Petition for Writ of Certiorari — Federal Labor Relations Authority v. United States Department of Agriculture

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No. — _

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

FEDERAL LABOR RELATIONS AUTHORITY,

PETITIONER -

UNITED STATES DEPARTMENT OF AGRICULAURE, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

WILLIAM E., PERSINA*

Acting Solicitor

ARTHUR A. HOROWITZ

Associate Solicitor

PAMELA P. JOHNSON

Altorney

Federal Labor Relations Authority

500 C Street, SW.

Washington, D.C. 20424

(202) 382-0781

* Counsel of Record

QUESTION PRESENTED

Whether a procedure devised by the Eighth Circuit,

allowing federal employees to direct their agency employer

to withhold disclosure of their names and home addresses

to the employees’ exclusive representative when the repre-

sentative requests such data under 5 U.S.C. 7114(b)(4) to

facilitate direct communication between the representative

and the employees, is contrary to that section because the

procedure has no basis in law and in many cases defeats

the rationale for the data disclosure requirement under

Section 7114(b)(4).

PARTIES TO THE PROCEEDING

Petitioner, respondent/cross-petitioner below, is the

Federal Labor Relations Authority. The respondents, peti-

tioners/cross-respondents below, are the United States

Department of Agriculture and Farmers Home Adraini-

stration Finance Office, St. Louis, Missouri; and the

United States Department of Defense and Defense Map-

ping Agency Aerospace Center, St. Louis, Missouri. The

respondents, intervenors below, are the American Federa-

tion of Government Employees, AFL-CIO, Local 3354

and the National Federation of Federal Employees.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

AFGE v. FLRA, 811 F.2d 769 (2d Cir. 1987) ........... 17

AFGE, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir.

i is cn Ob cagenea neteeeaec 15

AFGE, Local 1760 v. FLRA, 786 F.2d 554 (2d Cir.

ee a ca peasacenses ssagus _ passim

Andrews v. Veterans Admin., 838 F.2d 418 (10th Cir.

1988), petit. for cert. filed, 56 U.S.L.W. 3769 (U.S.

CS ene 26

Bureau of Alcohol, Tobacco and Firearms v. FLRA,

ee 3

Conair Corp. v. NLRB, 721 F.2d 1355 (D.C. Cir. 1983). . 23

Defense Mapping Agency Aerospace Center, St. Louis,

CE ET. 11

Defense Mapping Agency Aerospace Center, St. Louis,

Missouri, 24 F.L.R.A. 43 (1986) ............... 1, 10, 11, 13

(111)

Cases — Continued: Page

Dept. of Justice v. Reporters Committee for Freedom of

the Press, 56 U.S.L.W. 3718 (U.S. cert. granted Apr.

SR; HE PEE Satabestsbdedadeseesuccecss 14

Dept. of the Air Force v. Rose, 425 U.S. 352 (1976) ...... 19, 26

Dept. of the Navy, Philadelphia Naval Shipyard v. FLRA,

tf i fl ee 13, 14

Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) ....... 24, 25

Farmers Home Administration Finance Office, St. Louis,

SE, TP I I habbo daccccccsdccccsens 5, 6,7

Farmers Home Administration Finance Office, St. Louis,

REDOING, ZO GF EaMicth, FRB CHEED cc cccteccasccccses passim

FLRA v. U.S. Dept. of the Treasury, No. 87-1107, con-

solidated with Nos. 87-1108, 87-1115, 87-1121, 87-1129,

and 87-1319 (D.C. Cir. order filed May 11, 1988) ..... 14

Garner v. Teamsters Local Union No. 776, 346 U.S.

Ge EE crctstiadccahetbsudkiisneibababiowcenes 27

Georgetown Holiday Inn, 235 N.L.R.B. 485 (1978) ...... 14, 23

Getman v. NLRB, 450 F.2d 670 (D.C. Cir. 1971) ..... 14, 17, 25

Massillon Hospital Ass’n, 282 N.L.R.B. No. 98 (Jan. 9,

Sn aks bakenesd Gccecdbsaeinecwxiadanneds 14

National Ass’n of Retired Federal Employees v. Horner,

633 F. Supp. 1241 (D.D.C. 1986), appeal docketed,

No. 86-5446 (D.C. Cir. argued Apr. 14, 1987) ........ 25

National Railroad Passenger Corp. v. National Ass’n of

Railroad Passengers, 414 U.S. 453 (1974) ............ 22

New Jersey Bell Telephone Co. v. NLRB, 720 F.2d 789

EFT S bape a ae 25

NLRB v. Acme Industrial Co., 385 U.S. 432 (1967) ...... 15

NLRB v. Jaggars-Chiles-Stovall, Inc., 639 F.2d 1344

(Sth Cir.), cert. denied, 454 U.S. 826 (1981) .......... 17, 25

NLRB vy. Keller Ladders Southern, Inc., 405 F.2d 663

Ce I Lae d «see éebetedeosecoeusec 23

NLRB vy. Pratt & Whuney Air Craft Division, 789 F.2d

ee a eneaeesosen 24, 25

NLRB vy. Truitt Manufacturing Co., 351 U.S. 149

conde dlen MENT ULbbasondscaccdecceccens 15, 16, 24

NLRB vy. Whitin Machine Works, 217 F.2d 593 (4th Cir.

1954), cert. denied, 349 U.S. 905 (1955) .............. 16

NLRB v. Wyman-Gordon Corp., 394 U.S. 759 (1969) ... 14

North Germany Area Council v. FLRA, 805 F.2d 1044

Sas CE EAU CUAE LG Secbieceanbdccebeeonscc 17

Cases — Continued: Page

Prudential Insurance Co. v. NLRB, 412 F.2d 77 (2d Cir.),

cert. denied, 396 U.S. 928 (1969) ..............4056.. 25

Sims v. Central Intelligence Agency, 642 F.2d 562 (D.C.

Cir. 1980), aff'd in part and rev'd in part on other

grounds, 471 U.S. 159 (1985) ....... 2.6.6.6 eee eee 19

The Detroit News, a Division of the Evening News Ass'n,

TI TEE Fa Be hina b odb 6 cevesdccdaasecces 25

United Aircraft Corp. v. NLRB, 434 F.2d 1198 (2d Cir.

1970), cert. denied, 401 U.S. 993 (1971) .............. 14, 23

U.S. Dept. of Health and Human Services, Social Security

Admin. v. FLRA, 833 F.2d 1129 (4th Cir. 1987) ....13, 14, 15

U.S. Dept. of the Air Force, Scott Air Force Base v.

FLRA, 838 F.2d 229 (7th Cir. 1988) .........-.... 13, 14, 17

Van Bourg, Allen, Weinberg & Roger v. NLRB, 728

wire t,o MB aerrrrr Tir iy ee 14, 25

WCCO Radio, Inc. v. NLRB, 844 F.2d 511 (8th Cir.

1988), petit. for cert. filed, 57 U.S.L.W. 3003 (U.S.

Rie, Se, SND Gs ED oc bcc coscncce4cacdseees 24

Weisberg v. U.S. Dept. of Justice, 489 F.2d 1195 (D.C.

Cir. 1973) (en banc), cert. denied, 416 U.S. 993 (1974) . 21

Statutes, rules, and regulations:

The Federal Service Labor-Management Relations Statute,

as amended, 5 U.S.C. 7101-7135 (1982 & Supp. IV

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Statutes, rules, and regulations — Continued: Page

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SINGS 6 Sb i'c deb ec JecGebae Se ish vena 3, 6

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Freedom of Information Act, 5 U.S.C. 552 (1982 & Supp.

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a 19

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5 U.S.C. 552(b)(6) (Exemption 6) ................. passim

$ U.S.C. $52(b(7) (Exemption 7) ................. 21

Privacy Act, 5 U.S.C. $$2a (1982 & Supp. IV”

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Civil Service Reform Act of 1978, Pub. L. No. 95-454,

eo RS an ee ee 2

Executive Order No. 10988, 3 C.F.R. 521 (1959-1963

GUD wh00s cvencsciccoeeccocecsantaanechioniee. 2

Executive Order No. 11491, 3 C.F.R. 861 (1966-1970

GEDA co ccvevicuscticdcécetes vedbaatausacuenas eee 2

Executive Orders Nos. 11616, 11636, and 11838, 3 C_F.R.

605, 634, 957 (1971-1975 comp.) ..... 2... 2. eee 2

4B FOG. Ram. SERSE CIGTSD . oncccccccccccccccescccscee MW

49 Fed. Reg. 36949 (1984) .... 2.2... cece M4

Miscellaneous:

S. Rep. No. 89-813, 89th Cong., Ist Sess (1965), reprinted

in Senate Subcomm. on Admin. Practice and Proce-

dure, Comm. on the Judiciary, Freedom of Information

Act Source Book: Legislative Materials, Cases, Ar-

ticles (Committee Print 1974) .... 2... 00000000000... 23

vil

Miscellaneous — Continued: Page

S. Rep. No. 93-854, 93d Cong., 2d Sess. (1974), reprinted

in Subcomm. on Gov't. Information and Individual

Rights of House Comm. on Gov't. Operations &

Subcomm. on Administrative Practice and Procedure

of Senate Comm. on the Judiciary, 94th Cong., Ist

Sess., Freedom of Information Act and Amendments

of 1974, Source Book: Legislative History, Texts, and

Other DocumentS ...... 2.0 c cece ec ennneneenees 21

S. Rep. No. 93-1183, 93d Cong., 2d Sess. (1974), reprinted

in 1974 U.S. Code Cong. & Admin. News 6916 ....... 26

In the Supreme Court of the Gnited States

OcTOBER TERM, 1988

No.

FEDERAL LABOR RELATIONS AUTHORITY,

PETITIONER

UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIKCUIT

The Federal Labor Relations Authority petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The judgment of the court of appeals (App. 19a-32a),

affirming and enforcing in part and remanding in part two

decisions and orders of the Authority, is reported at 836

F.2d 1139. The court’s denial of the Authority’s petition

for rehearing and suggestion of rehearing en banc (App.

35a-37a) is unreported. The decisions and orders of

the Federal Labor Relations Authority (App. 38a-5S5a,

8la-9la) are reported at 23 F.L.R.A. 788 and 24 F.L.R.A.

43.

(1)

JURISDICTION

The judgment of the court of appeals (App. 19a-32a)

was entered on January 15, 1988. The Authority’s timely

petition for rehearing and suggestion of rehearing en banc

was denied on March 29, 1988 (App. 35a-36a). The Eighth

Circuit amended its March 29 order on April 1, 1988

(App. 37a). On June 21, 1988, Justice Blackmun extended

the time within which to file a petition for a writ of cer-

tiorari to and including August 29, 1988. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATUTES INVOLVED

The relevant portions of the Federal Service Labor-

Management Relations Statute, as amended, 5 U.S.C.

7101-7135 (1982 & Supp. IV 1986); the Freedom of Infor-

mation Act, 5 U.S.C. 552 (1982 & Supp. IV 1986); and the

Privacy Act, 5 U.S.C. 552a (1982 & Supp. IV 1986), are

reproduced in the appendix (App. la-18a).

STATEMENT

1. The Federal Service Labor-Management Relations

Statute (“the Statute”) governs labor-management rela-

tions in the federal service.' Under the Statute, the re-

sponsibilities of the Federal Labor Relations Authority

(“the Authority”) including adjudicating unfair labor

' The Statute was enacted as Section 701 of the Civil Service

Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (1978). Prior

to the enactment of the Statute, labor-management relations in the

federal service were governed by a program established in 1962 by Ex-

ecutive Order No. 10988, 3 C.F.R. 521 (1959-1963 comp.). The Ex-

ecutive Order program was revised and continued by Exec. Order No.

11491, 3 C.F.R. 861 (1966-1970 comp.), as amended by Exec. Orders

Nos. 11616, 11636, and 11838, 3 C.F.R. 605, 634, 957 (1971-1975

comp.).

practice complaints, negotiability disputes, bargaining

unit and representation election matters, and resolving ex-

ceptions to arbitration awards. See 5 U.S.C. 7105(a)(1),

(2); see also Bureau of Alcohol, Tobacco and Firearms v.

FLRA, 464 U.S. 89, 93 (1983). The Authority may peti-

tion for enforcement of its orders in appropriate United

States courts of appeals. 5 U.S.C. 7123(b). Persons, in-

cluding federal agencies, who are aggrieved by certain

types of Authority orders may seek judicial review in the

courts of appeals. 5 U.S.C. 7123(a).

Congress specified in the Statute that “labor organiza-

tions and collective bargaining are in the public interest.” 5

U.S.C. 7101(a). Consistent with this finding of Congress,

the Statute requires an agency to accord exclusive recogni-

tion to a labor organization selected as the representative,

in a secret ballot election, by a majority of the employees

in an appropriate unit who cast valid ballots in the elec-

tion. 5 U.S.C. 7111(a). A labor organization accorded

such exclusive recognition has an obligation to represent

fairly “all employees in the unit” regardless of whether

they are union members. 5 U.S.C. 7114(a)(1). Employees

in a unit of exclusive recognition have the right to refrain

from joining a labor organization as a dues-paying

member. 5 U.S.C. 7102. The agency and the labor

organization have a duty to meet and negotiate in good

faith for the purpose of arriving at a collective bargaining

agreement. 5 U.S.C. 7114(a)(4). The duty to bargain in

good faith extends to matters relating to conditions of

employment affecting bargaining unit employees. 5

U.S.C. 7103(a)(12) and 7117.

A provision enacted by Congress in the Statute to facili-

tate union representation and enable unions to meet their

representational duties is Section 7114(b)(4). That section

requires a federal employer. to furnish the exclusive

bargaining representative “to the extent not prohibited by

law” with any requested data that is, among other things,

“reasonably available”; “normally maintained by the agen-

cy in the regular course of business”; and “necessary for

full and proper discussion, understanding, and negotia-

tion of subjects within the scope of collective bargaining.”

5 U.S.C. 7114(b)(4).

The Statute also makes it an unfair labor practice for a

federal agency employer to, among other things, “interfere

with, restrain, or coerce any employee in the exercise by

the employee of any right under [the Statute]”; “refuse to

consult or negotiate in good faith with any labor organiza-

tion”; or “otherwise fail or refuse to comply with any pro-

vision” of the Statute. 5 U.S.C. 7116(a)(1), (5), and (8).

2.a. This case involves two Authority decisions and

orders arising from requests by exclusive representatives to

federal employer agencies under 5 U.S.C. 7114(b)(4) for

the names and home addresses of bargaining unit employ-

ees (App. 38a-55a, 81a-9la). In the first proceeding, the

Authority’s decision and order was issued on remand from

the D.C. Circuit, as discussed at pages 4 to 10, below, as

Farmers Home Administration Finance Office, St. Louis,

Missouri, 23 F.L.R.A. 788 (1986) (“FHAFO IT’) (App.

38a-5Sa).

In FHAFO II, the American Federation of Government

Employees Local 3354 (“AFGE” or “the union”) by letter

dated July 20, 1983, requested from the Farmers Home

Administration Finance Office, St. Louis, Missouri

(“Farmers Home Administration” or “the agency”) a list of

the names and home addresses of all bargaining unit em-

ployees (App. 65a). The union’s local president indicated

that AFGE wanted to use the information to communicate

with all bargaining unit employees in the privacy of their

homes concerning then-pending collective bargaining nego-

tiations to renew the negotiated agreement covering the

bargaining unit; and on subsequent occasions concerning

eeantieibiaieen a ne

other matters (App. 65a-67a). The union was of the view

that such communication would allow it to “frame in-

telligent collective bargaining proposals” in the pending

negotiations (App. 66a). The local president also stated

that he wanted employee names and home addresses to

provide a private atmosphere for bargaining unit members

to read and respond to union requests for opinions and in-

formation concerning matters of interest to the union and

bargaining unit members (App. 66a). He indicated further

that this data would also assist the union in recruiting new

members (App. 66a). The agency denied the union’s re-

quest in a letter dated August 18, 1983, on the ground that

the disclosure of home addresses without employee con-

sent would constitute a violation of the Privacy Act, 5

U.S.C. 552a (App. 66a). !

b. Thereafter AFGE filed with the Authority’s

General Counsel an unfair labor practice (ULP) charge

pursuant to 5 U.S.C. 7118(a) against the agency. The

General Counsel issued a ULP complaint against the agen-

cy for its refusal to furnish the union with the names and

home addresses of all unit employees (App. 63a-64a). The

complaint was heard before an Authority Administrative

Law Judge (ALJ), who found that the agency had not

committed an unfair labor practice (App. 73a-80a). The

ALJ found that the disclosure of the information was not

required under Section 7114(b)(4) of the Statute in view of

the alternative means available to the union to communi-

cate with unit employees (App. 73a-80a). The ALJ there-

fore recommended that the complaint be dismissed (App.

80a).

After issuance of the ALJ’s recommended decision, the

Authority in its initial decision in this case (19 F.L.R.A.

195) (1985) (“FHAFO IP’) agreed with the conclusion of the

ALJ that the agency had not committed ULPs under the

Statute by refusing to provide AFGE with unit employee

names and home addresses (App. 56a-62a). The Authority

based its conclusion, however, on the finding that the

disclosure was “prohibited by law” under Section

7114(b)(4) of the Statute (App. 3la, 4la, 61a). The

Authority held in this connection that disclosure of the in-

formation was prohibited by the Privacy Act, 5 U.S.C.

552a, which provides generally that federal agencies may

not disclose data in records systems concerning individuals

without their consent (App. 4la, 58a). The Authority

noted (App. 41a-42a, 58a-59a) further in FHAFO I that

disclosure under the Privacy Act of such data without an

individual’s consent is not barred if disclosure is required

under the Freedom of Information Act (FOIA), 5 U.S.C.

552. 19 F.L.R.A. at 196-97. The Authority held (App.

39a, 42a, 60a-6la) that the FOIA does not require

disclosure of employee names and home addresses because

the data could be withheld under FOIA Exemption 6 con-

cerning personal privacy, 5 U.S.C. 552(b)(6). The

Authority did not determine whether another independent

exception to the Privacy Act’s nondisclosure requirement,

5 U.S.C. 552a(b)(3), allowing for unconsented disclosure

if it would constitute a “routine use” of the data, was ap-

plicable (App. 39a, 56a-62a).

The union filed a petition for review of the Authority’s

decision in FHAFO I with the D.C. Circuit pursuant to 5

U.S.C. 7123(a) (App. 39a-40a). Before briefing, the

Authority moved for and was granted a remand of the

case, among other things in order to determine in the first

instance whether unconsented disclosure to an exclusive

representative of names and home addresses of unit

employees was appropriate as a “routine use” for that data

under the Privacy Act, 5 U.S.C. 552a(b)(3), and therefore

not “prohibited by law” under Section 7114(b)(4) of the

Statute (App. 39a-40a).?

2 In several other cases where unions had petitioned for review of

Authority decisions which followed the precedent established in

(Continued)

c. Onremand, the Authority reversed its FHAFO I de-

cision (App. 38a). The Authority determined that, under

Section 7114(b)(4) of the Statute, names and home ad-

dresses must be disciosed to the union (App. 42a-5la). The

Authority reached this conclusion after extensive public

comment solicited by notice in the Federal Register (App.

40a-4la). The Authority indicated in FHAFO II that,

under Section 7114(b)(4) of the Statute it must determine

whether (1) disclosure of the names and home addresses of

bargaining unit employees is prohibited by law; (2) the in-

formation is normally maintained by the agency in the

regular course of business; (3) the union properly re-

quested the information; and (4) the information is

reasonably available and necessary within the meaning of

Section 7114(b)(4) (App. 42a).

In considering whether disclosure of the data was pro-

hibited by law pursuant to Section 7!14(b)(4), the Au-

thority noted the two relevant exceptions to the Privacy

Act’s bar to unconsented disclosure of information about

individuals: exception (b)(2) of the Privacy Act, § '!.S.C.

552a(b)(2), concerning disclosure required by the FOIA;

and exception (b)(3), 5 U.S.C. 552a(b)(3), relating to dis-

closure which constitutes a “routine use” of information

(App. 43a).

(Continued)

FHAFO1 in other courts of appeals, the Authority also requested and

obtained remands of the cases under review (App. 40a). The Second

Circuit, however, denied the Authority’s motion for remand and

reversed the Authority’s holding that the release of names and home

addresses under Section 7114(b)(4) of the Statute was prohibited by

the Privacy Act (App. 40a). AFGE, Local 1760 v. FLRA, 786 F.2d

554 (2d Cir. 1986). The court found, among other things, that the

minimal privacy interest in home addresses did not warrant their being

withheld; and their release was not “prohibited by law” under Section

7114(b)(4) (App. 40a). 786 F.2d at 557.

The Authority, in considering the FOIA exception to

the Privacy Act’s general rule of nondisclosure, held that

FOIA Exemption 6 would not bar disclosure under the

FOIA (App. 45a). Therefore, disclosure of the data was

not barred by the Privacy Act (App. 45a). Balancing pur-

suant to Exemption 6 the public interest served by release

against employee privacy interests, the Authority found

that the balance favors disclosure to the union of unit

employee names and home addresses (App. 44a). The

Authority stated that Congress in Section 7101 of the

Statute found collective bargaining in the federal govern-

ment to be in the public interest (App. 44a). Further, the

Authority indicated that disclosure would contribute to

the union’s ability to communicate effectively with its

bargaining unit employees, thereby enabling it better to

fulfill its responsibilities under the Statute (App. 44a). The

Authority also agreed (App. 44a) with the Second Circuit’s

conclusion in AFGE, Local 1760 v. FLRA, 786 F.2d 554,

556 (2d Cir. 1986) that “the privacy interest of the average

employee in his address is not particularly compelling.”

Additionally, the Authority indicated that employees may

protect their individual privacy interests by discarding un-

solicited mail from the union, and requesting that their

names be deleted from the union’s mailing list (App.

44a-45a). Further, the Authority held that agency

employer withholding of employee names and home ad-

dresses could properly be based on a showing of “immi-

nent danger” to an employee if that data were released

(App. 50a-5la).

Turning to exception (b)(3) of the Privacy Act, the

Authority held that the “routine use” exception to the

Privacy Act’s prohibition on unconsented release of data

also eliminated that Act as a barrier to disclosure under

Section 7114(b)(4) (App. 46a). The Authority noted (App.

45a) that the Office of Personnel Management (OPM) has

to et ne

published a notice of routine use for federal employee per-

sonnel files which contain employee names and home ad-

dresses.2 Among the routine uses included in the notice

concerning employee personnel files was disclosure to

union officials “when relevant and necessary to their

duties of exclusive representation” (App. 45a). The

Authority found this routine use to be essentially the same

as the requirement under Section 7114(b)(4) of the Statute,

that disclosure of data be “necessary for full and proper

discussion, understanding, and negotiation of subjects

within the scope of collective bargaining” (App. 45a-46a).

Because the Authority found that the “necessary” standard

of Section 7114(b)(4) was met concerning employee names

and home addresses, it also concluded that disclosure falls

within the routine use established by OPM (App. 46a,

48a-Sla). Thus, the Authority concluded that “even if the

disclosure was not authorized under exception (b)(2) of the

Privacy Act, relating to the FOIA, it is authorized under

exception (b)(3)” (App. 46a).*

Accordingly, because the Authority found that the con-

ditions for disclosure under Section 7114(b)(4) of the

Statute were met, it held that the agency had committed

unfair labor practices under Section 7116(a)(1), (5), and

(8) of the Statute by refusing to provide employee names

and home addresses to the union (App. 51a). The Authori-

ty also issued a remedial order directing the agency to,

among other things, cei\se and desist from refusing to fur-

nish that data to the union; and affirmatively to provide

> The OPM routine use notice, 49 Fed. Reg. 36949, 39956 (Sept. 20,

1984), was a reissuance of the routine use notice published by OPM’s

predecessor, the Civil Service Commission. 40 Fed. Reg. 54356, 54362

(Nov. 21, 1975).

* The Authority also held under Section 7114(b)(4) that the data

was reasonably available and normally maintained by the agency in

the regular course of business (App. 46a, 48a).

the data to the union on request (App. 5la-52a). The

Farmers Home Administration petitioned for review of

this decision with the Eighth Circuit and the Authority

sought enforcement of its order with that court (App.

21a).

3.a. In the second case reviewed by the court below,

Defense Mapping Agency Aerospace Center, St. Louis,

Missouri, 24 F.L.R.A. 43 (1986) (“Defense Mapping IT’)

the course of events followed a similar sequence to that in

FHAFO II (App. 81la-82a). The National Federation of

Federal Employees, Local 1827 (““NFFE” or “the union”)

by letter dated July 23, 1982, requested a listing of bar-

gaining unit employees’ names and home addresses from

the Defense Mapping Agency Aerospace Center, St.

Louis, Missouri (“Defense Mapping Agency” or “the agen-

cy”) (App. 82a, 102a). NFFE wanted the data to com-

municate quickly and confidentially to its unit employees

information concerning upcoming negotiations on a

secrecy agreement the agency wanted employees to sign;

and advise employees prior to completion of negotiations

on how to respond to agency demands that the agreement

be signed (App. 104a). The agency refused to give the

union the information because it claimed that the informa-

tion was not maintained in a “reasonably available” form

(App. 104a-105a).

b. Upon the filing of an unfair labor practice charge

by the union, the General Counsel of the Authority issued

a complaint against the Defense Mapping Agency for its

refusal to provide the union, upon request, with employee

names and home addresses (App. 99a). The complaint was

heard before an ALJ who concluded that the union had no

adequate means of communication with the employees

it represented; that the Privacy Act was not a bar to such

disclosure; and therefore the agency must supply the

union with the requested information (App. 82a-83a,

114a-133a). As a result the ALJ found that the Defense

Mapping Agency had committed unfair labor practices by

ee ee ee

refusing to disclose employee names and home addresses

(App. 133a). The Authority in its initial decision in this

case, Defense Mapping Agency Aerospace Center, St.

Louis, Missouri, 19 F.L.R.A. 675-78 (1985) (“Defense

Mapping I’) followed the precedent established in

FHAFO I discussed at pages 5 to 6, supra, and reversed

the ALJ (App. 83a, 92a-96a).

The union filed a petition for review of the Authority’s

Defense Mapping I decision with the Eighth Circuit (App.

83a). As in FHAFO I, the Authority prior to briefing

sought and obtained a remand of the case to consider,

among other things, the “routine use” question which it

had not previously addressed (App. 40a, 81a). Following

its decision on remand in FHAFO II, the Authority re-

versed its prior holding in Defense Mapping I (App. 82a).

Thus, the Authority found the agency had committed un-

fair labor practices under Section 7116(a)(1), (5), and (8)

of the Statute, and issued a remedial order similar to the

one in FHAFO I] (App. 85a-86a). The Defense Mapping

Agency petitioned for review of this decision in the Eighth

Circuit and the Authority sought enforcement of its order

with that court (App. 21a).

4. On January 15, 1988, the Eighth Circuit affirmed

and enforced in part and remanded in part the Authority

orders in FHAFO II and Defense Mapping Agency II,

which it had consolidated for review (App. 19a-29a). The

court found that it was not arbitrary and capricious for the

Authority to hold that names and home addresses are

necessary data within the meaning of Section 7114(b)(4) of

the Statute, because direct communication with employees

at home effectively serves the bargaining process (App.

24a). The court also found that the disclosure of the em-

ployees’ names and addresses was not “in general” pro-

hibited by the FOIA (App. 25a, note 2).° The court held in

> Because the court held that the FOIA did not generally prohibit

the disclosure, it did not consider whether the Privacy Act permits

disclosure of the information as a “routine use” (App. 25a, note 2).

this connection that unit employees have a “cognizable pri-

vacy interest” in their home addresses (App. 27a). The

court also deferred to the Authority’s determination that

“disclosure in general will help effect the policies” of the

Statute in promoting the public interest through collective

bargaining in the federal sector (App. 28a). The court

below then concluded, however (Chief Judge Lay dissent-

ing), that competing privacy and disclosure interests could

“optimally” be served by allowing for disclosure only of

the names and home addresses of unit employees who do

not indicate to their employers that they do not want such

data disclosed to their exclusive representatives (App.

29a). Accordingly, the court below remanded the cases to

the Authority for amendment of its orders consistent with

the court’s decision (App. 29a).

Chief Judge Lay concurred in the judgment of the court

below that the agency employers must disclose to the

unions the names and home addresses of bargaining unit

employees, but dissented from the holding “that employ-

ees may ask their employers to keep the information confi-

dential” (App. 30a) (emphasis in original). Chief Judge

Lay stated that this caveat had no basis in law; undermines

the rationale for the principal holding of the court below;

conflicts with decisions of the Second and Fourth Circuits;

and fashions a remedy that was not requested or discussed

by any party to the actions (App. 31a). Chief Judge Lay

also indicated that the Statute contains no exception to the

duty of disclosure which allowed individual employees to

decide whether their names and home addresses will be

disclosed (App. 31a). Further, Chief Judge Lay stated that

the holding of the court below was inconsistent with the

scheme of the FOIA, in that it called for the court to abdi-

cate its responsibility by allowing individual employees to

decide for themselves the applicability of FOIA Exemp-

tion 6 (App. 3la-32a).

Petitions for rehearing of the court’s decision, with sug-

gestions of rehearing en banc, filed by the Authority and

the employer agencies were denied on March 29, 1988

(App. 35a-36a). The court amended its March 29 order on

April 1, 1988 (App. 37a). A rehearing petition by inter-

venor AFGE in FHAFO I] was earlier denied by the court,

on February 24, 1988 (App. 33a-34a).

REASONS FOR GRANTING THE PETITION

The employee consent procedure devised by the court of

appeals majority is unique among the decisions of the

several courts of appeals having ruled that agency employ-

ers are required to disclose all unit employee names and

home addresses under Section 7114(b)(4) of the Statute.

The Seventh Circuit expressly declined to create a pro-

cedure allowing unit employees to determine whether their

home addresses should be disclosed. U.S. Dept. of the Air

Force, Scott Air Force Base v. FLRA, 838 F.2d 229,

233-34 (7th Cir. 1988). The Third Circuit in Dept. of the

Navy, Philadelphia Naval Shipyard v. FLRA, 840 F.2d

1131, 1137 n.3 (3d Cir. 1988), declined to impose any re-

quirement allowing individual employees to direct the

withholding of their home addresses. That court observed

that there was no record evidence showing that any em-

ployees wished to have that data withheld, and that the

Authority’s decision explicitly recognized that employees

could direct the union to delete their names from a union

mailing list. 840 F.2d at 1137 n.3. The Fourth Circuit en-

forced the Authority’s orders in three consolidated cases

under review there without creating an “opt out” approach

as devised by the Eighth Circuit here. U.S. Dept. of

Health and Human Services, Social Security Admin. v.

FLRA, 833 F.2d 1129 (4th Cir. 1987).* Thus, the decision

* The Fourth, Seventh, and Third Circuits enforced in full Autiiori-

ty orders directing agency employers to provide exclusive representa-

tives with the names and home addresses of the employees they repre-

(Continued)

below departs from the consensus arrived at by the other

circuit courts which have considered this issue.

Further, the majority decision of the court below con-

cerning employee consent is also contrary to well-settled

private sector labor law and FOIA principles, that unions

and other data requesters are entitled to individuals’ home

addresses without imposition of the consent caveat created

by the panel majority in the instant case. See, e.g., NLRB

v. Wyman-Gordon Corp., 394 U.S. 759 (1969); United

Aircraft Corp. v. NLRB, 434 F.2d 1198 (2d Cir. 1970),

cert. denied, 401 U.S. 993 (1971); Van Bourg, Allen,

Weinberg & Roger v. NLRB, 728 F.2d 1270 (9th Cir.

1984); Getman v. NLRB, 450 F.2d 670 (D.C. Cir. 1971);

Massillon Hospital Ass’n, 282 N.L.R.B. No. 98 (Jan. 9,

1987); and Georgetown Holiday Inn, 235 N.L.R.B. 485

(1978).

Moreover, the panel majority’s holding concerning em-

ployee consent will in many cases seriously impede the

(Continued)

sent. U.S. Dept. of Health and Human Services, Social Security Ad-

min. v. FLRA, 833 F.2d 1129 (4th Cir. 1987); U.S. Dept. of the Air

Force, Scott Air Force Base v. FLRA, 838 F.2d 229 (7th Cir. 1988);

Dept. of the Navy, Philadelphia Naval Shipyard v. FLRA, 840 F.2d

1131 (3d Cir. 1988). The D.C. Circuit has ordered a number of cases

before it on this issue held in abeyance pending this Court's decision in

Dept. of Justice v. Reporters Committee for Freedom of the Press, 56

U.S.L.W. 3718 (U.S. cert. granted Apr. 15, 1988) (No. 87-1379).

FLRA v. U.S. Dept. of the Treasury, No. 87-1107, consolidated with

Nos. 87-1108, 87-1115, 87-1121, 87-1129, and 87-1319 (D.C. Cir.

order filed May 11, 1988).

Further, as indicated at pages 6-7, note 2, supra, the Second Circuit

earlier reversed and remanded an Authority decision finding no unfair

labor practice for an agency’s refusal to provide unit employee names

and home addresses. It did so without applying any employee option

procedure like that devised by the Eighth Circuit in the instant case.

AFGE, Local 1760 v. FLRA, 786 F.2d 554 (2d Cir. 1986), reversing 19

F.L.R.A. 913 (1985).

flow of data Congress intended for exclusive representa-

tives under Section 7114(b)(4) of the Statute, and for other

data requesters under the FOIA. Finally, the lower court’s

majority ruling on employee consent is in error as wholly

without support in law. For these reasons review by this

Court is warranted.

1. The “opt out” procedure of the court below con-

flicts with the data disclosure provisions of Section

7114(b)(4) of the Statute because it gives individual unit

employees, in cases involving data on individuals, the un-

fettered, subjective ability to control whether data will be

disclosed to a union. The decision of the court below also

creates similar problems in proper implementation of the

FOIA.

a. Section 7114(b) of the Statute establishes certain re-

quirements for satisfaction of the bargaining obligation

between federal agency employers and exclusive repre-

sentatives of agency employees. Congress expressly recog-

nized in Section 7114(b)(4) the importance of providing

unions with necessary data, when not otherwise barred by

law, in order to facilitate the collective bargaining process.

This process includes both negotiation of contracts, as

well as their implementation through the negotia‘ed griev-

ance procedure. U.S. Dept. of Health and Human Services,

Social Security Admin. v. FLRA, 833 F.2d 1129 (4th Cir.

1987); AFGE v. FLRA, 811 F.2d 769, 774-75 (2d Cir.

1987); AFGE, Local 1345 v. FLRA, 793 F.2d 1360, 1363-64

(D.C. Cir. 1986); AFGE, Local 1760 v. FLRA, 786 F.2d

554, 557 (2d Cir. 1986).’ Further, data disclosure under

’ It is also well-settled in private sector labor law that the duty of an

employer to supply information is part and parcel of the fundamental

duty to bargain. The duty to supply such information applies not only

to information needed to negotiate an agreement, but also to daia

relevant to its administration. See, e.g., NLRB v. Acme Industrial

Co., 385 U.S. 432, 435-36 (1967); NLRB vy. Truitt M ufacturing Co.,

(Continued)

Section 7114(b)(4) is instrumental in enabling a union to

discharge its duty of fair representation imposed by Con-

gress under Section 7114(a)(1) of the Statute. Section

7114(a)(1) states in relevant part that an exclusive repre-

sentative is “responsible for representing the interests of all

employees in the unit it represents without discrimination

and without regard to labor organization membership.” 5

U.S.C. 7114(a)(1).

However, by allowing individual employee interests to

govern whether data disclosure takes place under Section

7114(b)(4), the decision of the court below disrupts the

flow of information Congress intended under the Statute

to enable a union to fulfill these representational rights

and responsibilities. Under the majority decision all condi-

tions for disclosure may be met under Section 7114(b)(4),

but the flow of necessary data to the union may be

substantially impeded or turned off altogether due to

purely subjective individual employee desires. Any time a

union requests data which involves an individual employ-

ee, the employee would have sole veto power over whether

the data should be disclosed. Such a result means that the

individual unit employee is given absolute power to

regulate the flow of data without any regard to the import-

ant policies concerning operation of the collective bar-

gaining process, as discussed at pages 15-16, supra.* This

(Continued)

351 U.S. 149, 153 (1956). Unions cannot be expected to represent unit

employees in an effective manner where they do not possess informa-

tion which “is necessary to the proper discharge of the duties of the

bargaining agent.” NLRB v. Whitin Machine Works, 217 F.2d 593,

594 (4th Cir. 1954), cert. denied, 349 U.S. 905 (1955).

§ In the instant case, the utility of disclosing employees’ names and

horse addresses to unions obligated to represent employee interests, as

a facilitator of the collective bargaining process, is patent. If a union is

able to communicate effectively with its constituents by direct mailing,

the union will be able to raise issues with management which are

(Continued)

conclusion is contrary to Congress’ policies and purposes

in enacting Section 7114(b)(4), as Chief Judge Lay recog-

nized in his dissent (App. 31a).

Moreover, it makes no sense to give employees veto.

power over whether a union can obtain their names and

home addresses when the union properly can obtain, with-

out employee consent, other data involving greater privacy

interests. See, e.g., AFGE v. FLRA, 811 F.2d 769 (2d Cir.

1987) (request concerning employees’ official time and at-

tendance records; progress reviews and performance ap-

praisals; and various documents bearing on employees’

work performance); North Germany Area Council v.

FLRA, 805 F.2d 1044 (D.C. Cir. 1986) (request. concern-

ing disciplinary information); NLRB v. Jaggars-Chiles-

Stovall, Inc., 639 F.2d 1344 (Sth Cir.) (request for wage

data concerning employees), cert. denied, 454 U.S. 826

(1981). Thus, while disclosure of employees’ names and

home addresses may involve some level of privacy interest,

it must be considered as relatively minor? when compared

to disclosure of information involving wage rates, em-

ployee performance, or discipline. This incongruity

created by the decision of the court below mitigates

(Continued)

known to be of real concern to employees. The union will not have to

waste the parties’ time and resources by mistakenly pressing issues

which are not of actual concern. Further, employees’ organizational

rights under Section 7102 are more effectively exercised when such a

communication channel is established.

9 U.S. Dept. of the Air Force, Scott Air Force Base v. FLRA, 838

F.2d at 232 (“[ijt is hard to see how the disclosure of home addresses

could be ‘clearly unwarranted’ as a rule”); AFGE, Local 1760 v.

FLRA, 786 F.2d at 556 (“privacy interest of the average employee in

his address is not particularly compelling”). See also Getman v.

NLRB, 450 F.2d at 675 (“relatively minor” loss of privacy suffered by

employees if their names and addresses were disclosed to labor law

professor studying labor voting).

strongly against the decision standing.!°®

b. The decision of the court below, by erroneously

allowing unit employees in many cases to regulate the flow

of data from employer agency to exclusive representative,

creates a related problem in implementation of the FOIA

itself. Although the instant case arose directly under Sec-

tion 7114(b)(4) of the Statute, the FOIA was considered as

part of the analysis in assessing whether disclosure of the

subject data is prohibited by law within the meaning of

Section 7114(b)(4). The court below devised its employee

consent procedure in the context of its analysis of FOIA

Exemption 6 (App. 28a-29a). Further, the lower court

relied in part on the legislative history of the FOIA itself in

devising that procedure (App. 28a-29a). Accordingly, the

decision of the court below gives every indication that it is

equally applicable to cases arising directly under the

FOIA. As such, the court’s individual consent procedure

will in many cases impair data disclosure under the FOIA

in much the same way as it does under the Statute. That is,

the individual consent procedure would put the individual

who is the subject of the data in exclusive control over

whether disclosure under the FOIA is to occur. This result

is fundamentally at odds with congressional policy in

enacting the FOIA, and further warrants review by this

Court.

10 A potentially harmful side effect of the court’s decision below for’

federal sector labor relations is the possibility of employer influénce in

assessing employee consent. Specifically, in order to carry out the

scheme, employers may canvass unit employees to assess which ones

want the union to have their name and home address withheld. This

canvassing process would seem to be ripe for employer influence, real

or imagined, as to whether an employee should consent to disclosure.

It is precisely this kind of potential for employer interference in the

union/employee communication process which led the Authority to

conclude that alternative means of communication involving the

workplace were irrelevant (App. 49a, 85a).

a ii lan Pts SO mw

As this Court has said, disclosure, not secrecy, is the

dominant objective of the FOIA. Dept. of the Air Force v.

Rose, 425 U.S. 352, 361 (1976). Further, concerning an

agency assertion of a FOIA exemption from that law’s dis-

closure requirement, the FOIA “prescribes with unmis-

takable clarity the role of the courts in evaluating agency

claims of exemption.” Sims v. Central Intelligence Agen-

cy, 642 F.2d 562, 566 (D.C. Cir. 1980), aff'd in part and

rev'd in part on other grounds, 471 U.S. 159 (1985) (em-

phasis provided). See also 5 U.S.C. 552(a)(4)(B) (an ap-

propriate United States district court “has jurisdiction to

enjoin [an] agency from withholding agency records and

to order the production of any agency records improperly

withheld”). Specially involving FOIA Exemption 6, it is

the function of federal agencies in the first instance, and

subsequently reviewing federal courts, to balance com-

peting privacy interests and the public interest in deciding

whether disclosure would constitute a “clearly unwar-

ranted invasion of personal privacy.” Dept. of the Air

Force v. Rose, 425 U.S. at 379; 5 U.S.C. 552(a)(3), (4).

The court’s decision below impairs administration of the

FOIA pursuant to these well-established principles. As

with Section 7114(b)(4) of the Statute (see pages 15 to 18,

supra), the consent procedure devised by the court below

would allow an individual to exercise exclusive control

over whether disclosure will occur under the FOIA. There

is no basis under this procedure for believing that in-

dividuals will be mindful of the FOIA’s “dominant objec-

tive” of disclosure in deciding whether to consent to re-

lease. Rather, it is more likely that individuals will be

mindful only of their own privacy interests. As a result,

the emphasis in FOIA Exemption 6 disclosure cases in-

volving personal privacy would, under the decision of the

court below, shift towards withholding of data, contrary

to Congress’ intent in enacting that law.

Further, as Chief Judge Lay pointed out in his dissent

(App. 3la-32a), the lower court’s ruling improperly takes

the responsibility for balancing competing interests in

assessing whether disclosure should occur away from the

entities charged by Congress with performing that func-

tion, i.e., federal agencies and courts. By allowing in-

dividuals to have sole discretion over disclosure, the court

below has effectively eliminated these institutions as the

means to ensure objective, impartial operation of the

FOIA in personal privacy cases.'!' The court below has

substituted in their stead the individual, who is under no

compunction whatsoever to engage in detached, balanced

analysis of whether disclosure is called for.

In allowing individual consent to govern disclosure the

decision below is also in error because it is without foun-

dation in the FOIA itself. Congress set forth in the FOIA

specific means for accommodating competing interests in

deciding whether disclosure is required under that law. In

its 1974 amendments to the FOIA Congress created a re-

quirement that “any reasonably segregable portion of a

record shall be provided to any person requesting such

'! The court below did not reach a conclusion as to whether

employee privacy interests outweigh the public interest to such an ex-

tent that disclosure would be “clearly unwarranted” under FOIA Ex-

emption 6. Rather, the court of appeals merely identified a

“cognizable privacy interest” of employees in their home addresses

(App. 27a); deferred to the Authority’s determination that “dis@losure

in general will help effect the policies” of the Statute in promoting the

public interest through collective bargaining in the federal sector

(App. 28a); and concluded that these competing interests are “op-

timally served” by allowing employees to direct withholding (App.

29a). Thus, it cannot be said that the court below discharged its

responsibility under the FOIA by concluding that disclosure of home

addresses constitutes a “clearly unwarranted” invasion of privacy

under Exemption 6, and merely substituted the employee consent pro-

cedure for outright withholding of the data.

Pedal scln ahd DAUD

record after deletion of the portions which are exempt”

under subsection (b) of the FOIA. 5 U.S.C. 552(b).!'? Fur-

ther, as indicated at page 19, supra, Congress stated in the

FOIA that district courts may in FOIA cases “examine the

contents of .. . agency records in camera to determine

whether such records or any part thereof shall be withheld

under any of the exemptions” set forth in subsection (b) of

the law.

'2 Prior to enactment of this segregability requiremeni in 1974,

some courts had held in connection with certain FOIA exemptions

that entire files may be withheld if some exempt material was con-

tained in them. See, e.g., Weisberg v. U.S. Dept. of Justice, 489 F.2d

1195 (D.C. Cir. 1973) (en banc) (Exemption 7, 5 U.S.C. 552(b)(7), in-

terpreted to allow withholding of entire investigatory files if they con-

tain exempt materials, even if nonexempt records also are present),

cert. denied, 416 U.S. 993 (1974). This practice was also followed by

many federal agencies.

The Senate Report on the 1974 FOIA amendments stated as follows

concerning the segregability requirement:

[The requirement] emphasizes what is presently understood by

most courts but has gone unheeded by agencies; it would not be

enough for the government to refuse disclosure of the record

merely because it or the file it was in contained such exempt infor-

mation, since deletion of that information would provide full

protection for the purposes to be served by the exemption. Thus,

the government could not refuse to disclose the requested records

merely because it finds in those records some portions which may

be exempt.

S. Rep. No. 93-854, 93d Cong., 2d Sess. 32 (1974), reprinted in Sub-

comm. on Gov’t. Information and Individual Rights of House Comm.

on Gov't. Operations & Subcomm. on Administrative Practice and

Procedure of Senate Comm. on the Judiciary, 94th Cong., Ist Sess.,

Freedom of Information Act and Amendments of 1974, Source Book:

Legislative History, Texts, and Other Documents, at 184.

Segregability of employee names and home addresses is of course

not feasible.

Consent of the individual is not one of the means adopt-

ed by Congress to effect the accommodation of competing

interests concerning disclosure, even though it gave ex-

press consideration to means of accommodation. Accord-

ingly, the lower court’s ruling is fundamentally at odds

with Congress’ choice as to how competing interests con-

cerning disclosure are to be resolved. Review by this Court

is warranted for this reason as well. Cf. National Railroad

Passenger Corp. v. National Ass’n of Railroad

Passengers, 414 U.S. 453, 458 (1974) (“when legislation ex-

pressly provides a particular remedy or remedies, courts

should not expand the coverage of the statute to subsume

other remedies”).

2. In addition to the important issues of federal law

discussed at pages 18 to 22, supra, review by this Court is

also warranted because the court’s “opt out” requirement

is erroneous as wholly unsupported in law, as Chief Judge

Lay correctly noted in his dissent (App. 31a). The majority

opinion based its “opt out” requirement essentially on two

points: first, it is consonant with Congress’ providing unit

employees with the right to choose the labor organization

to represent them under Section 7101(a) of the Statute;

and second, it is consistent with Congress’ intent as ex-

pressed in the legislative history of the FOIA that com-

peting interests in disclosure be balanced (App. 25a-28a).

However, neither of these factors provides any support for

the majority’s conclusion and therefore the ruling is in er-

ror. Further, the lower court’s majority holding is without

basis in law and represents an improper interrelationship

of the Privacy Act and FOIA.

a. Congress indicated in Section 7101(a)(1) that “the

statutory protection of the right of employees to organize,

bargain collectively, and participate through labor organi-

zations of their own choosing in decisions which affect

them” benefits the public interest and promotes the

amicable resolution of federal workplace disputes. 5

U.S.C. 7101(a)(1). Similar language contained in the Na-

tional Labor Relations Act (NLRA), at section 7, 29

U.S.C. 157,'3 has been interpreted as aimed at ensuring a

collective bargaining process free from the taint of em-

ployer domination or influence. See Conair Corp. v.

NLRB, 721 F.2d 1355, 1381-83 (D.C. Cir. 1983); NLRB v.

Keller Ladders Southern, Inc., 405 F.2d 663, 667 (Sth Cir.

1968).

Employee free choice in selecting a bargaining agent is

not, however, a basis for concluding that employees, once

a representative has been selected, can unilaterally govern

the flow of data to the exclusive representative based on

the employee’s individual desires concerning disclosure.

This result is contrary to Congress’ intent that, once an ex-

clusive representative is selected, it receive data necessary

to carry Out its rights and duties as exclusive representa-

tive, as discussed at pages 16-18, supra.

The panel majority below also erred by premising its

employee option procedure in large part on a passage from

the Senate Report on the original FOIA, enacted in 1966

(App. 28a). S. Rep. No. 89-813, 89th Cong., Ist Sess. 3

(1965), reprinted in Senate Subcomm. on Admin. Practice

and Procedure, Comm. on the Judiciary, Freedom of In-

formation Act Source Book: Legislative Materials, Cases,

Articles (Committee Print 1974) at 38. This portion of the

'3 Section 7 of the NLRA states in relevant part that “[e]mployees

shall have the right to. . . bargain collectively through representatives

of their own choosing.” Section 7 has in no way affected well-settled

private sector law that unions are entitled to employee home address

lists for the asking, without imposition of the consent caveat created

by the panel majority in the instant case. United Aircraft Corp. v.

NLRB, 434 F.2d at 1198; Georgetown Holiday Inn, 235 N.L.R.B. at

486.

Senate Report alludes in general terms to the potential dif-

ficulties in balancing competing interests under the bill;

the lack of need to abrogate one interest in furtherance of

the competing interest; and development of a “workable

formula” encompassing all interests while emphasizing

“fullest responsible disclosure.” At no point does this

Senate Report identify individual consent as an ap-

propriate means of accommodating competing interests,

nor has this passage of the Senate Report ever been relied

on previously to support such a conclusion. In any event,

as discussed at pages 18 to 22, supra, individual consent is

not even an appropriate means to accommodate com-

peting interests in disclosure because it will tend to empha-

size withholding, not release, of data, contrary to Con-

gress’ wishes.

b. The court below also erred in devising an employee

option procedure because there is no legal authority to

support it, either in private sector labor law or under the

Privacy Act and the FOIA. Concerning private sector

labor law, this Court has established that an employer may

properly refuse to provide data to a union based on lack of

employee consent to disclosure only when the data is

highly sensitive in nature. Detroit Edison Co. v. NLRB,

440 U.S. 301 (1979) (employee aptitude test scores need

not be disclosed by employer in absence of employee con-

sent, due to sensitive nature of data). This narrow excep-

tion to the private sector general rule of disclosure of rele-

vant data to unions, NLRB v. Truitt Manufacturing Co.,

351 U.S. at 149, has consistently been limited strictly to

cases involving highly sensitive data.'4

'* See, e.g., WCCO Radio, Inc. v. NLRB, 844 F.2d 511, 515 (8th

Cir. 1988) (wage and personal contract data not sufficiently sensitive

to be withheld from union based on desire for confidentiality by

employees who are subjects of the data), petit. for cert. filed, 57

U.S.L.W. 3003 (U.S. No. 87-2021, June 10, 1988); NLRB v. Pratt &

(Continued)

The data in the instant case, unit employee names and

home addresses, does not approach the level of sensitivity

that would warrant making employee consent a precondi-

tion of disclosure under Detroit Edison. Numerous federal

courts have recognized only a minimal privacy interest in

such data. AFGE, Local 1760 v. FLRA, 786 F.2d 554 (2d

Cir. 1986); Van Bourg, Allen, Weinberg & Roger v.

NLRB, 728 F.2d 1270 (9th Cir. 1984); Getman v. NLRB,

450 F.2d 670 (D.C. Cir. 1971); Prudential Insurance Co.

v. NLRB, 412 F.2d 77 (2d Cir.), cert. denied, 396 U.S. 928

(1969); National Ass’n of Retired Federal Employees v.

Horner, 633 F. Supp. 1241 (D.D.C. 1986), appeal

docketed, No. 86-5446 (D.C. Cir. argued Apr. 14, 1987).

The decision of the court below concerning employee

consent is also in error because it misapprehends the

proper role of individual consent in cases like the instant

one, involving Privacy Act — FOIA interface. As indicated

at pages 18 to 22, supra, disclosure of data in this case

under Section 7114(b)(4) necessarily turns in part on

whether disclosure is prohibited by the Privacy Act, 5

U.S.C. 552a. The nondisclosure provision of the Privacy

Act, 5 U.S.C. 552a(b), prohibits unconsented disclosure

by federal agencies of data concerning individuals unless

(Continued)

Whitney Air Craft Division, 789 F.2d 121, 130 (2d Cir. 1986) (em-

ployee attitude survey not sufficiently sensitive to be withheld from

union despite pledge to employee of confidentiality); NLRB v.

Jaggars-Chiles-Stovall, Inc., 639 F.2d at 1346-47 (non-union unit

employees’ request to employer not to disclose wage data concerning

employees to union is not a valid basis for withholding, due to lack ot

sensitivity of the data); The Detroit News, a Division of the Evening

News Ass’n, 270 N.L.R.B. 380, 381 (1984) (same). Compare New

Jersey Bell Telephone Co. v. NLRB, 720 F.2d 789 (3d Cir. 1983)

(employee leave records properly withheld, in absence of employee

consent to release, where the records disclosed highly sensitive medical

problems and treatment of employees).

one or more of several exceptions to the nondisclosure re-

quirement are met. One such exception, relevant to this

case, is whether disclosure of the data would be required

under the FOIA. 5 U.S.C. 552a(b)(2).

The clear import of this nondisclosure provision in the

Privacy Act is that an individual’s consent to disclosure is

sufficient in itself to warrant agency disclosure of data.

However, even in the absence of individual consent, dis-

closure may occur under the Privacy Act if, among other

things, release would be required under the FOIA. In

short, the Privacy Act expressly contemplates that data

release may occur without the subject’s consent, if re-

quired under the FOIA. See Andrews v. Veterans Admin.,

838 F.2d 418, 422 (10th Cir. 1988) (without consent of

data subjects, agency is prohibited from disclosing data

unless disclosure required by FOIA), petit. for cert. filed,

56 U.S.L.W. 3769 (U.S. Apr. 26, 1988) (No. 87-1769). See

also S. Rep. No. 93-1183, 93d Cong., 2d Sess. 71 (1974),

reprinted in 1974 U.S. Code Cong. & Admin. News 6916,

6985 (initial Senate version of 5 U.S.C. 552a(b)(2) not in-

tended to allow agencies to use FOIA “as an excuse to

avoid their obligations under [the Privacy Act] to obtain

informed consent” to disclosure from subjects of data).

Rather, FOIA disclosure is to be assessed purely by weigh-

ing the competing interests involved, without considera-

tion of individual consent. See, e.g., Dept. of the Air

Force v. Rose, 425 U.S. at 379.

The lower court, by devising its employee consent re-

quirement as a substitute for balancing competing factors

under FOIA Exemption 6, has thus ruled contrary to Con-

gress’ intent as to how the Privacy Act and the FOIA

should interact. Because the Privacy Act expressly con-

templates data disclosure in the absence of individuai con-

sent, if required under the FOIA, the court below, by re-

quiring individual consent in its FOIA analysis, has in-

verted the proper interaction between the FOIA and the

Privacy Act. Congress instructed that the FOIA’s dis-

closure rights be read into the Privacy Act, not that the

Privacy Act’s voluntary disclosure standard be read into

the FOIA. The court’s ruling below should be reviewed for

this reason as well.'*

Finally, the conflict the Eighth Circuit’s decision pro-

duces with other circuit court opinions which have ad-

dressed similar issues is disruptive to the special need for

uniformity in construing federal law which regulates

federal sector labor-management relations. This Court has

recognized that Congress, in regulating private sector

labor management relations, intended that there be “uni-

form application” of statutory rules and procedures.

Garner v. Teamsters Local Union No. 776, 346 U.S. 485,

490 (1953). In our view, this obtains with even greater

force to federal sector labor-management relations, where

bargaining units can be nationwide and the scope of the

program is worldwide. The rights afd obligations of the

federal managers of an employer agency, and the unions

who represent those employees, should not vary depend-

ing upon the circuit court of appeals in which their opera-

tions are conducted.

'S The court below also erred by not ruling on whether the “routine

use” exception (§ U.S.C. 552a(b)(3)) to the Privacy Act’s prohibition

on unconsented disclosure is applicable. That exception is a wholly in-

dependent exception to the Privacy Act’s general rule of nondis-

closure. In this respect, even if release of the data in this case is not re-

quired under the FOIA or is found to be limited in some way, un-

consented disclosure under the Privacy Act can still take place if the

release constitutes a “routine use.” The court below (App. 25a, note 2)

declined to rule on the issue because it found the data generally

available under the FOIA. However, it was error for the court below

to fail to consider whether unconsented disclosure of all data re-

quested was appropriate under the “routine use” exception. The cases

should be remanded for this reason alone.

CONCLUSION

The petition for a writ of certiorari should be granted to

review that portion of the lower court’s decision concern-

ing employees’ consent to disclosure.'®

Respectfully submitted.

WILLIAM E. PERSINA*

Acting Solicitor

ARTHUR A. HOROWITZ

Associate Solicitor

PAMELA P. JOHNSON

Attorney

* Counsel of Record

AUGUST 1988

'¢ Charles Fried, Solicitor General on June 17, 1988, “authorize(d]

the filing of this petition.”

APPENDIX A

RELEVANT PORTIONS OF THE FEDERAL SER-

VICE LABOR-MANAGEMENT RELATIONS

STATUTE, AS AMENDED, 5 U.S.C. §§ 7101-7135 (1982

& Supp. IV 1986); AND RELEVANT PORTIONS OF

THE FREEDOM OF INFORMATION ACT, 5 U.S.C.

552; AND THE PRIVACY ACT, 5 U.S.C. 552a

5 U.S.C. 7101 provides:

§ 7101. Findings and purpose

“(a) The Congrss finds that —

“(1) experience in both private and public employ-

ment indicates that the statutory protection of the right of

employees to organize, bargain collectively, and par-

ticipate through labor organizations of their own choosing

in decisions which affect them —

“(A) safeguards the public interest,

“(B) contributes to the effective conduct of public

business, and

“(C) facilitates and encourages the amicable set-

tlements of disputes between employees and their

employers involving conditions of employment; and

“(2) the public interest demands the highest standards

of employee performance and the continued development

and implementation of modern and progressive work

practices to facilitate and improve employee performance

and the efficient accomplishment of the operations of the

Government.

Therefore, labor organizations and collective bargaining

in the civil service are in the public interest.

“(b) It is the purpose of this chapter to prescribe certain

rights and obligations of the employees of the Federal

Government and to establish procedures which are design-

ed to meet the special requirements and needs of the

—————————eeE

Government. The provisions of this chapter should be in-

terpreted in a manner consistent with the requirements of

an effective and efficient Government.

* * * * *

5 U.S.C. 7102 provides:

“§ 7102. Employees’ rights

“Each employee shall have the right to form, join, or

assist any labor organization, or to refrain from any such

activity, freely and without fear of penalty or reprisal, and

each employee shall be protected in the exercise of such

right. Except as otherwise provided under this chapter,

such right includes the right —

“(1) to act for a labor organization in the capacity

of a representative and the right, in that capacity, to

present the views of the labor organization to heads

of agencies and other officials of the executive branch

of the Government, the Congress, or other ap-

propriate authorities, and

“(2) to engage in collective bargaining with respect

to conditions of employment through representatives

chosen by employees under this chapter.

* * * * *

5 U.S.C. 7103(a)(12) provides:

“§ 7103. Definitions: application

“(a) For the purpose of this chapter —

“(1Z) ‘collective bargaining’ means the performance

of the mutual obligation of the representative of an

agency and the exclusive representative of employees

in an appropriate unit in the agency to meet at

reasonable times and to consult and bargain in a

good-faith effort to reach agreement with respect to

the conditions of employment affecting such

employees and to execute, if requested by either par-

ty, a written document incorporating any collective

bargaining agreement reached, but the obligation

referred to in this paragraph does not compel either

party to agree to a proposal or to make a concession;

* * * * *

5 U.S.C. 7105(a) provides:

“§ 7105. Powers and duties of the Authority

“(a)(1) The Authority shall provide leadership in

establishing policies and guidance relating to matters

under this chapter, and, except as otherwise provided,

shall be responsible for carrying out the purpose of this

chapter.

“(2) The Authority shall, to the extent provided in this

chapter and in accordance with regulations prescribed by

the Authority —

“(A) determine the appropriateness of units for

labor organization representation under section 7112

of this title;

“(B) supervise or conduct elections to determine

whether a labor organization has been selected as an

exclusive representative by a majority of the

employees in an appropriate unit and otherwise ad-

minister the provisions of section 7111 of this title

relating to the according of exclusive recognition to

labor organizations;

“(C) prescribe criteria and resolve issues relating to

the granting of national consultation rights under sec-

tion 7113 of this title;

“(D) prescribe criteria and resolve issues relating to

determining compelling need for agency rules or

regulations under section 7117(b) of this title;

“(E) resolve issues relating to the duty to bargain in

good faith under section 7117(c) of this title;

“(F) prescribe criteria relating to the granting of

consultation rights with respect to conditions of

employment under section 7117(d) of this title;

“(G) conduct hearings and resolve complaints of

unfair labor practices under section 7118 of this title;

“(H) resolve exceptions to arbitrator’s awards

under section 7122 of this title; and

“(1) take such other actions as are necessary and ap-

propriate to effectively administer the provisions of

this chapter.

+ * * * *

5 U.S.C. 7111(a) provides:

“§ 7111, Exclusive recognition of labor organizations

“(a) An agency shall accord exclusive recognition to a

labor organization if the organization has been selected as

the representative, in a secret ballot election, by a majority

of the employees in an appropriate unit who cast valid

ballots in the election.

* * * * *

§ U.S.C. 7114(a)-(b) provides:

“§ 7114. Representation rights and duties

“(a)(1) A labor organization which has been accorded

exclusive recognition is the exclusive representative of the

employees in the unit it represents and is entitled to act

for, and negotiate collective bargaining agreements cover-

ing, all employees in the unit. An exclusive representative

is responsible for representing the interests of all

employees in the unit it represents without discrimination

and without regard to labor organization membership.

* * * * *

“(4) Any agency and any exclusive representative in

any appropriate unit in the agency, through appropriate

representatives, shall meet and negotiate in good faith for

the purposes of arriving at a collective bargaining agree-

ment. In addition, the agency and the exclusive represen-

tative may determine appropriate techniques, consistent

with the provisions of section 7119 of this title, to assist in

any negotiation.

* * * * *

“(b) The duty of an agency and an exclusive represen-

tative to negotiate in good faith under subsection (a) of

this section shall include the obligation —

“(4) in the case of an agency, to furnish to the ex-

clusive representative involved, or its authorized represen-

tative, upon request and, to the extent not prohibited by

law, data—

“(A) which is normally maintained by the agency in

the regular course of business;

“(B) which is reasonably available and necessary

for full and proper discussion, understanding, and

negotiation of subjects within the scope of collective

bargaining; and

“(C) which does not constitute guidance, advice,

counsel, or training provided for management of-

ficials or supervisors, relating to collective bargain-

ing; and

* * * * *

5 U.S.C. 7116(a) provides:

“§ 7116. Unfair labor practices

“(a) For the purpose of this chapter, it shall be an un-

fair labor practice for an agency —

“(1) to interfere with, restrain, or coerce any

employee in the exercise by the employee of any right

under this chapter;

* * * * *

“(5) to refuse to consult or negotiate in good faith

with a labor organization as required by this chapter;

” / * * *

“(8) to otherwise fail or refuse to comply with any

provision of this chapter.

* * * * *

5 U.S.C. 7117 provides:

“§ 7117. Duty to bargain in good faith; compelling

need; duty to consult

“(a)(1) Subject to paragraph (2) of this subsection, the

duty to bargain in good faith shall, to the extent not incon-

sistent with any Federal law or any Goverment-wide rule

or regulation, extend to matters which are the subject of

any rule or regulation only if the rule or regulation is not a

Government-wide rule or regulation.

“(2) The duty to bargain in good faith shall, to the ex-

tent not inconsistent with Federal law or any Government-

wide rule or regulation, extend to matters which are the

subject of any agency rule or regulation referred to in

paragraph (3) of this subsection only if the Authority has

determined under subsection (b) of this section that no

compelling need (as determined under regulations

prescribed by the Authority) exists for the rule or regula-

tion.

“(3) Paragraph (2) of the subsection applies to any

rule or regulation issued by any agency or issued by any

primary national subdivision of such agency, unless an ex-

clusive representative represents an appropriate unit in-

cluding not less than a majority of the employees in the is-

suing agency or primary national subdivision, as the case

may be, to whom the rule or regulation is applicable.

“(b)(1) In any case of collective bargaining in which

an exclusive representative alleges that no compelling need

exists for any rule or regulation referred to in subsection

(a)(3) of this section which is then in effect and which

governs any matter at issue in such collective bargaining,

the Authority shall determine under paragraph (2) of this

subsection, in accordance with regulations prescribed by

the Authority, whether such a compelling need exists.

“(2) For the purpose of this section, a compelling need

shall be determined not to exist for any rule or regulation

only if —

“(A) the agency, or primary national subdivision,

as the case may be, which issued the rule or regulation

informs the Authority in writing that a compelling

need for the rule or regulation does not exist; or

“(B) the Authority determines that a compelling

need for a rule or regulation does not exist.

“(3) A hearing may be held, in the discretion of the

Authority, before a determination is made .~ ider this

subsection. If a hearing is held, it shall be expedited to the

extent practicable and shall not include the General

Counsel as a party.

“(4) The agency, or primary national subdivision, as

the case may be, which issued the rule or regulation shall

be a necessary party at any hearing under this subsection.

“(c)(1) Except in any case to which subsection (b) of

this section applies, if an agency involved in collective

bargaining with an exclusive representative alleges that the

duty to bargain in good faith does not extend to any mat-

ter, the exclusive representative may appeal the allegation

to the Authority in accordance with the provisions of this

Subsection.

“(2) The exclusive representative may, on or before

the 15th day after the date on which the agency first makes

the allegation referred to in paragraph (1) of this subsec-

tion, institute an appeal under this subsection by —

“(A) filing a petition with the Authority; and

“(B) furnishing a copy of the petition to the head of

the agency.

“(3) On or before the 30th day after the date of the

receipt by the head of the agency of the copy of the peti-

tion under paragraph (2)(B) of this subsection, the agency

shall —

“(A) file with the Authority a statement —

“(i) withdrawing the allegation; or

“(ii) setting forth in full its reasons supporting

the allegation; and

“(B) furnish a copy of such statement to the ex-

clusive representative.

“(4) On or before the 15th day after the date of the

receipt by the exclusive representative of a copy of a state-

ment under paragraph (3)(B) of this subsection, the ex-

clusive representative shall file with the Authority its

response to the statement.

“(5) A hearing may be held, in the discretion of the

Authority, before a determination is made under this

subsection. If a hearing is held, it shall not include the

General Counsel as a party.

“(6) The Authority shall expedite proceedings under

this subsection to the extent practicable and shall issue to

the exclusive representative and to the agency a written

decision on the allegation and specific reasons therefor at

the earliest practicable date.

“(d)(1) A labor organization which is the exclusive

representative of a substantial number of employees,

determined in accordance with criteria prescribed by the

Authority, shall be granted consultation rights by any

agency with respect to any Government-wide rule or

regulation issued by the agency effecting any substantive

change in any condition of employment. Such consulta-

tion rights shall terminate when the labor organization no

longer meets the criteria prescribed by the Authority. Any

issue relating to a labor organization’s eligibility for, or

continuation of, such consultation rights shall be subject

to determinaticn by the Authority.

“(2) A labor organization having consultation rights

under paragraph (1) of this subsection shall —

“(A) be informed of any substantive change in con-

ditions of employment proposed by the agency, and

“(B) shall be permitted reasonable time to present

its views and recommendations regarding the changes.

“(3) If any views or recommendations are presented

under paragraph (2) of this subsection to an agency by any

labor organzation —

“(A) the agency shall consider the views or recom-

mendations before taking final action on any matter

with respect to which the views or recommendations

are presented; and

“(B) the agency shall provide the labor organization

a written statement of the reasons for taking the final

action.

1% * * * *

5 U.S.C. 7118(a) provides:

“§ 7118. Prevention of unfair labor practices

“(a)(1) If any agency or labor organization is charged

by any person with having engaged in or engaging in an un-

fair labor practice, the General Counsel shall investigate

the charge and may issue and cause to be served upon the

agency or labor organization a complaint. In any case in

which the General Counsel does not issue a complaint

because the charge fails to state an unfair labor practice,

the General Counsel shall provide the person making the

charge a written statement of the reasons for not issuing a

complaint.

10a

“(2) Any complaint under paragraph (1) of this

subsection shall contain a notice —

“(A) of the charge;

“(B) that a hearing will be held before the Authority

(or any member thereof or before an indiwdual

employed by the authority and designated for such

purpose); and

“(C) of the time and place fixed for the hearing.

“(3) The labor organization or agency involved shall

have the right to file an answer to the original and any

amended complaint and to appear in person or otherwise

and give testimony at the time and place fixed in the com-

plaint for the hearing.

“(4)(A) Except as provided in subparagraph (B) of

this paragraph, no complaint shall be issued based on any

alleged unfair labor practice which occurred more than 6

months before the filing of the charge with the Authority.

“(B) If the General Counsel determines that the per-

son filing any charge was prevented from filing the charge

during the 6-month period referred to in subparagraph (A)

of this paragraph by reason of —

“(i) any failure of the agency or labor organization

against which the charge is made to perform a duty

owed to the person, or

“(ii) any concealment which prevented discovery of

the alleged unfair labor practice during the 6-month

period,

the General Counsel may issue a complaint based on the

charge if the charge was filed during the 6-month period

beginning on the day of the discovery by the person of the

alleged unfair labor practice.

“(5) The General Counsel may prescribe regulations

providing for informal methods by which the alleged un-

fair labor practice may be resolved prior to the issuance of

a complaint.

lla

“(6) The Authority (or any member thereof or any in-

dividual employed by the Authority and designated for

such purpose) shall conduct a hearing on the complaint

not earlier than 5 days after the date on which the com-

plaint is served. In the discretion of the individual or in-

dividuals conducting the hearing, any person involved

may be allowed to intervene in the hearing and to present

testimony. Any such hearing shall, to the extent prac-

ticable, be conducted in accordance with the provisions of

subchapter II of chapter 5 of this title, except that the par-

ties shall not be bound by rules of evidence, whether

statutory, common law, or adopted by a court. A

transcript shall be kept of the hearing. After such a hear-

ing the Authority, in its discretion, may upon notice

receive further evidence or hear argument.

“(7) If the Authority (or any member thereof or any

individual employed by the Authority and designated for

such purpose) determines after any hearing on a complaint

under paragraph (5) of this subsection that the

preponderance of the evidence received demonstrates that

the agency or labor organization named in the complaint

has engaged in or is engaging in an unfair labor practice,

then the individual or individuals conducting the hearing

shall state in writing their findings of fact and shall issue

and cause to be served on the agency or labor organization

an order —

“(A) to cease and desist from any such unfair labor

practice in which the agency or labor organization is

engaged;

“(B) requiring the parties to renegotiate a collective

bargaining agreement in accordance with the order of

the Authority and requiring that the agreement, as

amended, be given retroactive effect;

12a

“(C) requiring reinstatement of an employee with

backpay in accordance with section 5596 of this title;

“(D) including any «ombination of the actions

described in subparagraphs (A) through (C) of this

paragraph or such other action as will carry out the

purpose of this chapter.

If any such order requires reinstatement of an employee

with backpay, backpay may be required of the agency (as

provided in section 5596 of this title) or of the labor

organization, as the case may be, which is found to have

engaged in the unfair labor practice involved.

“(8) If the individual or individuals conducting the

hearing determine that the preponderance of the evidence

received fails to demonstrate that the agency or labor

organization named in the complaint has engaged in or is

engaging in an unfair labor practice, the individual or in-

dividuals shall state in writing their findings of fact and

shall issue an order dismissing the complaint.

. * - + 7

5 U.S.C. 7123(a)-(b) provides:

“§ 7123. Judicial review; enforcement

“(a) Any person aggrieved by any final order of the

Authority other than an order under —

“(1) section 7122 of this title (involving an award by

an arbitrator), unless the order involves an unfair labor

practice under section 7118 of this title, or

“(2) section 7112 of this title (involving an appropriate

unit determination),

may, during the 60-day period beginning on the date on

which the order was issued, institute an action for judicial

review of the Authority’s order in the United States court

of appeals in the circuit in which the person resides or

l3a

transacts business or in the United States Court of —

for the District of Columbia.

“(b) The Authority may petition any appropriate

United States court of appeals for the enforcement of any

order of the Authority and for appropriate temporary

relief or restraining order.

* * * > .

5 U.S.C. 552(a)-(b) provides:

§ 552. Public information; agency rules, opinions,

orders, records, and proceedings

(a) Each agency shall make available to the public in-

formation as follows:

* * * * *

(3) Except with respect to the records made available

under paragraphs (1) and (2) of this subsection, each agen-

cy, upon any request for records which (A) reasonably

describes such records and (B) is made in accordance with

published rules stating the time, place, fees (if any), and

procedures to be followed, shall make the records prompt-

ly available to any person.

(4)(A)(i) In order to carry out the provisions of this

section, each agency shall promulgate regulations, pur-

suant to notice and receipt of public comment, specifying

the schedule of fees applicable to the processing of re-

quests under this section and establishing procedures and

guidelines for determining when such fees should be waiv-

ed or reduced. Such schedule shall conform to the

guidelines which shall be promulgated, pursuant to notice

and receipt of public comment, by the Director of the Of-

fice of Management and Budget and which shall provide

for a uniform schedule of fees for all agencies.

(ii) Such agency regulations shall provide that —

l4a

(1) fees shall be limited to reasonable standard

charges for document search, duplication, and

review, when records are requested for commercial

use;

(II) fees shall be limited to reasonable standard

charges for document duplication when records are

not sought for commercial use and the request is

made by an educational or noncommercial scientific

institution, whose purpose is scholarly or scientific

research; or a representative of the news media; and

(111) for any request not described in (I) or (II), fees

shall be limited to reasonable standard charges for

document search and duplication.

(iii) Documents shall be furnished without any charge

or at a charge reduced below the fees established under

clause (ii) if disclosure of the information is in the public

interest because it is likely to contribute significantly to

public understanding of the operations or activities of the

government and is not primarily in the commercial interest

of the requester.

(iv) Fee schedules shall provide for the recovery of on-

ly the direct costs of search, duplication, or review.

Review costs shall include only the direct costs incurred

during the initial examination of a document for the pur-

poses of determining whether the documents must be

disclosed under this section and for the purposes of

withholding any portions exempt from disclosure under

this section. Review costs may not include any costs incur-

red in resolving issues of law or policy that may be raised

in the course of processing a request under this section. No

fee may be charged by any agency under this section —

(I) if the costs of routine collection and processing

of the fee are likely to equal or exceed the amount of

the fee: or

lSa

(11) for any request described in clause (ii)(I1) or (IID) of

this subparagraph for the first two hours of search time or

for the first one hundred pages of duplication.

(v) No agency may require advance payment of any

fee unless the requester has previously failed to pay fees in

a timely fashion, or the agency has determined that the fee

will exceed $250.

(vi) Nothing in this subparagraph shall supersede fees

chargeable under a statute specifically providing for set-

ting the level of fees for particular types of records.

(vii) In any action by a requester regarding the waiver

of fees under this section, the court shall determine the

matter de novo: Provided, That the court’s review of the

matter shall be limited to the record before the agency.

* * » * *

(B) On complaint, the district court of the United

States in the district in which the complainant resides, or

has his principal place of business, or in which the agency

records are situated, or in the District of Columbia, has

jurisdiction to enjoin the agency from withholding agency

records and to order the production of any agency records

improperly withheld from the complainant. In such a case

the court shall determine the matter de novo, and may ex-

amine the contents of such agency records in camera to

determine whether such records or any part thereof shall

be withheld under any of the exemptions set forth in

subsection (b) of this section, and the burden is on the

agency to sustain its action.

defendant shall serve an answer or otherwise plead to any

complaint made under this subsection within thirty days

after service upon the defendant of the pleading in which

such complaint is made, unless the court otherwise directs

for good cause shown.

l6a

{((D) Repealed. Pub.L. 98-620, Title IV, § 402(2),

Nov. 8, 1984, 98 Stat. 3357]

(E) The court may assess against the United States

reasonable attorney fees and other litigation costs

reasonably incurred in any case under this section in which

the complaint has substantially prevailed.

(F) Whenever the court orders the production of any

agency records improperly withheld from the complainant

and assesses against the United States reasonable attorney

fees and other litigation costs, and the court additionally

issues a written finding that the circumstances surrounding

the withholding raise questions whether agency personnel

acted arbitrarily or capriciously with respect to the

withholding, the Special Counsel shall promptly initiate a

proceeding to determine whether disciplinary action is

warranted against the officer or employee who was

primarily responsible for the withholding. The Special

Counsel, after investigation and consideration of the

evidence submitted, shall submit his findings and recom-

mendations to the administrative authority of the agency

concerned and shall send copies of the findings and recom-

mendations to the officer or employee or his represen-

tative. The administrative authority shall take the correc-

tive action that the Special Counsel recommends.

(G) In the event of noncompliance with the order of

the court, the district court may punish for contempt the

responsible employee, and in the case of a uniformed ser-

vice, the responsible member.

* * * * *

(b) This section does not apply to matters that are—

(1)(A) specifically authorized under criteria establish-

ed by an Executive order to be kept secret in the interest of

national defense or foreign policy and (B) are in fact prop-

erly classified pursuant to such Executive order;

17a

(2) related solely to the internal personnel rules and

practices of an agency;

(3) specifically exempted from disclosure by statute

(other than section 552b of this title), provided that such

statute (A) requires that the matters be withheld from the

public in such a manner as to leave no discretion on the

issue, or (B) establishes particular criteria for withholding

or refers to particular types of matters to be withheld;

(4) trade secrets and commercial or financial informa-

tion obtained from a person and privileged or confiden-

tial;

(5) inter-agency or intra-agency memorandums or let-

ters which would not be available by law to a party other

than an agency in litigation with the agency;

(6) personnel and medical files and similar files the

disclosure of which would constitute a clearly unwar-

ranted invasion of personal privacy;

(7) records or information compiled for law enforce-

ment purposes, but only to the extent that the production

of such law enforcement records or information (A) could

reasonably be expected to interfere with enforcement pro-

ceedings, (B) would deprive a person of a right to a fair

trial or an impartial adjudication, (C) could reasonably be

expected to constitute an unwarranted invasion of per-

sonal privacy, (D) could reasonably be expected to disclose

the identity of a confidential source, including a State,

local, or foreign agency or authority or any private institu-

tion which furnished information on a confidential basis,

and, in the case of a record or information compiled by

criminal law enforcement authority in the course of a

criminal investigation or by an agency conducting a lawful

national security intelligence investigation, information

furnished by a confidential source, (E) would disclose

techniques and procedures for law enforcement investiga-

18a

tions or prosecutions, or would disclose guidelines for law

enforcement investigations or prosecutions if such

disclosure could reasonably be expected to risk circumven-

tion of the law, or (F) could reasonably be expected to en-

danger the life or physical safety of any individual;

(8) contained in or related to examination, operating,

or condition reports prepared by, on behalf of, or for the

use of an agency responsible for the regulation or supervi-

sion of financial institutions; or

(9) geological and geophysical information and data,

including maps, concerning wells.

Any reasonable segregable portion of a record shail be

provided to any person requesting such record after dele-

tion of the portions which are exempt under this subsec-

tion.

* * * * *

§ 552a. Records maintained on individuals

* * * * *

(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, or

to another agency, 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;

* * * * *

19a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 86-2579

THE UNITED STATES DEPARTMENT OF AGRICULTURE AND

THE FARMERS HOME ADMINISTRATION FINANCE OFFICE,

St. Louis, MissourRI,

PETITIONERS,

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT.

No. 87-1024

THE UNITED STATES DEPARTMENT OF DEFENSE AND

DEFENSE MAPPING AGENCY AEROSPACE CENTER,

St. Louis, Missouri,

PETITIONERS,

Vv.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES,

INTERVENOR.

Submitted: September 1, 1987

Filed: January 15, 1988

PETITIONS FOR REVIEW OF THE FEDERAL LABOR

RELATIONS AUTHORITY

Before Lay, Chief Judge, HENLEY, Senior Circuit Judge,

and MAGILL, Circuit Judge.

20a

HENLEY, Senior Circuit Judge.

These cases present the question whether federal agen-

cies committed an unfair labor practice by refusing to

release to labor unions the names and addresses of

bargaining unit employees. The agencies challenge rulings

by the Federal Labor Relations Authority requiring

disclosure of the names and addresses. We affirm the

Authority’s decisions, subject to one reservation.

The president of the American Federation of Govern-

ment Employees, Local 3354, requested in a letter to the

Director of the Farmers Home Administration Finance

Office (FmHA) a list of the names and home addresses of

approximately 903 employees, the majority of whom were

not union members. The union asserted a need for the

names and addresses for purposes of bargaining, dealing

with unspecified problems, and conducting membership

drives. FmHA refused to disclose the information, claim-

ing that, under the provisions of the Privacy Act, 5 U.S.C.

§ 552a(b), the information could not be disclosed without

the employees’ consent.

The president of Local 3354 then filed with the Authori-

ty an unfair labor practice charge against the FmHA. In

turn, the Authority’s General Counsel filed a complaint

against the FmHA. The administrative law judge ruled

that the names and addresses were not subject to dis-

closure, as they were not “necessary for a full and proper

discussion, understanding, and negotiation of subjects

within the scope of collective bargaining” under 5 U.S.C.

§ 7114(b) of the Federal Labor Management Relations Act

(FLMRA). The judge did not pass upon the agency’s claim

that disclosure would violate the Privacy Act.

The Authority affirmed the Administrative Law Judge’s

decision. The Authority also concluded that federal

employees’ privacy interests in their home addresses

2la

outweighed the union’s need for the information. The

union filed a petition for review with the District of Col-

umbia Circuit pursuant to 5 U.S.C. § 7123(a). Before

briefing was completed, the Authority moved for and was

granted a remand in order to determine whether the

“routine use” exception to the Privacy Act applied. 5

U.S.C. § 552a(b)(3).

On remand the Authority reversed its previous decision

and determined that the names and home addresses must

be disclosed to the union. The Authority found that the re-

quested information qualified for the “routine use” excep-

tion, and reversed its position on the Privacy Act question.

The Authority also found that the information was

“necessary” for collective bargaining under 5 U.S.C.

§ 7114(b). FmHA petitions this court for review pursuant

to 5 U.S.C. § 7123(a); the Authority cross-petitions for

enforcement of its orders. § 7123(b).

The National Federation of Federal Employees re-

quested the names and home addresses of bargaining unit

employees of the Defense Mapping Agency Aerospace

Center at St. Louis. A course of events similar to that

described in the FMHA case transpired. Although the Ad-

ministrative Law Judge found that the union had no ade-

quate alternative means of communication, the Authority

reversed that factual finding and determined that adequate

alternatives existed. Relying on its reasoning in the initial

FmHA decision, the Authority further concluded that “the

employees’ strong privacy interest in their home addresses”

outweighed the union’s need for the information.

The union petitioned this court for review. As in the

FmHA case, the Authority moved for a remand, which we

granted, to consider the “routine use” question. Following

its decison on remand in the FmHA case, the Authority

reversed its prior position in the Defense Mapping case as

well. Again, the Agency petitions for review, the Authori-

ty for enforcement.

22a

The standards for our review of the Authority’s deci-

sions were set forth in United States Department of

Agriculture v. FLRA, 691 F.2d 1242, 1246-47 (8th Cir.

1982), cert. denied, 464 U.S. 1007 (1983). To summarize,

we will set aside the Authority’s action only if we find it

“arbitrary, capricious, or an abuse of discretion, or other-

wise not in accordance with law.” 5 U.S.C. § 706(2)(A).

We may not reject a reasonably defensible construction of

the statute by the agency merely because we would have

decided differently; we owe deference to the Authority’s

interpretation of its enabling statute if it has a “reasonable

basis in law.” NLRB v. Hearst Publications, Inc., 322

U.S. 111, 131 (1944); see USDA, 691 F.2d at 1247. Never-

theless, statutory questions find their final resolution in

the courts, whose duty it is to conform administrative

decisions to the congressional mandate. USDA, 691 F.2d

at 1247.

5 U.S.C. § 7114(b) provides:

The duty of an agency and an exclusive represen-

tative to negotiate in good faith . . . shall include the

obligation —

(4) in the case of an agency, to furnish to the ex-

clusive representative involved, ... upon request

and, to the extent not prohibited by law, data—

(B) which is reasonably available and necessary for

full and proper discussion, understanding, and

negotiation of subjects within the scope of collective

bargaining... .

Thus, we must determine whether the names and ad-

dresses sought by the unions are data that are necessary to

the collective bargaining process. “Collective bargaining”

is defined as the process by which the parties attempt to

23a

reach agreement over “conditions of employment affect-

ing [the] employees. . . . ” 5 U.S.C. § 7103(a)(12).

The appellant agencies argue that the Authority erred in

concluding that the requirements of 5 U.S.C. § 7114(b)

were satisfied. The agencies contend that the home ad-

dresses are not “data” subject to disclosure, as they do not

concern “conditions of employment.” The Authority

reasoned that disclosure was necessary as it would allow

the union to communicate directly with employées at

home without interference from the agency. Furthermore,

disclosure would enable employees to peruse union com-

munications free of any constraints of time or manage-

ment presence that might occur in the workplace. The

agencies argue that these facts affect only the quality of

the relationship between the union and bargaining unit

members, and are not related to the process of contract

negotiation.

The argument of the agencies has merit with respect to

some of the unions’ stated goals in seeking to obtain the

addresses. For example, the use of the lists for the purpose

of soliciting new members is only tenuously related to the

process of contract negotiation as defined in the statute.

However, the unions also seek the information for the

purpose of soliciting employees’ views and keeping them

informed on collective bargaining matters. The intervenor

unions correctly point out that they are statutorily

obligated to represent the interests of all members of the

bargaining unit, regardless of union membership. 5

U.S.C. § 7114(a)(1). The Authority has determined that,

in order for a union to properly represent the employees, it

must be able to communicate with them. We agree. Thus,

§ 7114(a)(1) provides a statutory basis entitling the union

to some effective means of communication with unit

employees.

24a

Consequently, the issue is not whether the addresses are

“data” relevant to collective bargaining; rather, we must

decide the question whether to uphold the Authority’s

determination that disclosure to the union is necessary to

fair and effective bargaining and _ representation.

§ 7114(b). The agencies argue that the Authority’s reversal

of its prior stance is unexplained, and hence, arbitrary and

capricious. We would agree that the Authority has done

little in the way of providing factual findings to justify its

present position. Nevertheless, the Authority reached that

position after extensive public comment solicited by notice

in the Federal Register. The Authority concluded, as we

have noted, that direct communication with employees at

home without the possibility of interference by manage-

ment will best serve the purposes underlying the labor

statute. We cannot say that the Authority’s position is irra-

tional; consequently, we do not find it arbitrary or

capricious. To that extent, we are in accord with the recent

decision by the Fourth Circuit in United States Depart-

ment of Health & Human Services v. FLRA, No.

87-3513(L), slip op. at 12 (4th Cir. Nov. 25, 1987). We

likewise concur in the Fourth Circuit’s caveat that

disclosure is not required when it would present an immi-

nent danger to employees. Jd.

However, Section 7114(b)(4) authorizes disciosure of

data only when not otherwise prohibited by law. The agen-

cies direct our attention to the Privacy Act, 5 U.S.C.

§ 552a, which prohibits disclosure of information from

federal workers’ personnel files without their consent

unless required by one of the Act’s exemptions. One ex-

emption provides for disclosures required by the Freedom

of Information Act (FOIA), 5 U.S.C. § 552(b).' FOIA in

' Thus, we are faced with the obverse of the question recently

presented to the Supreme Court in Church of Scientology of Cali-

25a

turn contains its own exemptions, one of which prohibits

- disclosure of information in government records “which

would constitute a clearly unwarranted invasion of per-

sonal privacy.” § 552(b)(6) (“exemption 6”).?

We must be guided by the principle that the “limited ex-

emptions [of FOIA] . . . do not obscure the basic policy

that disclosure, not secrecy, is the dominant objective of

the Act. These exemptions . . . must be narrowly con-

strued.” Department of the Air Force v. Rose, 425 U.S.

352, 361 (1976) (internal quotation and citation omitted).

In evaluating a claim that exemption 6 bars disclosure, we

are required to balance the interest of an individual in the

protection of private matters with the public’s interest in

access to information in the hands of the government. /d.

at 372.

First, we should determine the extent, if any, to which

individuals possess a privacy interest in their home ad-

dresses. The Supreme Court has recognized a right to

privacy embracing the right “to be let alone” which “must

be placed in the scales with the right of others to com-

municate.” Rowan v. Post Office Department, 397 U.S.

728, 736 (1970). Thus, “a mailer’s right to communicate

must stop at the mailbox of an unreceptive addressee.” /d.

at 736-37. “The ancient concept that [the home is one’s

castle] into which ‘not even the king may enter’ has lost

none of its vitality.” Jd. at 737.

fornia v. 1.R.S., 108 S.Ct. 271 (1987), i.e., whether disclosure under

FOIA was specifically affected by another statute. 5 U.S.C. §

552(b)(3); 108 S.Ct. at 273.

2 In addition to the FOIA exemption 6, the Privacy Act permits

disclosure of information for a “routine use.” 5 U.S.C. § 552a(b)(3).

Because we hold that FOIA in general does not prohibit disclosure, we

need not consider the Authority’s contention that the routine use ex-

ception permits disclosure.

26a

These pronouncements have led courts to conclude that

individuals do have a privacy interest in their home ad-

dresses that may be asserted in opposition to requests for

disclosure under FOIA. Multnomah Co. Medical Society

v. Scott, 825 F.2d 1410, 1415-16 (9th Cir. 1987); Heights

Community Congress v. Veterans Administration, 732

F.2d 526, 529 (6th Cir.), cert. denied, 469 U.S. 1034

(1984); United States v. Liebert, 519 F.2d 542, 548 (3d

Cir.), cert. denied, 423 U.S. 985 (1975); Wine Hobby

USA, Inc. v. Internal Revenue Service, 502 F.2d 133, 137

(3d Cir. 1974).

In a case brought directly under FOIA, the Fourth Cir-

cuit has upheld a federal agency’s refusal to release

employee addresses to the union on the basis that dis-

closure would constitute a clearly unwarranted invasion of

personal privacy. AFGE, Local 1923 v. United States

Department of Health and Human Services, 712 F.2d 931,

932 (4th Cir. 1983) (per curiam). Subsequently, however,

the Fourth Circuit declined to apply its holding in AFGE,

Local 1923 when the Authority has upheld disclosure pur-

suant to § 7114(b). Department of Health & Human Serv-

ices, slip op. at 17-18. The court deferred to the

Authority’s rulings because, “[a]ithough this matter in-

volves the Authority’s interpretation of statutes other than

its enabling act, we perceive that the interpretation bears

directly on the ‘complexities’ of federal labor

relations. . . .” Jd. at 17-18.

The Second Circuit examined the privacy argument in

AFGE, Local 1760 v. FLRA, 786 F.2d 554 (2d Cir. 1986),

and concluded that release of the employees’ addresses was

not “prohibited by law” as provided in § 7114(b)(4). The

court reasoned that “the privacy interest of the average

employee in his address is not particularly compelling.

Generally, addresses are often available through other

27a

public records.” Jd. at 556; see also AFGE, Local 1923,

712 F.2d at 934 (Winter, C.J., dissenting).

Nonetheless, the Second Circuit’s holding acknowl-

edged that disclosure implicated a “modest” privacy in-

terest. AFGE, Local 1760, 786 F.2d at 556-57. We cannot

agree that even such a modest interest should receive little

solicitude solely because the information at stake may be

available from other sources. “That society recognizes the

individual’s interest in keeping his address private is in-

dicated in such practices as non-listing of telephone

numbers and the renting of post office boxes.” Wine Hob-

by, 502 F.2d at 137 n.15. Furthermore, while we might not

violently disagree with the Second Circuii’s statement that

the average employee’s privacy interest in his home ad-

dress is not particularly compelling, not all employees are

“average.” Some may well have more compelling interests

in privacy which are entitled to protection. Thus, we con-

clude that employees have a cognizable privacy interest in

their home addresses.

We next must weight the privacy interest of the

employees against the interests of the public in disclosure.’

Congress has declared that collective bargaining is in the

public interest. 5 U.S.C. § 7101(a). The statue reveals that

two bases support that declaration. The first is that the

3 One circuit has recently held in a divided panel opinion that the

courts should not evaluate the strength of the public interest asserted,

but should only “appraise the impairment to [the privacy] interest that

would result from disclosure.” Reporters Committee for Freedom of

the Press v. United States Depariment of Justice, 831 F.2d 1124, 1126

(D.C. Cir. 1987). At least in part, the majority reached this conclusion

because it could find no guidance or standards in the FOIA to inform

an evaluation of the general public interest in individual cases. Our

own difficulty in that respect is somewhat mitigated by 5 U.S.C. §

7101(a), which defines the public interest as hereinafter discussed in

text.

28a

public interest is served by protecting “the right of

employees to organize, bargain collectively, and par-

ticipate through labor organizations of their own choosing

in decisions which affect them... .” § 7101(a)(1) (em-

phasis added). The second is the promotion of governmen-

tal efficiency. § 7101(a)(2). We will defer to the

Authority’s expertise insofar as it has determined that

disclosure in general will help effect the policies embodied

in the FLMRA. However, we cannot ignore the element of

choice on the part of employees in choosing their represen-

tatives set out in § 7101(a). We doubt that the public in-

terest would be served in any way by imposing disclosure

of the names and addresses on employees who regard that

information as private and who do not choose to receive

union communications at home.

The Authority addresses this issue in its contention that

individual employees who do not wish to have their names

and addresses disclosed may have their names removed

from the union mailing list. The agencies counter that the

law provides for no such procedure. We find, however,

that FOIA is flexible enough to accommodate a solution

to this difficulty. We have identified substantial interests

on both the disclosure and privacy sides of the ledger.

FOIA’s legislative history sheds some light on the prob-

lem:

It is not an easy task to balance the opposing in-

terests, but it is not an impossible one either. It is not

necessary to conclude that to protect one of the in-

terests, the other must, of necessity, either be

abrogated or substantially subordinated. Success bies

in providing a workable formula which encompasses,

balances, and protects all interests, yet places em-

phasis on the fullest responsible disclosure.

S. Rep. No. 813, p. 3, quoted in Rose, 425 U.S. at 372-73

n.9.

29a

Thus, our task is to accommodate to the fullest extent

possible both the privacy interests of employees and the

need of the union to communicate effectively in carrying

out its statutory duty of representation, impinging on each

interest as slightly as possible. We conclude that both the

interests in privacy and disclosure wil! be optimally served

by requiring disclosure of the names and addresses of only

those employees who do not request their employers to

keep the information confidential. Reasonably applied,

this should provide a “workable formula” for carrying out

the intent of Congress as embodied in FOIA and the

FLMRA.*‘

The decisions of the Authority are affirmed in part and

its cross-petitions for enforcement are granted in part.

However, because the Authority’s orders are broader than

permitted by our decision in that they unqualifiedly re-

quire disclosure of all employee names and addresses, we

remand for further proceedings consistent with this opin-

ion.

* No argument has been raised in the Defense Mapping case that

disclosure would violate exemption | of FOIA, 5 U.S.C. § 552(b)(1),

which exempts from disclosure information required to be kept secret

in the interest of national defense pursuant to Executive Order.

Nothing in our decision prevents a federal agency from resisting com-

plete, or even selective, disclosure of its employees’ names and ad-

dresses on the ground that they are covered under exemption | of

FOIA.

30a

Lay, Chief Judge, concurring in part and dissenting in

part.

Although I concur in the majority’s judgment that the

agency employers must disclose to the unions the names

and home addresses of bargaining unit employees, I dis-

sent from the holding that employees may ask their

employers to keep the information confidential. In my

view, this caveat has no basis in law, undermines the ra-

tionale for the majority’s principal holding, conflicts with

decisions of the Second and Fourth Circuit, and fashions a

remedy that was not requested or discussed by any party to

this action.!

Federal agency employers, as a component of their duty

to negotiate in good faith with their employees’ bargaining

representatives, must release to those representatives data

that are: (1) reasonably available; (2) normally maintained

by the agency in the regular course of business; and (3)

necessary for full and proper discussion, understanding,

and negotiation of subjects within the scope of collective

bargaining. 5 U.S.C. § 7114(b)(4). Having determined

that each of these criteria is satisfied, a decision with

which I fully concur, the majority then analyzes the excep-

' The FLRA suggested that “to the extent individual employees wish

to preserve the privacy of their identities and home addresses, there is

no reason to believe that they will not be able to have that information

deleted from union mailing lists.” Brief of FLRA at 31 (emphasis

added). The FLRA thus seems to suggest that after the employers

disclose the names and addresses to the unions, the employees may ask

the union to delete their names from the mailing lists. This suggestion

is quite different from the suggestion that employees may ask the

employers not to disclose the information. Under the FLRA’s sug-

gested approach, the employers must still comply with the law’s

disclosure requirements. Under the majority’s approach, however, the

employees can effectively exempt the employers from complying with

the disclosure requirement.

3la

tion to the disclosure requirement: disclosure is not_re-

quired to the extent that it prohibited by law. 5 U.S.C.

§ 7114(b)(4). The majority holds that disclosure of the

employees’ names and address is not prohibited by law,

and therefore is required. Up to this point the majority’s

analysis is sound and in accord with the decisions of the

Fourth and Second Circuits in United States Dep’t of

Health and Human Servs. v. FLRA, No. 87-3513(L) (4th

Cir. Nov. 25, 1987) and AFGE, Local 1760 v. FLRA, 786

F.2d 554 (2d Cir. 1986).

The majority then states, however, that “the interests in

privacy and disclosure will be optimally served by requir-

ing disclosure of the names and addresses of only those

employees who do not request their employers to keep the

information confidential.” Slip op. at 10. I cannot agree

with this analysis. First, there exists no legal authority to

support it. Second, it undermines the rationale for requir-

ing disclosure in the first instance, which is that the public

interest in collective bargaining and satisfactory perform-

ance of the union’s statutory duty to represent all

employees outweighs the employees’ privacy interest, as

both the Second and Fourth Circuits have held.

Moreover, it is the function of the court to decide

whether the employer’s duty to bargain in good faith en-

compass the duty to disclose this information. The court

must decide whether disclosure is prohibited by law,

because that is the only statutory circumstance in which

disclosure is not required. Nevertheless, the effect of the

majority’s approach is to allow each individual employee

to decide whether his name and address will be disclosed.

Clearly, the Federal Service Labor-Management Relations

Act (FSLMRA) contains no such exception to the duty of

disclosure that is part of the duty to bargain in good faith.

Nor is it consistent with the scheme of the Freedom

32a

of Information Act (FOI) to allow individual government

employees to decide whether the privacy exemption ap-

plies to them. When confronted with the question of the

applicability of the FOIA’s privacy exemption, the court

cannot abdicate its responsibility by allowing individual

employees to decide for themselves the applicability of the

exemption.

The FSLMRA provides that the only circumstances in

which disclosure of such information is not required is

when it is prohibited by law. The court nevertheless holds

that disclosure is not required when an individual requests

confidentiality. The effect of this decision is to make

disclosure of data that have been determined by three cir-

cuit courts to be necessary to the collective bargaining

process “prohibited by law” at the request of individual

employees. Because there is no statutory authority for this

decision, and because it conflicts with the proper balanc-

ing of interests under the FOIA, I dissent.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

33a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 86-2579

THE UNITED STATES DEPARTMENT OF AGRICULTURE AND

THE FARMERS HOME ADMINISTRATION FINANCE OFFICE,

St. Louis, Missouri,

PETITIONERS,

VS.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

INTERVENOR.

No. 87-1024

THE UNITED STATES DEPARTMENT OF DEFENSE AND

DEFENSE MAPPING AGENCY AEROSPACE CENTER,

St. Louis, MIssourRI,

PETITIONERS,

VS.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES,

INTERVENOR.

PETITIONS FOR REVIEW OF THE FEDERAL LABOR

RELATIONS AUTHORITY

Intervenor’s (American Federation of Govenment

Employees) petition for rehearing en banc has been con-

sidered by the Court and is denied.

34a

Petition for rehearing has been considered by the Court

and is denied.

February 24, 1988

Order entered at the Direction of the Court:

/s/ ROBERT D. ST. VIAN

Clerk, U.S. Court of Appeals, Eighth Circuit.

—_

35a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 86-2579

THE UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL,

_ PETITIONERS,

vs.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

INTERVENOR.

PETITION FOR REVIEW OF THE FEDERAL

LABOR RELATIONS AUTHORITY

No. 87-1024

THE UNITED STATES DEPT. OF DEFENSE AND

DEFENSE MAPPING AGENCY AEROSPACE CENTER,

St. Louis, Missouri,

PETITIONERS,

vs.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES,

INTERVENOR.

PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL

LABOR RELATIONS AUTHORITY

The following petitions for rehearing en banc have been

considered by the Court and are denied:

36a

The U.S. Department of Defense and Defense Mapping

Agency Aerospace Center

Federal Labor Relations Authority

Petitions for rehearing by the panel are also denied.

March 29, 1983

Order entered at the Direction of the Court:

/s/ ROBERT D. St. VIAN

Clerk, U.S. Court of Appeals, Eighth Circuit.

Pt Ratt ae

37a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Nos. 86-2579 and 87-1024

THE UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL,

PETITIONERS,

VS.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT.

PETITIONS FOR REVEIW OF ORDERS OF

THE FEDERAL LABOR RELATIONS AUTHORITY

AMENDED ORDER

Petitions for rehearing en banc of petitioners (United

States Department of Agriculture, et al) and respondent

(Federal Labor Relations Authority) have been considered

by the Court and are denied.

Petitions for rehearing by the panel are also denied.

April 1, 1988

Order entered at the Direction of the Court:

/s/ ROBERT D. ST. VIAN

Clerk, U.S. Court of Appeals, Eighth Circuit.

38a

APPENDIX F

23 FLRA No. 101

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

Case No. 7-CA-30560 (19 FLRA No. 21)

FARMERS HOME ADMINISTRATION FINANCE OFFICE,

ST. LOUIS, MISSOURI

RESPONDENT

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

AFL-CIO, LOcAL 3354

CHARGING PARTY

DECISION AND ORDER ON REMAND

I. Statement of the Case

This case is before the Authority pursuant to a remand

from the United States Court of Appeals for the District

of Columbia Circuit. The question before the Authority is

whether it was an unfair labor practice under the Federal

Service Labor-Management Relations Statute (the Statute)

for the Respondent (Agency) to refuse a request, made

pursuant to section 7114(b)(4) of the Statute, to provide

the Charging Party (Union) with the names and home ad-

dresses of employees in a bargaining unit which the Union

exclusively represents.

For the reasons which follow, we conclude that Re-

spondent’s refusal to provide the information violated the

Statute, and we reverse the Authority’s previous decision

in this matter.

39a

Il. Procedural Background

In a previous decision in this case, Farmers Home Ad-

ministration Finance Office, St. Louis, Missouri, 19

FLRA No. 21 (1985), the Authority, relying on the deci-

sion of the United States Court of Appeals for the Fourth

Circuit in American Federation of Government

Employees, Local 1923 v. United States Department of

Health and Human Services, 712 F.2d 931 (4th Cir. 1983),

held that the release of home addresses was not required

pursuant to section 7114(b)(4) of the Statute because the

disclosure of such information was “prohibited by law,”

specifically the Privacy Act.!

The Charging Party/Union in this case, and the unions

involved in other cases in which the Authority followed

the precedent established by this case, petitioned the

courts for review of the Authority’s decisions. In the

course of the litigation that ensued, it became apparent

that an issue raised before the Authority regarding the ap-

plicability of the Privacy Act had not been addressed by

the Authority in rendering its decision in this case — name-

ly, whether the union was entitled to the names and home

addresses of unit employees under the routine use excep-

tion of the Privacy Act, 5 U.S.C. § 552a(b)(3). The

Authority therefore sought remand of this case and three

other substantially identical cases awaiting judicial review

in order to reconsider its decisions and to iddress in the

first instance the issue of whether disclosure of the names

and home addresses of unit employees was or was not pro-

hibited by law because of the applicability of the “routine

use” exception of the Privacy Act, and such other issues

arising under the Statute as might be appropriate. The re-

mand requests were granted in this case, American Federa-

' Privacy Act of 1974, 5 U.S.C. § 552a (1982).

40a

tion of Government Employees, Local 3354 v. FLRA, No.

85-1493 (D.C. Cir.) (reviewing 19 FLRA No. 21), and in

two others, National Federation of Federal Employees,

Local 1827 v. FLRA, No. 85-2202 (8th Cir.) (reviewing 19

FLRA No. 85) and Philadelphia Metal Trades Council v.

FLRA, No. 85-1625 (D.C. Cir.) (reviewing 19 FLRA No.

107).

In contrast to the D.C. and Eighth Circuits, the United

States Court of Appeals for the Second Circuit denied the

Authority’s remand request and issued a decision. In that

decision the Second Circuit reversed the Authority’s

holding that the release of names and home addresses was

“prohibited by law,” i.e., the Privacy Act, under section

7114(b)(4) of the Statute. American Federation of Govern-

ment Employees, Local 1760 v. FLRA. 786 F.2d 554 (2nd

Cir. 1986). The Second Circuit applied the same balancing

test used by the Authority. Contrary to the Authority and

the Fourth Circuit, however, the court found that “the

privacy interest of the average employee in his address is

not particularly compelling.” Jd. at 556. Instead, the court

noted Congress’ determination that collective bargaining is

in the public interest, and the court’s prior holdings in

private sector cases that the mere existence of alternative

means Of communication is not sufficient to justify the

refusal to release home addresses. The court also noted

that it agreed with the Administrative Law Judge that the

alternative means available to the union were inadequate,

and that the other requirements of the Statute for release

had been met. The court therefore remanded that case (19

FLRA No. 108) to the Authority to find a violation and re-

quire the Respondent to disclose unit employees’ home ad-

dresses to the union. The court did not address the

“routine use” issue.

In order to give full consideration to the issues raised as

to the disclosure of names and home addresses to exclusive

— Ogg are

4la

representatives in the instant case, and in the other cases

remanded by the D.C. and Eighth Circuits as well as other

pending cases, the Authority issued a notice in the Federa/

tunity for all interested agencies, labor organizations, and

other interested persons to file amicus briefs dealing with

these issues. The Authority has considered these submis-

sions, as well as the entire record in this case, in reaching

its decision. Although the parties in this case did not sub-

mit supplementary statements in response to the Federal

Employees did file an amicus brief outlining its position

on the issues presented by these cases.

Ill. Analytical Framework and Previous Decision

As relevant to this case, section 7114(b)(4) of the Statute

requires an agency to furnish to an exclusive represen-

tative, upon request and to the extent not prohibited by

law, data which is (1) normally maintained by the agency

in the regular course of business; and (2) reasonably

available and necessary for full and proper discussion,

understanding, and negotiation of subjects within the

scope of collective bargaining. In the previous decision in

this case, the Authority held that the release of names and

home addresses was not required pursuant to section

7114(b)(4) because disclosure was “prohibited by law,”

specifically the Privacy Act.

The Privacy Act generally prohibits the disclosure of

personal information about Federal employees without

their consent. Section (b)(2) of the Privacy Act provides

that the prohibition against disclosure is not applicable if

disclosure of the information is required under the

Freedom of Information Act (FOIA).? Exemption(b)(6) of

2? Freedom of Information Act, 5 U.S.C. § 552 (1982).

42a

the FOIA provides that information contained in péetson-

nel files (as well as medical and other similar files) may be

withheld if disclosure of the information would constitute

a “clearly unwarranted invasion of personal privacy[.]”

Applying the balancing test developed by the Federal

courts in cases concerning the (b)(6) exemption to the

FOIA, the Authority weighed the public interest which

would be served by providing the Union with names and

home addresses against the employees’ interests in main-

taining their privacy. The Authority concluded that “the

employees’ strong privacy interest in their home addresses

outweighs the necessity of the data for the Union’s pur-

poses in the circumstances of this case.” 19 FLRA No. 21

at 4. Since the information requested by the Union fell

within the (b)(6) exemption, disclosure of the information

was not required under the FOIA. Therefore, the Authori-

ty found that the requirements of the (b)(2) exception to

the Privacy Act were not met and disclosure of the infor-

mation was prohibited. The Authority also found that the

record established that the Union had “alternative means

of . . .comunication available.” Jd. Because of the finding

that disclosure of the information was prohibited by law,

the Authority did not address whether the Union’s request

met the other requirements of section 7114(b)(4).

IV. Analysis on Remand

Consistent with the requirements of section 7114(b)(4),

it is necessary to determine whether (1) disclosure of the

names and home addresses of bargaining unit employees is

prohibited by law, (2) the information is normally main-

tained by the Agency in the regular course of business, (3)

the Union properly requested the information, and (4) the

information is reasonably available and necessary within

the meaning of that section. These issues will be addressed

in turn.

43a

A. Prohibited by Law

Provisions of the Privacy Act and the Freedom of Infor-

mation Act are relevant to the determination of whether

the disclosure of the information is prohibited by law. The

Authority previously held that disclosure was prohibited

by the Privacy Act. There are two exceptions to the

Privacy Act’s bar to disclosure which are applicable to this

discussion: exception (b)(2) concerning the Freedom of In-

formation Act, and exception (b)(3) relating to “routine

use” of information.

1. FOIA

If the disclosure of the requested information is re-

quired by the FOIA, the Privacy Act’s bar to disclosure is

not applicable. 5 U.S.C. § 552a(b)(2). Under the FOIA,

requested information must be disclosed unless it falls

within one of the enumerated exemptions. The exemption

pertinent to this case is exemption (b)(6) which authorizes

withholding information in “personnel and medical files

and similar files the disclosure of which would constitute a

clearly unwarranted invasion of personal privacy[.]”

In the previous decision in this case, the Authority

balanced employees’ privacy interests against the public in-

terest in disclosure and found that the requested informa-

tion fell within exemption (b)(6). In doing so, the Authori-

ty relied on the decision of the Court of Appeals for the

Fourth Circuit in AFGE Local 1923, 712 F.2d 931. For the

following reasons, we reverse Our previous decision on this

point and find that the requested information may not be

withheld pursuant to exemption (b)(6).

It is necessary to balance competing interests to deter-

mine whether requested information falls within exemp-

tion (b)(6). It is also important to recognize, as empha-

sized in the amicus submissions filed by various labor

44a

Organizations, that the FOIA embodies “a_ general

philosophy of full agency disclosure unless information is

exempted under clearly delineated statutory language.”

Department of Air Force v. Rose, 425 U.S. 352, 360-61

(1976). Further, exemption (b)(6)’s limitation to “clearly

unwarranted” disclosures instructs us to “tilt the balance in

favor of disclosure.” Getman v. NLRB, 450 F.2d om 674

(D.C. Cir. 1971).

Consistent with this framework, we find that the

balance favors disclosure of the names and homie ad-

dresses sought by the Unicon. In section 7101 of the Statute

Congress found that collective bargaining in the Govern-

ment is in the public interest and safeguards that interest.

The disclosure of the information sought would enable the

Union to identify the members of the bargaining unit

which it is required to represent. Disclosure also would

contribute to the Union’s ability to communicate with its

bargaining unit members and thereby enable it to better

fulfill its responsibilities under the Statute. If employees

are to exercise their statutory rights, they must be aware of

the issues affecting them. By providing the Union with an

efficient method of communication, disclosure of names

and home addresses will facilitate the fullest exercise of

employee rights.

On further consideration of this case, we also agree with

the Court of Appeals for the Second Circuit that “the

privacy interest of the average employee in his address is

not particularly compelling.” 786 F.2d at 556. For exam-

ple, while amicus submissions by individuals indicate that

some employees do not favor the release of their names

and home addresses, many of the submissions also show

that these employees already receive and often discard un-

solicited mail. There is, of course, nothing to prevent these

employees from handling communications from the

Union in the same way, nor are employees prevented from

sid Ween eackaha adic tall! tedachsbtachiibabte cane

45a

requesting that they be deleted from the Union’s mailing

list. As noted by the Second Circuit, a union already has

access to information such as salary levels that is more

likely to implicate privacy concerns than the information

sought here. Jd.

On balance, we find that the public interest to be fur-

thered by providing the Union with an efficient method to

communicate with unit employees it must represent far

out-weighs the privacy interests of individual employees in

their names and home addresses. Disclosure of the re-

quested information would not constitute a clearly unwar-

ranted invasion of personal privacy and does not fall

within the (b)(6) exemption to the FOIA. Since the infor-

mation does not fall within the exemption, its disclosure is

required under the FOIA and, under exception (b)(2) to

the Privacy Act, its release is not prohibited by law.

2. Routine Use

Exception (b)(3) of the Privacy Act permits disclosure

of information for a “routine use.” Section (a)(7) of the

Privacy Act defines routine use as “the use of such record

for a purpose which is compatible with the purpose for

which it was collected.” The Office of Personnel Manage-

ment (OPM) publishes notices defining the routine uses of

personnel records of Federal employees. One notice

defines a routine use as the disclosure of information to

“officials of labor organizations recognized under 5

U.S.C. Chapter 71 when relevant and necessary to their

duties of exclusive representation[.]” 49 Fed. Reg. 36,956

(1984). This standard is effectively the same as section

7114(b)(4)’s limitation of an agency’s obligation to provide

information to that which is “necessary for full and proper

discussion, understanding, and negotiation of subjects

within the scope of collective bargaining[.]”

46a

As discussed below, we conclude that the disclosure of

the names and home addresses of bargaining unit employ-

ees to the Union is necessary within the meaning of section

7114(b)(4) of the Statute for the Union to discharge its

statutory obligations. Consistent with that conclusion, we

find that disclosure of the information sought here falls

within the routine use established by OPM, and its disclos-

ure is therefore a routine use under exception (b)(3) of the

Privacy Act. Therefore, even if the disclosure was not

authorized under exception (b)(2) of the Privacy Act,

relating to the FOIA, it is authorized under exception

(b)(3).

Release of the requested information is therefore not

prohibited by law. It may be released pursuant to excep-

tions (b)(2) and (3) of the Privacy Act.

B. Normally Maintained by the Agency

The Administrative Law Judge found that the names

and home addresses sought by the Union were maintained

by the Respondent in Official Personnel Files (OPFs), a

card index system, and a computer file. He concluded that

the information was normally maintained in the regular

course of business. We agree and find that the requested

information is normally maintained by the Agency in the

regular course of business within the meaning of section

7114(b)(4) of the Statute.

We note that aithough OPM retains responsibility for

OPFs, they are physically maintained by employing agen-

cies. While agency amici question whether OPFs are the

best source for current home addresses, the Department of

Justice notes in its amicus submission that there is “no

question that the home addresses of federal employees. . .

are in their personnel files.”

0 EMR IRC

47a

C. Union Request

The Union requested in writing the names and home ad-

dresses of bargaining unit employees to enable it to prepare

for contract negotiations. Although not raised in this case,

some amicus submissions questioned whether a request

must be tied to a specific issue about which the union needs

to communicate with its bargaining unit members.

As discussed throughout this decision, a union’s

statutory obligations involve a broad range of representa-

tional activities. We find that the statutory requirement

concerning sufficiency of a request under section

7114(b)(4) is satisfied for requests such as that involved

here when a general written request for the information is

made. A precise explication of the reasons for the request

involved here is not necessary. The requirement for a re-

quest was met in this case.

Our conclusion that a written request for names and

home addresses need not contain an explanation of the

reason for the request is consistent with previous decisions

where we held that an agency’s duty to furnish other infor-

mation under section 7114(b)(4) of the Statute turns on the

nature of the request and the circumstances of each case.

For example, Department of Health and Human Services,

Social Security Administration and Social Security Ad-

ministration, Field Operations, New York Region, 21

FLRA No. 35 (1986). In our view, an exclusive represen-

tative’s need for the names and home addresses of the

bargaining unit employees it is required to represent is so

apparent and essentially related to the nature of exclusive

representation itself, that unlike requests for certain types

of other information, an agency’s duty to supply names

and home addresses information does not depend upon

any separate explanation by the union of its reasons for

seeking the information.

48a

D. Reasonably Available and Necessary

As discussed previously in connection with the statutory

requirement that the requested information be normally

maintained by the agency, the names and home addresses

of bargaining unit employes are contained in OPFs and, in

this case, the ALJ found that the information was also

available through an index system and a computer file.

The information is reasonably available within the mean-

ing of section 7114(b)(4).

As for whether the information is necessary for unions

to discharge their responsibilities under the Statute, the

amicus submissions show disagreement among the parties.

Generally, unions argued that the disclosure of names and

home addresses is necessary for them to meet their

Statutory obligations. Agencies contended that these

obligations could be fulfilled without disclosure of the in-

formation, through effective alternative means of com-

munication.

Section 7114(a)(1) of the Statute provides that an ex-

clusive representative ts Tesponsible for representing the

“interests of all employes in the unit it represents without

discrimination and without regard to labor organization

membership.” Under this provision, a union’s statutory

responsibilities extend to all bargaining unit members. It is

obvious that a union must be able to identify and com-

municate with those bargaining unit members if it is to

adequately represent them.

Consistent with the amicus submissions of many agen-

cies, the ALJ in this case found that the disclosure of

names and home addresses was unnecessary because other

means of communication, Such as desk drops, direct

distributions, meetings, bulletin boards, and direct per-

sonal contacts were available to the Union and provided

adequate means of communication. We disagree. The

disclosure of names and home addresses will enable the

49a

Union to communicate effectively and efficiently, through

direct mailings to individual employees. The information

is readily available within Agency files and its disclosure

will enhance the exercise of employee rights as well as the

communication process between employees and the Union.

We will not review the adequacy of alternative methods

of communication on a case-by-case basis. Consistent with

the view of the Court of Appeals for the Second Circuit

discussed above, we find that the mere existence of alter-

native means of communication is insufficient to justify a

refusal to release the information. Further, we find that it

is not necessary for us to examine the adequacy of alter-

native means in cases involving requests for names and

home addresses because the communication between unit

employees and their exclusive representative which would

be facilitated by release of names and home addresses in-

formation is fundamentally different from other com-

munication through alternative means which are con-

trolled in whole or in part by the agency. When using

direct mailings, the content, timing, and frequency of the

communication is completely within the discretion of the

union and there is no prossibility of agency interference in

the distribution of the message. Further, direct mailings

reach unit employees in circumstances where those em-

ployees may consider the union’s communication without

regard to the time constraints inherent in their work en-

vironments, and in which any restraint the employee may

feel as a result of the presence of agency management in

the workplace is not present. We find that the names and

home addresses of unit employees are necessary and

should be provided whether or not alternative means of

communication are available.

Our decision that names and home addresses informa-

tion should be released is consistent with private sector

50a

precedent.* The National Labor Relations Board has held

that names and addresses of unit employees are “presump-

tively relevant to [a] [uJnion’s role as bargaining agent

either during contract negotiations or during the term of

an agreement.” Georgetown Holiday Inn, 235 NLRB 485,

486 (1978).* The Board has not treated the presumption

favoring the disclosure of names and home addresses as an

irrebuttable one. Disclosure need not be made in situations

where, for example, the evidence discloses that a union has

acted in a manner which leads to the conclusion that the

employees whose addresses would be disclosed would be in

3 The National Labor Relations Act (NLRA) does not contain a

provision equivalent to section 7114(b)(4) of the Statute. Rather,

union’s rights to receive information are an outgrowth of the obliga-

tion to bargain in good faith under section 8(a)(5) of the NLRA. For a

discussion of the private sector obligation see NLRB v. Acme In-

dustrial Company, 385 U.S. 432 (1967). See also Prudential Insurance

Co. v. NLRB, 412 F.2d 77 (2d Cir.), cert. denied, 396 U.S. 928 (1969),

where the court rejected the company’s arguments that providing

names and home addresses was unnecessary because adequate alter-

native means of communication (bulletin boards, grievance commit-

tees, hand distributions, and union meetings) were available to the

union. As for the relevance of the information, the court stated “[i]t

seems manifest beyond dispute that the Union cannot discharge its

obligation unless it is able to communicate with those in whose behalf

it acts.” Id. at 84.

+ See also Armstrong World Industries, Inc., 254 NLRB 1239, 1244

(1981), where the Administrative Law Judge, whose decision was

adopted by the Board, cited the Board’s previous decision in

Autoprod, Inc., 223 NLRB 773 (1973), and stated that the Autoprod

decision “appears to state flatly that a union is entitled to the addresses

of unit employees, whether or not those addresses couid be obtained

by other means and, a fortiori, whether or not the union might be able

to disseminate information to unit employees by other means than

mailing.” This statement also appears in the ALJ’s decision in Harco

Laboratories, Inc., 271 NLRB 1397, 1398 (1984), which was also

adopted by the Board.

Sla

imminent danger if the union knew where they lived. See,

for example, Shell Oil Co. v. NLRB, 457 F.2d 615 (9th

Cir. 1972). There is no such contention in this case.

V. Conclusion

We have considered the entire record in this case as well

as the amicus submissions filed in response to our notice in

the Federal Register. We conclude that the release of

names and home addresses to the Union is not prohibited

by law, is necessary for the Union te fulfill its duties under

the Statute, and meets the other requirements of section

7114(b)(4).

Respondent was required to furnish the names and

home addresses requested by the Union without regard to

whether alternative means of communication were

available or adequate. Respondent’s refusal to furnish the

requested information violated 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 Farmers Home Administration Finance Office, St.

Louis, Missouri shall:

1. Cease and desist from:

(a) Refusing to furnish, upon re est of the

American Federation of Government Employees,

AFL-CIO, Local 3354, the exclusive representative of

its employees, the names and home addresses of all

employees in the bargaining unit it represents.

(b) In any like or related manner interfering with,

restraining, Or coercing its employees in the exercise

of the rights assured them by the Statute.

52a

2. Take the following affirmative action in order to ef-

fectuate the purposes and policies of the Statute:

(a) Upon request by the American Federation of

Government Employees, AFL-CIO, Local 3354, the

exclusive representative of its employees, furnish it

with the names and home addresses of all employees

in the bargaining unit it represents.

(b) Post at all its facilities where bargaining unit

employees represented by the American Federation of

Government Employees, AFL-CIO, Local 3354 are

located, copies of the attached Notice on forms to be

furnished by the Federal Labor Relations Authority.

Upon receipt of such forms, they shall be signed by a

senior Official of the Farmers Home Administration

Finance Office, St. Louis, Missouri, and shall be

posted and maintained for 60 consecutive days

thereafter, in conspicuous places, including all

bulletin boards and other places where notices to

employees are customarily posted. Reasonable steps

shall be taken to insure that such Notices are not

altered, defaced, or covered by any other material.

Rules and Regulations, notify the Regional Director,

Region VII, Federal Labor Relations Authority, in

writing, within 30 days from the date of this Order, as

to what steps have been taken to comply.

53a

Issued, Washington, D.C., October 31, 1986.

/s/ JERRY L. CALHOUN

Jerry L. Calhoun, Chairman

/s/ HENRY B. FRAZIER III,

/s/ JEAN MCKEeE

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

54a

NOTICE TO ALL EMPLOYEES

PURSUANT TO

A DECISION AND ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

AND IN ORDER TO EFFECTUATE THE POLICIES OF

CHAPTER 71 OF TITLE 5 OF THE

UNITED STATES CODE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to furnish, upon request of the

American Federation of Government Employees, AFL-

‘CIO, Local 3354, the exclusive representative of our

employees, the names and home addresses of all

employees in the bargaining unit it represents.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce our employees in the exercise of

the rights assured them by the Federal Service Labor-

Management Relations Statute.

WE WILL, upon request by the American Federation of

Government Employees, AFL-CIO, Local 3354, the ex-

clusive representative of our employees, furnish it with the

names and home addresses of all employees in the bargain-

ing unit it represents.

(Agency or Activity)

Dated: By:

(Signature)

This Notice must remain posted for 60 consecutive days

from the date of posting, and must not be altered, de-

faced, or covered by any other material.

55a

If employees have any questions concerning this Notice or

compliance with its provisions, they may communicate

directly with the Regional Director, Region VII, Federal

Labor Relations Authority, whose address is: 535 16th

Street, Suite 310, Denver, Colorado 80202 and whose

telephone number is: (303) 837-5224.

56a

APPENDIX G

19 FLRA No. 21

UNITED STATES OF AMERICA BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

Case No. 7-CA-30560

FARMERS HOME ADMINISTRATION FINANCE OFFICE,

St. Louis, Missouri

RESPONDENT

and

AMERICAN FEDERATION OF GOVERMENT EMPLOYEES,

AFL-CIO, Loca. 3354

CHARGING PARTY

DECISION AND ORDER

The Administrative Law Judge issued the attached Deci-

sion im the above-entitled proceeding, finding that the

Respondent had not engaged in the unfair labor practices

alleged in the complaint, and recommending that the com-

plaint be dismissed in its entirety. The General Counsel

and the Respondent filed exceptions to the Judge’s Deci-

sion, and the Respondent filed an opposition to the

General Counsel’s exceptions.

Pursuant to section 2423.29 of the Authority’s Rules

and Regulations and section 7118 of the Federal Service

Labor-Management Relations Statute (the Statute), the

Authority has reviewed the rulings of the Judge made at

the hearing and finds that no prejudicial error was com-

mitted. The rulings are hereby affirmed. Upon considera-

tion of the Judge’s Decision and the entire record, the

57a

Authority hereby adopts the Judge’s findings, conclusions

and recommended Order, as modified herein.

The Judge concluded that the Respondent had not

failed to comply with the requirements of section

7114(b)(4) of the Statute' when it refused to provide the

Union, upon request, with the names and home addresses

of all the unit employees represented by the exclusive

representative. In this regard, the Judge found that such

material was not “necessary for a full and proper discus-

sion, understanding, and negotiation of subjects within

the scope of collective bargaining” in view of the alter-

native means available to the Union by which to com-

municate with the employees whom it represents.

The Authority agrees with the Judge that the actions of

the Respondent in this case did not constitute a violation

of section 7116(a)(1), (5S) and (8) of the Statute. In so con-

cluding, however, the Judge did not address the primary

defense raised by the Respondent in this matter, /.e., that

the disclosure of the names and home addresses of the

' Section 7114(b)(4) of the Statute provides:

§ 7114. Representation rights and duties

* * * * *

(b) The duty of an agency and an exclusive representative

to negotiate in good faith under subsection (a) of this section

shall include the obligation —

* * * » *

(4) in the case of an agency, to furnish to the exclusive

representative involved, or its authorized representative,

upon request and, to the extent not prohibited by law,

data —

(A) which is normally maintained by the agency

in the regular course of business; [and]

(B) which is reasonably available and necessary

for full and proper discussion, understanding, and

negotiation of subjects within the scope of collec-

tive bargaining[.]

58a

unit employees herein was precluded by the provisions of

the Privacy Act.? In a recent decision, Army and Air Force

Exchange Service (AAFES), Fort Carson, Colorado, 17

FLRA No. 92 (1985) (hereinafter AAFES), the Authority

pointed out that, in addition to requiring a determination

on a case by case basis whether data sought pursuant to

section 7114(b)(4) of the Statute meets the requirements of

that section, /.e., whether it has been requested, whether it

is normally maintained, whether it is reasonably available,

and whether it is necessary to enable a union to fulfill its

representational obligations, section 7114(b)(4) of the

Statute also limits an agency’s obligation to furnish data

“to the extent not prohibited by law,” which incorporates

the Privacy Act.

The Privacy Act regulates the disclosure of any infor-

mation contained in an agency “record” within a “system

of records that is retrieved by reference to an individual

name or some other identifier.”? The names and home ad-

dresses of unit employees constitutes information which is

retrievable from an agency’s records by reference to an in-

dividual’s name and therefore would be prohibited from

disclosure unless one of the specific Privacy Act excep-

tions is applicable. See AAFES, supra. One such exception

to the Privacy Act’s protection is contained in 5 U.S.C. §

552a(b)(2) which permits disclosure of information “re-

quired” to be released under the Freedom of Information

Act (FOIA).* In general, the theory of the FOIA is that

Federal government records should be disclosed in order

to enable the public to review the actions of the govern-

? Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified

as amended at 5 U.S.C. § 552a (1982)).

> $ U.S.C. § 552a(a)(4), (5) (1982).

* Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256

(codified as amended at 5 U.S.C. § 552 (1982)).

59a

ment. However, there are also exemptions to the general

disclosure requirements of the FOIA. Under exemption

(b)(6) of the FOIA, an agency is allowed, e.g., to withhold

personnel and medical files and similar files the disclosure

of which would constitute a clearly unwarranted invasion

of privacy. In determining whether material may be prop-

erly withheld in accordance with exemption (b)(6) of the

FOIA, the Federal courts have struck a balance between

the individual’s privacy interest and the possible adverse or

harmful effects on the individual which could result from

disclosure, on the one hand, against the importance of the

public’s interest in having the information made

available.> In AAFES, supra, the Authority indicated that

in determining whether data sought under section

7114(b)(4) is or is not otherwise “prohibited by law,” the

Authority will use the same test applied by the courts in

evaluating FOIA requests under the 5 U.S.C. § 522(b)(6)

exemption, i.e., balancing the necessity of the data for the

union’s purposes against the degree of intrusion on the in-

dividual’s privacy interests caused by disclosure of the

data.°®

In applying the foregoing balancing test to determine

whether the Union is entitled to the names and home ad-

dresses of unit employees herein, the Authority has been

guided by the decision of the Fourth Circuit in American

Federation of Government Employees, AFL-CIO, Local

1923 v. United States Department of Health and Human

Services, 712 F.2d 931 (4th Cir. 1983) (hereinafter AFGE

v. HHS), wherein an exclusive representative sought the

home addresses of. all unit employees pursuant to the

5 See, e.g., Department of the Air Force v. Rose, 425 U.S. 352

(1976).

6 See also Bureau of Alcohol, Tobacco and Firearms, National Of-

fice, Washington, D.C., 18 FLRA No. 74 (1985).

60a

FOIA. In adopting the lower court’s conclusion that the

balance of all factors favored nondisclosure, the Fourth

Circuit stated in pertinent part (712 F.2d at 932):

Employees have a strong privacy interest in their

home addresses. Disclosure could subject the

employees to an unchecked barrage of mailings and

perhaps personal solicitations, for no _ effective

restraints could be placed on the range of uses to

which the information, once revealed, might be put.

Further, even granting that collective bargaining is a

matter of grave public concern, any benefits flowing

from disclosure of the information sought would in-

ure primarily to the union, in a proprietary sense,

rather than to the public at large. Finally, as the

District Court noted, alternative means of com-

munication are available to the union, such as its

bulletin board and indirect distribution through the

employer. (footnote omitted.)

The same findings flow from the similar facts of the pre-

sent case. Thus, for the reasons stated by the Fourth Cir-

cuit in AFGE v. HHS, we find that the employees’ strong

privacy interest in their home addresses outweighs the

necessity of the data for the Union’s purposes in the cir-

cumstances of this case. Moreover, the Court noted that

alternative means of communication with unit employees

were available to the union in AFGE v. HHS, and the

record in this case clearly establishes that the Union herein

had alternative means of such communication available.’

7 In this regard, the Union could have communicated with unit

employees through “desk drops” of information as authorized by the

parties’ collective bargaining agreement; direct distributions at en-

trances; meetings in conference rooms provided by management

under the negotiated agreement; bulletin boards; and union stewards

who had access to unit employees at their workplace.

BAR Fee ckNT eth Peto iain Pca

6la

Further, as noted by the Fourth Circuit in AFGE vy.

HHS, the records sought by the Union herein, /.e., the

names and addresses of unit employees, are not of the type

that generally must be disclosed pursuant to the FOIA’s

(b)(6) exemption for the purposes for which they were

sought herein. As the Court stated:

The purpose of the [FOIA] is “ ‘to pierce the veil of

administrative secrecy and to open agency action to

the light of public scrutiny... .’”

* * * * *

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. (citations and footnote omitted.) 712 F.2d

933.

Thus, the Authority finds that the disclosure of unit

employees’ names and home addresses for the purposes

for which they were sought herein was “prohibited by law”

and that their release by the Respondent therefore was not

required pursuant to section 7114(b)(4) of the Statute.

Therefore, the Authority concludes that the Respondent

did not fail to comply with section 7114(b)(4) of the

Statute in violation of section 7116(a)(1), (5) and (8) of the

Statute when it refused to provide the exclusive represen-

tative with the names and home addresses of unit

employees.* Accordingly, the Authority shall order that

the complaint be dismissed.

* In so concluding, the Authority does not reach the question of

whether the data sought herein meets the other requirements of sec-

tion 7114(b)(4) of the Statute.

62a

ORDER

IT IS ORDERED that the complaint in Case No.

7-CA-30560 be, and it hereby is, dismissed in its entirety.

Issued, Washington, D.C., July 22, 1985

/s/ HENRY B. FRAZIER III,

Henry B. Frazier III, Acting Chairman

/s/ WILLIAM J. MCGINNIS, JR.

William J. McGinnis, Jr., Member

FEDERAL LABOR RELATIONS AUTHORITY

63a

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, DC 20424

Case No.: 7-CA-30560

FARMERS HOME ADMINISTRATION FINANCE OFFICE,

St. Louis, MIssOuRI

RESPONDENT

and

AMERICAN FEDERATION OF GOVERMENT EMPLOYEES,

Loca. 3354, AFL-CIO

CHARGING PARTY

James M. Carroll, Esquire

For the Respondent

Nicholas J. LoBurgio, Esquire

For the General Counsel

Mr. Steven M. Hollis

For the Charging Party

Before: LOUIS SCALZO, Administrative Law Judge

DECISION

Statement of the Case

This case arose as an unfair labor practice proceeding

under the provisions of the Federal Service Labor-

Management Relations Statute, 92 Stat. 1191, 5 U.S.C.

§ 7101, et seq. (hereinafter referred to as “the Statute”),

and the Rules and

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