[ v37 p515 ]
The decision of the Authority follows:
37 FLRA No. 39
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS
DECISION AND ORDER
September 26, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision finding that the Respondent had engaged in the unfair labor practices alleged in the complaint by refusing to furnish, upon request of the Union, the names and home addresses of bargaining unit employees. The Judge granted the General Counsel's motion for summary judgment and denied the Respondent's motion to dismiss the General Counsel's motion. The Respondent filed exceptions to the Judge's decision and the General Counsel filed an opposition to the exceptions.
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), we have reviewed the rulings of the Judge and find that no prejudicial error was committed. The rulings are affirmed. Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions and recommended Order.
As relevant, the Union is the recognized exclusive representative for all General Schedule professional and nonprofessional technical employees in the engineering and associated fields in the Portsmouth Naval Shipyard in a unit that excludes supervisors, managerial executives, and Physical Science Technicians in the Radiological Monitoring Division of the Radiation Control Office. By letter dated April 24, 1989, the Union requested that the Agency furnish it with the names and home addresses for all bargaining unit employees represented by the Union. Since on or about May 11, 1989, and continuing to this date, the Agency has failed to provide the Union with the requested information.
The Judge concluded that the Agency had failed to comply with the requirements of section 7114(b)(4) of the Statute when it refused to provide the Union, upon request, with the names and home addresses of all the unit employees represented by the exclusive representative. Based on the Authority's decision in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986) (Farmers Home Administration) and cases that followed that decision, the Judge concluded the Agency was obligated to furnish the Union with the names and home addresses of unit employees and therefore concluded the Agency's refusal to furnish the information constituted a violation of section 7116(a)(1), (5) and (8) of the Statute.
Courts of appeals for four circuits have enforced Authority orders in cases on the same issue involved here.(1) Further, the Second Circuit reversed a prior Authority ruling that Federal employer agencies were not required to provide employee names and home addresses to unions representing those employees.(2) With the exception of the Seventh Circuit, those courts found, based on the public interest in effective Federal sector collective bargaining as set forth in the Statute, that the Privacy Act did not bar disclosure because disclosure would be required under FOIA.(3)
The courts' approaches have varied but the common denominator in upholding disclosure has been consideration of the special public interest in advancing collective bargaining as set forth in the Statute. For example, the Fourth Circuit, in permitting disclosure of employees' names and home addresses, distinguished an earlier decision(4) arising directly under the FOIA where the same court had refused to allow the release of unit employees' home addresses to a union, by explaining that, in the three consolidated cases under review there, the disclosure was sought under the Statute. United States Dep't of Health and Human Services v. FLRA, 833 F.2d at 1135. The Eighth Circuit, while agreeing that the information was disclosable, took a different view from the other circuits that had reviewed the disclosure issue, by determining that competing privacy and disclosure interests could "optimally" be served by allowing for disclosure only of the names and home addresses of unit employees who do not indicate to their employers that they do not want such data disclosed to the exclusive representative.(5) United States Dep't of Agriculture v. FLRA, 836 F.2d at 1144. More recently, however, in FLRA v. Dep't of the Treasury, Financial Management Service, 884 F.2d 1446 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 863 (1990) (Dep't of the Treasury) the Court of Appeals for the District of Columbia Circuit held that the Privacy Act prohibited disclosure of employees' names and home addresses to the employees' exclusive representatives in light of the Supreme Court's decision in United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 109 S. Ct. 1468 (1989) (Reporters Committee).(6)
III. Positions of the Parties
In its exceptions to the Judge's decision, the Respondent argues that the Authority should apply the reasoning of Dep't of the Treasury that, under Reporters Committee, the Privacy Act bars the disclosure of employees' home addresses to their exclusive representatives. The Respondent also relies on Dep't of the Treasury to argue that the requested data is not releasable as a routine use under the Privacy Act. Additionally, the Respondent maintains that the Judge erred by concluding that the requested information was relevant and necessary to the Union in carrying out its representational duties.
Further, the Respondent argues that, should the Authority not dismiss the complaint in this matter, the only recourse would be to direct that an evidentiary hearing be held. The Respondent argues that such a hearing is warranted because there is insufficient evidence elicited in the summary judgment process on which to base a decision as to the Union's need for the requested information and the availability of alternative means of communication between the Union and unit employees.
The Counsel for the General Counsel maintains that the Respondent's exceptions to the Judge's decision should be denied based on the reasons set forth in the Authority's Farmers Home Administration decision.
IV. Analytical Framework and Previous Decisions
A. Section 7114(b)(4) Of the Statute and the Farmers Home Administration 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 that 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 Farmers Home Administration, the Authority held that agencies are required under section 7114(b)(4) of the Statute to provide, on request, to an exclusive representative the names and home addresses of bargaining unit employees. In that case the Authority held that disclosure of home addresses is "necessary" under section 7114(b)(4) to enable unions to discharge their representational responsibilities. The Authority noted that because communication resulting from at-home mailings to employees is "fundamentally different" from workplace forms of communication, it would not undertake a case-by-case determination of the availability of alternative means of communication. 23 FLRA at 796.
In considering whether disclosure of the data was prohibited by law, the Authority in Farmers Home Administration considered the two relevant exceptions to the Privacy Act's bar to unconsented disclosure of information about individuals: 5 U.S.C. 552a(b)(2) (1988), concerning disclosure required by the Freedom of Information Act (FOIA), 5 U.S.C. 552 (1988); and 5 U.S.C. 552a(b)(3) (1988), relating to disclosure that constitutes a "routine use" of information.
With regard to the Privacy Act's FOIA exception, the Authority held that FOIA Exemption (b)(6)(7) would not bar disclosure and that, therefore, disclosure of the data was not barred by the Privacy Act. The Authority first stated that in section 7101 of the Statute Congress found collective bargaining in the Federal government to be in the public interest. As disclosure would enhance the bargaining process by contributing to a union's ability to communicate effectively with bargaining unit employees, it would enhance the union's ability to fulfill its responsibilities under the Statute. 23 FLRA at 792-93.
The Authority in Farmers Home Administration next held that "the privacy interest of the average employee in his address is not particularly compelling."(8) 23 FLRA at 793. Additionally, the Authority indicated that employees may protect their individual privacy interests by discarding unsolicited mail from the union and requesting that their names be deleted from the union's mailing list. Id. Further, the Authority held that an employer agency's withholding of employee names and home addresses could properly be based on a showing of "imminent danger" to an employee if that data were released. Id. at 798.
The Authority further held that the "routine use" exception to the Privacy Act's prohibition on unconsented release of data also allowed disclosure under section 7114(b)(4). 23 FLRA at 794. The Authority noted that the Office of Personnel Management (OPM) had published a notice of routine use (49 Fed. Reg. 36,956 (Sept. 20, 1984)) for Federal employee personnel files that contain employee names and home addresses. Among the routine uses included in this notice was disclosure to union officials "when relevant and necessary to their duties of exclusive representation." The Authority found this routine use to be essentially the same as the requirement under section 7114(b)(4) of the Statute, that disclosure of data be "necessary for full and proper discussion, understanding, and negotiation of" mandatory bargaining subjects. In view of its finding that the "necessary" standard of section 7114(b)(4) had been met, the Authority also concluded that disclosure falls within the routine use established by OPM.(9)
B. The D.C. Circuit's Decision in Dep't of the Treasury
In Dep't of the Treasury the D.C. Circuit denied the Authority's applications for enforcement in four Authority cases that relied on Farmers Home Administration. First, the court deferred to the Authority's conclusion in Farmers Home Administration that the information disclosed was necessary for the collective bargaining process under section 7114(b)(4), thus agreeing with every circuit court that had previously considered this issue.(10) 884 F.2d at 1449. Further, it found nothing arbitrary or capricious about the Authority's finding that the release of the information met the "necessary" requirement under section 7114(b)(4) even though alternative means of communication may be available. Id. at 1449-50.
However, the court concluded that the Privacy Act barred disclosure of employee names and home addresses by agency employers. The court first concluded that the Authority's reliance on 5 U.S.C. 552a(b)(2), the FOIA exception to the Privacy Act's prohibition on unconsented disclosure, could not survive in light of the Supreme Court's decision in Reporters Committee.(11) 884 F.2d at 1451. The D.C. Circuit in Dep't of the Treasury found that the public interest, as defined by Reporters Committee, was insufficient to outweigh the invasion of employee privacy by the disclosure of employee names and addresses. 884 F.2d at 1451-52. The court rejected the view that the balancing of interests called for in Reporters Committee should be adjusted to recognize the public interest identified in the Statute concerning collective bargaining, noting that the Privacy Act's FOIA exception does not refer to the release of data based on laws other than the FOIA. 884 F.2d at 1453.
The court also rejected the Authority's holding regarding the applicability of 5 U.S.C. 552a(b)(3), the "routine use" exception to the Privacy Act's bar on unconsented disclosure of personal data. The court relied on a June 25, 1987, letter from the then-Director of OPM to the Justice Department, prepared in response to litigation on this issue before the Authority. 884 F.2d at 1453-56. In that letter the Director of OPM adopted the position set forth in an amicus brief submitted by OPM to the Authority in 1986 in connection with pending name and home address cases. The letter stated that OPM's official interpretation of its routine use notice did not encompass release of employee names and home addresses to unions if adequate alternative means of communication exist. The court deferred to this OPM interpretation and rejected the Authority's holding in those cases because the cases under review in Dep't of the Treasury did not demonstrate inadequacy of alternative means of communication.(12) 884 F.2d at 1456.
V. Preliminary Matters
As a preliminary matter, in light of our analysis as set forth below, we conclude, contrary to the Respondent's argument, that the Judge did not err in granting the General Counsel's motion for summary judgment without directing a hearing in this case. The Respondent also contends that the Union has provided no explanation as to why the requested information is relevant and necessary to its representational needs and that adequate alternative means of communicating with unit employees exist. As discussed below, we find as set forth in our Farmers Home Administration decision, 23 FLRA at 796-97, that the requested information is fundamentally relevant to the Union's role as bargaining agent and should be provided whether alternative means of communication are available. Thus, based on that conclusion, we note that opening the record to assess the necessity of the information or the availability of alternative means of communication with the unit employees is not required in order to make a determination as to whether the employees' names and home addresses should be provided, as requested, to the Union.
VI. Analysis and Conclusions
The Authority is required in this case to rule on the interrelationship of three laws - the Statute, the FOIA, and the Privacy Act. In examining and interpreting these laws, our task is to harmonize them to the extent possible. See Pacific Mutual Life Insurance Co. v. American Guaranty Life Insurance Co., 722 F.2d 1498, 1500 (9th Cir. 1984); Orahood v. Board of Trustees, etc., 645 F.2d 651, 654 (8th Cir. 1981); Chamberlain v. Kurtz, 589 F.2d 827, 840 (5th Cir. 1979). Of course, in performing this task, we are guided by the fact that central to the resolution of this case is the construction and application of our Statute to the complexities of Federal sector labor relations. This is a mandate that lies at the very heart of our functions. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 (1983).
In accomplishing our job of harmonizing these three laws, we have carefully reviewed our previous position with respect to the release of employees' names and home addresses to their exclusive representatives in light of the D.C. Circuit's decision in Dep't of the Treasury. The Authority has discretion to determine whether to adopt that court ruling in subsequent cases raising the same issue, especially when, as here, those cases may be subject to review in other circuits. See United States v. Mendoza, 464 U.S. 154 (1984). We have determined that we will not apply the ruling in Dep't of the Treasury as the governing law in this case. Rather, we will continue to look to our earlier decision in Farmers Home Administration for controlling principles in this area.(13)
As discussed below, we believe this approach accomplishes the purposes of all three laws while giving full recognition to the underlying policies of the Statute, whose administration and interpretation has been entrusted to the Authority. In our view the D.C. Circuit's approach in Dep't of the Treasury is incorrect because, among other things, it does not harmonize these three laws. Rather, that decision rests primarily on the standard of "public interest" as defined in Reporters Committee, which we find to be distinguishable here.
As set forth below, we continue to believe that the appropriate public interest to be applied in these cases should be the facilitation of the collective bargaining process in the Federal sector. When this definition is applied herein it is clear that the public interest outweighs the relatively minor privacy interest of employees in the release of their names and home addresses to their exclusive representatives. Additionally, we deem it important that our determination is consistent with private sector law, whereas under the court's interpretation an unwarranted disparity is created between the means available to private and Federal sector unions for communicating with bargaining unit employees.
Finally, we also determine that even if the disclosure of bargaining unit employees' names and home addresses were prohibited under exception (b)(2) of the Privacy Act, it is authorized under exception (b)(3), which permits disclosure of information for a "routine use."(14)
A. The Release of Employees' Names and Home Addresses Is Authorized By 5 U.S.C. 552a(b)(2)
1. The "Public Interest" as Defined By Reporters Committee Is Not Applicable to This Case
In finding our decision in Farmers Home Administration applicable to this case, we note that in relevant part the requirements of section 7114(b)(4) require the Authority to make a determination as to whether (1) disclosure of the names and home addresses of bargaining unit employees is prohibited by law, and (2) the information is reasonably available and necessary within the meaning of that section. We conclude, as have all the courts of appeals that have ruled on the issue, that the requested information was necessary for the collective bargaining process under section 7114(b)(4).(15) However, we do not agree with Respondent's argument that we should adopt in this case the D.C. Circuit's holding in Dep't of the Treasury that the Privacy Act bars disclosure of employee names and home addresses by the Agency.
Initially, in our view, the D.C. Circuit's ruling is premised on an erroneous application of the Supreme Court's decision in Reporters Committee. We see a critical and dispositive distinction between this case and Reporters Committee. The requests for information in this case and in Farmers Home Administration arose under the Statute, whereas the request for information in Reporters Committee arose under the FOIA itself.(16) The Supreme Court reached its conclusion that the rap sheets at issue in Reporters Committee were exempt from disclosure under FOIA Exemption 7(C) by balancing the individual's interest in privacy against the public interest in disclosure, as described above at note 11. It is our view that the Supreme Court in Reporters Committee dealt only with the application of requests for information arising directly under the FOIA and did not speak to the issue of requests for information which arise directly under a disclosure law other than the FOIA itself. We therefore believe that Reporters Committee is inapposite to the approach taken here where the disclosure request arises directly under a disclosure provision of the Statute, a law other than FOIA itself.
Direct application of Reporters Committee to this case would result in treating Federal sector unions like any other member of the public requesting FOIA documents. Ignoring the identity of the union and treating it like any other member of the public might be appropriate in a case where the request for documents arises directly under the FOIA itself. However, such treatment when the request for information arises under section 7114(b)(4) of the Statute would disregard the interrelated rights and obligations under the Statute. Compare United States Dep't of Health and Human Services v. FLRA, 833 F.2d at 1135-36 (court distinguished its decision to allow release of names and home addresses to unions in case arising under the Statute from another decision arising under the FOIA where it denied release of same information to union). Most importantly, it would render irrelevant the significant public interest in disclosure of appropriate information, as set forth in section 7114(b)(4) of the Statute. We believe that such a result is wholly inappropriate because it does not take into account the rights and obligations established by the Statute.
In this regard, we observe that Congress has carefully set out in the Statute specific relationships among Federal sector unions, bargaining unit employees and Federal employer agencies that cannot be ignored. Because a union "is properly concerned with its own status as the bargaining representative," section 7114(b)(4) obligates an employer to provide a union with "information necessary to assess its responsibilities." AFGE v. FLRA, 793 F.2d 1360, 1361 (D.C. Cir. 1986). Significantly, Federal sector unions have a duty of fair representation to employees they represent, imposed by Congress under section 7114(a)(1) of the Statute. Congress has explicitly directed these unions to "represent the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." 5 U.S.C. 7114(a)(1). See also Karahalios v. National Federation of Federal Employees, Local 1263, 109 S. Ct. 1282, 1285-86 (1989); NTEU v. FLRA, 721 F.2d 1402 (D.C. Cir. 1983). Fulfillment of this statutory duty is enhanced by the disclosure of employees' names and home addresses and the improved communications such disclosure promotes. For example, home mailings to employees are an effective means of communicating with represented employees about workplace and work-related issues such as impending workforce reductions, available labor protections and grievance processing procedures.
Further, Federal unions have a statutory duty to bargain with employers whose employees they represent, and in those negotiations appropriate data disclosure can be of critical importance. See Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. at 92. In order to facilitate the negotiation process Congress expressly recognized in section 7114(b)(4) the importance of providing unions with necessary data, when not otherwise barred by law.(17) The disclosure of information that enables a union to have a dialogue with the employees it represents permits a better understanding of the issues under negotiation and thus promotes the "full and proper discussion" desired by the Statute. Therefore, we conclude that disclosure of employee names and addresses assists unions in this representational function as well and thereby "contributes to the effective conduct of public business[.]" 5 U.S.C. 7101(a)(1)(B). Moreover, improved communication between unions and employees can effectuate employees' rights under section 7102 of the Statute to join or otherwise assist the labor organizations that represent them. Indeed, it may have the unintended effect of persuading employees to exercise their right under section 7111(b)(1)(B) to seek to decertify a union as their representative.
In all of these areas, a free exchange of information is more likely to take place away from the workplace and potential surveillance by management. See, e.g., United States Dep't of Health and Human Services v. FLRA, 833 F.2d at 1133 (court agreed with the Authority that home addresses are necessary to the collective bargaining process because that information enables direct communication to take place).
The Dep't of the Treasury decision did not take into account these interrelating statutory rights and obligations in holding that Reporters Committee applied without alteration to cases arising under the Statute. We believe the court was incorrect in disregarding the carefully crafted scheme established by the Statute, and the policy interests it serves. In fact, little is gained by recognizing, as the court did in Dep't of the Treasury, that Congress intended to create a web of special rights and duties among Federal employer agencies, unions, and employees, and then requiring Federal unions to be treated just like any member of the public at large for data disclosure purposes under section 7114(b)(4).(18)
The sole basis given in Dep't of the Treasury by the court for rejecting the policies of the Statute in its FOIA analysis was that exception (b)(2) of the Privacy Act makes no reference to laws other than the FOIA itself. 884 F.2d at 1453. When, as was the case in Reporters Committee, a request for information is made solely under the FOIA, we agree that the only appropriate inquiry is whether the information requested is disclosable under Exemption (b)(6) or another exemption of that statute and the only public interest applicable to that analysis is the public interest enunciated in the FOIA. Accordingly, as the Supreme Court held in Reporters Committee, disclosure in such circumstances depends on the nature of the requested document and its relationship to "the basic purpose of the Freedom of Information Act 'to open agency action to the light of public scrutiny.'" 109 S. Ct. at 1481.
By contrast, the present case involves a request for disclosure made under the Statute and subject initially to the Privacy Act. Although we recognize that exception (b)(2) of the Privacy Act makes no reference to laws other than the FOIA itself, we disagree with the conclusion of the D.C. Circuit that to introduce the purposes of another disclosure statute into the balancing required by FOIA would be an impermissible "imaginative reconstruction." 884 F.2d at 1453. In this respect, both the Senate and House Committee reports indicate that the purpose of Exemption 6 of FOIA requires a balancing of interests between individual privacy and the public's right to information. See S. Rep. No. 813, 89th Cong. 1st Sess. (1965), reprinted in Subcomm. on the Judiciary, Freedom of Information Act Source Book: Legislative Materials, Cases, Articles at 44 (Committee Print 1974) (Leg. Hist.); H.R. Rep. No. 1497, 89th Cong., 2d Sess. (1966), Leg. Hist. 32. The responsibility for performing this balancing requirement rests on the judiciary. H.R. Rep. No. 1497, 89th Cong., 2d Sess. (1966), Leg. Hist. 30.
However, the FOIA itself lacks any statutory standards by which to judge the extent of the public interest in this balancing analysis. See generally Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761 (1967). It has been observed that "[t]he Act is difficult to interpret, and in some respects it is badly drafted." Id. at 761. The methodology for developing those standards is a product of judge-made law. Cf. Reporters Committee, 109 S. Ct. at 1483 (FOIA Exemption 7(C) requires balancing of public and privacy interests, but methodology for measuring these values is judicially devised). Consequently, the courts have a broad range of discretion in its implementation, which means they are free in assessing public interest factors to consider outside laws such as the Statute. Cf. Koch, The Freedom of Information Act: Suggestions For Making Information Available To The Public, 32 Md. L. Rev. 189, 205 (1972) ("Even though the Act permits exemptions only where 'specifically stated,' its ambiguity gives the courts a broad range of discretion in its implementation").
Therefore, although the Privacy Act's FOIA release exception to nondisclosure makes no explicit reference to laws other than the FOIA itself, we believe that the balancing of public and privacy interests under FOIA Exemption (b)(6) cannot be undertaken without reference to the policies of the laws under which a particular case arises. Thus, we have concluded that we must, in applying the balancing test required by Exemption (b)(6), look to the public interest embodied in the Statute that we are mandated to administer. In this respect, we note that when ascertaining the meaning of a law one must look to the language and design of the law as a whole. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). Therefore, we conclude that the statement of the public interest embodied in both sections 7101 and 7114(b)(4) of the Statute must inform any analysis of the relative interests at issue in these cases.
As Congress has clearly stated in section 7101(a)(1)(A): "the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them safeguards the public interest[.]" It is that view of the public interest that underlies section 7114(b)(4), as well as the series of interrelationships under the Statute, and that public interest must, we believe, be protected here.
2. The Appropriate "Public Interest" Outweighs the Relatively Minor Privacy Interest in Releasing Employees' Names and Home Addresses
When the appropriate public interest is recognized, that is, the facilitation of the collective bargaining process in the Federal sector, it is clear that this interest outweighs the relatively minor privacy interest employees may have in the release to their bargaining representative of their names and home addresses. As we have stated above, the collective bargaining process and the representational role of unions in general are strengthened in a number of ways when unions are permitted to communicate more effectively with unit employees.
Initially, as the court recognized in Dep't of the Treasury, it is not "unreasonable" to argue, as the Authority did in Farmers Home Administration, that direct mailings to individual employees constitute an effective and efficient method of communication. 884 F.2d at 1449. Further, that means of communication has identifiable advantages over workplace contacts with employees because the former is "entirely within union discretion" and is not subject to "the time constraints inherent in [the] work environments [or] any restraint the employee may feel as a result of the presence of agency management." 23 FLRA at 796-97. We continue to believe that other means of union-employee communication, such as worksite visits, meetings, bulletin boards and newsletter distributions at the workplace, although valuable representational and organizational tools, do not afford the same comprehensive coverage as can be attained through direct mailings to employees' homes. In the home environment, the employee has the leisure and the privacy to give the full and thoughtful attention to the union's message that the workplace generally does not permit.
Further, we hold that the ability to communicate with unit employees in the most effective manner has a direct and beneficial effect on the bargaining process and on the rights and obligations of union representation, and thus on the public interest as defined by the Statute. For example, effective communications between unions and the employees they represent enable unions to ascertain employees' desires more accurately and thus permit them to formulate bargaining demands more closely attuned to employee interests. This result eliminates time wasted by unions that might otherwise press bargaining demands of no real interest to employees. Further, unions should be able to communicate easily with individual employees with respect to grievances, backpay awards and other employee rights and benefits. Similarly, improved communications make it easier for a union to fulfill its duty of fair representation under section 7114(a)(1) of the Statute. In general, therefore, the ability to communicate effectively outside the workplace should produce a more informed unit member and a more responsive union, without disrupting, and perhaps enhancing, "the efficient accomplishment of the operations of the Government." 5 U.S.C. 7101(a)(2).
In comparison, the privacy interests threatened by the release of the names and home addresses of bargaining unit employees in the instant case are far less compelling than those involved in Reporters Committee. Most circuit courts have concluded there is only a minimal privacy interest in the release of individuals' names and home addresses. United States Dep't of Navy and Philadelphia Naval Shipyard v. FLRA, 840 F.2d at 1137 ("minimal invasion of privacy"); United States Dep't of the Air Force v. FLRA, 836 F.2d at 232 ("minuscule"); AFGE, Local 1760 v. FLRA, 786 F.2d at 557 ("not particularly compelling"); Ditlow v. Schultz, 517 F.2d 166, 170 (D.C. Cir. 1975) ("less than a substantial invasion of privacy"); Getman v. NLRB, 450 F.2d 670, 675 (D.C. Cir. 1971) ("invasion itself is to a very minimal degree"). In one case the intrusion involved in ordering the disclosure of employees' names and home addresses of unsuccessful applicants for research grants was determined to be so "limited" that Exemption 6 balancing was not even triggered. Kurzon v. Department of Health & Human Services, 649 F.2d 65, 69 (1st Cir. 1975).
We acknowledge that any list of names and home addresses is subject to uses that may not have been contemplated when it was originally disclosed. For example, the sale or transmittal of such a list for commercial or charitable purposes could, of course, occur. Nonetheless, in view of the fact that most of the requested names and addresses are no doubt in the local telephone book and members of the group presumably share little in common other than their employer and union representation, we agree with the courts that have discussed this issue that an individual unit employee's privacy interest in this information is minimal. Moreover, as we stated in Farmers Home Administration and repeat here, there is nothing to prevent the employees from immediately disposing of unwanted mail or requesting that their names be omitted from the union's mailing list or any other lists on which their names and addresses may be found.(19) Thus, the employees have the ability to minimize the relatively small invasion of privacy that might occur from the publication to others of their names and addresses.
Finally, we would accord more weight than did the D.C. Circuit to the fact that FOIA Exemption 6 sets forth a narrower standard for evaluating a threatened invasion of privacy than does FOIA Exemption 7(C), at issue in Reporters Committee. See FBI v. Abramson, 456 U.S. 615, 629 n.13 (1982) (substantially greater privacy interest must be involved to warrant withholding under FOIA Exemption 6 than is needed to warrant withholding under FOIA Exemption 7(C)).(20) Although the court in Dep't of the Treasury acknowledged that Exemption 6 precludes only "'a clearly unwarranted invasion of personal privacy' (emphasis added)," whereas Exemption 7(C) precludes disclosure of information that "could reasonably be expected to constitute an unwarranted invasion of personal privacy," it held that that distinction did not affect its finding that the privacy interest prevailed where no countervailing public interest had been shown. 884 F.2d at 1451; 5 U.S.C. 552(b)(7)(C).
In view of our conclusion, stated above, that the interest in disclosure here is substantial and the invasion to privacy is minimal, we hold that the balance tilts in favor of disclosure. Specifically, we conclude that the privacy interest required to outweigh the public interest is less significant in this case than the privacy interest at issue in Reporters Committee. Significantly, in this case no particulars about the individual beyond name, address and bargaining unit status would be disclosed. Further, here the primary intention of disclosure is to inform employees of their statutory rights under the Federal labor statute and to enable them fully and intelligently to exercise those rights. This intended use bears no similarity to the third-party requests for rap sheets at issue in Reporters Committee or to a request for solely commercial purposes at issue in other cases.(21)
Accordingly, it is clear that the public interest served by disclosure far outweighs the privacy interests of individual employees in their names and home addresses.
3. Farmers Home Administration Is Consistent With Private Sector Law
We believe that rejection of our prior ruling in Farmers Home Administration would unnecessarily create discrepancies between Federal and private sector unions regarding communications between unions and the employees they represent. It is well settled under the National Labor Relations Act (NLRA), 29 U.S.C. 151 et seq., that private sector employers are required to provide employees' names and home addresses to unions. See, e.g., United Aircraft Corp. v. NLRB, 434 F.2d 1198 (2d Cir. 1970), cert. denied, 401 U.S. 993 (1971).(22) Indeed, in the private sector unions that are merely campaigning to become exclusive representatives are entitled to employees' names and home addresses. NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Given the nature of the information at issue here, we see no significant reason that warrants different treatment of unions in the Federal sector from unions in the private sector for purposes of disclosure of that data.
In fact, Congress modeled the Authority and the Statute on the National Labor Relations Board and the NLRA. Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 92-93 (1983). It is particularly significant that the Statute states: "experience in both private and public sector employment indicates that the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing . . . safeguards the public interest." 5 U.S.C. 7101(a)(1) (emphasis added).
Further, we believe that Federal sector employees should expect no greater privacy with respect to their exclusive representative under section 7114(b)(4) and the Privacy Act than private sector employees are accorded. While we recognize that the employment records of private sector employees are not covered by the Privacy Act as are those of Federal employees, there is similar balancing by the courts of employees' privacy interests. The Supreme Court made clear in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979), that private sector unions' access to employer-maintained data on employees is restricted only in the case of data that is highly sensitive in nature. The employees' names and home addresses at issue here clearly do not rise to the level of sensitivity under Detroit Edison or comparable private sector cases. See AFGE, Local 1760 v. FLRA, 786 F.2d at 556 ("privacy interest of the average employee in his address is not particularly compelling").
Congress has indicated in section 7114(b)(4) of the Statute that employees have a reduced expectation of privacy regarding information that facilitates collective bargaining. For example, performance appraisals and disciplinary records, information of far greater privacy interest than the names and home addresses of employees, are available to unions under the Statute. See, e.g., AFGE v. FLRA, 811 F.2d 769 (2d Cir. 1987) (employees' official time and attendance records; program reviews and performance appraisals; and various documents bearing on employees' work performance to be provided to union); Dep't of Defense Dependents Schools, Washington, D.C. and Dep't of Defense Dependents Schools, Germany Region, supra, 28 FLRA at 204-05 (employee disciplinary information regarding unit employees and supervisors must be provided to union under section 7114(b)(4)).
Because there is no basis, either in Reporters Committee or the Statute itself, to hold inapplicable in the public sector these well-established private sector labor law principles concerning the release of employees' names and home addresses under the NLRA, we conclude that our decision today comports with both Congressional intent in this area and longstanding precedent.
Accordingly, as we concluded in Farmers Home Administration, we maintain that the public interest is furthered by providing the Union with an efficient method to communicate with unit employees it represents and that this public interest far outweighs the privacy interest of individual employees in their names and home addresses. Consequently, disclosure of the requested information would not constitute a clearly unwarranted invasion of personal privacy and does not fall within the FOIA's exemption (b)(6). Therefore, disclosure of the information is required under the FOIA and, under exception (b)(2) to the Privacy Act, its release is not prohibited by law.
B. Disclosure Is Authorized By 5 U.S.C. 552a(b)(3)
In Farmers Home Administration, we also determined that even if the disclosure of bargaining unit employees' names and home addresses were prohibited under exception (b)(2) of the Privacy Act, it was authorized under exception (b)(3), which permits disclosure of information for a "routine use."
Routine use disclosures are confined to "ones that are 'compatible with the purpose for which [the information] was collected,' 5 U.S.C. 552a(a)(7); ... and within the uses 'described under' 5 U.S.C. 552a(e)(4)(D)." Dep't of the Treasury, 884 F.2d at 1453-54.
The Agency's argument that the recording and use of employees' home addresses are only incidental to the actual records and therefore not consistent with the purpose for which these records were collected is misplaced. In setting forth the purposes for which General Personnel Records are maintained, OPM has indicated that the personnel action reports and other documents "give legal force and effect to personnel transactions and establish employee rights and benefits under pertinent laws and regulations governing Federal employment." 49 Fed. Reg. 36,955 (Sept. 20, 1984). There is no language limiting the portions of the files that might fulfill these purposes. Without question, the Statute, which in section 7101(b) "prescribe[s] certain rights and obligations of the employees of the Federal Government," establishes and governs important employee rights. And, as set forth above, the disclosure provisions of section 7114(b)(4) strengthen and safeguard those rights. As we have already established, the disclosure of employee names and home addresses in response to a section 7114(b)(4) request protects employees' statutory interests and assists a union in its obligation to represent all employees in the unit. Accordingly, we find that release of such information is fully consistent with the purposes for which it has been collected.
With regard to whether disclosure is proscribed because it does not come within the uses set forth by OPM, we adhere to our holding in Farmers Home Administration that disclosure is required by the previously published position taken by OPM regarding the appropriate use of such information.
Although, as discussed below, the guidelines published by OPM and relied on in Farmers Home Administration have since been rescinded, we continue to find persuasive a definition of routine use that looks to whether disclosure of information to a labor organization is relevant and necessary to that organization's exercise of exclusive representation. As we explain below, such a definition was adopted by our predecessor, the Federal Labor Relations Council. Moreover, this standard is substantially the same as that provided by section 7114(b)(4) of the Statute. See 23 FLRA at 794. In the absence of any more definitive explanation of routine use in this context, we will continue to apply our longstanding understanding as to the meaning of this term. In view of the fact that the information is clearly relevant to the union's representational duties and we have found it to be necessary for the proper and effective functioning of collective bargaining, we conclude that disclosure is authorized as a routine use under section (b)(3) of the Privacy Act.
We do not view Dep't of the Treasury as requiring us to change our previous interpretation of exception (b)(3) of the Privacy Act. Finding the record to be "slightly obscure" as to OPM's interpretation of routine use, the court in Dep't of the Treasury deferred to OPM's July 1986 amicus brief to the Authority on the name and home address issue. In that brief, OPM stated for the first time that OPM interpreted its former routine use notice to allow for disclosure of employee names and home addresses to unions only when adequate alternative means of communication are unavailable. These statements of OPM counsel were subsequently endorsed by the former Director of OPM in a June 1987 letter to an Assistant Attorney General for use by employer agencies in name and home address litigation previously brought by employer agencies against the Authority.
We conclude that it is inappropriate for several reasons to defer to OPM's 1986 interpretation of its rules. First, the scope of OPM's 1984 routine use notice was based on Federal sector labor law. The OPM routine use notice was originally promulgated by OPM's predecessor, the Civil Service Commission (CSC). This original notice permitted the disclosure, without specific limitations, of personnel records to labor organizations. 40 Fed. Reg. 54,362 (Nov. 21, 1975). The Authority's predecessor, the Federal Labor Relations Council, had ruled prior to the CSC issuance of a routine use notice that a request for disclosure of personal data from employers is subject to review to determine if the data was "relevant and necessary." See NLRB, Region 17 and David Nixon, 2 FLRC 254, 256 (1974). See also Dep't of Defense, State of New Jersey and National Army and Air Technicians Ass'n, 3 FLRC 285 (1975). Following these determinations, the CSC proposed additional routine uses, including the disclosure of information to officials of labor organizations recognized under Executive Order No. 11491, as amended,(23) "when such information is relevant to personnel policies and practices affecting employment conditions and necessary for exclusive representation by the labor organization." 41 Fed. Reg. 11075 (March 16, 1976). The CSC adopted this routine use, as amended.(24) 41 Fed. Reg. 54522 (Dec. 14, 1976). Thus, CSC's original routine use notice is little more than a codification of previously established Federal sector labor law principles.
We find it inappropriate now to defer on a fundamental labor law issue to the views of an agency (OPM) that is not charged with implementing the Federal sector labor laws while depriving the Authority, which is charged with that responsibility, of the ability to continue to set policy in this area. Central to the determination in this case is the construction and application of our Statute to the complexities of Federal sector labor relations. Insofar as a routine use finding is critical to that determination, we believe that we properly may continue to examine whether disclosure is relevant and necessary to a union's representational functions, without regard to the availability of alternative means of communication.
Second, OPM offered both its position and explanation of that position in its capacity as an amicus curiae supporting the views of agency employers before the Authority, not in its capacity as an executive agency applying law outside a litigation setting. Therefore, OPM's advocacy posture before the Authority at the time OPM stated this position detracts from the deference it might otherwise be accorded.
Third, the interpretation in OPM's amicus brief markedly contrasts with the method OPM had previously used to promulgate interpretations of its routine use notice, i.e., through FPM publication. The Authority recognizes that an agency's interpretation of its own regulations is usually given deference. In order to be given such deference, however, "the interpretation must be publicly articulated some time prior to the agency's embroilment in litigation over the disputed provision." Nordell v. Heckler, 749 F.2d 47, 48 (D.C. Cir. 1984). In view of the litigation-inspired nature of OPM's interpretation and the radical change in the method of publicizing its position, we do not accord great weight to the 1986 pronouncement.(25)
The recent republication by OPM in the Federal Register of routine use "j", without modification, further strengthens our conclusion. On February 5, 1990, after issuance of the D.C. Circuit's decision in Dep't of the Treasury, OPM published a complete text of all its system notices and routine uses of records maintained in the systems. 55 Fed. Reg. 3802, 3803, 3838-42 (Feb. 5, 1990). This publication included administrative changes, several proposed routine uses for various systems of records and the elimination of three systems of records. Id. at 3802. The changes resulted from, among other things, "additions of clarifying language to specific sections of some notices to provide a better understanding of what is to be conveyed by that particular section" and "the addition of a limited number of routine uses." Id. Section j, however, is unchanged from previous publications and reads as follows:
To disclose information to officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.
Id. at 3839-40.
If OPM had wished to place the public on notice as to a new interpretation of routine use "j", it had the perfect opportunity to promulgate this interpretation in the recent Federal Register notice. Indeed, the D.C. Circuit's comment that OPM's interpretation of routine use "j" was "slightly obscure" invited such clarification. Dep't. of the Treasury, 884 F.2d at 1454. That OPM failed to modify this routine use notice through Federal Register procedures when presented with the opportunity to do so gives rise to the inference that the position taken by OPM in litigation before the Authority and the D.C. Circuit reflected a litigation stance adopted for particular cases rather than an official change in policy.
For the foregoing reasons, we view the determination in Farmers Home Administration to be fully applicable here and find that the requested information is authorized as a routine use under exception (b)(3) of the Privacy Act.
Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, the Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the International Federation of Professional and Technical Engineers, Local 4, AFL-CIO, the exclusive representative of certain 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 Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Upon request by the International Federation of Professional and Technical Engineers, Local 4, AFL-CIO, the exclusive representative of certain of its employees, furnish it with the names and home addresses of all employees in the bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees represented by the International Federation of Professional and Technical Engineers, Local 4, 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 the Shipyard Commander, 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 ensure 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 I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
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, upon request of the International Federation of Professional and Technical Engineers, Local 4, AFL-CIO, the exclusive representative of certain 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 employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL furnish, upon request of the International Federation of Professional and Technical Engineers, Local 4, AFL-CIO, the exclusive representative of certain of our employees, the names and home addresses of all employees in the bargaining unit it represents.
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, Federal Labor Relations Authority, Region I, whose address is: 10 Causeway Street, Room 1017, Boston, MA 02222-1046, and whose telephone number is: (617) 565-7280.
(If blank, the decision does not have footnotes.)
1. United States Dep't of Navy and Philadelphia Naval Shipyard v. FLRA, 840 F.2d 1131 (3d Cir.), petit. for cert. dismissed, 109 S. Ct. 632 (1988); United States Dep't of the Air Force v. FLRA, 838 F.2d 229 (7th Cir.), petit. for cert. dismissed, 109 S. Ct. 632 (1988); United States Dep't of Agriculture v. FLRA, 836 F.2d 1139 (8th Cir. 1988), vacated on other grounds and remanded, 109 S. Ct. 831 (1989); United States Dep't of Health and Human Services v. FLRA, 833 F.2d 1129 (4th Cir. 1987), petit. for cert. dismissed, 109 S. Ct. 632 (1988).
2. AFGE, Local 1760 v. FLRA, 786 F.2d 554, 557 (2d Cir. 1986).
3. The Seventh Circuit found that the FOIA itself calls for the disclosure here at issue; and because a union would prevail under the FOIA itself in a suit for that information, there is no point in denying access to the information under the Statute. United States Dep't of the Air Force v. FLRA, 838 F.2d at 231-32.
4. AFGE v. U.S. Dep't of Health and Human Services, 712 F.2d 931 (4th Cir. 1983).
5. The Authority petitioned the Supreme Court for a writ of certiorari to the Eighth Circuit's determination. The Supreme Court vacated the decision and remanded the case to the Eighth Circuit for further consideration in light of the notices of "routine uses" published by the Federal agencies involved in that case. 109 S. Ct. 831 (1989). The Eighth Circuit vacated as moot its decision in view of the Federal agencies' issuances of new notices of "routine uses" providing for the disclosure of name and home addresses to the exclusive representatives. See the Federal agencies' notices of "routine uses" published at 53 Fed. Reg. 44513 (Nov. 3, 1988); and 53 Fed. Reg. 39629 (Oct. 11, 1988).
6. The Authority's suggestion for initial hearing en banc in a group of consolidated cases in the D.C. Circuit that were held in abeyance pending the Supreme Court's action in Dep't of the Treasury was denied on June 29, 1990. See FLRA v. Dep't of Health and Human Services, Region V, Chicago, Illinois, No. 87-1147 and consolidated cases (suggestion for initial hearing en banc denied June 29, 1990).
7. Exemption (b)(6) authorizes withholding information in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(6).
8. In this connection the Authority adopted the Second Circuit's conclusion in AFGE, Local 1760 v. FLRA, 786 F.2d 554, 556 (2d Cir. 1986). In that case the Second Circuit reversed the Authority's ruling before Farmers Home Administration that an employer agency was not required under section 7114(b)(4) of the Statute to release employee names and home addresses to the employees' exclusive representative because such disclosure was prohibited under the Privacy Act.
9. The Authority also held that under section 7114(b)(4) of the Statute the data was reasonably available and normally maintained by the agency in the regular course of business.
10. United States Dep't of Navy and Philadelphia Naval Shipyard v. FLRA, 840 F.2d at 1137-39; United States Dep't of the Air Force v. FLRA, 838 F.2d at 231-32; United States Dep't of Agriculture v. FLRA, 836 F.2d at 1142; United States Dep't of Health and Human Services v. FLRA, 833 F.2d 1129; AFGE, Local 1760 v. FLRA, 786 F.2d at 557.
11. In Reporters Committee the Supreme Court found in relevant part that in FOIA cases involving personal data, the disclosure interest must be measured in terms of its relation to FOIA's central purpose "to ensure that the Government's activities be opened to the sharp eye of public scrutiny." Reporters Committee, 109 S. Ct. at 1482 (emphasis in original).
12. Judge Ruth B. Ginsburg "reluctantly" concurred in the court's Dep't of the Treasury holding, but found it unlikely that Congress had intended to preclude Federal sector unions from obtaining name and home address lists, which are routinely provided to private sector unions. 884 F.2d at 1457. Judge Sentelle concurred in the court's conclusion concerning the Privacy Act, but was of the view that employee names and home addresses were not necessary to a union's engaging in collective bargaining under the Statute. 884 F.2d at 1461.
13. We reject the Agency's argument that it would be "inherently unfair" to find a violation against the Agency here because the D.C. Circuit found no violation against it for nondisclosure of a home address list in Dep't of the Treasury. Agency Memorandum in Support of Exceptions at 14. First, the union requesting the name and home address list in the instant case is not the same union that requested a name and home address list from this Agency in Dep't of the Treasury. The Union in the instant case therefore has not yet had an opportunity to litigate before the Authority its claim to such a list. In our view, it would be unfair to preclude the Union and any others having an exclusive bargaining relationship with the Agency from having their claims heard on the merits by the Authority solely because the Agency prevailed on this issue in one court of appeals in a case involving another union. We know of no rule of law, and the Agency cites none, that requires the Authority to rule in the Agency's favor in this circumstance.
Second, to require the Authority to rule in the Agency's favor in this case based solely on the decision in Dep't of the Treasury would run counter to the policies identified by the Supreme Court in Mendoza. Specifically, the Supreme Court there recognized the desirability of allowing an agency to continue litigating an issue of substantial public interest in other courts after one court has rejected the agency's position on the issue. Mendoza, 464 U.S. at 160. Thus, a decision by the D.C. Circuit should not necessarily dictate the result reached by the Authority in a case that may be the subject of an enforcement or review action in another circuit. Adoption of the Agency's argument by the Authority here, in a case arising in a different part of the country and involving a different combination of parties than did Dep't of the Treasury, would unduly restrict the Authority's ability to ascertain whether a circuit split exists on the issue here involved.
14. We also conclude that the Union's request for information was sufficient to meet the requirements of section 7114(b)(4). See Farmers Home Administration, 23 FLRA at 795.
15. See note 10 above.
16. Cf. NARFE v. Horner, 879 F.2d 873 (D.C. Cir. 1989), cert. denied sub nom., NARFE v. Newman, 58 U.S.L.W. 3654 (U.S. Apr. 17, 1990) (No. 89-1098), a case arising directly under the FOIA.
17. We note that it is well-settled in private sector labor law that the duty of an employer to supply information is part and parcel of the fundamental duty to bargain. See, e.g., NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36 (1967); NLRB v. Truitt Manufacturing Co., 351 U.S. 149, 153 (1956). It is recognized that unions cannot be expected to represent unit employees in an effective manner where they do not process information which "is necessary to the proper discharge of the duties of the bargaining agent." NLRB v. Whitin Machine Works, 217 F.2d 593, 594 (4th Cir. 1954), cert. denied, 349 U.S. 905 (1955).
18. The information an agency is obligated to disclose to a union under section 7114(b)(4) includes a broad range of data necessary to unions' representational rights and responsibilities in general, including information needed for the effective processing of grievances or for informed decision-making as to whether grievance filing is appropriate in a given matter. Indeed, the Authority has long protected the rights of bargaining representatives to obtain information for such purposes. See, e.g., Veterans Administration Medical Center and National Federation of Federal Employees, 32 FLRA 133 (1988) (position title, race, sex, grade and service of employees available); Dep't of Defense Dependents Schools, Washington, D.C. and Dep't of Defense Dependents Schools, Germany Region, 19 FLRA 790 (1985), remanded sub nom. North Germany Area Council v. FLRA, 805 F.2d 1044 (D.C. Cir. 1986), decision on remand 28 FLRA 202 (1987) (disciplinary records); Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 25 FLRA 1060 (1987) (disciplinary records); Veterans Administration Regional Office, Denver, Colorado, 7 FLRA 629 (1982) (names and corresponding alphanumerical designations of employees rated by merit promotion panel); and Department of the Navy, Portsmouth Naval Shipyard, 4 FLRA 619 (1980) (overtime information). Under the D.C. Circuit's decision, the flow of some of this data may be impeded. For example, information such as various documents bearing on employees' performance, disciplinary records and materials concerning alleged discriminatory practices involving individual employees, all of which have been disclosable in the past to assist unions in processing grievances, may no longer be releasable under exception (b)(2) to the Privacy Act if the only public interest recognized is that set forth in Reporters Committee. In our opinion, the failure to obtain such necessary information would diminish the ability of unions to exercise the full range of their representational rights and obligations under the Statute. We do not believe that Congress intended the Privacy Act to affect in this manner the release of information under non-FOIA disclosure statutes.
19. See United States Dep't of Agriculture v. FLRA, 836 F.2d 1139, 1143 (8th Cir. 1988) (observing that the "average employee's privacy interest in his home address is not particularly compelling," but ordering the disclosure of names and home addresses unless the employee requests that information be kept confidential), vacated on other grounds and remanded, 109 S. Ct. 831 (1989).
20. The Supreme Court stated in Reporters Committee that:
Exemption 7(C)'s privacy language is broader than the comparable language in Exemption 6 in two respects. First, whereas Exemption 6 requires that the invasion of privacy be "clearly unwarranted," the adverb "clearly" is omitted from Exemption 7(C). This omission is the product of a 1974 amendment adopted in response to concerns expressed by the President. Second, whereas Exemption 6 refers to disclosures that "would constitute" an invasion of privacy, Exemption 7(C) encompasses any disclosure that "could reasonably be expected to constitute" such an invasion. This difference is also the product of a specific amendment. Thus, the standard for evaluating a threatened invasion of privacy interests resulting from the disclosure of records compiled for law-enforcement purposes is somewhat broader than the standard applicable to personnel, medical, and similar files.
109 S. Ct. at 1472-73 (footnotes omitted).
21. Cf. NARFE v. Horner, supra, 879 F.2d 873 (organization seeking potential members sought list of names and addresses of all recently retired Federal employees receiving annuities); Minnis v. Dep't of Agriculture, 737 F.2d 784 (9th Cir. 1984), cert. denied, 471 U.S. 1053 (1985) (lodge owner requested lists of names and home addresses of all applicants to travel on river by which lodge is located).
22. See also Star Tribune, A Division of Cowles Media Co., 295 NLRB No. 63 (June 15, 1989) (requested information concerning applicants for union-represented positions is necessary and relevant to union's obligation to eliminate discriminatory employment practices); Massillon Community Hospital Ass'n, 282 NLRB 675, 682 (1987) (requested information concerning strike replacements in unit represented by union necessary for contract enforcement); and Georgetown Holiday Inn, 235 NLRB 485, 486 (1978) (same).
23. 3 C.F.R. 861 (1966-1970 comp.).
24. As amended, the routine use provision permitted disclosure to labor organizations "when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions."
25. All three of these factors distinguish the Authority cases under review in the D.C. Circuit and this case from Women Involved in Farm Economics v. Dep't of Agriculture, 876 F.2d 994 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 717 (1990), relied on by the D.C. Circuit in Dep't of the Treasury.