# Petition for Writ of Certiorari — Federal Labor Relations Authority v. United States Department of Agriculture > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0820%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 488 U.S. 1025 ## Text No. — _ In the Supreme Court of the Gnited States OCTOBER TERM, 1988 FEDERAL LABOR RELATIONS AUTHORITY, PETITIONER - V. 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. I] TABLE OF CONTENTS Page et Cele. Sa deweslacessdbacew abe déees l nn Sr ce eh eee p kacceeecesebe pense ca 2 Ee eas a a a dub o.y 0's 4%. 6.0.8 865 e008 3 BGA iia k bees vives ess otdecube’ cee 3 Reasons for granting the petition ....................0005- 13 ee vin penncwesensabsnccaseee 28 a re la EES Liga 05 65.66 6 066.66 44.6 bs ecbeebeueess i9a MGM cle cds ckgass bees cases aescccecsces 33a EMER, ceiials Che Ep cence cbesbideadecisutbene's 35a a Tes lites 6h issn ses sesswecnecedeeaess 37a i Wada a's 66 6p ons 0s 006506050506 s 00.0 § 38a eas a aicscs ehh ene snesschdnnavecenes 56a EE ee eee 5 ae oa 6h6 6s cok scse dc oe 606s au 8la a rhs dc vkg daa Waseca res a sonesce tee 92a 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) IV 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 SD cco vedecdsdnddeecsrdacseseuaacas canara: 2 Ce SE rds 3 oc pncde ne ddeensduedsauease 8 De Sch oicccosenéuseveseateateane 3, 22 Se I 6s vk otuceenscasdadweeetene 22, 23 Se So. he cao enreepaenshadeane 3, 17 PU ee IN Ss occ accaceceducaenéan Drais 3 CO EN wi covadsdesacbdesaguebanaoes 3 SO EE onc. oss 60604 tdbh040 dedkesemen 3 ee a oo sadcseeanadcsceseateta 3 OE EE op csccecccccvcses oS aan 3, 16 Es 5. oo ac cnekeaseaseseakeawane 3 Se ce ccc ccasessesecaaresannenen 15 Se PE a bn tacpencseeesheomrhaeane passim SU: SN cons ccdcevessvesaseeeeasenen 4,9, 11 SUB. FUSED cc cc nccccccccccsascssvecssas 4,9, 11 Vi Statutes, rules, and regulations — Continued: Page Pe THs 6 eo ccddebbccvétwccecadece > 7 PO ado ds chéticdevecddtccstaverwcets 3 Pe PETA oie ccveduscd dbs cdes¥essioese 5 SINGS 6 Sb i'c deb ec JecGebae Se ish vena 3, 6 PRs Pe ebb ccrdsccduvcdevdvevhveetevene 3 Freedom of Information Act, 5 U.S.C. 552 (1982 & Supp. Oe Gata es. ca edie dee, 2,6 Pe ne sg cna cénascdeesaanbioil 19 a 19 Fs 6 ken ce occcunececccuviae 19 RT Rate i LE ne ae ea ee 21 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” Pe Se Wa veridahins tee nck dae bud bateecteuie cas 2, 5, 6, 25 Pee ST wis oa abt cobb be ckckantccenanas 25 PU Eo 0 co nn05 6 caceédésctumeaucaaul 7, 9, 26 F Ua IED bcc ncuccccccccentececoncasda passim Be es ks cc venta vadecandeanissinebuck 2 GP EE « 6didlie6s6 détsccxddticca manatees. 23 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 v. 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.). 3 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 4 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 5 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 6 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) 7 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. 8 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 9 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). 10 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 1] 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). 12 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). a 13 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) 14 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). 15 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) 16 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) 17 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). 18 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 19 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. 20 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 21 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. 22 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 23 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. 24 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) 25 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). 26 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- 27 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. 28 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 2a 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 3a 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; 4a “(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 Sa 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; * * * * * 6a “(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 7a 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 — 8a “(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- 9a 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; or “(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. (C) Notwithstanding any other provision of law, the 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, Wa 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 ra [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0820%3A1. Public record. Not legal advice.