[ v20 p425 ]
20:0425(44)CA
The decision of the Authority follows:
20 FLRA No. 44
DEPARTMENT OF DEFENSE
DEPARTMENT OF THE NAVY
NORFOLK NAVAL SHIPYARD
PORTSMOUTH, VIRGINIA
Respondent
and
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
Charging Party
Case No. 34-CA-40290
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record, including the stipulation of
facts, accompanying exhibits, and the parties' contentions, the
Authority finds:
The complaint alleges that the Respondent violated section
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) /1/ by refusing to provide the Charging
Party (the Union), upon a request made pursuant to section 7114(b)(4) of
the Statute, /2/ with the home addresses of the unit employees
represented by the Union. The Union at all times material herein has
been the recognized exclusive bargaining representative of a unit of all
ungraded employees at the Norfolk Naval Shipyard. The Union sought unit
employees' home addresses in order to fulfill its broad responsibilities
under the Statute, and not in connection with a grievance or any
specific bargaining proposals. The Union sought employees' home
addresses on the basis of Judge Cappello's rationale in Case No.
7-CA-20482, which the Authority has since declined to adopt. See
Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 19 FLRA
No. 85(1985). The Respondent rejected the Union's request, relying on
the decision of the Fourth Circuit in American Federation of Government
Employees, AFL-CIO, Local 1923 v. United States Department of Health and
Human Services, 712 F.2d 931(4th Cir. 1983) (hereinafter AFGE v. HHS),
wherein the Court adopted the lower court's conclusion that an exclusive
representative was not entitled to the home addresses of unit employees
which it had sought pursuant to the Freedom of Information Act (FOIA).
/3/
In a recent decision, Farmers Home Administration Finance Office, St.
Louis, Missouri, 19 FLRA No. 21(1985), petition for review filed sub
nom. American Federation of Government Employees, AFL-CIO, Local 3354 v.
FLRA, No. 85-1493 (D.C. Cir. Aug. 6, 1985) (hereinafter Farmers Home
Administration), the Authority, relying on its prior decision in Army
and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA
No. 92(1985), petition for review filed sub nom. American Federation of
Government Employees, Local 1345 v. FLRA, No. 85-1378 (D.C. Cir. June
21, 1985) (hereinafter AAFES), stated that the disclosure of unit
employees' names and home addresses, like the disclosure of other data
sought pursuant to section 7114(b)(4) of the Statute, requires not only
a case by case determination as to whether the data has been requested,
whether it is normally maintained, whether it is reasonably available,
and whether it is necessary to enable the exclusive representative to
fulfill its representational obligations, but also requires a
determination that the disclosure of the data sought would not be
prohibited by law, including the Privacy Act. /4/ In AAFES, the
Authority decided that, in determining whether the disclosure of any
data sought pursuant to section 7114(b)(4) of the Statute is or is not
otherwise "prohibited by law," i.e., the Privacy Act, it will use the
same balancing test applied by the courts in evaluating whether
information sought under the FOIA should be disclosed or should be
protected from disclosure as a clearly unwarranted invasion of privacy
under the FOIA exemption set forth at 5 U.S.C. 552(b)(6). The
application of the (b)(6) balancing test requires weighing the necessity
of the data for the union's purposes against the degree of intrusion on
the individuals' privacy interests caused by disclosure of the data.
/5/
Guided particularly by the decision of the Fourth Circuit in AFGE v.
HHS, wherein the Court adopted the lower court's determination that the
balance of all factors led to the conclusion that an exclusive
representative was not entitled to the home addresses of unit employees
which it had sought pursuant to the FOIA, the Authority in Farmers Home
Administration applied the foregoing balancing test and concluded that
the exclusive representative there was not entitled to the names and
home addresses of unit employees under section 7114(b)(4) of the
Statute.
As in Farmers Home Administration, the Authority finds that the same
findings and conclusions flow from the similar facts of the present
case. Thus, for the reasons stated in Farmers Home Administration, we
find that the employees' strong privacy interest in their home addresses
outweighs the necessity of the data for the Union's purposes in the
circumstances of this case. Moreover, the record in this case clearly
establishes that alternative means of communication with unit employees
were available to the Union herein. /6/ Further, we find that the
records sought by the Union herein, as in Farmers Home Administration,
i.e., the home addresses of unit employees, are not of the type that
generally must be disclosed pursuant to the FOIA's (b)(6) exemption for
the purposes for which they were sought herein. Thus, the Authority
finds that the disclosure of unit employees' home addresses for the
purposes for which they were sought herein was "prohibited by law" and
that their release by the Respondent therefore was not required pursuant
to section 7114(b)(4) of the Statute. Therefore, the Authority
concludes that the Respondent did not fail to comply with section
7114(b)(4) of the Statute in violation of section 7116(a)(1), (5) or (8)
of the Statute when it refused to provide the exclusive representative
with the home addresses of unit employees. /7/ Accordingly, the
Authority shall order that the complaint be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 34-CA-40290 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., September 30, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1), (5) and (8) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
. . . .
(8) to otherwise fail to refuse to comply with any provision of
this chapter.
/2/ Section 7114(b)(4) provides:
. . . .
Sec. 7114. Representation rights and duties
. . . .
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation--
. . . .
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data--
(A) which is normally maintained by the agency in the regular
course of business; (and)
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining(.)
/3/ Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256
(codified as amended at 5 U.S.C. 552(1982)).
/4/ Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified
as amended at 5 U.S.C. 552a(1982)).
/5/ The interrelationship of the Privacy Act and the FOIA exemption
are set forth more fully in AAFES.
/6/ In this regard, the Union could have communicated with unit
employees, e.g., through the use of its right, pursuant to the parties'
collective bargaining agreement: to meet with new employees; to space
for regular meetings; to Union office space; to a steward system; to
exclusive use of bulletin boards located in each shop; and to access to
the Respondent's newsletter. Further, the record indicates that the
Union also has access to unit employees through the distribution of its
own newsletter to each shop at the Respondent's facilities. The extent
to which some of these means of communication were subject to
restrictions, such as the Union's obligation to submit advance requests
for meeting times, does not in our opinion detract from our finding that
the Union had alternative means of communication available, especially
as we note the long bargaining history of the parties, including matters
with regard to means of communication.
/7/ In so concluding, the Authority does not reach the question of
whether the data sought herein meets the other requirements of section
7114(b)(4) of the Statute.