51:0310(30)AR - - IRS and NTEU - - 1995 FLRAdec AR - - v51 p310
[ v51 p310 ]
The decision of the Authority follows:
51 FLRA No. 30
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
NATIONAL TREASURY EMPLOYEES UNION
September 30, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Jerome H. Ross filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.(1)
The Arbitrator found that the Agency's failure to provide the Union home addresses of bargaining unit employees violated the parties' collective bargaining agreements.
For the following reasons, we find that the Agency has failed to establish that the award is deficient. Accordingly, we deny the exceptions.
II. Arbitrator's Award
The Agency and the Union are parties to two collective bargaining agreements. The Union represents over 56,000 employees under one of the agreements, which covers the Agency's national, regional and district offices. In addition to the national office, there are seven regional offices and sixty-three district offices, with at least one district office in each state. The Union represents 50,000 employees under the other agreement, which covers 10 service centers, two computing centers, and one compliance center.
Article 11, Section 4.G of each of the agreements states, in relevant part, that "[t]he Employer will provide annually, consistent with applicable law and regulation, a list of the home addresses of its employees, grouped by appointing office." Award at 1. The Union filed grievances under each of the agreements after the Agency refused to provide it with the home address information it had requested.
The Union asserted that disclosure of bargaining unit employees' home addresses is authorized under the routine use exception to the Privacy Act, 5 U.S.C. § 552a.(2) The Union argued that Federal Personnel Manual (FPM) Letter 711-164 specifically permitted the release of home addresses of unit employees if the exclusive representative had no adequate alternative means of communicating with unit employees.(3) In this regard, the Union contended that its means of communication were inadequate, noting, for example, that a substantial portion of the bargaining unit spends a considerable amount of time away from the worksite. The Agency, on the other hand, asserted that the Union had adequate alternative means of communicating with unit employees and that some of the difficulty in communicating with unit employees was attributable to the Union's internal problems.
The Arbitrator quoted relevant portions of FPM Letter 711-164, which authorizes disclosure of information when a requesting union demonstrates that the information is: (1) "relevant" to the express purpose for which it is sought, meaning that the nature of the information bears a traceable, logical and significant connection to the purpose to be served; and (2) "necessary," meaning that there are no adequate alternative means or sources for satisfying the union's information needs. Applying the FPM Letter, the Arbitrator found that the Union had shown that it needed the information for representational purposes, specifically so that the Union could communicate with bargaining unit employees, "especially on issues which arise during the term of the National Agreements, in order that employees can be apprised of their rights and press for them." Award at 4.
The Arbitrator also determined, based on extensive factual findings, that the alternative means of communication available to the Union were inadequate. In reaching this conclusion, the Arbitrator stated that the size of the bargaining unit and its geographic dispersion throughout each of the 50 states were significant factors in the Union's "extremely difficult task" of communicating with bargaining unit employees. Award at 17. Additionally, comparing this situation to cases arising under the National Labor Relations Act, 29 U.S.C. § 151 (1988), in which employers were directed to furnish unions with the names and home addresses of bargaining unit employees, the Arbitrator found that the size of the bargaining units and their geographic dispersion "render[ed] effective nation-wide communication virtually impossible without direct mailings made possible by the disclosure of home addresses of unit employees." Id. at 19.
The Arbitrator further found that the communication methods contained in the parties' agreements, namely, bulletin boards, desk drops, meetings, handbilling, "take-one" bins, and a steward system, were ineffective in permitting the Union adequately to represent unit employees. The Arbitrator relied on his findings that, among other things: there were no bulletin boards where some employees are located; a 3-week delay could occur between management's approval of a document and its posting; many employees work in the field and rarely come to an office; two or three desk drops are needed to reach some employees because of multiple work shifts; time-sensitive Union mailings via desk drops can take up to 3 weeks to be distributed; managers distribute mail to some employees; meetings are difficult to hold due to different work schedules of employees and their dispersion throughout many office locations; it is difficult to distinguish Agency employees in buildings that house other tenants; and managers and other non-bargaining unit employees are likely to receive Union mailings due to the mail room's inability to separate bargaining unit employees from other employees.
The Arbitrator also found that the effectiveness of noncontractual methods of communication, such as the issuance of press releases and a monthly newsletter, also were limited because, in part, several hundred Union newspapers were returned each month due to incorrect employee addresses. The Arbitrator further determined that a "unique communication problem" existed for seasonal employees, who comprise 15 to 20 percent of the bargaining unit and who are in a furlough status for 6 to 9 months each year, and revenue agents and officers, who may be out of the office for extended periods of time. Id. at 7. Specifically with regard to the seasonal employees, the Arbitrator found that they have continuing concerns, even during periods of furlough, regarding such matters as benefit coverage, furlough list placement and competition for permanent positions.
Based on his findings, the Arbitrator concluded that disclosure of the requested information was consistent with the FPM Letter and the routine use exception to the Privacy Act and that the Agency's failure to provide such information violated the parties' collective bargaining agreements.
A. Agency's Contentions
The Agency argues that the award is deficient because it is contrary to law, regulation, and the parties' agreements.(4) The Agency contends that the agreements provide that disclosure must be consistent with applicable law and that disclosure of home addresses is not authorized by the routine use exception to the Privacy Act because the record demonstrates that adequate alternative means of communicating with unit employees are available to the Union.
The Agency maintains that FPM Letter 711-164 does not require "unrestricted, uniform communication" but, rather, provides that alternative means of communication are adequate if a union can contact employees in some manner and if employees who are present at the worksite are accessible to the union. Exceptions at 12. According to the Agency, the Arbitrator identified the deficiencies connected with the existing means of communication and failed to address whether they were adequate. The Agency asserts that the parties had voluntarily agreed to some of the contractual restrictions on the means of communication identified by the Arbitrator and that such restrictions should not automatically result in a finding that the Union's communication methods are inadequate. The Agency also claims that in Philadelphia Naval Shipyard, 19 FLRA 899 (1985) (Philadelphia Naval Shipyard), remanded without decision, No. 85-1625 (D.C. Cir. Jan. 15, 1986), decision on remand, 24 FLRA 37 (1986), among other cases, the Authority held that contractual restrictions placed on various communication methods did not detract from their adequacy. Moreover, the Agency adds that the Union could better communicate with unit employees if it corrected its internal problems.
Additionally, the Agency contends that the Arbitrator failed to identify the percentage of revenue officers and agents who rarely go to an office and seasonal employees who cannot be contacted while they are on furlough status and argues that the inclusion of these employees in the bargaining unit does not justify the Arbitrator's finding that the Union lacks adequate alternative means of communicating with all employees. The Agency also states that it was inappropriate for the Arbitrator to rely on private sector cases because those cases are factually distinguishable and apply a standard that is different from the standard used in Federal sector cases.
Finally, the Agency argues that disclosure of unit employees' home addresses for the purpose of soliciting new members, one of the reasons for which the information was sought, is not relevant and necessary within the routine use exception of the Privacy Act because solicitation constitutes internal union business, which is not sufficiently linked to the Union's representational duties.(5)
B. Union's Opposition
The Union claims that the Arbitrator found, as a matter of fact, that the alternative means of communication available to the Union are not adequate and that the Agency's contention to the contrary constitutes nothing more than disagreement with the Arbitrator's findings and conclusions and does not provide a basis for finding the award deficient. The Union also contends that, under the Agency's narrow interpretation of FPM Letter 711-164, it would be required to do the impossible: demonstrate that there are "no methods available to it for making some information available to some employees." Opposition at 15 (emphasis omitted).
The Union also argues that the Arbitrator appropriately relied on private sector cases in making his determination because private sector case law generally provides strong guidance in parallel Federal sector matters. In contrast to the Agency's assertion, the Union claims that the cases on which the Arbitrator relied "weigh in favor of sustaining [the Union's] grievance" because the unions in the private sector cases had fewer unit employees dispersed over smaller geographic areas and still were found to have inadequate means of communication. Id. at 18.
In addition, the Union contends that the Arbitrator was not precluded from considering contractual restrictions on various methods of communication in determining whether those methods of communication were inadequate. Finally, the Union asserts that although solicitation of membership is a valid reason for seeking the home addresses of unit employees, the Union offered additional reasons for requesting home addresses of unit employees.
IV. Analysis and Conclusions
We find that the award is not contrary to law or the parties' agreements.
A. Privacy Act
Disclosure of requested information is prohibited by the Privacy Act unless it can be shown that disclosure is permitted under an exception to that statute. See note 2, above. See also U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA 338, 345-46 (1995). The exception to the Privacy Act that is relevant to the case before us is exception (b)(3), which permits disclosure of information for a routine use. 5 U.S.C. § 552a(b)(3).(6) In assessing whether this exception applies to the requested information in this case, it is necessary to examine the pertinent routine use notice published by the Office of Personnel Management (OPM) in connection with its systems of records. Specifically, OPM maintains general personnel records, which include employee home addresses, in a system of records identified as OPM/GOVT-1. See National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 46 FLRA 234, 242 (1992). Routine use "j" published with OPM/GOVT-1 establishes that records in that system may be disclosed "to officials of labor organizations recognized under [the Statute] when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions." 57 Fed. Reg. 35706 (Aug. 10, 1992).
OPM issued FPM Letter 711-164 on September 17, 1992, to provide guidance in determining whether, as relevant here, information is "relevant and necessary" within the meaning of routine use j.(7) Specifically, with regard to the provision of employees' home addresses, FPM Letter 711-164 states that the disclosure of unit employees' home addresses will not be found necessary if adequate alternative means exist for communicating with unit employees.(8) The Letter further states that an alternative means of communication "will usually be adequate if it permits information from the union to be available to bargaining unit employees." However, the FPM Letter also provides that if an employee spends most of the time away from the workplace and is not reachable by the union through an existing means of communication, the release of the employee's home address to a union representative may be permitted. The FPM Letter further states that the determination of whether alternative means of communication exists must be made on a case-by-case basis.
As the exceptions to the Arbitrator's findings under the FPM Letter involve the award's consistency with law, our review of the award and the exceptions is de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). Based on such review, we find that the award is consistent with law.
In making the requisite case-specific determination required by the FPM Letter, the Arbitrator made numerous factual findings, which are undisputed, and which show that the bargaining unit operates in a somewhat unique physical and geographical setting and that the parties have devised a number of methods for disseminating information in recognition of the size, scope and geographic dispersion of the bargaining unit. These findings support the conclusion that the Union's alternative means of communicating with unit employees are not adequate within the meaning of the FPM Letter as they do not sufficiently permit information to be available to bargaining unit employees. For example, the Arbitrator found that there are 84 separate locations spread throughout the United States and the District of Columbia at which more than 100,000 bargaining unit employees work; that unit employees frequently are co-located with other tenants in various buildings; that there are multiple work shifts; and that many employees do not physically report to an office. As such, if the Union wishes to conduct meetings with bargaining unit employees, more than 84 separate meetings would have to be scheduled in order to permit attendance by all employees and to accommodate multiple work shifts. Even with careful scheduling of meeting times, however, the Union would be unable to reach the many revenue agents and officers who, as the Arbitrator found, were out of the office for extended periods of time. Additionally, given the location of unit employees in buildings with non-Agency employees, the adequacy of handbilling and face-to-face communications could be seriously circumscribed.
We find no error in the Arbitrator's conclusion that use of the Agency's internal mail system and bulletin boards are inadequate means of communication. The undisputed factual findings establish that internal mailings and postings can take as long as 3 weeks to reach employees, seriously hampering the Union's ability to communicate on time-sensitive matters. Further, no distinction is made between deliveries to bargaining unit employees on the one hand, and managers, supervisors, and other employees on the other hand. Therefore, as found by the Arbitrator, the Union's ability to communicate with bargaining unit employees is inadequate. Although, in this connection, the Agency claims that because it provides the Union with certain information, including employees' names and posts-of-duty, the Union should be able to use the internal mail system more effectively, the Arbitrator found otherwise and we see nothing in the record to disturb the Arbitrator's factual finding on this matter.
The Arbitrator's additional findings with respect to seasonal employees, who comprise 15 to 20 percent of the bargaining unit, and revenue agents and officers who are either absent from, or on furlough status, for extended periods of time, also support the conclusion that the alternative means of communication are inadequate. For example, the Arbitrator found that seasonal employees have ongoing concerns with respect to their terms and conditions of employment. It follows that the means of communicating with these employees that are contingent on their presence in an office, such as bulletin boards, take-one bins, meetings, and other face-to-face communications, are not only inadequate but also are unavailable. In reaching this conclusion, we reject the Agency's assertion that it is inappropriate to take into account the percentage of seasonal employees who cannot be contacted at the worksite. The FPM Letter explicitly permits consideration of this very factor.
As to the Arbitrator's consideration of private sector cases in examining the adequacy of alternative means of communication, there is nothing in law, rule, or regulation to preclude the Arbitrator from doing so. Although decisions of the National Labor Relations Board are not controlling in the Federal sector, private sector experience may provide guidance and it is precisely for this reason that the Arbitrator looked to private sector cases. See U.S. Department of Labor, Office of the Solicitor, Arlington Field Office and American Federation of Government Employees, Local 12, 37 FLRA 1371, 1381 (1990).
We also find, contrary to the Agency's assertion, that the Arbitrator did not improperly consider contractual restrictions and the Union's internal communication problems in concluding that the Union had no adequate alternative means of communicating with unit employees. The Agency has not shown, as a matter of law, that the Arbitrator was precluded from considering such matters. Additionally, the Agency's reliance on Philadelphia Naval Shipyard and similar cases is misplaced. As the Agency acknowledges, those decisions predate the Authority's holding that disclosure of names and home addresses of bargaining unit employees was consistent with OPM's routine use notice.
Finally, we do not address the Agency's contention that the award is deficient because disclosure of home addresses for the purpose of soliciting new members is not sufficiently linked to the Union's representational duties concerning personnel policies, practices, and matters affecting working conditions. In this case, the Union requested employees' home addresses for several reasons, including the need to fulfill its statutory duty to communicate with employees. The Arbitrator found that communicating with bargaining unit employees was necessary, particularly on issues that arise during the term of the agreements. The Agency did not except to this finding, which clearly involves the Union's representational responsibilities.
In sum, we conclude that the Arbitrator did not err, as a matter of law, in determining that home addresses are necessary for the Union to perform its representational functions and that there are no adequate alternative means of communication within the meaning of FPM Letter 711-164.(9) Therefore, the award is not deficient as inconsistent with the Privacy Act. See National Air Traffic Controllers Association, MEBA/AFL-CIO and U.S. Department of Transportation, Federal Aviation Administration, Billings, Montana, 47 FLRA 638, 644-45 (1993); U.S. Department of the Air Force, Langley Air Force Base, Hampton, Virginia and National Association of Government Employees, Local R4-106, 41 FLRA 246, 249 (1991).(10)
B. Collective Bargaining Agreements
We construe the Agency's contention that the award violates the parties' agreements as an argument that the award fails to draw its essence from the parties' agreements. In order for an award to be found deficient on this basis, the party making the allegation must demonstrate that the award: (1) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the collective bargaining agreement, as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. E.g., United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990). The Agency has not demonstrated that the award fails to draw its essence from the collective bargaining agreement under any of these tests.
The Agency's claim is predicated on its view that the agreements permit disclosure of home addresses only to the extent consistent with law and regulation and that disclosure would be contrary to such authorities. We accept, for purposes of this decision, the Agency's interpretation of the agreements as requiring consistency with law and regulation. However, because we find that disclosure of the information is not contrary to the Privacy Act, we find nothing in the award that is irrational, implausible, unfounded, or in manifest disregard of the agreements. Therefore, we deny this exception.
The exceptions are denied.
FPM Letter 711-164 provided in relevant part:
Under OPM's routine uses, a recognized union's access to information from Privacy Act systems of records is not unconditional. The requestor representing the union must demonstrate to the system manager that the information requested is both "relevant" to the express purpose for which it is sought, and "necessary" for that purpose. By "relevant" OPM means that the nature of the information bears a traceable, logical, and significant connection to the purpose to be served. "Necessary" means that there are no adequate alternative means or sources for satisfying the union's information needs. This "adequate alternative" test must be applied on a case-by-case basis. There are, however, two types of broad guidelines that apply, depending on whether the union is seeking home addresses or other types of information about individuals.
Usually, the union will state that it seeks employee home addresses in order to contact bargaining unit members at a location other than the worksite. However, the routine use does not establish a per se rule that home addresses of employees are available to their exclusive bargaining representatives upon request. By its terms, disclosure must be "necessary" for representation purposes.
If adequate alternative means exist for communicating with bargaining unit employees, disclosure of home addresses is not "necessary," and the routine use does not apply.
In examining whether adequate alternative means exist for contacting bargaining unit members, the agency should first determine whether any alternative means exist. There are a variety of recognized alternatives, such as union bulletin boards, desk drops, delivery via an agency mail distribution system, meetings, or hand-billing in non-work areas frequented by employees. If alternative means exist, the agency must then evaluate their adequacy. An alternative means will usually be adequate if it permits information from the union to be available to bargaining unit employees. However, if an employee spends most of his or her time away from the workplace and, thus, is not reachable by the union through any existing alternative means of communication, release of the home address to a union representative may be permitted.
(If blank, the decision does not have footnotes.)
1. The parties filed additional statements addressing the applicability of U.S. Department of Defense v. FLRA, ___ U.S. ___, 114 S. Ct. 1006 (1994), which was issued after the award was rendered. The Union also filed a brief concerning whether the information is necessary, within the meaning of section 7114(b)(4) of the Statute, in response to a Federal Register notice, 59 Fed. Reg. 63995 (1994).
2. The Privacy Act regulates the disclosure of any information contained in an agency "record" within a "system of records," as those terms are defined in the Privacy Act, that is retrieved by reference to an individual's name or some other personal identifier. 5 U.S.C. § 552(a)(4), (5). With certain enumerated exceptions, the Privacy Act prohibits the disclosure of personal information about Federal employees without their consent. Exception (b)(3) of the Privacy Act permits disclosure of information "for a routine use as defined in subsection (a)(7) of this section . . . ." 5 U.S.C. § 552a(b)(3). Subsection (a)(7), in turn, defines routine use as "the use of such record for a purpose which is compatible with the purpose for which it was collected[.]"
3. The relevant part of FPM Letter 711-164 appears in the Appendix to this decision. The FPM was abolished in its entirety on December 31, 1994, while this case was pending before the Authority.
4. As the Agency does not specify the regulation with which the award allegedly conflicts, we do not address that claim further. We view the Agency's arguments concerning consistency with the FPM Letter as a contention that the award is contrary to the Privacy Act because the Letter provides guidance with respect to the disclosure of information under the routine use exception to the Act.
5. Other than its arguments concerning the solicitation of employees for Union membership, addressed below, the Agency does not dispute the relevance of the information.
6. Determining whether disclosure of name and home address information is required under the routine use exception to the Privacy Act requires a different inquiry than a determination under Exemption 6 of the Freedom of Information Act, which was the exemption addressed by the Supreme Court in Department of Defense. As the Court noted in that case, "we are not asked in this case to consider the potential applicability of any other Privacy Act exceptions, such as the 'routine use' exception." 114 S. Ct. at 1012, n.5. See also Justice Souter's concurring opinion. 114 S. Ct. at 1017.
7. Previously, the Authority stated that FPM Letter 711-164 would govern the interpretation of the OPM routine use statement as it related to the disclosure of home addresses. Department of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, 46 FLRA 1243, 1245 (1993). However, as noted above, the FPM was abolished on December 31, 1994. Given this change, if the application of the FPM Letter to the facts in this case would affect the outcome, the question whether its abolition should be applied retroactively would need to be determined. Cf. Princz v. Federal Republic of Germany, 26 F.3d 1166, 1171 (D.C. Cir. 1994) (whether a new law should be applied retroactively to facts occurring before enactment of the new law need not be decided if the outcome of the case would be the same under either the new or the old law). As explained below, see note 9, the conclusion we reach would be the same whether or not we applied the now-expired FPM Letter. Therefore, it is unnecessary to decide whether abolishment of the FPM Letter should be applied retroactively to this case.
8. The FPM Letter also provides guidance with respect to disclosure of other types of information pursuant to the applicable routine use statements. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA No. 24 (1995).
9. Even if the now-abolished FPM Letter were not considered relevant in deciding this exception, we would reach the same conclusion. First, review of the award under OPM's routine use interpretation prior to its articulation in the FPM Letter would involve the same analysis, since that interpretation was embodied in the FPM Letter. See FLRA v. U.S. Department of the Treasury, Financial Management Service, 884 F.2d 1446, 1454-55 (D.C. Cir. 1989), cert. denied, 493 U.S. 1055 (1990). Second, the outcome would not change if we reviewed the award under the Authority's interpretation prior to the promulgation of the FPM Letter, which viewed the existence of alternative means of communication as irrelevant. See, e.g., Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788, 794 (1986), enforced in part and remanded sub nom. U.S. Department of Agriculture v. FLRA, 836 F.2d 1139 (8th Cir. 1988), vacated on other grounds and remanded, 488 U.S. 1025 (1989). Since the more stringent FPM requirement, that there are no