24:0108(13)CA - SSA, Northeastern Program Service Center and AFGE Local 1760 -- 1986 FLRAdec CA
[ v24 p108 ]
24:0108(13)CA
The decision of the Authority follows:
24 FLRA No. 13
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
(19 FLRA No. 108)
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 Second Circuit. American
Federation of Government Employees, Local 1760 v. FLRA, 786 F.2d 554 (2d
Cir. 1986). The question in this case 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 home addresses of employees of the Respondent who
are part of a national, exclusive bargaining unit represented by the
American Federation of Government Employees.
In a recent Decision and Order on Remand in another case, Farmers
Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101
(1986) (FHAFO), we reviewed the Authority's previous decision concerning
the release of the names and home addresses of bargaining unit employees
to exclusive representatives. We concluded that the release of the
information is not prohibited by law, is necessary for unions to fulfill
their duties under the Statute, and meets all of the other requirements
established by section 7114(b)(4). We also determined that the release
of the information is generally required without regard to whether
alternative means of communication are available. Consistent with our
decision on remand in FHAFO, with the Second Circuit's reversal of our
previous decision in this case, and with the Administrative Law Judge's
decision in this case, we conclude that the Respondent's refusal to
provide the Union with the home addresses of bargaining unit employees
violated section 7116(a)(1), (5) and (8) of the Statute.
II. Facts
The Union acts as the representative of the Respondent's employees as
part of a nationwide bargaining unit. The Union requested the names and
home addresses of the unit employees it represents. The Respondent
denied the request for the home addresses on the grounds that the
release of such information would violate the Privacy Act; that the
information was not readily available because it would require the
compilation of addresses from many sources; and that the Union had not
established why the information was relevant and necessary.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondent failed to comply with the
requirements of section 7114(b)(4) of the Statute in violation of
section 7116(a)(1), (5) and (8) when it refused to provide the Union,
upon request, with the home addresses of the unit employees. In
reaching that conclusion, the Judge found that: (1) the information was
relevant and necessary for the Union to communicate effectively with the
unit employees in order to formulate proposals for collective bargaining
purposes; (2) no undue burden would be imposed on the Respondent to
extract the information from sources that were reasonably available;
(3) the alternative means of communication that were available to the
Union did not provide appropriate and reliable access to the employees;
and (4) the Privacy Act /1/ was not a bar to disclosure of the
information.
IV. Positions of the Parties
The parties' positions were set forth in the Respondent's exceptions
and the General Counsel's response in the original case. The Respondent
contended that the Judge's conclusion that an agency must provide a
union with home addresses of bargaining unit employees unless
alternative access to the information exists and is equal to the access
which could be achieved through the use of home addresses is unsupported
by section 7114(b)(4) of the Statute. The Respondent also excepted to
the Judge's conclusion that the Privacy Act did not bar disclosure of
the information. Finally, the Respondent contended that the disclosure
of home addresses would violate employees' rights under section 7102 of
the Statute to refrain from activity supporting a labor organization.
The General Counsel argued that the Judge's decision was correct and
urged the Authority to adopt his findings.
V. Previous Decision of the Authority.
In its previous decision in this case, Social Security
Administration, Northeastern Program Service Center, 19 FLRA No. 108
(1985), the Authority followed the precedent established in the original
decision in the FHAFO case, 19 FLRA No. 21 (1985). The Authority found,
contrary to the Judge, that the Respondent did not commit an unfair
labor practice when it denied the Union's request for the unit
employees' home addresses. The Authority ruled that release of the
information was "prohibited by law," specifically the Privacy Act. The
Union appealed. American Federation of Government Employees, Local 1760
v. FLRA, No. 85-4144 (2d Cir.). The Authority requested that the court
remand the case to address whether disclosure of the information sought
by the Union was "prohibited by law," i.e., the Privacy Act, because of
the applicability of the Privacy Act's "routine use" exception, 5 U.S.C.
552a(b)(3), and such other issues arising under the Statute as might be
appropriate. /2/ The court denied the Authority's request and issued a
decision.
VI. Decision of the Second Circuit
The court reversed the Authority's holding that the release of the
employees' home addresses was "prohibited by law," i.e., the Privacy
Act, under section 7114(b)(4) of the Statute. The court agreed with the
Authority that it was necessary to apply a balancing test under
exemption (b)(6) of the Freedom of Information Act (FOIA), /3/ to
resolve the case, but found that the "privacy interest of the average
employee in his address is not particularly compelling." AFGE Local
1760, 786 F.2d at 556. The court noted Congress' determination that
collective bargaining is in the public interest and also noted its prior
holdings in private sector cases that the mere existence of alternative
means of communication with unit employees is not sufficient to justify
the refusal of a union's request for home addresses. The court agreed
with the Administrative Law Judge in this case that the alternative
means of communication available to the Union were inadequate, and that
the other requirements for the release of home addresses pursuant to
section 7114(b)(4) of the Statute had been met. The court therefore
remanded this case to the Authority to find a violation and require the
Respondent to disclose the unit employees' home addresses to the Union.
The court did not address the "routine use" issue.
The Authority decided to review the entire issue of the release of
employees' names and home addresses, and invited agencies, unions, and
interested persons to submit amicus briefs addressing the issue. A
number of amicus submissions were received. Although the parties in
this case did not submit amicus briefs, the Department of Health and
Human Services and the American Federation of Government Employees did
file amicus briefs outlining their positions.
VII. Analysis and Conclusion
As noted above, the Authority in the decision on remand in FHAFO
concluded that the release of the names and home addresses of bargaining
unit employees to the exclusive representative of those employees is not
prohibited by law, is necessary for unions to fulfill their duties under
the Statute, and meets the other requirements of section 7114(b)(4). We
determined that agencies are required to furnish such information
without regard to whether alternative means of communication are
available. Based on the court's decision in this case and our decision
on remand in the FHAFO case, we find that the Respondent was required to
furnish the Union with the home addresses of the employees in the
bargaining unit. Further, we find that the home addresses of the unit
employees are reasonably available to the Respondent and that it would
not place an undue burden on the Respondent to provide the Union with
the information requested. Finally, we conclude that the Respondent's
refusal to furnish the requested information in this case constituted a
violation of 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 Social Security Administration,
Northeastern Program Service Center. shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the American Federation of
Government Employees, Local 1760, AFL-CIO, the exclusive representative
of its employees, the 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,
Local 1760, AFL-CIO, the exclusive representative of its employees,
furnish it with the home addresses of 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, Local
1760, AFL-CIO are located, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by a senior official of the Social
Security Administration, Northeastern Program Service Center, and shall
be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to 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 II, 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., November 19, 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) The Authority also sought remands in three other cases then
pending in other circuits presenting substantially identical issues.
The review proceedings involved were American Federation of Government
Employees, Local 3354 v. FLRA, No. 85-1493 (D.C. Cir.) (reviewing the
Authority's original decision in the FHAFO case, 19 FLRA No. 21);
Philadelphia Metal Trades Council v. FLRA, No. 85-1625 (D.C. Cir.)
(reviewing 19 FLRA No. 107); and National Federation of Federal
Employees, Local 1827 v. FLRA, No. 85-2202 (8th Cir.) (reviewing 19 FLRA
No. 85). The courts granted the Authority's motions for remand in those
cases.
(3) Freedom of Information Act, 5 U.S.C. Section 552 (1982).
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 by the American
Federation of Government Employees, Local 1760, AFL-CIO, the exclusive
representative of our employees, the 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, Local 1760, AFL-CIO, the exclusive representative of our
employees, furnish it with the home addresses of all employees in the
bargaining unit it represents.
(Activity)
Dated: By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 3700, New York, N.Y. 10278 and whose
telephone number is: (212) 264-4934.