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

 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 are in the
 public interest and safeguards the public interest.
 
    In pursuing the release of this information, the Union also helps to
 promote other important public interests.  The release of this
 information to the Union will serve to ensure that Federal agencies
 observe statutory, regulatory, and collective bargaining agreement
 procedures in removing employees.  As the Supreme Court noted in
 Cornelius v. Nutt, 105 S. Ct. 2882 (1985), one of the central tasks and
 public purposes of the Civil Service Reform Act was to "(a)llow civil
 servants to be able to be hired and fired more easily, but for the right
 reason." 105 S. Ct. at 2891 (quoting S. Rep. No. 969, 95th Cong., 2d
 Sess. 4 (1978)).
 
    Finally, the intrusion into the privacy of these individuals is
 minimized by the limited access to this information, which will be
 released to the Union alone and for the limited purpose of performing
 its representational functions.  There is no indication or cause to
 believe from the record that their identity would become generally known
 as a result of the release of the information.  See Internal Revenue
 Service, Washington, D.C., and Internal Revenue Service, Omaha District,
 Omaha, Nebraska, 25 FLRA No. 13 (1987).  Of course, as we noted in IRS,
 Washington, D.C., if this sensitive information becomes widely
 disseminated, the dissemination will be taken into account in similar
 cases in the future.
 
    In sum, we conclude that the public interest in disclosure of the
 information outweighs the invasion of privacy resulting from the
 disclosure.  As a result, the invasion of privacy is not clearly
 unwarranted within the meaning of exemption (b)(6) of FOIA, and
 disclosure of the information is not prohibited by the Privacy Act.
 
                              IV.  Conclusion
 
    The information requested by the Union is necessary for the Union's
 representation functions under section 7114(b)(4) of the Statute.  The
 data is not prohibited from disclosure under the Privacy Act and its
 disclosure satisfies the other requirements of the Statute.
 Accordingly, the Respondent's refusal to furnish the information
 constituted a failure to comply with section 7114(b)(4), in violation of
 section 7116(a)(1), (5), and (8) of the Statute.
 
                                 V.  Order
 
    The Authority's Order in Army and Air Force Exchange Service (AAFES),
 Fort Carson, Colorado, 17 FLRA 624 (1985), dismissing the complaint in
 Case No. 7-CA-795, is vacated.
 
    The Authority orders that the Army and Air Force Exchange Service
 (AAFES), Fort Carson, Colorado, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to furnish the information requested in
 September 1980 by the American Federation of Government Employees,
 AFL-CIO, Local 1345, the employees' exclusive representative, concerning
 the removal from employment of two individuals who were members of the
 exclusive representative's bargaining unit.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action to effectuate the purposes
 and policies of the Statute:
 
    (a) Furnish upon request of the American Federation of Government
 Employees, AFL-CIO, Local 1345, the employees' exclusive representative,
 the information requested in September 1980 concerning the removal from
 employment of two individuals who were members of the exclusive
 representative's bargaining unit.
 
    (b) Post at its facilities copies of the attached Notice on forms
 furnished by the Authority.  Upon receipt, the forms will be signed by
 the General Manager of the Exchange and be posted and maintained for 60
 consecutive days in conspicuous places, including all bulletin boards
 and other places where notices to employees are customarily posted.
 Reasonable steps will be taken to ensure that these Notices are not
 altered, defaced, or covered by any other material.
 
    (c) Notify the Regional Director, Region VII, Federal Labor Relations
 Authority, within 30 days of this Order and as required by section
 2423.30 of the Authority's Rules and Regulations, of the steps which
 have been taken to comply.
 
    Issued, Washington, D.C., February 27, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
 EFFECTUATE
 THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE
 WE NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to furnish the information requested in September
 1980 by the American Federation of Government Employees, AFL-CIO, Local
 1345, the exclusive representative of our employees, concerning the
 removal from employment of two individuals who were members of the
 exclusive representative's bargaining unit.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of the rights assured by the
 Statute.
 
    WE WILL furnish upon request of the American Federation of Government
 Employees, AFL-CIO, Local 1345, the exclusive representative of our
 employees, the information it requested in September 1980 concerning the
 removal from employment of two individuals who were members of the
 exclusive representative's bargaining unit.
                                       (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 VII, Federal Labor Relations Authority, whose address:
 535 16th Street, Suite 310, Denver, Colorado 80202, and whose telephone
 number is:  (303) 837-5224.