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46 FLRA No. 142

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF TRANSPORTATION

FEDERATION AVIATION ADMINISTRATION

(Respondent)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

MEBA/NMU, AFL-CIO

STOCKTON TOWER LOCAL AND OAKLAND CENTER LOCAL

(Charging Parties)

9-CA-10403

9-CA-10528

_____

DECISION AND ORDER

February 24, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.

The complaint in Case No. 9-CA-10403 alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide the National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO (NATCA), Stockton Tower Local (Stockton Local) an unsanitized copy of the lists of names compiled by the Respondent for use in its random drug testing of employees at Stockton Air Traffic Control Tower/TRACON (Stockton Tower) on March 15, 1991. The complaint in Case No. 9-CA-10528 alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to provide NATCA, Oakland Center Local (Oakland Local) an unsanitized copy of the lists of names compiled by the Respondent for use in its random drug testing of employees at Oakland Air Route Traffic Control Center (Oakland Center) on April 19, 23, and 24, 1991.

For the reasons stated below, we find that the Respondent committed the unfair labor practices alleged.

II. Facts

NATCA is the exclusive representative of a nationwide consolidated unit of the Respondent's employees which includes the Air Traffic Control Specialists at Stockton Tower and at Oakland Center. Stockton Local and Oakland Local, agents of NATCA, represent unit employees at Stockton Tower and Oakland Center, respectively.

The Respondent and NATCA are parties to a collective bargaining agreement which became effective May 1989. That agreement incorporates an October 1987 memorandum of understanding between the parties on drug testing. Under the drug testing memorandum, the Respondent "agreed to ensure that the random drug testing at [Federal Aviation Administration] facilities was 'implemented in a fair and equitable manner.'" Stipulation, para. 10 (quoting Exhibit 3, Section 2).

The parties stipulate that the information requested by Stockton Local and Oakland Local "was sought to 'ensure that the names of all [nonbargaining] unit employees actually appear on the list, that no bargaining unit employee was tested in lieu of a [nonbargaining] unit employee and that annotations contained on the drug list are accurate' and to 'ensure that the [Respondent's] Departmental Drug Program is administered in a fair and equitable manner.'" Id., para. 18 (quoting Exhibit 7 and Exhibit 4). The parties also stipulate that the information requested by Stockton Local and Oakland Local is normally maintained by the Respondent in the regular course of business, is reasonably available within the meaning of section 7114(b)(4) of the Statute, and does not constitute guidance, advice, counsel or training provided to management officials or supervisors relating to collective bargaining.

A. Case No. 9-CA-10403

On March 15, 1991, the Respondent conducted random drug testing of employees in the bargaining unit represented by Stockton Local and of nonbargaining unit employees at Stockton Tower. The following day, Stockton Local requested the Respondent to furnish it with a copy of the "sign-on and/or position logs" for all employees who were subject to random drug testing and an unsanitized copy, "except for social security numbers[,]" of the list of employees that was compiled by the Respondent and used for the random testing. Id., Exhibit 4. The Respondent denied the Union's request for an unsanitized list of employees but provided the requested position logs. On March 27, 1991, the Respondent gave Stockton Local a copy of the random drug test list used on March 15, 1991, that had been sanitized by deleting employees' social security numbers, the dates of birth of all listed employees, and the names of all listed nonbargaining unit employees.⁽¹⁾ On August 13, 1991, the Respondent sent Stockton Local an alphabetical list of all employees at Stockton Tower. The alphabetical list is not the list used for the random drug testing conducted at Stockton Tower on March 15, 1991. Since March 21, 1991, and continuing to the present the Respondent has failed and refused to provide the Union with an unsanitized copy of the list compiled by the Respondent and used for the random drug testing of employees on March 15, 1991.

B. Case No. 9-CA-10528

On April 19, 23, and 24, 1991, the Respondent conducted random drug testing of employees in the bargaining unit represented by Oakland Local and of nonbargaining unit employees at Oakland Center. On April 25, 1991, the Union requested the Respondent to furnish it with a copy of the "sign-on and/or position logs" for all employees who were subject to random drug testing and an unsanitized copy of the list of employees that was compiled by the Respondent and used for the random drug testing at Oakland Center on April 19, 23, and 24, 1991. See id., Exhibit 7. In response to the Union's request, the Respondent provided the requested sign-on logs and existing duty rosters. On May 17, 1991, the Respondent provided Oakland Local with a sanitized copy of the random drug test list it used on April 19, 23, and 24, 1991. The list had been sanitized by deleting employees' social security numbers, the dates of birth of all listed employees, and the names of all listed nonbargaining unit employees. On August 13, 1991, the Respondent sent Oakland Local an alphabetical list of all employees at Oakland Center. The alphabetical list is not the list that the Respondent used for the random drug testing at Oakland Center on April 19, 23, and 24, 1991. Since May 17, 1991, and continuing to the present the Respondent has failed and refused to provide the Union with an unsanitized copy of the list that it compiled and used for the random drug testing of its employees on April 19, 23, and 24, 1991.

III. Positions of the Parties

A. General Counsel

The General Counsel contends that section 7114(b)(4) of the Statute requires an agency to furnish an exclusive representative of its employees information that will enable the union to effectively carry out its representational responsibilities under the Statute. The General Counsel states that, in this case, the Union requested the information "in order to ensure that the Respondent was performing the random drug testing in a 'fair and equitable manner,'" as required under the parties' memorandum of understanding concerning drug testing. GC's Brief at 7. The General Counsel asserts that "[w]ithout the entire random drug test list, including the names of [nonbargaining] unit employees, NATCA would be unable to perform its representational duties of ensuring that the drug testing programs are administered fairly and equitably." Id. at 7-8. Therefore, the General Counsel argues that "the names of [nonbargaining] unit employees as they appear on the random drug test list are 'necessary' within the meaning of [section 7114(b)(4) of the Statute]." Id. at 10.

The General Counsel also argues that disclosure of the information requested by the Union is consistent with the Privacy Act, 5 U.S.C. § 552a(b)(2), which prohibits the disclosure of personal information about Federal employees without their consent, unless disclosure of the information would be required under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The General Counsel states that under Exemption (b)(6) of the FOIA, 5 U.S.C. § 552(b)(6), information in agency personnel files must be disclosed, upon request, unless disclosure of the information would constitute "a 'clearly unwarranted invasion of personal privacy.'" Id. (citations omitted).

Citing U.S. Department of Justice v. Reporters Committee, 489 U.S. 749 (1989) (Reporters Committee), the General Counsel asserts that the information should be disclosed because "[t]here are significant public interests favoring disclosure of the information in unsanitized form, while the intrusion on the employee's privacy is minimal." Id. The General Counsel argues that disclosure of the information: (1) would allow the Union to determine whether the Respondent is administering its drug testing program "in a fair and evenhanded manner, thus, promoting important public interests"; and (2) "does not expose an individual to any stigma, because all employees listed are subject to random testing without regard to cause or suspicion." Id. at 10, 11.

The General Counsel also argues that because the lists were compiled by the Department of Transportation "to ensure that random drug tests were administered in a truly random and equitable manner, and [the Union's] purpose in having copies of the list is fully consistent with the purposes for which the list was collected[,]" the disclosure of the lists is authorized under the routine use exception of the Privacy Act. Id. at 12. The General Counsel asserts that the Office of Personnel Management (OPM) notice concerning routine uses for systems of records under the Privacy Act is not determinative of whether the Union is entitled to the requested information. See OPM, Privacy Act of 1974; Publication of Notices of Systems of Records and Proposed New Routine Uses, 55 Fed. Reg. 3802 (1990). The General Counsel notes that the Authority held in U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 537-41 (1990) (Portsmouth), application for enforcement denied, 941 F.2d 49 (1st Cir. 1991) (FLRA v. Portsmouth Naval Shipyard), that it would not defer to interpretations of "routine use" promulgated by OPM which implicate rights under the Statute.

The General Counsel contends that inasmuch as the Union is entitled to the requested lists of employees under section 7114(b)(4) of the Statute, the Respondent's refusal to provide the Union with the unsanitized lists that include the names of both bargaining unit and nonbargaining unit employees constitutes an unfair labor practice in violation of section 7116(a)(1), (5), and (8) of the Statute. As a remedy, the General Counsel requests that the "Respondent be ordered to cease and desist its unlawful conduct and to promptly provide the Union with unsanitized copies of the random drug test lists for the relevant dates." GC's Brief at 13. The General Counsel also requests that the Respondent be ordered to post at all appropriate locations an appropriate notice to employees.

B. Respondent

The Respondent asserts that "[t]here is only one issue in this case: when a copy of the drug test list is provided to the Union is the Union allowed to see the names of [nonbargaining] unit employees on the drug test list[?]" Respondent's Brief at 1. The Respondent states that the "General Counsel has not established that the names of the [nonbargaining] unit employees on the drug test list were necessary and relevant for the full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining." Id. at 4. The Respondent also contends that the lists, which include the names of nonbargaining unit employees, are "specific data requested that has no impact on the working conditions of the bargaining unit employees and [are] therefore not necessary and relevant, especially since there was no showing that bargaining unit employees were tested in lieu of [nonbargaining] unit employees." Id. at 5. The Respondent asserts that even if the lists containing data about nonbargaining unit employees are necessary, the unsanitized copies of those lists are not necessary and relevant for the full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining. The Respondent argues, therefore, that it should not be required to give the Union unsanitized copies of the lists.

The Respondent argues that the unsanitized drug test lists are specifically prohibited from nonconsensual disclosure by the Privacy Act and OPM's Government-wide regulations for implementing and maintaining systems of records. The Respondent argues, therefore, that section 7114(b)(4) of the Statute prohibits the release of the drug test lists to the Union in a sanitized or unsanitized form. The Respondent asserts that the data requested by the Union is a medical record. The Respondent maintains that the nonconsensual release to the Union of unsanitized medical records "would clearly eliminate any remaining element of dignity or privacy to a process that has been otherwise described by both unions and employees in numerous court hearings as the ultimate intrusion to their privacy and protected right from unwarranted searches and seizures." Id. at 10.

The Respondent argues that the information requested by the Union is not otherwise releasable under the FOIA. The Respondent asserts that the specific FOIA exemption that is relevant to this proceeding is Exemption (b)(6), which provides that information contained in personnel and medical files should be withheld if its disclosure would constitute a clearly unwarranted invasion of personal privacy.

The Respondent argues that, under relevant case law, the determination as to whether disclosure of records would constitute a clearly unwarranted invasion of personal privacy requires a balancing of the public right to disclosure against the individual's right to privacy. The Respondent asserts that employees have a strong privacy interest in their records pertaining to drug testing. Relying on FLRA v. Department of Treasury, 884 F.2d 1446, 1452 (D.C. Cir. 1989), cert. denied, 493 U.S. 1055 (1990), the Respondent argues that the release of the names of nonbargaining unit employees would not serve the public interest. The Respondent contends that under the balancing test applied with respect to Exemption (b)(6) of the FOIA, release of the unsanitized list would be a clearly unwarranted invasion of personal privacy. The Respondent also argues that "'alternative means of access' is a relevant consideration in conducting the public interest balancing" under Exemption (b)(6). Id. at 15 (citing FLRA v. Department of Treasury). The Respondent asserts that it gave the Union the requested information in an alternative form which does not reveal personally sensitive information.

IV. Analysis and Conclusions

For the reasons stated below, we find that the requested lists are necessary, within the meaning of section 7114(b)(4) of the Statute, for the Union to perform effectively its representational responsibilities. We also find that disclosure of the lists is not prohibited by law.

A. The Lists Are Necessary

Section 7114(b)(4)(B) provides that an agency's duty to ."negotiate in good faith" includes the obligation to furnish a union, upon request, with data that, as relevant here, is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining[.]"⁽²⁾

Section 7114(b)(4) encompasses information necessary for an exclusive representative to perform effectively its representational responsibilities. See, for example, American Federation of Government Employees, Local 1345 v. FLRA, 793 F.2d 1360, 1364 (D.C. Cir. 1986) (court stated that a union's information request must be evaluated "in the context of the full range of union responsibilities in both the negotiation and the administration of a labor agreement") (emphasis in original). See also, for example, Commander Naval Air Pacific, San Diego, California and Naval Air Station Whidbey Island, Oak Harbor, Washington, 41 FLRA 662, 673-76 (1991) (respondent required to provide reports concerning contracting out in order for union to prepare for collective bargaining); U.S. Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 37 FLRA 987, 994-95 (1990) (respondent required to provide information concerning temporary duty assignments of military personnel in order for the union to pursue a grievance); Portsmouth, 37 FLRA at 527-28 (respondent required to disclose names and home addresses of bargaining unit employees in order, among other things, to enable the union to perform its representational functions under the Statute). Further, an agency is required to furnish information concerning nonbargaining unit positions when the information is necessary for the union to effectively fulfill its representational responsibilities. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA 298, 309 (1991).

In the instant cases, the Union requested the lists to "ensure that the [Respondent's] Departmental Drug Program is administered in a fair and equitable manner." Stipulation, para. 18. As noted above, the parties' memorandum of understanding concerning drug testing requires the Respondent to ensure that random drug testing at the Respondent's facilities is "'implemented in a fair and equitable manner.'" Id., para. 10. The Union contends that the lists are "necessary to ensure that the names of all [nonbargaining] unit employees actually appear on the list, that no bargaining unit employee was tested in lieu of a [nonbargaining] unit employee, and that annotations contained on the drug list are accurate." Id., Exhibit 7. See id., Exhibit 4.

In our view, the unsanitized lists are necessary for the Union to determine whether bargaining unit employees were treated fairly and equitably when the Respondent conducted random drug testing on March 15 and April 19, 23, and 24, 1991, and to determine whether there is a basis for filing a grievance on behalf of bargaining unit employees who were tested on those dates. The lists reveal whether an employee was available for testing, whether an employee was tested, and if an employee was not tested, the reason that the employee was not tested. The General Counsel asserts that if the name associated with an entry on the list is deleted, the Union "would not be able to police the administration of the Respondent's drug testing process to ensure that unit employees are not disadvantaged by a Site Coordinator's error or deliberate manipulation." GC's Brief at 8.

It is reasonable to conclude that in determining whether the Respondent's actions, as evidenced by the site coordinator's notations on the lists, resulted in the unfair and inequitable treatment of bargaining unit employees, the names of nonbargaining unit employees and the notations made by the site coordinator concerning those employees would be necessary. That information would allow the Union to: (1) assess the site coordinator's action as to each employee and, thereby, allow the Union to determine whether there was conduct which indicates that bargaining unit employees were treated differently during the testing process as compared to nonbargaining unit employees; and (2) determine whether there was evidence of unfair and inequitable treatment of bargaining unit employees during the random drug testing that provides a basis to file a grievance. It also is reasonable to conclude that the Union would need to know the names of nonbargaining unit employees who were tested to determine whether a particular employee was or was not tested for discriminatory reasons. Consequently, we conclude that the record establishes that the lists are necessary for collective bargaining, within the meaning of section 7114(b)(4) of the Statute.

We note the decision of the United States Court of Appeals for the District of Columbia Circuit in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA), where the court concluded that an agency need not disclose certain requested information to a union unless the union has a "'particularized need' for such information." Id. at 534. The court also held that the Statute requires the Authority to consider "countervailing interests" against disclosure. Id. at 531. Subsequently, the court issued its decision in Department of the Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992) (Scott AFB), where, based on NLRB v. FLRA, the court determined that the Authority ordered disclosure of certain requested information "without adequately explaining the 'necessity' of the requested information" under section 7114(b)(4) of the Statute. Scott AFB, 956 F.2d at 1224. The court held that the Authority had failed to consider the "countervailing interests against disclosure." Id.

We do not decide whether NLRB v. FLRA and Scott AFB apply in the circumstances of this case. However, even if we were to apply NLRB v. FLRA and Scott AFB here, those decisions would not change our conclusion that the requested information is necessary within the meaning of section 7114(b)(4) of the Statute.

As noted above, the Union needs the information to determine whether the Agency has complied with the parties' agreement concerning the operation of its drug testing program and to determine whether there is a basis to file a grievance alleging that bargaining unit employees were treated unfairly or inequitably during certain random drug testing sessions. Specifically, in the absence of the information covered by the Union's request, the Union would be unable to determine whether the Respondent is selectively enforcing the drug testing program or to determine whether grounds for a grievance exist under the parties' collective bargaining agreement.

On the other hand, the countervailing interest against disclosure asserted by the Respondent is speculative. In this connection, the Respondent argues that it should not be required to disclose information because "[t]he Union simply [is] on a fishing expedition." Respondent's Brief at 7. The Respondent asserts that "the [G]overnment cannot operate effectively if actions are taken based on underlying, baseless suspicions of wrongdoing by officials conducting the normal course of business." Id. However, even assuming that the Respondent's asserted concerns would constitute countervailing interests weighing against disclosure, the Respondent offers no evidence which shows that disclosure of the requested data would negatively affect the efficient operation of the Government.

As the Union's need for the requested information is clear and demonstrated, and the Respondent's argument regarding the effect of disclosure is unsupported, we find that, even if we were to apply NLRB v. FLRA and Scott AFB here, we would conclude that the information is necessary within the meaning of section 7114(b)(4) of the Statute.

B. Disclosure Is Not Prohibited by the Privacy Act

We find, for the reasons stated below, that disclosure of the requested information is not barred by the Privacy Act.

With certain enumerated exceptions, the Privacy Act prohibits the disclosure of any record concerning a Federal employee if the record is contained in a system of records and the individual to whom that record pertains has not consented to the disclosure. 5 U.S.C. § 552a(b). Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the information would be required under the FOIA. Section (b)(3) of the Privacy Act permits disclosure "for a routine use," which is defined in 5 U.S.C. § 552a(a)(7) as "the use of such record for a purpose which is compatible with the purpose for which it was collected."⁽³⁾

In order to determine whether disclosure of the requested information in this case is permitted by section (b)(2) of the Privacy Act, we must determine whether it is disclosable under Exemption (b)(6) of the FOIA. That section provides that information contained in personnel files, in addition to medical and other similar files, may be withheld if disclosure of the information would constitute a "clearly unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(6).

To determine whether disclosure of the requested information would constitute a clearly unwarranted invasion of personal privacy, we must balance the employee's right to privacy against the public interest in disclosure. U.S. Department of Transportation, Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191, 199 (1991) (FAA, Atlantic City Airport). In applying the balancing test, we look to the public interest embodied in the Statute. See generally Portsmouth, 37 FLRA at 525-35.⁽⁴⁾ We have stated that the "public interest" identified in the Statute may be summarized as "the facilitation of the collective bargaining process . . . ." Id. at 531. We conclude here that there is a strong public interest in the disclosure of the requested information.

The Union sought the information to "ensure that the [Respondent's] Departmental Drug Program is administered in a fair and equitable manner." Stipulation, para. 18. The Union stated that the drug test lists are "necessary to ensure that the names of all [nonbargaining] unit employees actually appear on the list, that no bargaining unit employee was tested in lieu of a [nonbargaining] unit employee, and that annotations contained on the drug list are accurate." Stipulation, Exhibit 7. See id., Exhibit 4. We conclude, consistent with our precedent, that such representational responsibilities are in the public interest and also safeguard the public interest. See, for example, National Federation of Federal Employees, Local 858 and U.S. Department of Agriculture, Federal Crop Insurance Corporation, Kansas City, Missouri, 42 FLRA 1169, 1177-78 (1991); National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 41 FLRA 1241, 1254 (1991), petition for review filed, No. 91-1514 (D.C. Cir. Oct. 21, 1991).

We recognize that unit and nonunit employees have definite privacy interests, but conclude that those interests are outweighed by the public interest embodied in the Statute. The Respondent argues that the nonconsensual release to the public or the Union of an unsanitized medical record "would clearly eliminate any remaining element of dignity or privacy to a process that has been otherwise described by both unions and employees . . . as the ultimate intrusion to their privacy . . . ." Respondent's Brief at 10. However, the information requested by the Union does not reveal the results of employees' drug tests. Rather, as noted above, the lists only reveal whether an employee was available for testing, whether an employee was tested, and if an employee was not tested, the reason that the employee was not tested. Inasmuch as all employees are subject to testing under the Respondent's random drug testing program without regard to cause or suspicion and "have an equal statistical chance of being selected for testing within a specified time frame," disclosure of a random drug test list would not disclose information that is stigmatizing. General Counsel's Exhibit No. 2 at III-2. Moreover, there is no indication in the Agency's drug testing policy that the documents requested by the Union in this case would be covered by a claim of confidentiality. See id. at V.

Nor should the fact that an employee has been selected for random drug testing be considered a particularly private matter because the public is already well aware of the Government's practice to administer random drug tests to employees. See National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 41 FLRA 1241, 1252 (1991) (DOE), petition for review filed No. 91-1514 (D.C. Cir. Oct. 24, 1991) (an employee's privacy interests in his or her notice of a drug test "appear to be minimal, particularly with respect to random drug testing"). In addition, the Federal employee status of the individuals tested further diminishes the employees' privacy interests in the drug test lists because of the corresponding public interest in knowing how public employees are performing their jobs. See, for example, Stern v. FBI, 737 F.2d 84, 92 (D.C. Cir. 1984) (citations omitted).

The Respondent's privacy interests argument is further undercut by the fact that the Respondent released the names of bargaining unit employees on the random drug testing lists. Whether an employee is a member of the bargaining unit is not relevant to considering whether an employee's privacy rights, protected by the Privacy Act, have been abridged. Therefore, inasmuch as the Respondent determined that the names of bargaining unit employees on the random drug testing lists could be disclosed under the Privacy Act, the names of nonbargaining unit employees may also be disclosed.

On balance, we conclude that the public interest inherent in the Union's discharge of its obligations under the Statute to monitor and administer the collective bargaining agreement, including the parties' agreement concerning the implementation of the Respondent's drug testing program, outweighs the employees' personal privacy interest in preventing disclosure of information about their appearance for a drug test to the exclusive representative of the Respondent's employees. See United States Department of Veterans Affairs, Regional Office, San Diego, California, 44 FLRA 312, 316 (1992) (VA, Regional Office).

Similarly, under the public interest test identified by the U.S. Supreme Court in Reporters Committee, 489 U.S. at 772, we find that there is an overriding public interest in the disclosure of the information requested by the Union in this case. See FAA, Atlantic City Airport, 43 FLRA at 202 (union sought transcript of Equal Employment Opportunity Commission hearing to determine whether agency had violated parties' agreement by not following the procedures in their merit promotion plan; Authority concluded that disclosure would open to public scrutiny the manner in which the Agency administers its selection process and whether that process is administered in a fair and evenhanded manner and that, therefore, the public interest outweighed the limited privacy interest of a single employee). In particular, the requested information pertains to the decisions the Respondent makes and the actions the Respondent takes in testing employees for illegal drug use. Disclosure of the information would open to "public scrutiny" what the Respondent is "up to" in its drug testing program. See Reporters Committee, 489 U.S. at 772-73.

Disclosure of the information will enable the public to assess, for example, whether the Respondent is implementing its drug testing program consistent with applicable law, regulation, and the collective bargaining agreement. See, for example, VA, Regional Office, 44 FLRA at 316; FAA, Atlantic City Airport, 43 FLRA at 202-03. See generally Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 613-34 (1989) (discussing the Government's and the public's interests in drug testing programs). The information also will enable the Union to detect whether the Respondent's administration of its drug testing program is free of discriminatory practices. For example, if certain groups of bargaining unit employees were randomly selected more frequently than other employees, some further examination of the Respondent's random selection process may be in order. If further examination resulted in the discovery of irregularities in the random selection process, such results, achieved as a consequence of the Union's efforts, clearly inure to the public's benefit.

Moreover, the random drug test lists enable the Union to monitor certain aspects of the drug testing program which can only be monitored by direct employee contacts. Without the names of those employees, there would be no way to communicate directly with employees to verify that the basis upon which the drug test was ordered was truly random selection, and whether the Respondent followed its drug testing procedures as required. Thus, disclosure of the random drug test lists is in the public interest because it facilitates the overall monitoring of the Respondent's drug testing program.

Balancing the employees' limited privacy interest in the lists against the strong public interest in the disclosure of the drug test lists, we find that disclosure of a copy of the lists to the Union would not constitute a clearly unwarranted invasion of personal privacy. Therefore, disclosure of a copy of the lists to the Union is not prohibited by the Privacy Act.

Based on our finding that disclosure of a copy of the drug test lists is not prohibited by the Privacy Act, we find it unnecessary to determine whether disclosure of the information also falls within the "routine use" exception of the Privacy Act. See, for example, FAA, Atlantic City Airport, 43 FLRA at 203.

In sum, we find that the requested lists that include the names of bargaining unit and nonbargaining unit employees and information concerning whether those employees were actually tested, or why those employees were not tested, are necessary for the Union to carry out effectively its representational functions. The parties stipulated that the lists are normally maintained by the Respondent, are reasonably available, and do not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining. Disclosure of the lists is not prohibited by the Privacy Act. Therefore, we find that the Respondent is required under section 7114(b)(4) of the Statute to provide the Union with copies of the requested lists which include the names of all employees included on the lists, including bargaining unit and nonbargaining unit employees. We conclude that the Respondent's refusal to provide the requested lists constitutes a failure to comply with section 7114(b)(4) in violation of section 7116(a)(1), (5), and (8) of the Statute. Accordingly, we will direct the Respondent to cease and desist from its violation of the Statute and to supply the requested information to the Union.

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Transportation, Federal Aviation Administration shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request by the National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, Stockton Tower Local, the exclusive representative of a unit of its employees, a copy of the list of employees used for administering random drug testing at Stockton Air Traffic Control Tower/TRACON on March 15, 1991, that includes the names of bargaining unit and nonbargaining unit employees.

(b) Refusing to furnish, upon request by the National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, Oakland Center Local, the exclusive representative of a unit of its employees, a copy of the list of employees used for administering random drug testing at Oakland Air Route Traffic Control Center on April 19, 23, and 24, 1991, that includes the names of bargaining unit and nonbargaining unit employees.

(c) 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 Statute:

(a) Upon request, furnish the National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, Stockton Tower Local, the exclusive representative of a unit of its employees, a copy of the list of employees used for administering random drug testing at Stockton Air Traffic Control Tower/TRACON on March 15, 1991, that includes the names of bargaining unit and nonbargaining unit employees on the list.

(b) Upon request, furnish the National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, Oakland Center Local, the exclusive representative of a unit of its employees, a copy of the list of employees used for administering random drug testing at Oakland Air Route Traffic Control Center on April 19, 23, and 24, 1991, that includes the names of bargaining unit and nonbargaining unit employees on the list.

(c) Post at its facilities at Stockton Air Traffic Control Tower/TRACON and Oakland Air Route Traffic Control Center, copies of the attached Notices on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Air Traffic Manager at Stockton Air Traffic Control Tower/TRACON and Oakland Air Route Traffic Control Center, respectively, 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.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Regional Office, 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 by the National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, Stockton Tower Local, the exclusive representative of a unit of our employees, a copy of the list of employees used for administering random drug testing at Stockton Air Traffic Control Tower/TRACON on March 15, 1991, that includes the names of bargaining unit and nonbargaining unit employees.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request, furnish the National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, Stockton Tower Local, the exclusive representative of a unit of our employees, a copy of the list of employees used for administering random drug testing at Stockton Air Traffic Control Tower/TRACON on March 15, 1991, that includes the names of bargaining unit and nonbargaining unit employees.

_____________________________
(Agency)

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, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103 and whose telephone number is: (415) 744-4000.

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 by the National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, Oakland Center Local, the exclusive representative of a unit of our employees, a copy of the list of employees used for administering random drug testing at Oakland Air Route Traffic Control Center on April 19, 23, and 24, 1991, that includes the names of bargaining unit and nonbargaining unit employees.

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request, furnish the National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, Oakland Center Local, the exclusive representative of a unit of our employees, a copy of the list of employees used for administering random drug testing at Oakland Air Route Traffic Control Center on April 19, 23, and 24, 1991, that includes the names of bargaining unit and nonbargaining unit employees.

_____________________________
(Agency)

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, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103 and whose telephone number is: (415) 744-4000.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. As noted above, Stockton Local and Oakland Local requested lists that excluded the employees' social security numbers. The Respondent determined that the dates of birth for all employees and the names of nonbargaining unit employees should also be deleted from the lists. The Respondent contends that its decision to delete the dates of birth for all employees is "not an issue" in these cases. The General Counsel does not dispute the Respondent's contention and, in its brief, only requests that the drug test list be provided in an "unsanitized form, including the names of both bargaining unit employees and [nonbargaining] unit employees[.]" General Counsel's (GC's) Brief at 13. We find that the Respondent's decision to delete the dates of birth for all employees is not at issue in these cases. Therefore, we will not address that issue in our decision.

2. As noted previously, the Respondent argues only that the lists are not necessary and that disclosure of the lists is prohibited by law. The parties stipulated that all of the other requirements of section 7114(b)(4) have been met.

3. In Department of Veterans Affairs, Medical and Regional Officer Center, Fargo, North Dakota and National Federation of Federal Employees, Local 225, 46 FLRA No. 115 (1993), we noted that, on September 17, 1992, OPM published Federal Personnel Manual (FPM) Letter 711-164, which confirmed OPM's previous interpretation of a routine use statement providing, among other things, that home addresses of unit employees are not authorized for release to labor unions in situations where the unions have adequate alternative means of communicating with the employees. We also noted that in National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 46 FLRA 234, 243 (1992), the Authority concluded that the FPM Letter would govern interpretation of the routine use statement. We stated that we would no longer follow Portsmouth Naval Shipyard insofar as it rejects OPM's interpretation of the relevant routine use statement and holds that disclosure of home addresses is authorized by exception b(3) of the Privacy Act "without regard to the availability of alternative means of communication." Portsmouth Naval Shipyard, 37 FLRA at 539.

4. Authority decisions based on Portsmouth Naval Shipyard have been enforced in United States Courts of Appeals for the Third, Fifth, and Ninth Circuits. FLRA v. United States Department of the Navy, Navy Ships Parts Control Center, 966 F.2d 747 (3d Cir. 1992) (en banc); FLRA v. United States Department of Defense, Department of the Navy, Washington, D.C., 975 F.2d 1105 (5th Cir. 1992), petition for cert. filed, 61 U.S.L.W. 3534 (U.S. Jan. 21, 1993) (No. 92-1223); FLRA v. United States Department of the Navy, Navy Resale and Services Support Office, Field Support Office, Auburn, Washington, 958 F.2d 1490 (9th Cir. 1992) (petition for rehearing and suggestion for rehearing en banc pending). A panel for the Court of Appeals for the Fourth Circuit also enforced a decision based on Portsmouth Naval Shipyard; the court subsequently vacated the panel's decision and granted a petition for rehearing en banc. FLRA v. United States Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, 954 F.2d 994 (4th Cir. 1992), vacated, petition for reh'g en banc granted (4th Cir. Apr. 22, 1992). However, applications for enforcement of such decisions were denied by United States Courts of Appeals for the Second, Sixth, Seventh, and Tenth Circuits. FLRA v. United States Department of Veterans Affairs, Washington, D.C. and United States Department of Veterans Affairs Medical Center, Newington, Connecticut, 958 F.2d 503 (2d Cir. 1992); FLRA v. Department of the Navy, Naval Resale Activity, Naval Air Station-Memphis, Millington, Tennessee, 963 F.2d 124 (6th Cir. 1992); FLRA v. United States Department of the Navy, Navy Exchange, Naval Training Station, Naval Hospital, Great Lakes, Illinois, 975 F.2d 348 (7th Cir. 1992); FLRA v. United States Department of Defense, Army and Air Exchange Service, Dallas, Texas, No. 90-9561 (10th Cir. Jan. 20, 1993). We respectfully adhere to our determination in Portsmouth Naval Shipyard that agencies are required to provide exclusive representatives with requested names and home addresses of bargaining unit employees pursuant to section 7114(b)(4) of the Statute.

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