19:0913(108)CA - SSA, Northeastern Program Service Center and AFGE Local 1760 -- 1985 FLRAdec CA
[ v19 p913 ]
The decision of the Authority follows:
19 FLRA No. 108 SOCIAL SECURITY ADMINISTRATION NORTHEASTERN PROGRAM SERVICE CENTER Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1760, AFL-CIO Charging Party Case No. 2-CA-30643 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision and the General Counsel filed an opposition to the Respondent's exceptions. /1/ Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendations only to the extent consistent herewith. The Judge concluded that the Respondent failed to comply with the requirements of section 7114(b)(4) of the Statute /2/ in violation of section 7116(a)(1), (5) and (8) of the Statute when it refused to provide the Union, upon request, with the names and home addresses of all unit employees represented by the exclusive representative. In this regard, the Judge, inter alia, found that: no undue burden would be imposed on the Respondent to extract a list of unit employees' names and home addresses from the material reasonably available to Respondent; the Union was not obligated to establish any specific relevant issue which particularly required an immediate need for such names and home addresses; the avenues of communication available to the exclusive representative did not provide the Union with a proper and effective means of access to employees and therefore the data sought must be provided; and, citing private sector precedent, that the Privacy Act /3/ did not preclude the release of the employees' names and home addresses. The Authority disagrees. In a recent decision, Farmers Home Administration Finance Office, St. Louis, Missouri, 19 FLRA No. 21 (1985), petition for review filed sub nom. American Federation of Government Employees, AFL-CIO, Local 3354 v. FLRA, No. 95-1493 (D.C. Cir. Aug. 6, 1985) (hereinafter Farmers Home Administration), the Authority, relying on its prior decision in Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA No. 92 (1985), petition for review filed sub nom. American Federation of Government Employees, Local 1345 v. FLRA, No. 85-1378 (D.C. Cir. June 21, 1985) (hereinafter AAFES), stated that the disclosure of unit employees' names and home addresses, like the disclosure of other data sought pursuant to section 7114(b)(4) of the Statute, requires not only a case by case determination as to whether the data has been requested, whether it is normally maintained, whether it is reasonably available, and whether it is necessary to enable the exclusive representative to fulfill its representational obligations, but also requires a determination that the disclosure of the data sought would not be prohibited by law, including the Privacy Act. In AAFES, the Authority decided that, in determining whether the disclosure of any data sought pursuant to section 7114(b)(4) of the Statute is or is not otherwise "prohibited by law," i.e., the Privacy Act, it will use the same balancing test applied by the courts in evaluating whether information sought under the Freedom of Information Act (FOIA) /4/ should be disclosed or should be protected from disclosure as a clearly unwarranted invasion of privacy under the FOIA exemption set forth at section 5 U.S.C. 552(b)(6). The application of the (b)(6) balancing test requires weighing the necessity of the data for the union's purposes against the degree of intrusion on the individual's privacy interests caused by disclosure of the data. /5/ Guided particularly by the decision of the Fourth Circuit in American Federation of Government Employees, AFL-CIO, Local 1923 v. United States Department of Health and Human Services, 712 F.2d 931 (4th Cir. 1983), wherein the Court adopted the lower court's determination that the balance of all factors led to the conclusion that an exclusive representative was not entitled to the home addresses of unit employees which it had sought pursuant to the FOIA, the Authority in Farmers Home Administration applied the foregoing balancing test and concluded that the exclusive representative there was not entitled to the names and home addresses of unit employees under section 7114(b)(4) of the Statute. As in Farmers Home Administration, the Authority finds that the same findings and conclusions flow from the similar facts of the present case. Thus, for the reasons stated in Farmers Home Administration, we find that the employees' strong privacy interest in their home addresses outweighs the necessity of the data for the Union's purposes in the circumstances of this case. Moreover, the record in this case clearly establishes that alternative means of communication with unit employees were available to the Union herein. /6/ Further, we find that the records sought by the Union herein, as in Farmers Home Administration, i.e., the names and addresses of unit employees, are not of the type that generally must be disclosed pursuant to the FOIA's (b)(6) exemption for the purposes for which they were sought herein. Thus, the Authority finds that the disclosure of unit employees' names and home addresses for the purposes for which they were sought herein was "prohibited by law" and that their release by the Respondent therefore was not required pursuant to section 7114(b)(4) of the Statute. Therefore, the Authority concludes that the Respondent did not fail to comply with section 7114(b)(4) of the Statute in violation of section 7116(a)(1), (5) or (8) of the Statute when it refused to provide the exclusive representative with the names and home addresses of unit employees. /7/ Accordingly, the Authority shall order that the complaint be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 2-CA-30643 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., August 22, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 2-CA-30643 Daniel H. Green, Esq. Julian Bergman For the Respondent Alfred R. Johnson, Esq. For the General Counsel Herbert Collender For the Charging Party Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on December 23, 1983 by the Regional Director for the Federal Labor Relations Authority, New York, NY, a hearing was held before the undersigned on March 5, 1984 at New York, NY. This case arose under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., (herein called the Statute). It was based upon a charge filed on September 30, 1983 by American Federation of Government Employees, Local 1760, AFL-CIO (herein called the Union) against Social Security Administration and Northeastern Program Service Center (herein called Respondent). The Complaint herein alleged, in substance, that on or about August 15, 1983 the Union requested that Respondent furnish it with the names and addresses of unit employees who are employed at the Northeastern Program Service Center; that such information was maintained in the normal course of business; that the data was reasonably available and necessary for proper discussion, understanding and negotiation of collective bargaining subjects; and that on or about September 2, 1983 Respondent refused, and has continued to refuse, to furnish such data-- all in violation of Section 7116(a)(5) and (8) of the Statute. Respondent's Answer, dated January 10, 1984, denied that the data was maintained in the normal course of business, that it was reasonably available, and that it was necessary for collective bargaining. /8/ It also denied the commission of an unfair labor practice. All parties were represented at the hearing, each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed which have been duly considered by the undersigned. Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all the testimony and evidence adduced at the hearing, I make the following findings and conclusions: Findings of Fact 1. At all times material herein the American Federation of Government Employees, AFL-CIO has been the exclusive bargaining representative of a nationwide unit of certain employees of Respondent, including non-supervisory employees at the Northeastern Program Service Center. 2. At all times material herein the American Federation of Government Employees, AFL-CIO, has delegated to the National Council of SSA Payment Center (Council) authority to act as its representative for collective bargaining for the aforesaid employees of the Northeastern Program Service Center. 3. At all times material herein the Union herein has acted as the agent for the Council for collective bargaining purposes on behalf of the aforesaid employees of the Northeastern Program Service Center and has been so recognized by Respondent. 4. Respondent Social Security Administration and American Federation of Government Employees, AFL-CIO are parties to a Master collective bargaining agreement which, by its terms, became effective on June 11, 1982 for a period of three years. The said Master Agreement, which covers the unit employees of the Respondent's Northeastern Program Service Center (hereinafter designated as NEPSC) was in effect at all times material herein. 5. Article 12 of said Master Agreement, entitled "Communications," provides for the use of union bulletin boards in Section 1 thereof. As existent in the past, open bulletin boards are provided on each floor of the NEPSC which is split among three different buildings. Except as to information containing political propaganda or attacks upon individuals, no restrictions is placed upon material which may be posted thereon by the Union. Section 2 of this Article allows for distributing official publications of the Union during non-duty time if the distribution does not disrupt operations. Further, the Administration agrees thereunder to distribute Union newsletters on a desk-to-desk basis up to four times per year. /9/ Article 11 of the Master Agreement grants the Union the right to use Respondent's internal mail system but not for mass mailing purposes. 6. Approximately 2,000 employees are employed by NEPSC which is located at Rego Park, New York. These individuals reside in various areas of New York, including Queens, Manhattan, Bronx, Long Island, Westchester, and also in parts of New Jersey. Approximately 900 such employees are members of the Union. 7. As of August 1983, there were about 45 stewards in the Union as well as 13 officers above the steward structure. There is not an even dispersion of stewards throughout NEPSC. At the College Point, New York location, about 3 miles away, where 300 employees are employed, there are only 2 Union officials. In the past the Union has utilized the stewards to distribute literature, i.e., its newspapers. 8. By memo dated August 15, 1983, Herbert Collender, President of the Union, requested the Respondent furnish the Union the names and addresses of all unit members employed at NEPSC. Collender stated therein that it sought this data in order to conduct "information gathering for an expression of their views among members of the bargaining unit at the Northeastern Program Service Center." He further indicated that the information would be used to develop proposals and positions on such subjects as (A) Performance Audits, (B) Relocation of NEPSC to Jamaica, New York, (C) Health and Safety. 9. Labor Relations Specialist, Julian Bergman replied in a memo dated August 29, 1983 wherein he stated the request was not clear and asked for clarification. 10. Collender wrote another memo dated August 29, 1983 to Respondent wherein he repeated his request for the information and for the reasons or utilization expressed therefore. 11. In a memo dated September 2, 1983, Bergman denied the request. The denial was based on these factors: (a) a release of the data sought would violate the Privacy Act; (b) the information was not readily available; (c) it was not shown to be material and necessary to union proposals; (d) there was no showing why the data could not be obtained from other sources. 12. By memo dated September 12, 1983, Bergman forwarded to Collender, pursuant to Article 7 of the OPSC/SSA Agreement, the names of all bargaining unit employees at NEPSC. 13. Record facts show the Union was concerned about the planned relocation of NEPSC from Rego Park to Jamaica, New York, /10/ in respect to parking facilities, transportation, eating facilities, work location and security /11/ for the employees. In regard to breaks and lunches, the practice called for their being changed every six months, and the next change was due on November 2 or 3, 1983. Collender testified the Union wanted to discuss with management a flexible arrangement, and hence he sought to obtain employees' views thereon. 14. The record reflects that none of the subjects mentioned by Collender, in his request for information, was on the bargaining table at that time or being then effectuated. The Union had not as yet made proposals re health and safety; a new audit system had been implemented in October 1982; /12/ and the move to Jamaica was not scheduled until 1986. 15. The Union has been permitted to distribute material desk to desk to all employees-- any material which does not malign individual's character. Collender testified that desk distribution has not been satisfactory in the past; that many do not read all desk material; that it is difficult to cover three buildings on non-work time due to flex reporting time and the fact that one building is a few miles away. Record facts show that in December 1979, the Union attempted to circulate a questionnaire to employees concerning the proposed relocation of NEPSC to Jamaica, New York. This was done on desk to desk basis. Included therein were items relating to the employee's length of employment and address, as well as questions concerning the possible effect of the relocation. Collender testified the Union obtained a very poor response in terms of the number of employees who replied, and the survey was not successful. 16. The custodian for all personnel records of employees is kept by the Department of Health and Human Services, Region II, Regional Personnel Office, Personnel Operations Branch. It is located in the same building as the main facility of NEPSC at Rego Park. The employees of NEPSC comprise a little less than one-half of all employees serviced by the Personnel Operations Branch. There are 38 individuals employed at the Servicing Entity, of which 10 are clericals. About 5,300 official personnel folders are located in the Personnel Branch, of which approximately 2,000 are folders for unit employees at NEPSC. 17. The Personnel Branch, which has custody of such personnel records maintains several documents that reflect the names and addresses of unit employees: (a) SSA Form 4033 U4 (Employee Locator Record) is kept in the official personnel folder of the employee. While it is not necessary for employees to fill out this form, most of them do so when there is a change of address. The Branch has a form for most employees. (b) Form 171, filed by employee when first employed by Federal Government, is located in the employee's personnel folder and contains his address. (c) Service records cards which are not kept in the folder but in a separate location. Not all of these cards have addresses listed therein. (b) Payroll stubs which are computerized, kept for one year, and contain the employee's address thereon. The Chief of this Branch testified she does not have access to query this data base; that she attempted to obtain listings of employees services by her about two years ago but Central Payroll was unable to furnish such listings. /13/ 18. Based upon the Branch Chief's testimony, it would take 40 manhours of work to obtain the addresses. There is one clerical in the area who maintains the folders and said individual has a busy schedule. While the Union might conceivably send volunteers to copy the addresses, Bergman testified he would not be able to permit such copying since he has no control over the folders. Both union and management officials, who have received permission, have examined the personnel folders. In the past the union has been given the folders when its representative came to examine them in connection with promotion package audit. No complaints have been received re divulging employees' home addresses. Conclusions It is contended by Respondent that the Union is not entitled to the names and addresses of the unit employees as a matter of right. Based upon its position opposing the Union's entitlement to the addresses of the NEPSC employees, the issues for determination are as follows: (1) Whether the data sought was relevant and necessary to formulate Union proposals for bargaining purposes, as required under Section 7115(b) of the Statute. (2) Whether said information was readily available so as to be furnished to the Union. (3) Whether other means of communicating with employees, and their gaining access to the information requested, were available to the Union so as to justify Respondent's refusal to supply the addressed. (4) Whether the Privacy Act protects any disclosure of these addresses and warrants Respondent's refusal to furnish them to the Union. (1) The basis for the Union's request for the addresses of Respondent NEPSC's employees is to be found in Section 7114(b)(4) of the Statute. The statutory language obligates an agency to furnish an exclusive representative data (1) which is normally maintained in the regular course of business; (2) which is reasonably available and necessary for full and proper discussion, understanding and negotiation of collective bargaining subjects. While the Authority has not spoken in respect to the duty on the part of an agency to furnish addresses of employees to a bargaining agent, decisional law in both the private and public sectors afford some guidance on this issue. In sustaining the National Labor Relations Board's determination that an employer was obliged to supply the bargaining representative with the names and addresses of unit employees, the Second Circuit Court of Appeals made it clear that such data was relevant and necessary to perform its representational functions. See Prudential Insurance Company of America v. NLRB 412 F.2d 77 (2nd Cir. 1969). /14/ The Court commended that such performance by a union extends to the negotiation of new contracts and also to the administration of existing contracts. It declared that the union must be able to communicate with those on whose behalf to act and obtain their views so that the bargaining will reflect the wishes of the employees. Moreover, the Court stated, inter alia: "We reject as legally untenable Prudential's contention that the Union is not entitled to a list of names and addresses in the unit it represents unless it can establish that the information is relevant to a specific bargaining function . . .. Because this information is therefore so basically related to the proper performance of the union's statutory duties, we believe any special showing of specific relevance would be superfluous." In the public sector the Federal Labor Relations Council had occasion to consider the right of a bargaining agent to obtain the addresses of an agency's employees. Although upholding a dismissal on other grounds-- which will be hereinafter discussed-- the Council stated that Section 10(e) of Executive Order 11491, as amended /15/ requires that the exclusive representative have effective means of communicating with employees. It emphasized that the union must have access to the employees in the unit; that a failure to provide the labor organization such means constitutes a breach of an obligation to consult, confer or negotiate as required under Section 9(a)(6) of the Order. Internal Revenue Service, Office of the District Director, Jacksonville, Florida, FLRC No. 72A-50, 2 FLRC 107 (1974). Although it does not dispute the need on the part of the Union to communicate with unit employees, Respondent maintains there was no immediate need for such communication with them. It refers to the fact that the relocation to Jamaica, New York will not occur until 1986 and that none of the concerns of the Union is on the bargaining table. This contention is without merit. It seems apparent that the contemplated move by the agency gives rise to immediate concerns by the Union to the safety, security, health and welfare of the employees. Many employees of NEPSC live in areas far removed from their worksites. Thus it seems obvious that difficulties will surface re transportation, parking facilities and reporting times. If the new area is not safe, problems re crime and attendant safety will have to be resolved. Moreover, it would be unreasonable to require the bargaining agent to wait until the eleventh hour before soliciting the information from the 2,000 unit employees regarding these problems stemming from the relocation. Further, while no particular demands were on the bargaining table, proper representation by the Union might well call for preparing proposals to management during any future negotiation sessions. In order to frame such proposals a union might well be desirous of ascertaining the views of the employees who are represented by it. Note is taken that the Second Circuit Court of Appeals in the Prudential case, supra, concluded that the information sought, i.e., the addresses of unit employees, is so basic to proper union representation that specific relevance need not be established. The statutory language in Section 7114(b)(4) requires that the data sought be necessary for full discussion and negotiation of collective bargaining subjects. It seems clear to the undersigned that, based on the intended and avowed purpose /16/ by the bargaining agent, any worthwhile and effective discussion or negotiation with management necessitates eliciting comments from the employees. To do so, one must reasonably conclude, calls for obtaining the addresses of said individuals in order to communicate with them. Thus, prescinding from circumstances which relieve an agency from its responsibility in this regard, it is incumbent upon management to furnish such addresses to the bargaining representative. (2) To obtain data under 7114(b) of the Statute herein it must be established that said materials is "reasonably available." In attempting to demonstrate the unavailability of the data, Respondent adverts to several factors. It points out that Respondent does not retain the addresses of unit employees; that the HHS Regional Personnel Office, Personnel Branch, its servicing body, keeps this information; that, while Respondent has access to it, the addresses must be extracted manually from each personnel locator card, and it would take about 40 manhours to accomplish this task. Since the Personnel Branch was short staffed, the burden so thrust upon Respondent to prove the addresses would be onerous. None of the foregoing contentions is persuasive. The names and addresses of the unit employees as contained in the personnel folders, and said information is set forth on Forms 4033 and SF 171. They are also to be found on the payroll stubs of unit employees. While this data is maintained by the Regional Personnel Office of HHS, Respondent is merely serviced by such office and may obtain the addresses upon request. It is urged by Respondent that a heavy administrative burden would be placed upon the servicing entity to extract the information from the locator cards or payroll stubs. Chief of Personnel Operations Potter estimated that 40 manhours would be needed to accomplish the task. In Defense Mapping Agency, Aerospace Center, St. Louis, Case No. 7-CA-20482 (OALJ-83-83, May 12, 1983), Judge Cappello was confronted with the same contention by the agency which argued the task was burdensome. Judge Cappello concluded that even though it might require 40 manhours to copy the addresses, that factor did not warrant a refusal to furnish same. Further, since the Authority has held /17/ that data must be furnished without cost to the bargaining representative, the limited cost of providing the addresses did not excuse a failure to supply that information. In the case at bar the Union did not make time of the essence in obtaining the data. No reason appears why the addresses would not have been copied in stages since the Personnel Office was short-handed. The undersigned determines that no undue burden is imposed in order to extract the addresses of unit employees and concludes the data was reasonably available as required by 7114(b) of the Statute. /18/ (3) Particular stress is focused by the Respondent upon its contention that the Union herein had other ways and means of communicating with the unit employees. The employer emphasizes the argument that, based upon existent lines of communication, the bargaining agent was in a position to reach the unit employees and obtain the desired information. Reference is made by the Respondent to certain avenues which the Union could follow: handbilling the employees, the use of bulletin boards, on-site distribution of literature through officers and stewards, internal mail system, and desk distribution. Accordingly, it is urged, the Union has access to the employees to secure the addresses and, therefore, the Respondent should not be required to furnish same. It should be noted, at the outset, that Section 7114(b)(4) makes no mention of whether the obligation to furnish data to a union falls by the wayside if the latter has reasonable access of communication with unit employees. A logical argument could well be advanced that the agency is charged with such duty providing the information is necessary for collective bargaining, and that the obligation to furnish it is absolute or independent of other access afforded the union. No answers have been provided by the Authority as to whether such access is a defense to a refusal by an agency to supply the requested data. While neither the case law under the Statute, nor any legislative history, indicates whether data must be supplied without considering its availability elsewhere, it seems reasonable to conclude that alternative access by the union to the information may relieve an agency of its obligation under the Statute. However, I am constrained to conclude that such access should be equitable, in essence, to the agency's supplying such material. In other words, access to the data should not be such a problem, or be so imperfect, as to amount to something less than the information being furnished to the union. If the alternative means to supplying the data poses such difficulties, or is unlikely to result in the union obtaining the complete material requested, I would deem such access as an ineffective means of communication. In such instances, the employer would not be justified in refusing to comply with its statutory duty to furnish the information. Although there is no analogous statutory provisions to 7114(b)(4) in the private sector, several cases in that area have dealt with the duty of an employee to supply data to the bargaining agent when the latter has other means of access to such information. In United Aircraft Corporation v. NLRB, supra, the Court acknowledging the need by the union for the names and addresses of unit employees to communicate with them for proper representation, rejected the employer's contention that the existing means of communication were adequate to fulfill union functions. In respect to handbilling employees, the Court deemed this avenue unsuitable due to the irregular hours of work, the shift changes, and the fact that many people would be missed by such distribution. As to bulletin boards, it is concluded that space limitations militated against its adequacy. Moreover, employees who hurried by the bulletin boards had little time to read thoroughly, and the notice must compete for attention with other notices. Finally, the use of shop stewards and union stewards to reach employees was considered inappropriate as a means of communication since they must reach the people on non-duty time which is self-limiting. /19/ In much the same view as the conclusions reached by the Second Circuit Court of Appeals, the undersigned concludes that the alternative means to the Union herein of communicating with employees are not suitable or effective in respect to obtaining the needed information. Bulletin boards available to the Union are open, and material may not remain intact. They are unlikely to be scrutinized so closely by 2,000 employees so as to accomplish the same end as direct correspondence which the bargaining agent addresses to employees. Likewise, attempts to reach 2,000 employees via handbilling may well be characterized as a "hit or miss" procedure. The various shifts at Respondent may well result in a failure to reach many individuals. Further, numerous employees may bypass the areas where such distribution occurs. Record testimony reflects this method of access was tried in the past with no success. While the poor response does not itself render this avenue as inappropriate, it does tend to support that conclusion in light of the number of employees to be reached under the prevailing conditions. /20/ In respect to Respondent's agreement to make mail distributions on behalf of the Union, this means will not suffice since mass mailing is expected from such agreement. Note is taken that a case has arisen in the public sector under Executive Order 11491, as amended, wherein it was decided that the union had effective means of communicating with employees so as to relieve the agency of any duty to furnish addresses of employees. See Internal Revenue Service, Office of the District Director, Jacksonville District, Jacksonville, Florida, 2 A/SLMR No. 214, affirmed in FLRC No. 72A-50, by the Federal Labor Relations Council. In the cited case there were about 900 unit employees /21/ employed by the agency, and the unit personnel were scattered on a number of floors in a federal building of 10 floors. In concluding that the notices or documents could be distributed to employees by union officials at their desks, it was also shown that the union makes available its newspapers to employees at various duty posts. It was recognized by the Council in the cited case that certain factors as to the size of the unit, geographic dispersion of employees, isolated duty stations, etc., may result in a union not having effective means of communicating with unit employees. In such instances the employer's duty to consult, confer, or negotiate under the Order would require it to address enveloped containing union literature and mail them to employees. In the opinion of the undersigned the Respondent herein is chargeable with a duty to furnish the addresses to the Union unless a reliable source of reaching employees is open to the bargaining agent. The statutory language in 7114(b)(4) which was not in effect when the IRS case, supra, was decided, mandates that an agency furnish data which is necessary and relevant for bargaining. Thus a substituted means of access should not, it seems, fall short of satisfactory access. While the Union herein had 45 officials to distribute circulars or material at the desks of the employees, I do not view that avenue to be an appropriate or reliable means of access. Of the 1,000 individuals to be reached-- who were not union members-- it seems likely that some difficulties would occur in the desk distribution since it must be done off duty hours. There are three buildings, one of which is several miles away, and the various shifts as well as the different hours of access to the buildings could well result in a failure to reach all desks. Further, employees might not be in attendance due to leave or illness, and the material so distributed may not come to their attention. Based on the foregoing, I am persuaded that the avenues of communication open to the Union herein did not provide it with a proper and effective access to the employees. The Union may have been able to reach some or many of the unit employees utilizing the means such as handbilling, bulletin boards, or desk distribution. Such means, however, were most imperfect and not calculated, in my opinion, to be nearly as reliable in reaching the employees as would be true if their addresses were furnished by Respondent to the Union. (4) Any contention that the addresses need not be furnished to the Union herein based on the Privacy Act must be rejected. I agree with the General Counsel's assertion that the employee's right to privacy of his records must be balanced against the needs of a labor organization for data to effectively represent the unit employees. Nothing in the Privacy Act detracts from the statutory obligation imposed upon an agency to supply relevant data necessary for collective bargaining. Nor was it intended that an employer could refuse to abide by its duty under Section 7114(b)(4) of the Statute herein merely by invoking the Privacy Act as a defense to furnishing requested data. Bureau of Alcohol, Tobacco and Firearms, National Office and Western Region, San Francisco, California, 8 FLRA 57. Note is taken also that in the private sector the same defense was raised by the employer therein in United Aircraft Corporation v. NLRB, supra. The Circuit Court, in rejecting the claim that supplying addresses violates the employees' right to privacy, stated: . . . That claim, however, has little merit in the circumstances of this case. In determining whether the disclosure of addresses to a union violates the employees' right to privacy, the crucial factor appears to be the likelihood of a clear and present danger to the employees involved . . . In the case at bar I find no evidence in the record which would support the conclusion that the employees, whose addresses were sought by the Union, were in clear and present danger. Moreover, I am convinced that the need for privacy of an employee's home address is outweighed by the need of the Union to obtain such data in order to communicate with employees so as to gain input from them and enter into intelligent bargaining with Respondent. /22/ See Getman v. NLRB, 450 F.2d 670 (D.C. Circuit, 1971). The conduct of Respondent herein in refusing to grant the Union's request for the addresses of unit employees runs counter to its obligation under Section 7114(b)(4) of the Statute. As such, it constitutes a violation of Section 7116(a)(8) of the Statute. Further, the refusal flouts its obligation to bargain and is violative of Section 7116(a)(1) and (5) of the Statute. Accordingly, it is recommended that the Authority adopt the following: ORDER Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, the Authority hereby orders that the Social Security Administration and Northeastern Program Service Center shall: 1. Cease and desist from: (a) Refusing and failing to furnish, upon request of the American Federation of Government Employees, Local 1760, AFL-CIO, the names and addresses of all unit employees who are employed at the Northeastern Program Service Center. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action: (a) Upon request of the American Federation of Government Employees, Local 1760, AFL-CIO, furnish it with the names and addresses of all unit employees who are employed at the Northeastern Program Service Center. (b) Post at its facilities of the Northeastern Program Service Center at Rego Park, New York and College Point, New York, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be posted and maintained by him for 60 consecutive days thereafter in conspicuous places, including bulletin boards and other places where notices to employees are customarily posted. The Director of Management shall take reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director, Region II, in writing within 30 days from the date of this Order, as to what steps have been taken to comply herewith. WILLIAM NAIMARK Administrative Law Judge Dated: November 30, 1984 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT refuse and fail to furnish, upon request of the American Federation of Government Employees, Local 1760, AFL-CIO, the names and addresses of all unit employees who are employed at the Northeastern Program Service Center. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL, upon request of the American Federation of Government Employees, Local 1760, AFL-CIO, furnish it with the names and addresses of all unit employees who are employed at the Northeastern Program Service Center. (Agency or Activity) Dated: . . . By: (Signature) 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 of the Federal Labor Relations Authority, Region II, whose address is: 26 Federal Plaza, Room 24-102, New York, New York 10278 and whose telephone number is: (212) 264-4934. --------------- FOOTNOTES$ --------------- /1/ On June 3, 1985, the Office of Personnel Management (OPM) filed a request for permission, pursuant to section 2429.9 of the Authority's Rules and Regulations, to file a brief as an amicus curiae in the present case. OPM stated that it wished to present its views with respect to the question of whether an exclusive representative is entitled to the home addresses of employees in an exclusive bargaining unit. A resolution of the central issue sought to be addressed in this case was imminent at the time the instant request was submitted, and has now been decided by the Authority in Farmers Home Administration Finance Office, St. Louis, Missouri, 19 FLRA No. 21 (1985), as discussed herein. The Authority concludes that the granting of the instant request would unnecessarily and unduly delay the processing of this case and other similar cases presently pending before the Authority. Therefore, OPM's request for permission to file an amicus curiae brief in the present case is denied. /2/ Section 7114(b)(4) of the Statute provides: Sec. 7114. Representation rights and duties . . . . (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation-- . . . . (4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data-- (A) which is normally maintained by the agency in the regular course of business; (and) (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining(.) /3/ Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified as amended at 5 U.S.C. 552a (1982)). /4/ Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256 (codified as amended at 5 U.S.C. 552 (1982)). /5/ The interrelationship of the Privacy Act and the FOIA exemption are set forth more fully in AAFES. /6/ In this regard, the Union could have communicated with unit employees, e.g., through the use of open bulletin boards on each floor of the Respondent's facilities; through the distribution of its newsletter which is given out on a desk-to-desk basis four times a year by the Respondent; through additional on-site distributions of its own material; and through the use of its network of officers and stewards with access to unit employees. The extent to which some of these means of communication were subject to restrictions, such as the use of the internal mail system for mass mailings and the times during which publications may be distributed, does not in our opinion detract from our finding that the Union had alternative means of communication available, especially as we note the established bargaining history of the parties, including matters with regard to means of communication. /7/ In so concluding, the Authority does not reach the question of whether the data sought herein meets the other requirements of section 7114(b)(4) of the Statute. /8/ The original Answer admitted these allegations. A motion to Amend the Answer to deny said allegations (set forth in Paragraph 7b of the Complaint) was granted at the hearing with no objections thereto. /9/ Under Article 7 of the agreement between the Office of Program Service Center of Social Security Administration and the National Council of Social Security Center Locals, the Program Service Center must provide a current listing of names, position titles, grades, salaries, and duty stations of employees. /10/ Respondent's newsletter of December 6, 1982 reported on the progress of the new building. Its newsletter of September 23, 1983 announced that the expected date of completion would be in July, 1986. /11/ Collender testified that since the move was to a crime-ridden area, the Union was concerned about possible muggings in parking lots as well as likely robberies. /12/ The new performance system was the subject of an unfair labor practice charge filed by the Union in late 1982 or early 1983. A hearing was held on August 18, 1983. Collender testified the Union anticipated favorable ruling and wanted to question employees re steps which would be taken to protect them from any adverse impact of the new system. Subsequently the Administration Law Judge dismissed the case. /13/ Record testimony reflects it would take the same amount of time to extract information (addresses) from either the payroll stubs or the locator cards. /14/ See also United Aircraft v. NLRB, 434 F.2d 1198 (2nd Cir. 1970). /15/ Section 10(e) of the Order accords to the exclusive bargaining representative the right to act on behalf of all unit employees, to negotiate agreements covering the latter, and to represent the interests of such employees. /16/ Management's contention in the Prudential case, supra, that the union could use the data and solicit new members was dismissed by the Court as without merit. /17/ Veterans Administration Regional Office, Denver, Colorado, 10 FLRA No. 78. /18/ In the Prudential case, supra, the Court concluded that the utility of the information (names and addresses of employees) to the Union outweighs the minimal inconvenience to the employer in having to supply it. /19/ The Court in the Prudential case, supra, likewise found these alternative means of communication to be impracticable and not a reliable substitute for obtaining names and addresses of unit employees. /20/ See Magma Copper Co., 208 NLRB 329, 330 which considered the size of the unit (2,250 employees) as a significant factor in the determination that addresses should be furnished to the union. /21/ 427 employees were members of the union. /22/ Respondent adverts to the case of American Federation of Government Employees, AFL-CIO, Local 1923 v. HHS, et al., 712 F.2d 931 (1983) where the union attempted to obtain addresses of employees under the Freedom of Information Act (FOIA). The Court dismissed the action, stating that the records sought were not the type to be disclosed under Section 552(a)(3) of that Act. Declaring that the data was just not obtainable under the FOIA since it is only agency records that are producible, the Court conceded the union might be entitled to the addresses under some federal law and it cited the Prudential case, supra.