23:0788(101)CA - FHA Finance Office, St. Louis, MO and AFGE Local 3354 -- 1986 FLRAdec CA
[ v23 p788 ]
23:0788(101)CA
The decision of the Authority follows:
23 FLRA No. 101
FARMERS HOME ADMINISTRATION FINANCE
OFFICE, ST. LOUIS, MISSOURI
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3354
Charging Party
Case No. 7-CA-30560
(19 FLRA No. 21)
DECISION AND ORDER ON REMAND
I. Statement of the Case
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit.
The question before the Authority is whether it was an unfair labor
practice under the Federal Service Labor-Management Relations Statute
(the Statute) for the Respondent (Agency) to refuse a request, made
pursuant to section 7114(b)(4) of the Statute, to provide the Charging
Party (Union) with the names and home addresses of employees in a
bargaining unit which the Union exclusively represents.
For the reasons which follow, we conclude that Respondent's refusal
to provide the information violated the Statute, and we reverse the
Authority's previous decision in this matter.
II. Procedural Background
In a previous decision in this case, Farmers Home Administration
Finance Office, St. Louis, Missouri, 19 FLRA No. 21 (1985), the
Authority, relying on the decision of the United States Court of Appeals
for the Fourth Circuit in American Federation of Government Employees,
Local 1923 v. United States Department of Health and Human Services, 712
F.2d 9931 (4th Cir. 1983), held that the release of home addresses was
not required pursuant to section 7114(b)(4) of the Statute because the
disclosure of such information was "prohibited by law," specifically the
Privacy Act. /1/
The Charging Party/Union in this case, and the unions involved in
other cases in which the Authority followed the precedent established by
this case, petitioned the courts for review of the Authority's
decisions. In the course of the litigation that ensued, it became
apparent that an issue raised before the Authority regarding the
applicability of the Privacy Act had not been addressed by the Authority
in rendering its decision in this case -- namely, whether the union was
entitled to the names and home addresses of unit employees under the
routine use exception of the Privacy Act, 5 U.S.C. Section 552a(b)(3).
The Authority therefore sought remand of this case and three other
substantially identical cases awaiting judicial review in order to
reconsider its decisions and to address in the first instance the issue
of whether disclosure of the names and home addresses of unit employees
was or was not prohibited by law because of the applicability of the
"routine use" exception of the Privacy Act, and such other issues
arising under the Statute as might be appropriate. The remand requests
were granted in this case, American Federation of Government Employees,
Local 3354 v. FLRA, No. 85-1493 (D.C. Cir.) (reviewing 19 FLRA No. 21),
and in two others, National Federation of Federal Employees, Local 1827
v. FLRA, No. 85-2202 (8th Cir.) (reviewing 19 FLRA No. 85) and
Philadelphia Metal Trades Council v. FLRA, No. 85-1625 (D.C. Cir.)
(reviewing 19 FLRA No. 107).
In contrast to the D.C. and Eighth Circuits, the United States Court
of Appeals for the Second Circuit denied the Authority's remand request
and issued a decision. In that decision the Second Circuit reversed the
Authority's holding that the release of names and home addresses was
"prohibited by law," i.e., the Privacy Act, under section 7114(b)(4) of
the Statute. American Federation of Government Employees, Local 1760 v.
FLRA, 786 F.2d 554 (2nd Cir. 1986). The Second Circuit applied the same
balancing test used by the Authority. Contrary to the Authority and the
Fourth Circuit, however, the court found that "the privacy interest of
the average employee in his address is not particularly compelling." Id.
at 556. Instead, the court noted Congress' determination that
collective bargaining is in the public interest, and the court's prior
holdings in private sector cases that the mere existence of alternative
means of communication is not sufficient to justify the refusal to
release home addresses. The court also noted that it agreed with the
Administrative Law Judge that the alternative means available to the
union were inadequate, and that the other requirements of the Statute
for release had been met. The court therefore remanded that case (19
FLRA No. 108) to the Authority to find a violation and require the
Respondent to disclose unit employees' home addresses to the union. The
court did not address the "routine use" issue.
In order to give full consideration to the issues raised as to the
disclosure of names and home addresses to exclusive representatives in
the instant case, and in the other cases remanded by the D.C. and Eighth
Circuits as well as other pending cases, the Authority issued a notice
in the Federal Register, 51 Fed. Reg. 21,416 (1986), providing an
opportunity for all interested agencies, labor organizations, and other
interested persons to file amicus briefs dealing with these issues. The
Authority has considered these submissions, as well as the entire record
in this case, in reaching its decision. Although the parties in this
case did not submit supplementary statements in response to the Federal
Register notice, the American Federation of Government Employees did
file an amicus brief outlining its position on the issues presented by
these cases.
III. Analytical Framework and Previous Decision
As relevant to this case, section 7114(b)(4) of the Statute requires
an agency to furnish to an exclusive representative, upon request and to
the extent not prohibited by law, data which is (1) normally maintained
by the agency in the regular course of business; and (2) reasonably
available and necessary for full and proper discussion, understanding,
and negotiation of subjects within the scope of collective bargaining.
In the previous decision in this case, the Authority held that the
release of names and home addresses was not required pursuant to section
7114(b)(4) because disclosure was "prohibited by law," specifically the
Privacy Act.
The Privacy Act generally prohibits the disclosure of personal
information about Federal employees without their consent. Section
(b)(2) of the Privacy Act provides that the prohibition against
disclosure is not applicable if disclosure of the information is
required under the Freedom of Information Act (FOIA). /2/ Exemption
(b)(6) of the FOIA provides that information contained in personnel
files (as well as medical and other similar files) may be withheld if
disclosure of the information would constitute a "clearly unwarranted
invasion of personal privacy(.)"
Applying the balancing test developoed by the Federal courts in cases
l concerning the (b)(6) exemption to the FOIA, the Authority weighed the
public interest which would be served by providing the Union with names
and home addresses against the employees' interests in maintaining their
privacy. The Authority concluded 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." 19 FLRA No. 21
at 4. Since the information requested by the Union fell within the
(b)(6) exemption, disclosure of the information was not required under
the FOIA. Therefore, the Authority found that the requirements of the
(b)(2) exception to the Privacy Act were not met and disclosure of the
information was prohibited. The Authority also found that the record
established that the Union had "alternative means of . . . communication
available." Id. Because of the finding that disclosure of the
information was prohibited by law, the Authority did not address whether
the Union's request met the other requirements of section 7114(b)(4).
IV. Analysis on Remand
Consistent with the requirements of section 7114(b)(4), it is
necessary to determine whether (1) disclosure of the names and home
addresses of bargaining unit employees is prohibited by law, (2) the
information is normally maintained by the Agency in the regular course
of busines, (3) the Union properly requested the information, and (4)
the information is reasonably available and necessary within the meaning
of that section. These issues will be addressed in turn.
A. Prohibited by Law
Provisions of the Privacy Act and the Freedom of Information Act are
relevant to the determination of whether the disclosure of the
information is prohibited by law. The Authority previously held that
disclosure was prohibited by the Privacy Act. There are two exceptions
to the Privacy Act's bar to disclosure which are applicable to this
discussion: exception (b)(2) concerning the Freedom of Information Act,
and exception (b)(3) relating to "routine use" of information.
1. FOIA
If the disclosure of the requested information is required by the
FOIA, the Privacy Act's bar to disclosure is not applicable. 5 U.S.C.
Section 552a(b)(2). Under the FOIA, requested information must be
disclosed unless it falls within one of the enumerated exemptions. The
exemption pertinent to this case is exemption (b)(6) which authorizes
withholding information in "personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy(.)"
In the previous decision in this case, the Authority balanced
employees' privacy interests against the public interest in disclosure
and found that the requested information fell within exemption (b)(6).
In doing so, the Authority relied on the decision of the Court of
Appeals for the Fourth Circuit in AFGE Local 1923, 712 F.2d 931. For
the following reasons, we reverse our previous decision on this point
and find that the requested information may not be withheld pursuant to
exemption (b)(6).
It is necessary to balance competing interests to determine whether
requested information falls within exemption (b)(6). It is also
important to recognize, as emphasized in the amicus submissions filed by
various labor organizations, that the FOIA embodies "a general
philosophy of full agency disclosure unless information is exempted
under clearly delineated statutory language." Department of Air Force v.
Rose, 425 U.S. 352, 360-61 (1976). Further, exemption (b)(6)'s
limitations to "clearly unwarranted" disclosures instructs us to "tilt
the balance in favor of disclosure." Getman v. NLRB, 450 F.2d 6770, 674
(D.C. Cir. 1971).
Consistent with this framework, we find that the balance favors
disclosure of the names and home addresses sought by the Union. In
section 7101 of the Statute Congress found that collective bargaining in
the Government is in the public interest and safeguards that interest.
The disclosure of the information sought would enable the Union to
identify the members of the bargaining unit which it is required to
represent. Disclosure also would contribute to the Union's ability to
communicate with its bargaining unit members and thereby enable it to
better fulfill its responsibilities under the Statute. If employees are
to exercise their statutory rights, they must be aware of the issues
affecting them. By providing the Union with an efficient method of
communication, disclosure of names and home addresses will facilitate
the fullest exercise of employee rights.
On further consideration of this case, we also agree with the Court
of Appeals for the Second Circuit that "the privacy interest of the
average employee in his address is not particularly compelling." 786
F.2d at 556. For example, while amicus submissions by individuals
indicate that some employees do not favor the release of their names and
home addresses, many of the submissions also show that these employees
already receive and often discard unsolicited mail. There is, of
course, nothing to prevent these employees from handling communications
from the Union in the same way, nor are employees prevented from
requesting that they be deleted from the Union's mailing list. As noted
by the Second Circuit, a union already has access to information such as
salary levels that is more likely to implicate privacy concerns rather
than the information sought here. Id.
On balance, we find that the public interest to be furthered by
providing the Union with an efficient method to communicate with unit
employees it must represent far outweighs the privacy interests of
individual employees in their names and home addresses. Disclosure of
the requested information would not constitute a clearly unwarranted
invasion of personal privacy and does not fall within the (b)(6)
exemption to the FOIA. Since the information does not fall within the
exemption, its disclosure is required under the FOIA and, under
exception (b)(2) to the Privacy Act, its release is not prohibited by
law.
2. Routine Use
Exception (b)(3) of the Privacy Act permits disclosure of information
for a "routine use." Section (a)(7) of the Privacy Act defines routine
use as "the use of such record for a purpose which is compatible with
the purpose for which it was collected." The Office of Personnel
Management (OPM) publishes notices defining the routine uses of
personnel records of Federal employees. One notice defines a routine
use as the disclosure of information to "officials of labor
organizations recognized under 5 U.S.C. Chapter 71 when relevant and
necessary to their duties of exclusive representation(.)" 49 Fed. Reg.
36,956 (1984). This standard is effectively the same as section
7114(b)(4)'s limitation of an agency's obligation to provide information
to that which is "necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining(.)"
As discussed below, we conclude that the disclosure of the names and
home addresses of bargaining unit employees to the Union is necessary
within the meaning of section 7114(b)(4) of the Statute for the Union to
discharge its statutory obligations. Consistent with that conclusion,
we find that disclosure of the information sought here falls within the
routine use established by OPM, and its disclosure is therefore a
routine use under exception (b)(3) of the Privacy Act. Therefore, even
if the disclosure was not authorized under exception (b)(2) of the
Privacy Act, relating to the FOIA, it is authorized under exception
(b)(3).
Release of the requested information is therefore not prohibited by
law. It may be released pursuant to exceptions (b)(2) and (3) of the
Privacy Act.
B. Normally Maintained by the Agency
The Administrative Law Judge found that the names and home addresses
sought by the Union were maintained by the Respondent in Official
Personnel Files (OPFs), a card index system, and a computer file. He
concluded that the information was normally maintained in the regular
course of business. We agree and find that the requested information is
normally maintained by the Agency in the regular course of business
within the meaning of section 7114(b)(4) of the Statute.
We note that although OPM retains responsibility for OPFs, they are
physically maintained by employing agencies. While agency amici
question whether OPFs are the best source for current home addresses,
the Department of Justice notes in its amicus submission that there is
"no question that the home addresses of federal employees . . . are in
their personnel files."
C. Union Request
The Union requested in writing the names and home addresses of
bargaining unit employees to enable it to prepare for contract
negotiations. Although not raised in this case, some amicus submissions
questioned whether a request must be tied to a specific issue about
which the union needs to communicate with its bargaining unit members.
As discussed throughout this decision, a union's statutory
obligations involve a broad range of representational activities. We
find that the statutory requirement concerning sufficiency of a request
under section 7114(b)(4) is satisfied for requests such as that involved
here when a general written request for the information is made. A
precise explication of the reasons for the request involved here is not
necessary. The requirement for a request was met in this case.
Our conclusion that a written request for names and home addresses
need not contain an explanation of the reason for the request is
consistent with previous decisions where we held that an agency's duty
to furnish other information under section 7114(b)(4) of the Statute
turns on the nature of the request and the circumstances of each case.
For example, Department of Health and Human Services, Social Security
Administration and Social Security Administration, Field Operations, New
York Region, 21 FLRA No. 35 (1986). In our view, an exclusive
representative's need for the names and home addresses of the bargaining
unit employees it is required to represent is so apparent and
essentially related to the nature of exclusive representation itself,
that unlike requests for certain types of other information, an agency's
duty to supply names and home addresses information does not depend upon
any separate explanation by the union of its reasons for seeking the
information.
D. Reasonably Available and Necessary
As discussed previously in connection with the statutory requirement
that the requested information be normally maintained by the agency, the
names and home addresses of bargaining unit employees are contained in
OPFs and, in this case, the ALJ found that the information was also
available through an index system and a computer file. The information
is reasonably available within the meaning of section 7114(b)(4).
As for whether the information is necessary for unions to discharge
their responsibilities under the Statute, the amicus submissions show
disagreement among the parties. Generally, unions argued that the
disclosure of names and home addresses is necessary for them to meet
their statutory obligations. Agencies contended that these obligations
could be fulfilled without disclosure of the information, through
effective alternative means of communication.
Section 7114(a)(1) of the Statute provides that an exclusive
representative is responsible for representing the "interests of all
employees in the unit it represents without discrimination and without
regard to labor organization membership." Under this provision, a
union's statutory responsibilities extend to all bargaining unit
members. It is obvious that a union must be able to identify and
communicate with those bargaining unit members if it is to adequately
represent them.
Consistent with the amicus submissions of many agencies, the ALJ in
this case found that the disclosure of names and home addresses was
unnecessary because other means of communication, such as desk drops,
direct distributions, meetings, bulletin boards, and direct personal
contacts were available to the Union and provided adequate means of
communication. We disagree. The disclosure of names and home addresses
will enable the Union to communicate effectively and efficiently,
through direct mailings to individual employees. The information is
readily available within Agency files and its disclosure will enhance
the exercise of employee rights as well as the communication process
between employees and the Union.
We will not review the adequacy of alternative methods of
communication on a case-by-case basis. Consistent with the view of the
Court of Appeals for the Second Circuit discussed above, we find that
the mere existence of alternative means of communication is insufficient
to justify a refusal to release the information. Further, we find that
it is not necessary for us to examine the adequacy of alternative means
in cases involving requests for names and home addresses because the
communication between unit employees and their exclusive representative
which would be facilitated by release of names and home addresses
information is fundamentally different from other communication through
alternative means which are controlled in whole or in part by the
agency. When using direct mailings, the content, timing, and frequency
of the communication is completely within the discretion of the union
and there is no possibility of agency interference in the distribution
of the message. Further, direct mailings reach unit employees in
circumstances where those employees may consider the union's
communication without regard to the time constraints inherent in their
work environments, and in which any restraint the employee may feel as a
result of the presence of agency management in the workplace is not
present. We find that the names and home addresses of unit employees
are necessary and should be provided whether or not alternative means of
communication are available.
Our decision that names and home addresses information should be
released is consistent with private sector precedent. /3/ The National
Labor Relations Board has held that names and addresses of unit
employees are "prersumptively relevant to (a) (u)nion's role as
bargaining agent either during contract negotiations or during the term
of an agreement." Georgetown Holiday Inn, 235 NLRB 485, 486 (1978). /4/
The Board has not treated the presumption favoring the disclosure of
names and home addresses as an irrebuttable one. Disclosure need not be
made in situations where, for example, the evidence discloses that a
union has acted in a manner which leads to the conclusion that the
employees whose addresses would be disclosed would be in imminent danger
if the union knew where they lived. See, for example, Shell Oil Co. v.
NLRB, 457 F.2d 615 (9th Cir. 1972). There is no such contention in this
case.
V. Conclusion
We have considered the entire record in this case as well as the
amicus submissions filed in response to our notice in the Federal
Register. We conclude that the release of names and home addresses to
the Union is not prohibited by law, is necessary for the Union to
fulfill its duties under the Statute, and meets the other requirements
of section 7114(b)(4).
Respondent was required to furnish the names and home addresses
requested by the Union without regard to whether alternative means of
communication were available or adequate. Respondent's refusal to
furnish the requested information violated section 7116(a)(1), (5) and
(8) of the Statute.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, it is ordered that the Farmers Home Administration Finance
Office, St. Louis, Missouri shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, AFL-CIO, Local 3354, the exclusive representative
of its employees, the names and home addresses of all employees in the
bargaining unit it represents.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights assured them by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request by the American Federation of Government Employees,
AFL-CIO, Local 3354, the exclusive representative of its employees,
furnish it with the names and home addresses of all employees in the
bargaining unit it represents.
(b) Post at all its facilities where bargaining unit employees
represented by the American Federation of Government Employees, AFL-CIO,
Local 3354 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 a senior official of the Farmers
Home Administration Finance Office, St. Louis, Missouri, and shall be
posted and maintained for 60 consecutived 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 insure that such Notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Privacy Act of 1974, 5 U.S.C. Section 552a (1982).
(2) Freedom of Information Act, 5 U.S.C. Section 552 (1982).
(3) The National Labor Relations Act (NLRA) does not contain a
provision equivalent to section 7114(b)(4) of the Statute. Rather,
unions' rights to receive information are an outgrowth of the obligation
to bargain in good faith under section 8(a)(5) of the NLRA. For a
discussion of the private sector obligation see NLRB v. Acme Industrial
Company, 385 U.S. 432 (1967). See also Prudential Insurance Co. v.
NLRB, 412 F.2d 77 (2d Cir.), cert. denied, 396 U.S. 928 (1969), where
the court rejected the company's arguments that providing names and home
addresses was unnecessary because adequate alternative means of
communication (bulletin boards, grievance committees, hand
distributions, and union meetings) were available to the union. As for
the relevance of the information, the court stated that "(i)t seems
manifest beyond dispute that the Union cannot discharge its obligation
unless it is able to communicate with those in whose behalf it acts."
Id. at 84.
(4) See also Armstrong World Industries, Inc., 254 NLRB 1239, 1244
(1981), where the Administrative Law Judge, whose decision was adopted
by the Board, cited the Board's previous decision in Autoprod, Inc., 223
NLRB 773 (1973), and stated that the Autoprod decision "appears to state
flatly that a union is entitled to the addresses of unit employees,
whether or not those addresses could be obtained by other means and, a
fortiori, whether or not the union might be able to disseminate
information to unit employees by other means than mailing." This
statement also appears in the ALJ's decision in Harco Laboratories,
Inc., 271 NLRB 1397, 1398 (1984), which was also adopted by the Board.
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, AFL-CIO, Local 3354, the exclusive
representative of our employees, the names and home addresses of all
employees in the bargaining unit it represents.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL, upon request by the American Federation of Government
Employees, AFL-CIO, Local 3354, the exclusive representative of our
employees, furnish it with the names and home addresses of all employees
in the bargaining unit it represents.
(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 its provisions, they may communicate directly with the Regional
Director, Region VII, Federal Labor Relations Authority, whose address
is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose
telephone number is: (303) 837-5224.