[ v24 p543 ]
24:0543(60)CA
The decision of the Authority follows:
24 FLRA No. 60
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 4-CA-40452
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent (Agency). The issue is whether it is an unfair
labor practice under the Federal Service Labor-Management Relations
Statute (the Statute) for the Respondent to refuse a request, made
pursuant to section 7114(b)(4) of the Statute, to provide the Charging
Party (Union) with the home addresses of employees of the Respondent's
Atlanta Region who are represented by the Union's National Council of
SSA Field Assessment Locals (AFGE FAO Council) as part of a national
exclusive unit represented by the Union.
In a recent Decision and Order on Remand, 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 the 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 the Respondent's refusal to provide
the Union with the home addresses of bargaining unit employees sought in
this case violated section 7116(a)(1), (5) and (8) of the Statute.
II. Facts
The Union is the exclusive representative for many of the
Respondent's employees, who are grouped in various nationwide bargaining
units. The Union requested the names and addresses of all bargaining
unit employees in the Atlanta Region of the Respondent represented by
the AFGE FAO Council. The FAO Council acts as an agent for the Union in
representing the Respondent's Field Assessment Office (FAO) employees.
The Respondent provided the Union with the names and office addresses of
the unit employees. The Union then clarified its initial request by
specifically requesting the home addresses of the employees. The
Respondent denied the request on the basis that: "Providing such
information would be an invasion of personal privacy and is withheld
under the Privacy Act (5 U.S.C. Section 552a) and Exemption 6 (six) of
the Freedom of Information Act (5 U.S.C. Section 552(b)(6))."
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) when it refused to provide the Union,
upon request, with the home addresses of the unit employees which it had
sought. In reaching that conclusion, the Judge found that the home
addresses of the unit employees were reasonably available; that the
information was necessary for the Union to perform its representational
obligations; that the alternative means of communication available to
the Union were not adequate for effectively communicating with the
employees; and that the Union's need to communicate effectively with
the employees outweighed the minimal individual privacy interest in the
home address information.
IV. Positions of the Parties /1/
In its exceptions, the Respondent contends that the Judge
misinterpretated section 7114(b)(4) of the Statute, being under
consideration. The Union and the Respondent filed amicus briefs in
response to the Authority's invitation. The Union contends that the
Respondent's submission the Privacy Act and the Freedom of Information
Act. The Respondent also argues that the Judge exceeded his authority
in deciding the dispute. Finally, the Respondent contends that the
disclosure of home addresses is contrary to section 7102 of the Statute.
V. Analysis and Conclusion
As noted above, in our decision of remand in FHAFO we concluded that
the release of home addresses of bargaining unit employees to the
exclusive representatives of those 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. Moreover, we
further conclude that the disclosure of home addresses will not
interfere with any employee's right, under section 7102 of the Statute,
"to form, join, or assist any labor organization, or to refrain from any
such activity, freely and without fear of penalty or reprisal." As we
indicated in FHAFO, while a labor organization's desire to communicate
with all the employees in its unit of recognition is consistent with its
statutory responsibility to represent those employees, individual
employees are free to ignore such communications if they so choose.
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 home
addresses of the unit employees. Thus, 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 Department of Health and Human Services,
Social Security Administration, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the American Federation of
Government Employees, AFL-CIO, National Council of SSA Field Assessment
Locals, the exclusive representative of its employees, the home
addresses of all Atlanta Region 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 American Federation of Government Employees,
AFL-CIO, National Council of SSA Field Assessment Locals, the exclusive
representative of its employees, furnish it with the home addresses of
all Atlanta Region employees in the bargaining unit it represents.
(b) Post at all its facilities within the Atlanta Region where
bargaining unit employees represented by the American Federation of
Government Employees, AFL-CIO, National Council of SSA Field Assessment
Locals 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 Regional Commissioner, Atlanta
Region, Social Security Administration, Department of Health and Human
Services, 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 IV, 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., December 18, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 SERVIEC LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request by the American
Federation of Government Employees, AFL-CIO, National Council of SSA
Field Assessment Locals, the exclusive representative of our employees,
the home addresses of all Atlanta Region 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 American Federation of Government
Employees, AFL-CIO, National Council of SSA Field Assessment Locals, the
exclusive representative of our employees, furnish it with the home
addresses of all Atlanta Region 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, Region IV, Federal Labor Relations Authority, whose address
is: 1370 Peachtree Street, N.E., Suite 736, Atlanta, GA 30367 and whose
telephone number is: (404) 347-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 4-CA-40452
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Carl Clayton, Esquire
For the Respondent
Regina N. Kane, Esquire
For the General Counsel
Mr. Barry Nelson
For the Charging Party
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq. /2/ , and the Federal Rules and Regulations
issued thereunder, 5 C.F.R. Section 2423.1, et seq., concerns a refusal
to furnish home addresses of bargaining unit employees. This proceeding
was initiated by a charge filed on June 4, 1984 (G.C. Exh. 1(a)). The
Complaint and Notice of Hearing issued on December 19, 1984, and hearing
was set for January 18, 1985 (G.C. Exh. 1(c)). By Order dated January
4, 1985 (G.C. Exh. 1(f)) the hearing was postponed indefinitely; by
Order dated January 8, 1985 (G.C. Exh. 1(g)) the hearing was rescheduled
for February 21, 1985, at a place to be determined; and by Order dated
February 14, 1985 (G.C. Exh. 1(h)) the place of hearing was fixed,
pursuant to which a hearing was duly held on February 21, 1985, in
Birmingham, Alabama, before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the issues
involved, and were afforded opportunity to present oral argument which
each party waived. At the close of the hearing, March 21, 1985, was
fixed as the date for mailing post-hearing briefs which time was
subsequently extended, initially upon timely motion of General Counsel,
with which the other parties concurred, for good cause shown, to April
22, 1985, and later, upon timely motion of Respondent, to which the
other parties did not object, for good cause shown, to May 22, 1985.
Respondent and General Counsel each timely mailed an excellent brief,
received on, or before, May 22, 1985, which have been carefully
considered. Upon the basis of the entire record, including my
observation of the witnesses and their demeanor, I make the following
findings and conclusions:
Findings
1. The American Federation of Government Employees, AFL-CIO,
(hereinafter, also referred to as "AFGE") is the exclusive
representative of certain of Respondent's nonprofessional and
professional employees as more fully set forth in the Agreement of the
Parties (G.C. Exh. 5, Recognition and Coverage, p. 1). AFGE, in turn,
has various national councils including the AFGE National Council of SSA
Field Assessment Locals (G.C. Exh. 5, Art. 4, Section 2 A, p. 7, Tr.
12)(hereinafter referred to as the "Union"). Mr Barry Nelson is the
Administrative Director of the Union; a Regional Vice President for
Field Assessment for the Atlanta Region; and is a member of the AFGE
General Committee representing the Social Security Administration (Tr.
12).
2. By letter dated April 13, 1984 (G.C. Exh. 2), Mr. Nelson,
pursuant to Section 14(b)(4) of the Statute, requests:
"(1) The names of all bargaining unit employees in the Atlanta
Region represented by the National Council
of SSA Field Assessment Locals, and;
"(2) The addresses of all unit employees identified
above.
. . . ." (G.C. Exh. 2).
3. By letter dated April 27, 1984, Respondent supplied the names and
addresses (office addresses) of all bargaining unit employees as
requested (G.C. Exh. 3 and Enclosure 1). As the Enclosure shows, there
were 171 bargaining unit employees in various Branches or Sections at
the following locations:
101 Marietta Tower
Atlanta, Georgia
Special Studies and Analysis Branch
(Suite 2510)
ISI Analysis Branch
(Suite 2626)
Disability Analysis Branch
(Suite 2609)
Evaluation Staff
(Suite 2608)
1776 Peachtree Street, N.W.
Atlanta, Georgia
Atlanta Satellite Office
(Suite 410 North)
330 Biscayne Boulevard
Miami, Florida
Miami Field Station
2001 12th Avenue North
Birmingham, Alabama
Birmingham Satellite Office
RSI Analysis Branch
There were 96 unit employees at 101 Marietta Tower Atlanta; 20 at
1776 Peachtree Street, Atlanta; 4 at Miami; and 51 at Birmingham. Of
the 171 unit employees, only 30 are members of the Union (Tr. 32).
4. By letter dated May 11, 1984, Mr. Nelson stated that what he
really wanted was the home addresses of all unit employees, not their
office addresses (G.C. Exh. 4).
5. By letter dated May 25, 1984, Ms. Maxine McNutt, Director, Field
Assessment Office, declined to supply the home addresses of unit
employees stating, in part, as follows:
". . . The request for home addresses . . . is denied.
Providing such information would be an invasion of personal
privacy and is withheld under the Privacy Act and Exemption 6(six)
of the Freedom of Information Act." (G.C. Exh. 5).
6. The current National Agreement of the Parties (G.C. Exh. 6)
provides, in part, as follows:
Article 11, Section 4 - Public Address System "The
Administration will continue to make the public address system
available with extablished practices to those facilities where
union use was in effect as of June 10, 1980."
Article 11, Section 6 - Other Facilities and Services "The
Administration agrees to furnish, where available, customary and
routine services . . . Such services include internal mail (for
other than mass mailings) . . . ."
Article 12, Section 1 - Bulletin Board (management must
provide)
Article 12, Section 2 - Distribution of Union Publications
"A. Official publications of the Union may be distributed on
SSA property by union representatives during the non-duty time of
the Union representatives who are distributing and the employees
receiving the materials . . . .
"B. The Administration agrees to distribute officially
designated union newsletters on a desk-to-desk basis in
Headquarters, Program Service Centers and Data Operations Centers.
This will not preclude employer distribution in other
installations if mutually agreed to.
"This distribution will be limited to four (4) times per year
unless mutually agreed to . . .
Article 6 - Addressing New Employees
"Where such practices exist as of the effective date of the
agreement (June 11, 1982), the Administration will continue to
provide the Union an opportunity to address new employees during
orientation sessions . . . ." (G.C. Exh. 6).
7. In his requests of April 13 (G.C. Exh. 2) and May 11 (G.C. Exh.
4), Mr. Nelson stated no reason or justification for the addresses of
unit employees, and Respondent's only stated reason for denying home
addresses was, as set forth in General Counsel's Exhibit 5, Subsection
(b)(6) of the Freedom of Information Act and the Privacy Act (Tr. 17).
8. Mr. Nelson testified that he had several reasons for wanting the
home addresses: First, to get employee input in connection with the
imminent negotiations of a supplemental agreement (authorized by Article
5 of the National Agreement) (Tr. 17-18, 19-20, 21, 22-23, i.e.,
solicitation of opinions (Tr. 56). Second, to alert bargaining unit
employees to office closings (Tr. 23-24; 25) and reorganizations (Tr.
30-32). Third, to advise unit employees of settlement agreements
(unfair labor practice charge)(Tr. 28). Fourth, to let employees know
the type of activities the Union is conducting (Tr. 29).
9. The Union has a steward for unit employees at each building
except at Miami (Tr. 37-38).
10. Mr. Nelson stated that the Union had never distributed material,
pursuant to Article 12, Section 2 A, in the Atlanta Region (Tr. 39);
nor had it ever used Respondent's internal mail system (Article 11,
Section 6)(Tr. 39-40). Mr. Nelson stated that the Union had no ". . .
agreement with the FAO portion to do any distributing for us." (Article
12, Section 2 B)(Tr. 40).
11. The Union has a publication, The Sentinel, which is issued
sporadically (Tr. 42-43). Copies are placed in racks at the Program
Service Center in Birmingham from which employees may take a copy,
copies are mailed "sometimes" to members, and management distributes
copies desk-to-desk in the Program Service Center up to four times per
year (Tr. 43). The Sentinel is not distributed at Atlanta but copies
are sent to stewards for posting on the bulletin boards (Tr. 44).
12. Mr. Nelson stated that he had not used the bulletin boards to
solicit input because ". . . I don't necessarily want . . . management
to know that (sic) I am asking employees" (Tr. 45).
13. Individual employee records (standard Form 7-B (G.C. Exh. 8) are
retained by each employee's immediate supervisor (G.C. Exh. 9, Tr.
47-48) and each card has a place for the employee's home address. Home
addresses also are shown on each employee's pay slip (Tr. 49). A copy
of each pay slip goes to the timekeeper who is located in the same
office as the staff, i.e., each staff has its own timekeeper (Tr.
49-50). Personnel files for Field Assessment employees are maintained
in the Atlanta Regional Office (Tr. 50) and home addresses are shown on
the SF-171. Although Regulations (G.C. Exh. 10) provide for locator
files, Mr. Cannon Hassell, Manager of the RSI Analysis Branch,
Birmingham, since January, 1983, and previously Director of the Division
of Payment and Eligibility Quality, in FAO (Field Assessment Office),
and, prior to that, Director of the Office of Quality Assurance for the
Atlanta Region, Atlanta, Georgia, testified that neither the FAO Region
in Atlanta nor Birmingham maintains locator cards either in individual
offices or in a central file (Tr. 84, 86, 90, 91) and that the only
place the home addresses are kept is on the B-7 and on the pay slip
which is kept by the timekeeper (Tr. 84). Mr. Hassell testified that to
generate a list of names with home addresses of every FAO employee it
would be necessary to go either to each supervisor and ask the
supervisor to supply the data from the 7-B files which he maintains, or
to go to each timekeeper and have each timekeeper pull the names and
addresses from the pay slips /3/ (Tr. 84-85).
14. Mr. Grady K. Lancaster, a Quality Case Analyst, RSIAB,
Birmingham, stated that he objected to his home address being given to
the Union or anyone, ". . . unless I personally authorize it." (Tr.
95-96). He further stated, ". . . my privacy is my privacy, and I don't
want anyone to infringe upon it." (Tr. 96).
15. Ms. Martha Foster, Secretary to the Branch Manager, RSI Analysis
Branch, stated that she personally objected to delivery of her home
address to the Union without her knowledge and consent (Tr. 97-98). Ms.
Foster stated that there had always been time enough on breaks and at
lunch to talk about union matters (Tr. 98) and at no time had any Union
representative asked for her home address so it could go on a Union
mailing list (Tr. 98). She stated that she received the Sentinel at
work (Tr. 99).
16. Mr. Brack Hawkins, a Reviewer and Examiner in QA, RSIAB, stated
that he preferred that his home address not be given to the Union; that
he found it objectionable that his home address be released to the Union
without his knowledge and consent (Tr. 100). Mr. Hawkins had joined the
Union at one point but had ". . . got out" (Tr. 101).
Conclusions
This case involves only the request for names and home addresses of
bargaining unit employees in the Atlanta Region represented by the
National Council of SSA Field Assessment Locals - a total of about 171
employees. It is clear that this request is only the beginning, as Mr.
Nelson stated that "We were going to go to each region and ask for them
individually . . . ." (Tr. 54-55). No list exists in the Atlanta Region
containing the collected names and home addresses of bargaining unit
employees; however, there is no dispute that the names and home
addresses are maintained on individual employees, on the individual
employee record (Standard Form 7-B) kept by the employee's immediate
supervisor or on the individual employee's pay stub kept by the
timekeeper. The cost of preparing the requested list of names with home
addresses was neither shown nor established. The record shows only that
in Birmingham if the 7-B files were used it would be necessary to obtain
the data from 8 managers; and if the payroll stubs were used the data
would have to be obtained from three timekeepers. The number of people
that would be involved in Atlanta (101 Marietta Tower and 1776 Peachtree
Street) was not shown. Since there is one manager at Miami and only
four unit employees, it is assumed that only one person would be
involved at Miami. Consequently, although Respondent would be required
to copy names and addresses from individual employee records, either
from for 7-B's or payroll stubs, such task is neither so burdensome nor
costly as to warrant denial of the Union's request if the Union's
request is consistent with Section 14(b)(4) of the Statute and is not
prohibited by the Privacy Act, 5 U.S.C. Section 552a. Section 14(b)(4)
of the Statute requires an agency to furnish to the exclusive
representative, upon request, data;
"(B) which is reasonably available and necessary for full and
proper discussion, understanding and negotiation of subjects
within the scope of collective bargaining . . . ." (5 U.S.C.
Section 7114(b)(4)(B)).
As noted above, the names and addresses of bargaining unit employees
are reasonably available; and the record shows that the Union sought
the home addresses principally to get employee input in connection with
negotiation of a supplemental agreement and to alert bargaining unit
employees of office closings and reorganizations, although the Union
stated that italso wanted the adresses to advise unit employees of
settlement agreements and to let them know the type of activities the
Union was conducting. Is the desire to obtain input from non-members in
connection with negotiation of a supplemental agreement necessary for
full and proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining? While conceivably helpful,
in all candor, I have always viewed such professed justification with
great skepticism. My skepticism stems, in part, from long recognition
that views of non-members are not always received with enthusiasm by
members, see, for example, American Federation of Government Employees,
Local 2000, AFL-CIO, 14 FLRA No. 85 (1984); and, in part, from the fact
that unions through their members, even though membership may, as here,
be small, and through their day-to-day confrontation with problems
affecting the bargaining unit are well aware of areas where they desire
changes in, or additional to, their collective bargaining agreements.
Indeed, in Magma Copper Company, San Manuel Division, 208 NLRB 329
(1974) the National Labor Relations Board stated:
". . . A list of employees' names and addresses is clearly not
a matter pertaining to the negotiation of new 'rates of pay,
wages, hours of employment or other conditions of employment . .
.'" (208 NLRB at 329) (the Board held, however, that names and
addresses were necessary to fulfill the union's statutory
obligation to administer the agreement on behalf of all unit
employees and, because alternate means of communicating with
employees (bulletin boards, stewards, distribution of literature)
were inadequate, ordered the names and addresses furnished). /4/
In Shell Oil Co. v. NLRB, 457 F. 2d. 615 (9th Cir. 1972) denying
enf't of 190 NLRB 101 (1971) (because the Company's fear of harassment
of non-union employees reasonable justified its refusal to supply names
and addresses of all unit employees), the employer had offered to supply
the Union names and addresses of all bargaining unit employees who
consented or to furnish the names and addresses of all bargaining unit
employees to an independent mailing service which, upon receipt of
sealed and stamped envelopes, would adress the envelopes and mail them
to employees at their home addresses, the employer to pay the full
additional cost of the mailing service without limitation on the number
or frequency of mailings desired by the union. Notwithstanding the
offer of a means to communicate freely with all employees at their home
addresses, the union insisted upon it having the home addresses in
order, as the union's district director testified, in part:
". . . that it was essential for the Union to be able not only
to mail communications to the employees but also to have 'its
leadership' make personal visits to employees' homes in order to
organize them, 'close the ranks,' . . . ." (457 F. 2d at 617)
I strongly suspect than in all requests for names and home addresses
a primary objective, whether admitted or not, is organization. (See,
dissenting opinion of Judge Friendly, Prudential Insurance Company v.
NLRB, 412 F. 2d at 85 (2d/Cir. 1969). If proper for purposes of
organization prior to a representation election, Wyman Gordon, supra;
Exelsior Underwear, supra, coupled with a union's statutory obligation
to administer the agreement, Magma Copper, supra, production of names
and home addresses in non-representation election situations has,
certainly, been upheld by the courts where there was no clear danger of
harassment of non-union employees (e.g., following strikes) and
alternate means of communication were inadequate. United Air Craft
Corp. v. NLRB, 434 F. 2d 1198 (2d/Cir. 1970), cert. denied, 401 U.S. 993
(1971); Prudential Insurance Co. v. NLRB, 412 F. 2d 77 (2d/Cir. 1969),
cert. denied, 396 U.S. 928 (1969); Standard Oil Co. of California v.
NLRB, 399 F. 2d 639 (9th Cir. 1968). Indeed, in Prudential Insurance
Co., supra, the Court stated, in part, as follows:
". . . In this instance it is urgent so that the exclusive
bargaining representative of the employees may perform its broad
range of statutory duties in a truly representative fashion and in
harmony with the employees' desires and interests. Because this
information is therefore so basically related to the proper
performance of the Union's statutory duties, we believe any
special showing of specific relevance would be superfluous.
"Prudential's complaint that the Union may use this information
to solicit new members within the unit is simply of no moment. As
the Board has so appropriately indicated, there is no clear
distinction between informing non-member agents about the benefits
it has obtained and hopes in the future to secure for them and its
solicitation of their support. In any case, Union solicitation is
itself hardly an evil - especially where, as here, the Union is
already the exclusive bargaining representative of the employees
it is soliciting . . . ." (412 F. 2d at 84-85).
In Internal Revenue Service, Office of the District Director,
Jacksonville District, Jacksonville, Florida, A/SLMR No. 214, 2 A/SLMR
523 (1972), although the Hearing Examiner, whose recommended decision
was adopted by the Assistant Secretary, cited with approval NLRB and
court decisions that a collective bargaining representative is entitled,
upon request, to receive from an employer the names and addresses of the
employees in the bargaining unit if it has no other effective means of
communicating with them, he recommended that the complaint be dismissed
because Complainant had failed to show that it did not have other
effective means of communicating with employees. On appeal to the
Federal Labor Relations Council, the Council sustained the Assistant
Secretary's dismissal of the complaint; however, the Council stated, in
part, as follows:
". . . in our opinion, the implementation of the provisions of
section 10(e) of the Order /5/ requires that the exclusive
representative have effective means of communicating with unit
employees. Moreover, agencies, as part of their obligation to
consult, confer, or negotiate with an exclusive representative,
must where appropriate, provide an exclusive representative with
means of communicating with unit employees and a failure to do so
would constitute a violation of Section 19(a)(6).
"A determination of whether an exclusive representative in fact
has effective means of communicating with unit employees must be
made on a case-by-case basis. In many instances, little or no
action by the agency would be necessary to supplement the means of
communication readily available to the union on its own
initiative. On the other hand, in some instances where because of
such factors as the size of unit, geographic dispersion of
employees, isolated duty locations, etc., the union may not have
effective means of communicating with unit employees. In such
situations, as stated above, the proper implementation of the
Order might require that the agency assist the exclusive
representative in facilitating such communication, consistent with
law and regulation, e.g., by providing the union with the periodic
use of the interagency mailing system or addressing envelopes
containing union material and depositing those envelopes in the
U.S. mail for delivery to employees at their home addresses. A
failure to provide the exclusive bargaining representative such
access to employees in the unit, where required, would constitute
a failure on the part of the agency to meet its obligation to
consult, confer, or negotiate . . . in violation of section
19(a)(6) of the Order.
"In the instant case, applying the criteria that a union must
have effective means of communicating with unit employees, the
Assistant Secretary determined, on the basis of the record, that
the union did in fact have effective means of communicating with
the unit employees and, therefore, IRS had no obligation to
provide the Union with additional such means of communication.
Accordingly, the IRS's actions did not violate section 19(a)(6) of
the Order. The Assistant Secretary's decision is clearly
supported by the record and consistent with the purposes of the
Order. 6/
6/ Like the Assistant Secretary, we find it unnecessary in this case
to consider the propriety of the CSC regulation which prohibits an
agency from furnishing a union with the home addresses of employees."
(FLRC No. 72A-50, 2 FLRC 106, 109-110 (1974)).
This remained the situation under Executive Order 11491, as amended.
It must be noted that the Council did not suggest that an agency should
give the Union the home addresses of bargaining unit employees. To the
contrary, the Council went no further than to suggest that where
appropriate: a) the agency permit periodic access to the interagency
mailing system; or b) the agency address envelopes containing union
material and deposit those envelopes in the U.S. mail for delivery to
employees at their home addresses.
Two factors may bar applicability of private sector case law, or the
decision of the Council under the Executive Order, to requests for names
and home addresses under the Statute: First, Section 14(b)(4) of the
Statute which has no counterpart in either the National Labor Relations
Act or Executive Order 11491, as amended. As noted, Section 14
(b)(4)(B) limits an agency's obligation to furnish data, including the
names and home addresses involved herein, /6/ to such data as ". . .
necessary for full and proper discussion, understanding, and
negotiations of subjects within the scope of collective bargaining"
(Emphasis supplied). The Authority has held that there is no violation
if the data, requested by, but not furnished to the Union, were not
necessary and relevant to assist the union in fulfilling its
responsibilities under the Statute, United States Environmental
Protection Agency, Health Effects Research Laboratory, Cincinnati, Ohio,
16 FLRA No. 16, 16 FLRA 52 (1984), and a complaint was dismissed where
the request for names and home addresses was sought for lobbying
purposes and Section 14(b)(4)(B) imposes no duty to furnish the home
addresses for lobbying purposes. Internal Revenue Service, Memphis
Service Center and National Treasury Employees Union, Case No.
4-CA-30371 (OALJ-84-66, May 17, 1984), Administrative Law Judge Decision
Report No. 38 (July 5, 1984). Second, the Privacy Act, 5 U.S.C. Section
552a, enacted December 31, 1974, about eight months after the Counsel's
decision in FLRC No. 72A-50, supra, which has no application to the
private sector. /7/ 5 U.S.C. Sections 552a(a)(1), 552(e). Each of
these factors as applicable to the present request for names and home
addresses is considered hereinafter.
Privacy Act
Three quite separate Acts, enacted at different times over a ten year
period and reflecting different Congressional concerns, are codified as
5 U.S.C. Sections 552, 552a, and 552b. 5 U.S.C. Section 552, P.L.
89-554, is the Freedom of Information Act, was enacted September 6,
1966, and, in essence, concerned disclosure of information to the public
(although, as pertinent here, Section 552(b)(6) excluded from such
disclosure "(6) personnel . . . files . . . the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy." 5
U.S.C. Section 552a is the Privacy Act, P.L. 93-579, was enacted
December 31, 1974, and, in essence, concerned information maintained by
agencies on individuals and its disclosure. 5 U.S.C. Section 552b, P.L.
94-409, is the Sunshine Act, was enacted September 13, 1976, and, in
essence, concerns open meetings.
Respondent denied the request for names and home addresses
specifically because, "Providing such information would be an invasion
of personal privacy and is withheld under the Privacy Act (5 U.S.C.
Section 552a) and Exemption 6(six) of the Freedom of Information Act (5
U.S.C. Section 552(b)(6))" (G.C. Exh. 5). At hearing, Respondent
asserted the same defense, coupled with the further contentions that it
had made a reasonable response to the request by supplying the names and
office addresses of the bargaining unit employees requested; /8/ that
the Union has adequate means of communicating with bargaining unit
employees through alternate means; and that the data requested, i.e.
home addresses, is not necessary or relevant within the meaning of
Section 14(b)(B) of the Statute.
5 U.S.C. Section 552a provides, in part, as follows:
. . . .
(4) the term 'record' means any item, collection, or grouping
of information about an individual that is maintained by an agency
. . .
. . . .
(7) the term 'routine use' means, with respect to the
disclosure of a record, the use of such record for a purpose which
is compatible with the purpose for which it was collected.
"(b) CONDITIONS OF DISCLOSURE -- No agency shall disclose any
record which is contained in a system of records by any means of
communication to any person . . . except pursuant to a written
request by, or with the prior written consent of, the individual
to whom the record pertains, unless disclosure of the record would
be --
(2) required under section 552 of this title;
(3) for a routine use as defined in subsection (a)(7) of this
section and described under subsection (e)(4)(D) of this section;
. . . .
"(e) AGENCY REQUIREMENTS -- Each agency that maintains a system
of records shall --
(4) subject to the provisions of paragraph 11 of this
subsection, publish in the Federal Register at least annually a
notice of the existence and character of the system of records,
which notice shall include --
. . . .
(D) each routine use of the records contained in the system,
including the categories of uses and the purpose of such use.
. . . .
(11) at least 30 days prior to publication of information under
paragraph (4)(D) of this subsection, publish in the Federal
Register notice of any new use or intended use of the information
in the system, and provide an opportunity for interested persons
to submit written data, views or arguments to the agency.
"(n) MAILING LISTS. -- An individual's name and address may not
be sold or rented by an agency unless such action is specifically
authorized by law. This provision shall not be construed to
require the withholding of names and addresses otherwise permitted
to be made public.
. . . . "(5 U.S.C. Section 552a(a)(4), 7; (b)(3);
(e)(4)(D), 11; and (n)). (Emphasis supplied).
In addition to the foregoing provisions of the Privacy Act, the
Freedom of Information Act excludes disclosure, inter alia, of:
"(6) personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy." (5 U.S.C. Section 552(b)(6)). /9/
The legislative history of the Privacy Act makes it clear that
employees' addresses were subject to the Act. Thus, Senate Report No.
93-1183, Government Operations Committee, September 26, 1974, to
accompany S. 3418, which passed in lieu of H.R. 16373, states, in part,
as follows:
"The Committee has used the term 'personal information'
throughout the bill . . . Such definition includes the . . .
address, by which the individual is indexed in a file or
retrievable from it." (U.S. Code Congressional and Administrative
News, 93d/Cong., 2d/Sen., 1974, at p. 6946)(hereinafter references
to the Senate Report are referred to as "Legislative History",
followed by the page reference in the U.S. Code Congressional and
Administrative News).
With regard to mailing lists (Section (n) of 5 U.S.C. Section 552a)
the Senate Report states, in part, as follows:
"The bill now prohibits Federal agencies from selling or
renting mailing lists except as authorized by law, but does not
require names and addresses to be kept confidential . . ."
(Legislative History, p. 6946) /10/
The Senate Report, in setting forth the purpose and intent of the
bill, stated, in part:
"Third, the bill establishes certain minimum standards for
handling and processing personal information maintained in the
data banks and systems . . . to this end, it requires every
department and agency to insure, by whatever steps they deem
necessary:
. . . .
"That they refrain from disclosing it unless necessary for
employee duties, or from making it available outside the agency
without the consent of the individual . . ." (Legislative History
at pp. 6917-6918).
However, the broad protection of privacy of "personal information,"
recited as the purpose and object of the bill, was, and is, subject to
two specific statutory exceptions as applicable herein, namely:
disclosure "(2) required under section 552 . . ." and disclosure "(3)
for a routine use . . .", which, in practical effect, render the broad
protection of personal privacy more illusory than real; and, with
respect to names and addresses, the legislative history strongly
suggests that Congress intended far less privacy to names and addresses
than to data collected and maintained under other indicia, for example,
specifically, by social security number.
Privacy Act Exemptions
1. Disclosure required under Section 552 (Freedom of Information
Act). 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. 1963), a panel majority (Circuit Judge Chapman and
District Judge Turk), Chief Judge Winter dissenting, in denying home
addresses requested by the union, concluded that home addresses were not
agency records subject to disclosure under the Freedom of Information
Act because those addresses had nothing to do with the agency's work and
disclosure would shed no significant light on the agency's inner
workings, stating, in part, as follows:
"Further, the records sought are not of the type that must be
disclosed under Section 552(a)(3). Only 'agency records' must be
disclosed . . . The purpose of the Act is 'to pierce the veil of
administrative secrecy and to open agency action to the light of
public scrutiny . . . .' . . . The term 'agency records' includes
only those created or complied by an agency 'in the course of
doing its work . . . .' . . . The home addresses sought by
appellant have nothing to do with the agency's 'work,' and
disclosure thereof would shed no significant light on the agency's
inner workings." (712 F. 2d at 933).
With all deference to the Court of Appeals, this view appears
contrary to that stated by the Supreme Court in Department of the Air
Force v. Rose, 425 U.S. 352 (1976). In Army and Air Force Exchange
Service (AAFES), Fort Carson, Colorado, 17 FLRA No. 92 (1985), the
Authority stated, ". . . The theory of the FOIA, in contrast to the
Privacy Act, is that all records in the possession of the agencies of
the Federal Government must be disclosed upon request unless subject to
a specific FOIA exemption." (Emphasis supplied). This, of course, is
fully considered with the decision of the Supreme Court in Rose, supra,
where the Court stated, in part, as follows:
". . . the Act repeatedly states, 'h at official information
shall be made available "to the public," "for public inspection"'
. . . There are, however, exemptions from compelled disclosure.
They are nine in number and are set forth in Section 552(b). But
these limited exemptions do not obscure the basic policy that
disclosure, not secrecy, is the dominant objective of the Act.
'These exemptions are explicitly made excluseve, 5 U.S.C. Section
552(c) . . .' . . ., and must be narrowly construed . . . ." (425
U.S. at 361).
And with regard to exemption 6, which is the only exemption asserted
in this case, the Court further stated, in part, as follows:
". . . we find nothing in the wording of Exemption 6 or its
legislative history to support the Agency's claim that Congress
created a blanket exemption for personnel files. Judicial
interpretation has uniformly reflected the view that no reason
would exist for nondisclosure in absence of a showing of a clearly
unwarranted invasion of privacy, whether the documents are filed
in 'personnel' or 'similar' files . . . Congressional concern for
the protection of the kind of confidential personal data usually
included in a personnel file is abundantly clear. But Congress
also made clear that nonconfidential matter was not to be
insulated from disclosure merely because it was stored by an
agency in its 'personnel' files. Rather, Congress sought to
construct an exemption that would require a balancing of the
individual's right of privacy against the preservation of the
basic purpose of the Freedom of Information Act 'to open agency
action to the light of public scrutiny.' The device adopted to
achieve that balance was the limited exception, where privacy was
threatened, for 'clearly unwarranted' invasions of personal
privacy." (425 U.S. at 371-372).
2. For a routine use. Subsection (a)(7) defines routine use as
follows:
"(7) the term 'routine use' means, with respect to the
disclosure of a record, the use of such record for a purpose which
is compatible with the purpose for which it was collected." (5
U.S.C. Section 552a(a)(7)).
Subsection (e)(4)(D) and (11) provide that,
"(4) subject to the provisions of paragraph 11 of this
subsection, publish in the Federal Register at least annually a
notice of the existence and character of the system of records,
which notice shall include -- (D) each routine use of the records
contained in the system, including the categories of uses and the
purpose of such use;
"(11) at least 30 days prior to publication of information
under paragraph (4)(D) of this subsection, publish in the Federal
Register notice of any new use or intended us of the information
in the system, and provide an opportunity for interested persons
to submit written data, views, or arguments to the agency." (5
U.S.C. Section 552a(e)(4)(D) and (11)).
The source of the names and addresses relied upon by General Counsel
in this case were either the form 7-B, maintained by each employee's
immediate supervisor, or payroll stubs, maintained by timekeepers,
appear to be "Personnel Records in Operating Offices, HHS/OS/ASPER."
/11/ The text of the notices published by the Department of Health and
Human Services (HHS) were not offered in evidence, although the Federal
Register citation given to Mr. Nelson was introduced (G.C. Exh. 11).
The HHS notice of October 13, 1982, states that:
"These notices do not contain any new routine uses . . . ."
(F.R. vol. 47, No. 198, p. 45402).
The October 13, 1982, notice of the Office of the Secretary (Office
of the Assistant Secretary for Personnel Administration (OASPEA), HHS,
with regard to Personnel Records in Operating Offices, which includes:
". . . a variety of records relating to personnel actions and
determinations made about an individual while employed. These
records may contain information about an individual relating to
name; birth date; home address . . . pay and leave . . . ."
(F.R. vol. 47, No. 198, pp. 45761-45762).
This notice defines routine use to include, as pertinent,
"(8) where a contract between a component of the Department and
a labor organization recognized under E.O. 11491 or 5 U.S.C.
Chapter 71 provides that the agency will disclose personal records
relevant to the organization's mission, records in this system of
records may be disclosed to such organization." (F.R. vol. 47, No.
198, p. 45762),
The office of the Assistant Secretary for Management and Budget
(ASMB) notice of October 13, 1982, concerns "Telephone Directory/Locator
System," located at "Operating Offices and Facility Complexes of the
Department -- Employee Locators and Offices of Administrative of
Management Services," does not provide for home address (see, Categories
of Records in the September, F.R. vol. 47, No. 198 at p. 45517). /12/
The significance of the "routine use" exemption remains uncertain as
its applicability as a vehicle for disclosure has been little explored.
See, Parks v. United States Internal Revenue Service, 618 F. 2677 (10th
Cir. 1980); American Federation of Government Employees v. Defense
General Supply Center, 423 F. Supp. 481 (E.D. VA. 1976), aff'd, 573 F.
2d 184 (4th Cir. 1978). In the present case, if HHS's notice applies,
as it would appear it does to the particular records relied upon as the
source of names and home addresses, disclosure would not be permitted as
a routine use for the reason that no contract provides that Respondent
will disclose personal records. Cf. General Counsel Exh. 6 Art. 3,
Secs, 4 and 5, pp. 4-5. If the OPM notice were applicable, then
disclosure, as a routine use, would be authorized if the names and home
addresses were,
". . . relevant and necessary to their (officials of recognized
bargaining representatives) duties of exclusive representation
concerning personnel policies, practices, and matters affecting
working conditions."
The OPM standard for disclosure as a routine use, while different,
nevertheless, closely approximates the standard of Section 14(b)(4)(B)
of the Statute to furnish information, ". . . necessary for full and
proper discussion, understanding, and negotiation of subjects within the
scope of collective bargainings." 5 U.S.C. Section 7114(b)(4)(B).
Disclosure of Home Addresses
In Army and Air Force Exchange Service (AAFES), Fort Carson,
Colorado, supra, the Authority first held that,
". . . the restrictive language in Section 7114(b)(4) of the
Statute, limiting an agency's duty to furnish data 'to the extent
not prohibited by law,' incorporates the Privacy Act." (17 FLRA
No. 92, p. 4).
and then held that,
". . . The exception set forth in 5 U.S.C. Section 552a(b)(2)
permits disclosure of Privacy Act - protected information to the
extent that such information is 'required' to be released under
the Freedom of Information Act (FOIA). (footnote omitted). The
theory of the FOIA, in contrast to the Privacy Act, is that all
records in the possession of the agencies of the Federal
Government must be disclosed upon request unless subject to a
specific FOIA exemption. (footnote omitted). Under exemption
(b)(6) of the FOIA, an agency is allowed to withhold personnel and
medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of privacy. (17 FLRA
No. 92, p. 4).
"The balance to be drawn under the FOIA's (b)(6) exemption is
one between the protection of the individual's right to privacy
and the promotion of important public interests. (footnote
omitted). In determining whether 'necessary' data under section
7114 (b)(4) of the Statute should be disclosed to the Union, the
Authority will balance the necessity of the data for the Union's
purposes against the degree of intrusion on the individual's
privacy interests caused by disclosure of the data . . . ." (17
FLRA No. 92, p. 5).
The threshold question is whether home addresses are "necessary for
full and proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining" (Section 14(b)(4)(B)). Read
literally, it would be difficult to conclude that home addresses are
necessary for collective bargaining; but, as Army and Air Force
Exchange Service (AAFES), Fort Carson, Colorado, supra, demonstrates,
the language of Section 14(b)(4)(B) consistently has been given a much
broader construction than merely negotiating collective bargaining
agreements; was directly held to encompass possible grievance
proceedings; and, although the Authority did have to go further, nor
did it purport to do so, I conclude that Section 14(b)(4) reaches any
data necessary for the Union "to pursue its representational duties" (17
FLRA No. 92, p. 6). Although, for reasons fully set forth above, I
strongly question the necessity of home addresses for purposes of
negotiating collective bargaining agreements, but fully recognized that
home addresses may be helpful; nevertheless, I fully agree with the
statement of the Court in Prudential Insurance Co., supra, that the
Union needs the home addresses of members of its bargaining unit,
". . . so that exclusive bargaining representative of the
employees may perform its broad range of statutory duties in a
truly representative fashion and in harmony with the employees'
desires and interests. Because this information is therefore so
basically related to the proper performance of the union's
statutory duties, we believe any special showing of specific
relevance would be superfluous." (412 F. 2d at 84).
Use of bulletin boards, stewards, and the Union's publication, The
Sentinel, while important, do not afford effective means for a union to
communicate directly with all members of its bargaining unit in
performing the broad range of its statutory duties. In considering like
requests for names and home addresses, Administrative Law Judges have
recommended production in the following cases: Defense Mapping Agency
Aerospace Center, St. Louis, Missouri and National Federation of Federal
Employees, Local 1827, Case No. 7-CA-20482 (OALJ-83-85, Judge Cappello,
May 12, 1983); Philadelphia Naval Shipyard and Philadelphia Metal
Trades Council, Case No. 2-CA-40243 (OALJ-84-114, Judge Sternburg,
September 24, 1984); Social Security Administration, Northeastern
Program Service Center and American Federation of Government Employees,
Local 1760, AFL-CIO, Case No. 2-CA-30643 (OALJ-85-024, Judge Naimark,
November 30, 1984); and Department of the Navy, Portsmouth Naval
Shipyard (Portsmouth, New Hampshire) and Federal Employees Metal Trades
Council, AFL-CIO, Case No. 1-CA-40290 (OALJ-85-80, Judge Oliver, April
25, 1985), and have denied production in the following cases:
Department of the Air Force, Scott Air Force Base, Illinois and National
Association of Government Employees, Local R7-23, Case No. 5-CA-40232
(OALJ-85-72, Judge Oliver, April 9, 1985); Farmers Home Administration
Finance Office, St. Louis, Missouri and American Federation of
Government Employees, Local 3354, AFL-CIO, Case No. 7-CA-30560
(OALJ-84-109, Judge Scalzo, September 24, 1984). In the two cases
denying production of names and home addresses, it was found that
alternate means of communication provided effective means of
communicating with bargaining unit employees and, therefore, that the
General Counsel had not established that names and home addresses were
necessary for the purpose of Section 14(b)(4)(B). As stated above, I
conclude that the Union here does not have adequate alternate means of
communicating with bargaining unit employees and that the names and home
addresses are necessary for the Union's performance of the broad range
of its statutory duties, and I specifically endorse and adopt the
further statement of the Court in Prudential Insurance Co., supra, that,
even if the Union may use the information to solicit new members,
". . . union solicitation is itself hardly an evil --
especially where, as here, the union is already the exclusive
bargaining representative of the employees it is soliciting" (412
F. 2d at 85).
As the Authority stated in Army and Air Force Exchange Service
(AAFES), Fort Carson, Colorado, supra, "In determining whether
'necessary' data under section 7114(b)(4) of the Statute should be
disclosed to the Union, the Authority will balance the necessity of the
data for the Union's purposes against the degree of intrusion on the
individual's privacy interests caused by disclosure of that data." I am
well aware that three employees testified that they strongly objected to
their home addresses being given to the Union. The right to personal
privacy is certainly a right deserving of scrupulous protection, but I
do not believe the right to privacy in one's home address, in the total
absence of any evidence of possible harassment, is a right of privacy
entitled to protection against disclosure to the exclusive bargaining
representative. At the outset, I am mindful that the legislative
history of the Privacy Act states that "The bill now prohibits Federal
agencies from selling or renting mailing lists . . . but does not
require names and addresses to be kept confidential . . . ."
(Legislative History, p. 6946) (Emphasis supplied. As Judge Oliver
noted in Department of the Navy, Portsmouth Naval Shipyard (Portsmouth,
New Hampshire), supra,
". . . The daily personal mail of most persons brings a steady
barrage of unsolicited flyers, advertisements, and solicitations.
Employees may have to spend a moment or two deciding whether to
read the Union's newsletter or to toss it out with other unwanted
mail. Considering the needs of the Union to effectively
communicate with unit employees, any intrusion on employees'
personal privacy caused by the furnishing of home addresses to the
Union for representational purposes is minimal and not
unwarranted."
Finally, I fully adopt the cogent, well reasoned, and wholly
persuasive analysis of Chief Judge Winter in his dissenting opinion in
American Federation of Government Employees, AFL-CIO, Local 1923, supra,
where he stated, in part, as follows:
The right to privacy in one's home address is an interest of
little value. We held in Robles v. Environmental Protection
Agency, 484 F.2d 843 (4 Cir. 1973), that while Exemption 6 of 5
U.S.C. Section 552(b) encompassed the names and addresses of
homeowners residing in dwellings where uranium tailings were used
as fill dirt, the trust of Exemption 6 was to protect things that
'contain "intimate details of a highly personal nature.'" Id. at
845. Thus, although protected to some extent, disclosure of the
names and addresses should therefore be denied only when
disclosure would constitute a "'clearly unwarranted invasion of
personal privacy.'" Id. Reliance was placed on Getman v. NLRB,
450 F.2d 670, 675 (D.C. Cir. 1971). In Getman. law professors
engaged in a labor voting study sought to compel the Board to
provide them with the names and addresses of employees eligible to
vote in certain elections. They wished to request such employees
to accede to an interview. Their right to obtain the requested
information was upheld, the court saying:
(A)lthough a limited number of employees will suffer an
invasion of privacy in losing their anonymity and in being asked
over the telephone if they would be willing to be interviewed in
connection with the voting study, the loss of privacy resulting
from this particular disclosure should be characterized as
relatively minor. Id. at 674-75 (footnote eliminated).
The commn sense of the decisions in Robles and Getman is
readily apparent. With rare exception, there is little privacy in
one's name and home address. Such information is a matter of
public record in motor vehicle registration and licensing records,
voting lists, and real property records. Other sources from which
it may often be obtained are telephone directories and city
directories. In short, it is the rare individual who has any real
privacy interest in the identity of his residence.
. . . .
The union is not a mere interloper in the Social Security
Administration Headquarters. By the enactment of 5 U.S.C. Section
7101, Congress has determined that labor organizations and
collective bargaining in the civil service are in the public
interest.' As I previously stated, this union is the certified
collective bargaining agent. As such, it is under a duty to
represent all employees in the unit whether they are union members
or not. 5 U.S.C. Section 7114(a)(1). The necessity of direct
communication with those it is statutorily obligated to represent
is to me apparent. I think it has a duty to advise its
constituents of its activities, and it may wish to seek an
expression of their views, by soliciting them as members or
otherwise. Thus I would conclude that disclosure of the addresses
of employees it represents to the union is in the interest of the
union and in turn in the public interest.
In summary, I perceive the balance between the competing
interests in this case to be in favor of disclosure . . . ." (712
F. 2d at 933-934).
Respondent's conduct in refusing to grant the Union's request for the
names and home addresses of bargaining unit employees, contrary to the
requirements of Section 14(b)(4) of the Statute, violated sections
16(a)(1) and (8) of the Statute and further constituted a refusal to
bargain in good faith in violation of Sections 16(a)(1) and (5) of the
Statute. It is, therefore, recommended that the Authority adopt the
following:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority, 5 C.F.R. Section 2423.29, and Section
18 of the Statute, 5 U.S.C. Section 7118, it is hereby ordered that the
Department of Health and Human Services, Social Security Administration,
shall:
1. Cease and desist from:
(a) Refusing and failing to furnish, upon request of American
Federation of Government Employees, AFL-CIO, the names and home
addresses of all unit employees in the Atlanta Region represented
by the National Council of SSA Field Assessment Locals.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise or their
rights assured by the Statute.
2. Take the following affirmative actions in order to effectuate the
pruposes and policies of the Statute:
(a) Upon request of the American Federation of Government
Employees, AFL-CIO, furnish it with the names and home addresses
of all unit employees in the Atlanta Region represented by the
National Council of SSA Field Assessment Locals.
(b) Post at its facilities, in each branch or section of the
Atlanta Region employing Field Assessment employees constituting
the bargaining unit represented by the National Counsel of SSA
Field Assessment Locals, copies of the attached notice of forms to
be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the Director of the
Field Assessment Office, Atlanta Region, and shall be posted and
maintained for 60 consecutive days thereafter in conspicuous
places, including 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 IV, Federal
Labor Relations Authority, Suite 501, North Wing, 1776 Peachtree
Street, N.W., Atlanta, Georgia 30309, in writing, within 30 days
from the date of this Order as to what steps have been taken to
comply herewith.
/s/ WILLIAM B. DEVANEY
Administrative Law Judge
Dated: May 31, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) When the Authority decided, for reasons discussed more fully in
FHAFO, to review the entire issue of the release of employees' names and
home addresses and invited agencies, union, and interested persons to
submit amicus briefs addressing the issue, this case was one of those
listed as should not be accepted because it was filed one day late. The
Authority accepted and considered some amicus submissions that were
received shortly after the date set in the Authority's Federal Register
notice, including the Respondent's amicus brief. However, we note that
there is nothing in the disputed submission that would alter our
decision in this matter.
(2) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7114(b)(4) will be referred to, simply
as "Section 14(b)(4)."
(3) Mr. Hassell stated that central Payroll Records on home addresses
are not always current. For example, he stated that when he moved from
Atlanta to Birmingham it was 7 or 8 months before his address was
changed on his pay slip (Tr. 85) and 1984 state taxes were still charged
to him in Georgia (Tr. 85).
(4) In NLRB v. Wyman Gordon Co., 394 U.S. 759 (1969), the Supreme
Court ordered enforced the Board's order directing the employer to
furnish names and addresses prior to a representation election, although
the Court severely criticized the Board's failure to follow the
Administrative Procedures Act in issuing a legislative rule in Excelsior
Underwear, In., 156 NLRB 1236 (1966) in total disregard for the
requirements of the Rule making Provisions of the APA.
(5) Section 10(e) provided that a labor organization which has been
selected as the exclusive bargaining representative is entitled to act
for and to negotiate agreements covering all employees in the unit and
it is responsible for representing the interests of all employees in the
unit without discrimination and without regard to labor organization
membership.
(6) See, Paragraphs 8 and 10 of the Complaint (G.C. Exh. 1(c)).
(7) The only exception is "when an agency provides by a contract for
the operation by or on behalf of the agency of a system of records to
accomplish an agency function, the agency shall . . . cause the
requirements of this section to be applied to such system. For purposes
of subsection (i) of this section any such contractor and any employee
of such contractor . . . shall be considered to be an employee of an
agency." 5 U.S.C. Section 552a(m).
(8) It is clear that Respondent's furnishings of the names and office
addresses had been fully consistent with the Union's initial request
which had not specified home addresses; however, the Union then
clarified, or amended, its request and asked for home addresses which
Respondent denied, as noted, pursuant to the Privacy Act and Section
(b)(6) of the Freedom of Information Act.
(9) Although this case does not involve meetings, it is interesting
to note that the Sunshine Act provides that at meetings the agency shall
not: "(6) disclose information of a personal nature where disclosure
would constitute a clearly unwarranted invasion of personal privacy." (5
U.S.C. Section 552b(c)(6)).
(10) Section 206(a) of the Senate Bill is Section (n) of the Act.
Section 206(b) of the Senate Bill, which required removal of individual
names and addresses upon written request, was deleted from the
legislation as enacted.
(11) It is possible that these records are covered by OPM's Notice
(G.C. Exh. 11) which provides, in part,
"Records on current Federal employees are located in the
?Personnel Office or other designated office of the local
installation of the Department of Agency which currently employs
the individual. Where agencies determine that duplicates of these
records need to be located in a second office, e.g., an
administrative office closer to where the employee actually works,
such copies are copies are covered by this system . . . ." (G.C.
Exh. 11, Systems Location). (Emphasis supplied).
The difference, i.e., whether the HHS notices apply or whether the
OPM notice applies, concerns the respective definitions of "routine use"
which are not at all the same. OPM's routine uses provides, inter alia:
"(j) 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." (G.C. Exh. 11, Routine Uses of Records
Maintained in the System, Including Categories of Uses and the
Purposes of Such Uses) (Emphases supplied).
(12) Routine uses for records maintained in this system are:
In the event of litigation where the defendant is (a) the
Department, any component of the Department, or any employee of
the Department in his or her official capacity; (b) the United
States where the Department determines that the claim, if
successful, is likely to directly affect the operations of the
Department or any of its components; or (c) any Department
employee in his or her individual capacity where the Justice
Department has agreed to represent such employee, the Department
may disclose such records as it deems desirable or necessary to
the Department of Justice to enable that Department to present an
effective defense, provided such disclosure is compatible with the
purpose for which the records were collected. (F.R. vol. 47, No.
198, p. 45517).
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 STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse or fail to furnish, upon request of the American
Federation of Government Employees, AFL-CIO, the names and home
addresses of all unit employees in the Atlanta Region represented by the
National Council of SSA Field Assessment Locals.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request of the American Federation of Government
Employees, AFL-CIO, furnish it with the names and home addresses of all
unit employees in the Atlanta Region represented by the National Council
of SSA Field Assessment Locals.
(Agency or Activity)
By: (Signature)
Date:
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region IV,
whose address is: Suite 501, North Wing, 1776 Peachtree Street, N.W.,
Atlanta, Georgia 30309, and whose telephone number is: (404) 881-2324.