884 F.2d 1446 (D.C. Cir. 1989), 87-1107. Nos. 87-1108,87-1115,87-1121,87-1129 and 87-1319, Federal Labor Relations Authority v. U.S. Dept. of Treasury, Financial Management Service

Docket Nº:87-1107. Nos. 87-1108,87-1115,87-1121,87-1129 and 87-1319.
Citation:884 F.2d 1446
Party Name:FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. U.S. DEPARTMENT OF the TREASURY, FINANCIAL MANAGEMENT SERVICE, Respondent, National Treasury Employees Union, National Labor Relations Board Union, Intervenors.
Case Date:September 12, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1446

884 F.2d 1446 (D.C. Cir. 1989)




SERVICE, Respondent,

National Treasury Employees Union, National Labor Relations

Board Union, Intervenors.

No. 87-1107. Nos. 87-1108,87-1115,87-1121,87-1129 and 87-1319.

United States Court of Appeals, District of Columbia Circuit.

September 12, 1989

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As Amended Sept. 13, 1989.

Argued Jan. 7, 1988.

William E. Persina, Deputy Sol., Federal Labor Relations Authority ("FLRA"), with whom Ruth E. Peters, Sol., and Pamela P. Johnson, Washington, D.C., FLRA, were on the brief, for petitioner in Nos. 87-1107, 87-1115 & 87-1121, and respondent in Nos. 87-1108, 87-1129 & 87-1319.

Al J. Daniel, Jr., Dept. of Justice, with whom Richard K. Willard, and John R. Bolton, Asst. Attys. Gen., and Leonard Schaitman, Washington, D.C., Dept. of Justice, were on the brief, for respondents in Nos. 87-1107, 87-1115 & 87-1121, and petitioners in Nos. 87-1108, 87-1129 & 87-1319. Jay B. Stephens, U.S. Atty., and Sandra Wien Simon, Washington, D.C., Dept. of Justice also entered appearances.

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Elaine D. Kaplan, with whom Lois G. Williams and Gregory O'Duden, Washington, D.C., were on the brief, for intervenor National Treasury Employees Union in Nos. 87-1107 & 87-1129.

Joseph F. Henderson, with whom Mark D. Roth, Washington, D.C., was on the brief, for intervenor American Federation of Gov't Employees, AFL-CIO in Nos. 87-1115 & 87-1319.

Lewis S. Harris entered an appearance for intervenor N.L.R.B. Union in Nos. 87-1107 & 87-1108.


Opinion for the court filed by Circuit Judge WILLIAMS.

Concurring Opinion filed by Circuit Judge RUTH BADER GINSBURG.

Concurring Opinion filed by Circuit Judge SENTELLE.


In the four decisions under review, Department of the Treasury, Financial Management Service, 25 FLRA 560 (1987); Department of Health and Human Services, Social Security Administration, Baltimore, Md. and Social Security Administration, Great Lakes Program Service Center, Chicago, Illinois, 25 FLRA 828 (1987); Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 24 FLRA 209 (1986); National Labor Relations Board, Office of the General Counsel and the Board, 24 FLRA 917 (1986), the Federal Labor Relations Authority ordered government agencies to comply with union requests for the names and home addresses of agency employees working in the relevant bargaining units. The unions stated that they needed the information to perform their representational duties effectively and that they were therefore entitled to it by 5 U.S.C. Sec. 7114(b)(4) (1982). This requires agencies

to furnish to the exclusive representative involved, or its authorized representative, 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.

Relying on its decision in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986), aff'd in substantial part and remanded sub nom. Department of Agriculture v. FLRA, 836 F.2d 1139 (8th Cir.1988), vacated and remanded, --- U.S. ----, 109 S.Ct. 831, 102 L.Ed.2d 964 (1989), the Authority held that agencies commit unfair labor practices when they refuse to supply authorized unions with employees' names and home addresses. 1

Each of the agencies appealed to this court, where the cases were consolidated. They argue first that the information is not "necessary for ... discussion, understanding, and negotiation of subjects within the scope of collective bargaining," and second that disclosure is "prohibited by law," specifically by the Privacy Act, 5 U.S.C. Sec. 552a. We agree with all the other circuits that have addressed the first issue that, under the deference the Authority is due on such matters, its interpretation of Sec. 7114(b)(4) is permissible. Nevertheless, we must set aside the Authority's decisions; we are persuaded that release of the information is prohibited by the Privacy Act. Reviewing this issue de novo, we find that the Authority erred when it determined that disclosure fell within either the Act's exception for disclosures required by the Freedom of Information Act, 5 U.S.C. Sec. 552(b)(2), or the exception for disclosures made in accordance with a "routine use," 5 U.S.C. Sec. 552a(b)(3). Thus we grant the agencies' petitions for review and deny the FLRA's applications for enforcement.

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    To the extent that the FLRA is interpreting its own enabling statute, we cannot upset its "reasonable and defensible construction[ ]." Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) (FLRA intended by Congress to use "specialized expertise" to "give content to the principles and goals set forth in the Act"). Given this standard of review, it is not surprising that every circuit court that has reviewed the matter has upheld the FLRA's view of whether disclosure is "necessary" for the collective bargaining process under Sec. 7114(b)(4). Department of the Navy v. FLRA, 840 F.2d 1131, 1137-39 (3d Cir.1988); Department of the Air Force v. FLRA, 838 F.2d 229, 231-32 (7th Cir.1988); Department of Agriculture v. FLRA, 836 F.2d 1139, 1142 (8th Cir.1988), vacated and remanded, --- U.S. ----, 109 S.Ct. 831, 102 L.Ed.2d 964 (1989); Department of Health and Human Services v. FLRA, 833 F.2d 1129, 1131-34 (4th Cir.1987); AFGE v. FLRA, 786 F.2d 554, 557 (2d Cir.1986). We agree.

    The agencies first contend that Sec. 7114(b)(4)(B) requires disclosure only of data relating directly to subjects of contract negotiation; it regards the employees' names and addresses as relating merely to "the union's relationship with bargaining unit employees." Brief for Government Agencies 21. The FLRA, on the other hand, views as sufficient a relationship to the "union's ongoing representational responsibilities." NLRB, 24 FLRA at 920. It found in Farmers Home Administration that disclosure would "enable the Union[s] to communicate effectively and efficiently, through direct mailings to individual employees." 23 FLRA at 796.

    This analysis is not unreasonable. As the Fourth Circuit noted, "The Union's duties as the exclusive representative of agency employees do not begin and end abruptly with each round of negotiations but continue during the interim." Department of Health and Human Services, 833 F.2d at 1132. The statutory references to "discussion" and "understanding" of subjects within the scope of collective bargaining provide some support for the Authority's reading. If the information is used to discover employee concerns, clearly it can enhance the usefulness of collective bargaining.

    In addition, the Authority's view corresponds to that of private sector labor relations law. In Prudential Insurance Co. v. NLRB, 412 F.2d 77, 83-85 (2d Cir.1969), the court found that union communications with members of the bargaining unit related to the union's representational obligations. But compare id. at 85-87 (Friendly, J., dissenting) (arguing that true union purpose was recruitment of new members, a goal he found inadequate to justify forced release of employee names and addresses). As we agree that the FLRA's expansive interpretation is reasonable, we will not disturb it.

    Next the agencies argue that the names and addresses are not "necessary" for the purpose stated because alternate means are available for communication between unions and government employees--desk drops, bulletin boards, "direct distributions," meetings and direct personal contact. Brief for Government Agencies 23. In Farmers Home Administration, the FLRA noted two advantages of mailings to home addresses. First, "content, timing and frequency" of communications would be entirely within union discretion, thus excluding the possibility of agency interference. 23 FLRA at 796-97. Second, the communications would be received under circumstances where employees could give them extended attention "without regard to the time constraints inherent in their work environments [or] any restraint the employee may feel as a result of the presence of agency management." Id. at 797.

    While there is no evidence in the record either that agency management has interfered with on-the-job communications, or that employees could not pocket materials received at work for leisurely study at home, we do not believe the Authority's finding that release is "necessary" is either arbitrary or capricious. Necessity is a matter

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    of degree, and in many contexts courts have found a statutory requirement of necessity satisfied even when alternative means were feasible. See NRDC v. Thomas, 838 F.2d 1224, 1236-38 (D.C.Cir.1988) (citing cases); cf. Board of Trustees of State University of New York v. Fox, --- U.S. ----, ----, 109 S.Ct. 3028, 3031-33, 106 L.Ed.2d 388 (1989) (speech restriction may be no broader than "necessary" to achieve goal even though it is not least restrictive alternative). Where, as here, the Authority clearly regarded the burden of disclosure on the agency and on employees as quite modest, and was entitled to do so for purposes of the interpretation of the Federal Labor Management Relations Act (FOIA and Privacy Act matters are a different story, discussed below), modest advantages realized through at-home mailings are enough to sustain its judgment. Again, the Authority's view agrees with that of private sector labor law. Prudential Insurance Co. v. NLRB, 412 F.2d at 81-83; but see id. at...

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