DOT states that, in accordance with OPM's interpretation of its regulation, DOT has notified NATCA that it "will cease releasing any 'annotated' [drug] test[ing] list with the names of unit or [nonunit] employees, but will release (after completion of the testing) a 'clean' copy of the original test[ing] list." Id. (emphasis in original). DOT states that NATCA "can now have a complete list of all the names (unit or [nonunit]) of employees who were to be called for testing on a particular date and location." Id. (emphasis in original). DOT states that it recognizes that under its revised policy "the Union will still not have the names of employees and the particular reasons why the employees (unit or [nonunit]), who were scheduled for testing, but, in fact, were not tested on that day." Id. According to DOT, "[s]uch information . . . , as the OPM has confirmed, is prohibited from disclosure by the Privacy Act and an explicit [G]overnment-wide regulation." Id.

E. General Counsel's Motion to Strike Portions of DOT's Opposition to Cross-Exceptions

The General Counsel moves to strike certain attachments to DOT's brief in opposition to the General Counsel's cross-exception and DOT's arguments based on those attachments. The General Counsel asserts that the attachments are not part of the record and did not exist at the time of the hearing before the Judge. The General Counsel maintains that DOT could have obtained the documents at the time of the hearing and submitted them as evidence before the Judge. The General Counsel requests that the documents be stricken from DOT's opposition to the General Counsel's cross-exception because DOT has not justified its failure to obtain the documents and submit them as evidence in the hearing before the Judge. In the alternative, the General Counsel requests that if the Authority denies the motion to strike, in whole or in part, the General Counsel be given an opportunity to address the merits of DOT's arguments in connection with the new documents.

V. Analysis and Conclusions

A. Motion to Strike

Section 2429.5 of the Authority's Rules and Regulations provides:

The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the Regional Director, Hearing Officer, Administrative Law Judge, or arbitrator. The Authority may, however, take official notice of such matters as would be proper.

Consistent with this provision, we will not consider the attachments to DOT's opposition to the General Counsel's cross-exception. Attachment No. 1, dated February 20, 1992, is OPM's response to DOT's request for an interpretation of OPM's routine use notice as to the Employee Medical File System of records published at 55 Fed. Reg. 3855 (1990). Attachment No. 2 is an updated version of DOT's Drug Testing Guide (a version of which was submitted as Agency Exhibit 3 at the hearing before the Judge). Attachment No. 3 is DOT's letter dated February 28, 1992, informing NATCA of DOT's new policy, based on OPM's February 20, 1992, interpretation concerning the release of annotated drug testing lists.

In our view, Attachment No. 1 could have been obtained by DOT prior to the hearing before the Judge inasmuch as the routine use notice was published by OPM in February 1990, over 1 year before the date of the hearing. However, DOT did not request OPM's interpretation and, correspondingly, did not develop its policy based on that interpretation until after the Judge issued his decision in this case. Attachment No. 2 was developed by DOT approximately 1 month before the Judge issued his decision in this case. Thus, like Attachments Nos. 1 and 3, it was not in existence prior to the close of the unfair labor practice hearing.

If DOT deemed these attachments relevant to the issues in this case, DOT could have requested an interpretation from OPM in a more timely manner and sought permission from the Judge to make the attachments concerning that interpretation a part of the record in this case. Further, to the extent that the attachments were not available prior to the close of the hearing before the Judge, the Authority's Rules and Regulations provide procedures by which the Respondents could have sought to introduce the attachments as evidence. See 5 C.F.R. § 2423.19(k) (the Judge presiding at an unfair labor practice hearing has authority to grant motions to reopen hearings); 5 C.F.R. § 2423.22(a) (motions made after a hearing opens and before a case is transmitted to the Authority must be made in writing to the Judge).

As DOT does not justify its failure to obtain the attachments prior to the close of hearing before the Judge or to seek permission from the Judge to reopen the hearing to submit the attachments, and as there is no basis in Authority precedent for concluding that we should otherwise take official notice of the attachments, we will not consider them here. See U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City, Utah, 40 FLRA 303, 308-09 (1991).

We note that the previous version of Attachment No. 2, submitted by the Agency at the hearing before the Judge as Exhibit 3, was made a part of the record in this case. Accordingly, to the extent that the General Counsel's motion to strike DOT's Drug Testing Guide is considered to encompass the earlier version of that document, we deny the General Counsel's motion that it be struck from the record.

B. Merits

In agreement with the Judge, we conclude that DOT prevented FAA from complying with its obligations under section 7114(b)(4) of the Statute and, thereby, unlawfully interfered with FAA's collective bargaining relationship with NATCA, in violation of section 7116(a)(1) and (5) of the Statute. We also agree with the Judge's conclusion that FAA had no discretion in determining whether it would comply with NATCA's request for information and, therefore, did not violate section 7116(a)(1), (5) and (8) of the Statute by following DOT's directives. However, contrary to the Judge, we conclude that disclosure of the drug testing list is not authorized under 5 U.S.C. § 552a(b)(3), which permits disclosure as a routine use.

1. The Drug Testing List Was Necessary

The Respondent does not except to the Judge's finding that the drug testing list was "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining within the meaning of section 7114(b)(4) of the Statute." Judge's Decision at 7.

However, we note the decision of the United States Court of Appeals for the District of Columbia Circuit in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA), where the court concluded that an agency need not disclose certain requested information to a union unless the union has a "'particularized need' for such information." Id. at 534. The court also held that the Statute requires the Authority to consider "countervailing interests" against disclosure. Id. at 531. Subsequently, the court issued its decision in Department of the Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992) (Scott AFB), where, based on NLRB v. FLRA, the court determined that the Authority ordered disclosure of certain requested information "without adequately explaining the 'necessity' of the requested information" under section 7114(b)(4) of the Statute. Scott AFB, 956 F.2d at 1224. The court held that the Authority had failed to consider the "countervailing interests against disclosure." Id.

We do not decide whether NLRB v. FLRA and Scott AFB apply in the circumstances of this case. However, even if we were to apply NLRB v. FLRA and Scott AFB here, those decisions would not provide a basis to overrule the Judge's conclusion that the requested information is necessary within the meaning of section 7114(b)(4) of the Statute.

In this regard, the Judge found that "NATCA did need the entire list used for the random testing in order to make sure persons excused for specific reasons were in fact unavailable for testing and thus, that the random drug testing program was being fairly administered." Judge's Decision at 7 (footnote omitted). The Judge also found that "[p]olicing and ensuring that drug testing programs are performed fairly and equitably is a very important and fundamental duty of a union in representing employees" and that "[i]n ensuring that management is acting fairly and equitably, a union may have to examine how supervisors and [nonunit] employees are treated, with relation to employees in the unit represented by the union."  Id. These findings demonstrate that, in the absence of the requested information, the Union would be unable to determine whether the Respondent is selectively enforcing the drug testing program and to assess whether grounds exist for a grievance under the parties' collective bargaining agreement.

On the other hand, DOT has not identified any asserted countervailing interest against disclosure beyond its interest in maintaining confidentiality in the drug testing process and no other arguable countervailing interest is apparent to us. Compare American Federation of Government Employees, AFL-CIO, Local 446 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, Asheville, North Carolina, 43 FLRA 836, 906-10 (1991) (agency's interest in maintaining internal security precluded negotiation of proposal requiring the disclosure of all statistical data pertaining to drug testing and proposal requiring disclosure of information relating to the selection of employees for drug testing); American Federation of Government Employees, AFL-CIO, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 42 FLRA 599, 620-21, 628-31 (1991) (petition for review dismissed as to certain proposals because the Authority was unable to determine whether disclosure of drug testing information would interfere with agency's interests in maintaining security of computer software and equipment used for random selection of employees for drug testing). Even assuming that the Respondent's asserted concerns about employees' right to confidentiality in the drug testing process would constitute a countervailing interest weighing against disclosure, that concern does not outweigh the Union's demonstrated need for the requested information. In our view, the Respondent's concern about employees' right to confidentiality in the drug testing process is addressed in the Judge's analysis of the information request under the Privacy Act. As noted below, the Judge determined, and we agree, that the Privacy Act does not preclude disclosure of that information.

In view of the Union's clear and demonstrated need for the information to determine whether the Respondent is selectively enforcing the drug testing program and to assess whether grounds exist for a grievance under the parties' collective bargaining agreement, we find that the information is necessary, within the meaning of section 7114(b)(4) of the Statute, despite the asserted employees' privacy interests and DOT's concern for the confidentiality of employee medical records. Therefore, even if we were to apply NLRB v. FLRA and Scott AFB, those decisions would not provide a basis to overrule the Judge's conclusion that the requested information is necessary within the meaning of section 7114(b)(4) of the Statute.

2. Alternative Disclosure

DOT contends that the Judge's decision is deficient because the Judge failed to consider or address DOT's alternative disclosure of information in response to NATCA's request. We conclude that DOT's exception does not provide a basis for reversing the Judge's decision.

The Judge rejected the Respondents' contention that they complied with section 7114(b)(4) of the Statute when they supplied the drug testing list with an alphabetical listing of employees and the names of nonunit employees deleted. The Judge found that "NATCA did, with sufficient clarity, describe the list it wished and the reasons it wanted the list." Judge's Decision at 10. The Judge also found that the Respondents did not provide the information requested by NATCA and that their failure to provide the information was not due to any misunderstanding concerning what NATCA was requesting. The Judge concluded that NATCA was entitled to the complete drug testing list and that the Respondents failed to provide that information. Thus, the Judge considered the Respondents' alternative disclosure of information and found that the information provided by the Respondents was insufficient and did not satisfy NATCA's information request. Further, DOT acknowledges that the information provided NATCA "does not respond to the Union's alleged need . . . to know who was not tested and to determine whether . . . or not the entries on the list under 'reasons for not tested' were 'really true.'" DOT's Exceptions at 15. Therefore, we conclude that the Judge addressed the issue of DOT's alternative disclosure of information.

3. Disclosure of the List Is Consistent with Law

We reject DOT's contentions that the Judge incorrectly applied Authority precedent interpreting the Privacy Act and the FOIA. As stated by the Judge, we have analyzed the Privacy Act's application to information requested under section 7114(b)(4) of the Statute and we have set forth the factors to be considered in determining whether information subject to the Privacy Act must be disclosed to an exclusive representative pursuant to section 7114(b)(4) of the Statute. See FAA Burlington, 38 FLRA at 1630-32; Portsmouth, 37 FLRA at 537-41.(1) The Judge examined NATCA's request for information under the standards set forth in our decisions interpreting section 7114(b)(4), the Privacy Act and the FOIA, and appropriately relied on those decisions to reach his conclusions in this case. Consequently, we find that the Judge did not commit any error in his Privacy Act analysis.

At the outset, we note that NATCA has not requested employees' test results. Therefore, NATCA's information request is not inconsistent with section 503(e) of Public Law 100-71, 101 Stat. 471 (1987), which provides: "The results of a drug test of a Federal employee may not be disclosed without the prior written consent of such employee[.]" See also American Federation of Government Employees, National Veterans Administration Council and U.S. Department of Veterans Affairs, Washington, D.C., 41 FLRA 1104, 1132 (1991). We also note that NATCA's information request does not cover information about an employee's medical condition. NATCA states that "no medical condition or disorder of any FAA employee will be revealed on the requested list[]." NATCA's Opposition at 3 (footnote omitted). NATCA also states that to the extent that the list includes information concerning the medical condition of an employee, "NATCA would have no objection to the medical information being sanitized from the list." Id. at 2.

We have reviewed the Judge's analysis of the Union's information request under section (b)(2) of the Privacy Act and exemption (b)(6) of the FOIA. We agree with the Judge that employees, including nonunit employees, have personal privacy interests in the drug test list, but we conclude, as did the Judge, that those interests are outweighed by the public interest embodied in the Statute. As noted above, the information requested by the Union does not reveal the results of employees' drug tests. Rather, the list only reveals whether an employee was available for testing, whether an employee was tested, and if an employee was not tested, the reason that the employee was not tested. See Judge's Decision at 8. Inasmuch as all employees are subject to testing under the Respondent's random drug testing program without regard to cause or suspicion and "have an equal statistical chance of being selected for testing within a specified time frame," disclosure of a random drug test list would not disclose information that is stigmatizing. Respondent's Exhibit No. 3 at III-2. Moreover, there is no indication in the Agency's drug testing policy that the documents requested by the Union in this case would be covered by a claim of confidentiality. See id. at V-1.

The fact that an employee has been selected for random drug testing should not be considered a particularly private matter because the public is already well aware of the Government's practice of administering random drug tests to employees. See National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 41 FLRA 1241, 1252 (1991) (DOE), petition for review filed No. 91-1514 (D.C. Cir. Oct. 24, 1991) (an employee's privacy interests in his or her notice of a drug test "appear to be minimal, particularly with respect to random drug testing"). In addition, the Federal employee status of the individuals tested further diminishes the employees' privacy interests in the drug test list because of the corresponding public interest in knowing how public employees are performing their jobs. See, for example, Stern v. FBI, 737 F.2d 84, 92 (D.C. Cir. 1984) (citations omitted).

Similarly, the Respondent's privacy interests argument is diminished by the fact that the Respondent released the names of bargaining unit employees on the annotated random drug testing list. Whether an employee is a member of the bargaining unit is not relevant to considering whether an employee's privacy rights, protected by the Privacy Act, have been abridged. Therefore, inasmuch as the Respondent determined that the names of bargaining unit employees on the random drug testing list could be disclosed under the Privacy Act, the names of nonbargaining unit employees may also be disclosed.

We agree with the Judge that, on balance, the public interest inherent in the Union's discharge of its obligations under the Statute to monitor and administer the collective bargaining agreement, including the parties' agreement concerning the implementation of the Respondent's drug testing program, outweighs the employees' personal privacy interest in preventing disclosure of information about their appearance for a drug test to the exclusive representative of the Respondent's employees. See Judge's Decision at 8. See also United States Department of Veterans Affairs, Regional Office, San Diego, California, 44 FLRA 312, 316 (1992) (VA, Regional Office).

Similarly, under the public interest test identified by the U.S. Supreme Court in Reporters Committee, 489 U.S. at 772, we find that there is an overriding public interest in the disclosure of the information requested by the Union in this case. See FAA, Atlantic City Airport, 43 FLRA at 202 (union sought transcript of Equal Employment Opportunity Commission hearing to determine whether agency had violated parties' agreement by not following the procedures in their merit promotion plan; the Authority concluded that disclosure would open to public scrutiny the manner in which the Agency administers its selection process and whether that process is administered in a fair and evenhanded manner and that, therefore, the public interest outweighed the limited privacy interest of a single employee). In particular, the requested information pertains to the decisions the Respondent makes and the actions the Respondent takes in testing employees for illegal drug use. Disclosure of the information would open to "public scrutiny" what the Respondent is "up to" in its drug testing program. See Reporters Committee, 489 U.S. at 772-73.

Disclosure of the information will enable the public to assess, for example, whether the Respondent is implementing its drug testing program consistent with applicable law, regulation, and the collective bargaining agreement. See, for example, VA, Regional Office, 44 FLRA at 316; FAA, Atlantic City Airport, 43 FLRA at 202-03. See generally Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 613-34 (1989) (discussing the Government's and the public's interests in drug testing programs). The information also will enable the Union to detect whether the Respondent's administration of its drug testing program is free of discriminatory practices. For example, if certain groups of bargaining unit employees were randomly selected more frequently than other employees, some further examination of the Respondent's random selection process may be in order. If further examination resulted in the discovery of irregularities in the random selection process, such results, achieved as a consequence of the Union's efforts, clearly would inure to the public's benefit.

Moreover, the random drug test list enables the Union to monitor certain aspects of the drug testing program which can only be monitored by direct employee contacts. Without the names of those employees, there would be no way to communicate directly with employees to verify that the basis upon which the drug test was ordered was truly random selection, and whether the Respondent followed its drug testing procedures as required. Thus, disclosure of the random drug test list is in the public interest because it facilitates the overall monitoring of the Respondent's drug testing program.

Balancing the employees' limited privacy interest in the list against the strong public interest in the disclosure of the drug test list, we find, in agreement with the Judge, that disclosure of a copy of the list to the Union would not constitute a clearly unwarranted invasion of personal privacy. Therefore, disclosure of a copy of the list to the Union is not prohibited by the Privacy Act. Further, as stated below, the Respondent's exception to the Judge's conclusion that disclosure of the drug testing list is authorized under exception (b)(3) of the Privacy Act, does not establish that the Judge's decision is contrary to the Privacy Act.

4. Routine Use

DOT excepts to the Judge's conclusion that disclosure of the drug testing list is authorized under exception (b)(3) of the Privacy Act, which permits disclosure of information as a "routine use." Relying on our decision in Portsmouth, the Judge found that release of the list to NATCA is fully consistent with the purposes for which the list was collected. The Judge also found, however, in the alternative, that if OPM's routine use notice concerning its Medical File System of Records, which includes records relating to drug testing, is found controlling by the Authority, then the list could not be disclosed under the routine use exception because the OPM notice precludes disclosure.

We find that disclosure of the drug testing list to NATCA is not authorized as a routine use under OPM's routine use notice concerning Employee Medical File System Records. Therefore, we reject the Judge's conclusion that disclosure of the drug testing list is authorized under exception (b)(3) of the Privacy Act and adopt the Judge's alternative analysis that the drug testing list is not disclosable to NATCA as a routine use. Consequently, we deny the General Counsel's and NATCA's cross-exceptions to the Judge's alternative analysis.

"Routine use disclosures are confined to 'ones that are "compatible with the purpose for which [the information] was collected," 5 U.S.C. § 552a(a)(7); . . . [and] within the uses "described under" 5 U.S.C. § 552a(e)(4)(D).'" Portsmouth, 37 FLRA at 537 (quoting Financial Management Service, 884 F.2d at 1453-54). As the Judge found, release of the drug testing list to NATCA is fully consistent with the purposes for which the list was collected. Thus, disclosure of the list is consistent with 5 U.S.C. § 552a(a)(7). However, disclosure of the drug testing list must also be within the uses described under 5 U.S.C. § 552a(e)(4)(D), as published in the Federal Register.

Under OPM's routine use notice, records resulting from the testing of Federal employees for the use of illegal drugs under Executive Order 12564 are contained in the system of records entitled "Employee Medical File System Records." 55 Fed. Reg. 3855. The OPM notice provides: "With the exception of Routine Use 'u,' none of the other Routine Uses identified for [the Employee Medical File System of Records] are applicable to records relating to drug testing under Executive Order 12564." Id. at 3856. Routine use "u" provides that the records and information in the Employee Medical File System of Records may be used "[t]o disclose the results of a drug test of a Federal employee pursuant to an order of a court of competent jurisdiction where required by the United States Government to defend against any challenge against any adverse personnel action." Id. at 3857.

Because the release to an exclusive representative of drug testing records that are maintained by OPM in its Employee Medical File System Records is not provided for under routine use "u," release of that information to NATCA is not within the uses described under 5 U.S.C. § 552a(e)(4)(D). Therefore, we conclude, consistent with the Judge's alternative analysis, that OPM's routine use notice concerning its Medical File System of Records does not authorize disclosure of the drug testing list to NATCA as a routine use.

We take no position as to whether, as the General Counsel and NATCA contend, drug testing lists are inappropriately characterized as medical records. Pursuant to 5 U.S.C. § 552a(e)(4)(D), agencies are required to "publish in the Federal Register . . . a notice of the existence and character of [a] system of records" which includes, among other things "each routine use of the records contained in the system[.]" OPM has established, by notice and regulation, that "records created when an employee undergoes a drug screening test under an agency plan implementing Executive Order 12564" are included in the Employee Medical File System of records. Federal Personnel Manual (FPM) Supplement 293-31, subchapter S6-7(a). See also 55 Fed. Reg. 3802, 3855 (1990). FPM Supplement 293-31 is a Government-wide regulation within the meaning of section 7117(a) the Statute. American Federation of Government Employees, AFL-CIO, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 42 FLRA 542, 556 (1991). See 55 Fed. Reg. 3855 (OPM/GOVT-10, Employee Medical File System Records, which includes records resulting from the testing of an employee for use of illegal drugs, is a "Government-wide system"). We have no authority to review the validity of those Government-wide regulations. See American Federation of Government Employees v. FLRA, 794 F.2d 1013, 1015 n.9 (5th Cir. 1986).

We note that our conclusion in this case is distinguishable from our decisions in FAA Burlington and Portsmouth, which concerned routine use disclosures under a different system of records. In those cases, we concluded that disclosure of the requested personnel records was authorized under exception (b)(3) of the Privacy Act, which permits disclosure of information as a "routine use." We found that release of the personnel data was fully consistent with the purposes for which the data was collected and that release of the data was consistent with the routine use notice published by OPM concerning personnel records. See FAA Burlington, 38 FLRA at 1632; Portsmouth, 37 FLRA at 540-41.(2)

5. Summary

The Judge determined, and we agree, that the Privacy Act does not preclude disclosure of the annotated drug testing list and that the Respondent was required to provide NATCA with that information pursuant to section 7114(b)(4) of the Statute. We note particularly that the Union does not seek the results of drug tests. Rather, the Union only seeks the annotated list of employees called for random drug testing. Therefore, NATCA's information request is consistent with section 503(e) of Public Law 100-71.

Accordingly, in agreement with the Judge, we conclude that DOT prevented FAA from complying with its obligations under section 7114(b)(4) of the Statute and, thereby, unlawfully interfered with FAA's collective bargaining relationship with NATCA, in violation of section 7116(a)(1) and (5) of the Statute. We also agree with the Judge's conclusion that FAA had no discretion in determining whether it would comply with NATCA's request for information and, therefore, did not violate section 7116(a)(1), (5) and (8) of the Statute by following DOT's directives. However, contrary to the Judge, we conclude that disclosure of the drug testing list is not authorized under 5 U.S.C. § 552a(b)(3).

VI. 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 U.S. Department of Transportation, Washington, D.C. shall:

1. Cease and desist from:

(a) Directing the Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut (FAA) to refuse to furnish the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the exclusive representative of certain of its employees, the complete list used by FAA in administering its random drug testing on August 29, 1990, or with any such lists as may be used for such purposes in the future, and are requested by the exclusive representative.

(b) Interfering with the bargaining relationship between the Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut and the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO.

(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Federal Service Labor-

Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Direct the Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut to furnish the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the exclusive representative of certain of its employees, with the complete list used by FAA in administering its random drug testing on August 29, 1990, or with any such lists as may be used for such purposes in the future, and are requested by the exclusive representative.

(b) Post at its facilities at the Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut, where bargaining unit employees represented by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, 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 Secretary, Department of Transportation, Washington, D.C., 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, Boston Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

The allegations of the complaint against the Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut, are dismissed.

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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT direct the Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut (FAA), to refuse to furnish the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the exclusive representative of certain of our employees, with the complete list used by FAA in administering its random drug testing on August 29, 1990, or with any such lists as may be used for such purpose in the future, and are requested by the exclusive representative.

WE WILL NOT interfere with the bargaining relationship

between the Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut and the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL direct the Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut to furnish the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the exclusive representative of a bargaining unit of certain of our employees, with the complete list used by FAA in administering its random drug testing on August 29, 1990, or with any such lists as may be used for such purpose in the future, and are requested by the exclusive representative.

____________________________
(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 any of its provisions, they may communicate directly with the Regional Director, Boston Region, Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110, and whose telephone number is: (617) 424-5730.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Authority decisions based on Portsmouth Naval Shipyard have been enforced in United States Courts of Appeals for the Third, Fifth, and Ninth Circuits. FLRA v. United States Department of the Navy, Navy Ships Parts Control Center, 966 F.2d 747 (3d Cir. 1992) (en banc); FLRA v. United States Department of Defense, Department of the Navy, Washington, D.C., 975 F.2d 1105 (5th Cir. 1992), petition for cert. filed, 61 U.S.L.W. 3534 (U.S. Jan. 21, 1993) (No. 92-1223); FLRA v. United States Department of the Navy, Navy Resale and Services Support Office, Field Support Office, Auburn, Washington, 958 F.2d 1490 (9th Cir. 1992) (petition for rehearing and suggestion for rehearing en banc pending). A panel for the Court of Appeals for the Fourth Circuit also enforced a decision based on Portsmouth Naval Shipyard; the court subsequently vacated the panel's decision and granted a petition for rehearing en banc. FLRA v. United States Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, 954 F.2d 994 (4th Cir. 1992), vacated, petition for reh'g en banc granted (4th Cir. Apr. 22, 1992). However, applications for enforcement of such decisions were denied by United States Courts of Appeals for the Second, Sixth, Seventh, and Tenth Circuits. FLRA v. United States Department of Veterans Affairs, Washington, D.C. and United States Department of Veterans Affairs Medical Center, Newington, Connecticut, 958 F.2d 503 (2d Cir. 1992); FLRA v. Department of the Navy, Naval Resale Activity, Naval Air Station-Memphis, Millington, Tennessee, 963 F.2d 124 (6th Cir. 1992); FLRA v. United States Department of the Navy, Navy Exchange, Naval Training Station, Naval Hospital, Great Lakes, Illinois, 975 F.2d 348 (7th Cir. 1992); FLRA v. United States Department of Defense, Army and Air Exchange Service, Dallas, Texas, No. 90-9561 (10th Cir. Jan. 20, 1993). We respectfully adhere to our determination in Portsmouth Naval Shipyard that agencies are required to provide exclusive representatives with requested names and home addresses of bargaining unit employees pursuant to section 7114(b)(4) of the Statute.

2. In addition, we no longer follow Portsmouth insofar as it rejects OPM's interpretation of the relevant routine use