25:1060(89)CA - Army and Air Force Exchange Service (AAFES), Fort Carson, CO and AFGE Local 1345 -- 1987 FLRAdec CA



[ v25 p1060 ]
25:1060(89)CA
The decision of the Authority follows:


 25 FLRA No. 89
 
 ARMY AND AIR FORCE EXCHANGE 
 SERVICE (AAFES), FORT CARSON, 
 COLORADO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1345
 Charging Party
 
                                            Case No. 7-CA-795 
                                             (17 FLRA No. 92)
 
                       DECISION AND ORDER ON REMAND
 
                         I.  Statement of the Case
 
    This case is before the Authority on remand from the United States
 Court of Appeals for the District of Columbia Circuit in American
 Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793
 F.2d 1360 (D.C. Cir. 1986).  The case concerns whether the Respondent
 violated the Federal Service Labor-Management Relations Statute (the
 Statute) by refusing to furnish information requested by the Charging
 Party (the Union) under section 7114(b)(4) of the Statute.
 
    We adopt the court's conclusion that the information requested by the
 Union is necessary for the Union's representational functions as
 provided under section 7114(b)(4)(B).  For the reasons that follow, and
 consistent with the court's remand, we also decide, contrary to
 Respondent's argument, that the information is not prohibited from
 disclosure under section 7114(b)(4) by reason of the Privacy Act, 5
 U.S.C. Section 552a (1982).  Accordingly, we find that the Respondent's
 refusal to furnish the information violated the Statute, and we reverse
 the Authority's prior decision in this case, 17 FLRA 624 (1985).
 
                         II.  History of the Case
 
                                 A.  Facts
 
    In 1980 the Respondent removed from employment two bargaining-unit
 employees for theft.  At the time of their removals, the Union did not
 know the identities of the employees, and had not been asked to
 represent them.  After learning of the removals, the Union requested the
 Respondent to furnish to the Union all data relating to the actions.
 The Respondent's failure to comply with the Union's request gave rise to
 the complaint, alleging that the Respondent had refused to comply with
 section 7114(b)(4).
 
    In the hearing before the Authority's Administrative Law Judge, the
 Respondent conceded that it had refused to furnish the information
 requested by the Union, but contended that it was not obligated to
 furnish the information under section 7114(b)(4) because disclosure of
 the information would violate the Privacy Act.  The Respondent provided
 copies of requested documents for private inspection by the Judge and
 the Authority.
 
                  B.  Administrative Law Judge's decision
 
    The Judge applied a balancing test to determine whether disclosure of
 the information would conflict with the Privacy Act.  He concluded that
 the Respondent acted properly in refusing to disclose the information,
 reasoning that where the Union did not know the identity of the
 individuals and had not been asked to represent them, the individuals'
 private interests outweighed the Union's need for the information.
 Accordingly, the Judge recommended that the complaint be dismissed.
 
                         C.  Authority's decision
 
    In reviewing the Judge's decision, the Authority concluded that
 because the Union did not know the identities of the individuals who had
 been removed and had not been requested to represent them, the General
 Counsel had not shown that the information was necessary for the Union's
 representational functions.  Accordingly, the Authority dismissed the
 complaint without reaching the Privacy Act issues.  17 FLRA at 629.
 
                         D.  Decision of the Court
 
    In Local 1345, 793 F.2d 1360, the D.C. Circuit reversed the
 Authority's decision, and held that the information requested by the
 Union is necessary under the terms of section 7114(b)(4).  The court
 noted, however, that the Authority had not addressed whether disclosure
 of some or all of the information would conflict with the Privacy Act.
 Accordingly, the court remanded the case to the Authority for a
 determination on this issue.
 
                              III.  Analysis
 
    We accept as the law of the case the court's opinion that the
 information which the Union requested is necessary for the Union's
 representational functions under the Statute.  The remaining question is
 whether disclosure of the information is prohibited under section
 7114(b)(4) because disclosure would conflict with the Privacy Act.  We
 conclude that disclosure to the Union of the requested information is
 not barred by the Privacy Act and that the release of the information is
 therefore not prohibited by law.
 
    The Privacy Act generally prohibits the disclosure of personal
 information about Federal employees without their consent.  Section
 (b)(2) of the Privacy Act, 5 U.S.C. Section 552a(b)(2), provides that
 the prohibition against disclosure is not applicable if disclosure of
 the information is required under the Freedom of Information Act (FOIA),
 5 U.S.C. Section 552.  Exemption (b)(6) of FOIA, 5 U.S.C. Section
 552(b)(6), pertinently provides that information contained in personnel
 files may be withheld if disclosure of the information would constitute
 a "clearly unwarranted invasion of personal privacy." As we recently
 stated in Farmers Home Administration Finance Office, St. Louis,
 Missouri, 23 FLRA No. 101 (1986), petition for review filed sub nom.,
 No. 86-2579 (8th Cir. Dec. 23, 1986), to determine whether requested
 information falls within exemption (b)(6), it is necessary to strike a
 balance between an individual's right to privacy and the public
 interests in having the information disclosed.  In striking this balance
 in cases under section 7114(b)(4), we also stated that in view of the
 congressional findings in section 7101 that collective bargaining is in
 the public interest and safeguards that interest, release of information
 which is necessary for a union to perform its statutory representational
 functions promotes important public interests.
 
    We have reviewed the Union's request and the documents provided by
 the Respondent for private inspection in relation to the competing
 interests.  We find that the balance of interests favors the disclosure
 sought by the Union.  Because of the sensitive nature of the requested
 information, release of it would be an invasion of personal privacy.
 However, the issue in these cases is whether on balance this invasion is
 "clearly unwarranted," and in this case we decide that it is not.
 
    We conclude that the documents are necessary and relevant to the
 Union's representational functions under the Statute.  To perform these
 functions in connection with the removals of unit employees, the Union
 must know the identities of the persons who have been removed and the
 basis for the removals.  The Union must also know the procedures
 followed and the policies implemented by management in bringing actions
 against employees.  The Union has requested the information in order to
 perform its functions as an exclusive representative which a