[ v24 p43 ]
24:0043(5)CA
The decision of the Authority follows:
24 FLRA No. 5
DEFENSE MAPPING AGENCY AEROSPACE
CENTER, ST. LOUIS, MISSOURI
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1827
Charging Party
Case No. 7-CA-20482
(19 FLRA No. 85)
DECISION AND ORDER ON REMAND
I. Statement of the Case
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the Eighth Circuit. The question
before the Authority is whether it is an unfair labor practice under the
Federal Service Labor-Management Relations Statute (the Statute) for the
Respondent (Agency) to refuse a request, made pursuant to section
7114(b)(4) of the Statute, to provide the Charging Party (Union) with
the names and home addresses of employees in a bargaining unit which the
Union exclusively represents.
In a recent Decision and Order on Remand in another case, Farmers
Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101
(1986) (FHAFO), we reviewed the Authority's previous decision concerning
the release of the names and home addresses of bargaining unit employees
to exclusive representatives. We concluded that the release of the
information is not prohibited by law, is necessary for unions to fulfill
their duties under the Statute, and meets all of the other requirements
established by section 7114(b)(4). We also determined that release of
the information is generally required without regard to whether
alternative means of communication are available. Consistent with our
decision on remand in FHAFO, we conclude that Respondent's refusal to
provide the Union with the names and home addresses sought in this case
violated section 7116(a)(1), (5) and (8) of the Statute. We therefore
vacate the Authority's previous decision in this case.
II. Facts
The Union requested the names and homes addresses of the unit
employees it represented. The Respondent denied the request on the
ground that the information was not maintained in a form which was
reasonably available. The Respondent also contended that the home
addresses in the employees' personnel records were not current, and that
to retrieve the specific information from either its personnel records
or its computerized payroll system would be unnecessarily costly and
time consuming.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondent failed to comply with the
requirements of section 7114(b)(4) of the Statute in violation of
section 7116(a)(1), (5) and (8) of the Statute when it refused to
provide the Union, upon request, with the names and home addresses of
all unit employees represented by the exclusive representative. The
Judge found that: (1) the home addresses of unit employees, while not
maintained in a discrete list, were available both in employees'
personnel files and in the Respondent's data banks; (2) the cost of
retrieving this data was not unreasonable; (3) it "seems axiomatic"
that a union must be able to communicate effectively with the employees
it represents; and (4) the sources of communication available to the
Union were neither effective nor reasonable. The Judge concluded that
the Respondent must apply the Union with names and home addresses and
that the Privacy Act /*/ is not a bar to such disclosure.
IV. Previous Decision of the Authority
In its previous decision in this case, Defense Mapping Agency
Aerospace Center, St. Louis, Missouri, 19 FLRA No. 85 (1985), the
Authority followed the precedent established in the original FHAFO case,
19 FLRA No. 21 (1985). The Authority concluded that the release of home
addresses was not required pursuant to section 7114(b)(4) of the Statute
because the disclosure of such information was "prohibited by law,"
specifically the Privacy Act. The Union appealed. National Federation
of Federal Employees, Local 1827 v. FLRA, No. 85-2202 (8th Cir.). The
Authority requested that the court remand the case. The Authority also
sought remand from the courts in FHAFO and two other cases which had
been appealed and presented substantially identical issues. The courts
granted the Authority's requests in the FHAFO case, American Federation
of Government Employees, Local 3354 v. FLRA, No. 85-1493 (D.C. Cir.)
(reviewing 19 FLRA No. 21); in Philadelphia Metal Trades Council v.
FLRA, No. 85-1625 (D.C. Cir.) (reviewing 19 FLRA No. 107); and in this
case. The U.S. Court of Appeals for the Second Circuit, however, denied
the Authority's remand request in one case, Social Security
Administration, Northeastern Program Service Center, 19 FLRA No. 108
(1985) and issued a decision. The Second Circuit reversed the
Authority's holding that the release of names and home addresses was
"prohibited by law," i.e., the Privacy Act, under section 7114(b)(4) of
the Statute. American Federation of Government Employees, Local 1760 v.
FLRA, 786 F.2d 554 (2nd Cir. 1986). The Authority then decided to
review the entire issue of the release of employees' names and home
addresses and invited agencies, unions and interested persons to submit
amicus briefs addressing the issue. A number of amicus submissions were
received. Additionally, the Respondent in this case submitted a
supplemental brief subsequent to the Eighth Circuit's remand and the
Union filed a response.
V. Postions of the Parties
In its supplemental submission, the Respondent contends that the
disclosure of employees' home addresses is not permitted under the
"routine use" exception of the Privacy Act, 5 U.S.C. Section 552a(b)(3).
The Respondent argues that the release of such information is not
required by the Office of Personnel Management (OPM) in a notice
published by OPM which defines the routine use of personnel records.
The Respondent maintains that in determining whether release of data is
a routine use, it must be shown that the release does not result in a
clearly unwarranted invasion of personal privacy. The Respondent urges
the Authority to find, consistent with its prior decision, that the
release of home addresses in this case would constitute a clearly
unwarranted invasion of personal privacy.
In its response, the Union contends that when a request is made for
material contained in an employee's personnel records, the test
established by OPM's routine use notice is whether such information is
necessary and relevant to the Union's representational duties. The
Union further urges the Authority to adopt the view of the Second
Circuit in AFGE Local 1760 v. FLRA, 786 F.2d 554, that a union's need
for home addresses outweighs employees' "modest" privacy interest in
that information. Finally the Union contends that the alternative means
of communication available were inadequate, particularly as the Union
wanted to convey a confidential message to the employees it represents
and all of the alternative means of communication would give management
an opportunity to see the Union's messages.
VI. Analysis and Conclusion
As noted above, the Authority in the decision on remand in FHAFO
concluded that the release of the names and home addresses of bargaining
unit employees to the exclusive representative of these employees is not
prohibited by law, is necessary for unions to fulfill their duties under
the Statute, and meets the other requirements of section 7114(b)(4). We
also determined that agencies are required to furnish such information
without regard to whether alternative means of communication are
available or adequate. Based on our decision on remand in the FHAFO
case, we find that the Respondent in this case was required to furnish
the Union with the names and home addresses of the employees in the
bargaining unit. Further in that regard, we find that the names and
home addresses of the unit employees are reasonably available to the
Respondent and that it would not place an undue burden on the Respondent
to provide the Union with the information requested. We conclude that
the Respondent's refusal to furnish the requested information in this
case constituted a violation of section 7116(a)(1), (5) and (8) of the
Statute.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, it is ordered that the Defense Mapping Agency Aerospace Center,
St. Louis, Missouri, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the National Federation of
Federal Employees, Local 1827, the exclusive representative 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
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request by the National Federation of Federal Employees,
Local 1827, the exclusive representative of its employees, furnish it
with the names and home addresses of employees in the bargaining unit it
represents.
(b) Post at all its facilities where bargaining unit employees
represented by the National Federation of Federal Employees, Local 1827
are located, copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by a senior official of the Defense Mapping Agency
Aerospace Center, St. Louis, Missouri, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., November 13, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) Privacy Act of 1974, 5 U.S.C. Section 552a (1982).
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request by the National
Federation of Federal Employees, Local 1827, the exclusive
representative 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 our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL, upon request by the National Federation of Federal
Employees, Local 1827, the exclusive representative of our employees,
furnish it with the names and home addresses of all employees in the
bargaining unit it represents.
(Activity)
Dated: By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material. If employees have any questions concerning this Notice or
compliance with its provisions, they may communicate directly with the
Regional Director, Region VII, Federal Labor Relations Authority, whose
address is: 535 16th Street, Suite 310, Denver, Colorado 80202 and
whose telephone number is: (303) 837-5224.