Federal Labor Relations Authority v. U.S. Dept. of Navy, Naval Communications Unit Cutler, East Machias, Me., Nos. 90-1948
| Decision Date | 07 March 1991 |
| Docket Number | 90-2015,90-1949,Nos. 90-1948,90-2014 |
| Citation | 941 F.2d 49 |
| Parties | 138 L.R.R.M. (BNA) 2049, 60 USLW 2208 FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. U.S. DEPARTMENT OF the NAVY, NAVAL COMMUNICATIONS UNIT CUTLER, EAST MACHIAS, MAINE, Respondent. American Federation of Government Employees, Intervenor. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. U.S. DEPARTMENT OF the NAVY, PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE, Respondent. American Federation of Government Employees, Intervenor. U.S. DEPARTMENT OF the NAVY, PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. American Federation of Government Employees, Intervenor. U.S. DEPARTMENT OF the NAVY, NAVAL COMMUNICATIONS UNIT CUTLER, EAST MACHIAS, MAINE, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. American Federation of Government Employees, Intervenor. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Sandra Wien Simon, Appellate Staff, Civil Div., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Leonard M. Schaitman, Appellate Staff, Civil Div., Dept. of Justice, were on brief, Washington, D.C., for the U.S. Dept. of Navy.
William E. Persina, Sol., with whom William R. Tobey, Deputy Sol., and Pamela P. Johnson were on brief, Washington, D.C., for the Federal Labor Relations Authority.
Stuart A. Kirsch, Asst. Gen. Counsel-Litigation, with whom Mark D. Roth, Gen. Counsel, was on brief, Washington, D.C., for intervenor.
Gregory O'Duden, Director of Litigation, and Elaine Kaplan, Deputy Director of Litigation, on brief, Washington, D.C., for the Nat. Treasury Employees Union, amicus curiae.
Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.
In these two cases, consolidated for review in this court, the International Federation of Professional and Technical Engineers, Local 4, filed unfair labor practice charges against the Department of the Navy, Portsmouth Naval Shipyard, while the Maine and American Federation of Government Employees, Local 2635, filed similar charges against the Department of the Navy, Naval Communications Unit Cutler. 1 Both unions' charges were based on the Navy's refusal to comply with the unions' requests that the Navy disclose the home addresses 2 of federal employees in their bargaining units. In the Portsmouth case, 3 the Federal Labor Relations Authority ("FLRA") held that under Title VII of the Civil Service Reform Act of 1978, (also known as the Federal Service Labor-Management Relations Statute, hereinafter "Labor Statute"), 5 U.S.C. § 7101, et seq., federal agencies were required, upon request, to disclose the names and home addresses of bargaining unit employees to unions, without consideration of whether alternative ways for the union to communicate with the employees were adequate. In the Portsmouth opinion, the FLRA held that, since the "requested information is fundamentally relevant to the Union's role as bargaining agent," a case-by-case determination of necessity and consideration of the adequacy of alternatives was not required. 4 Accordingly, the FLRA in Portsmouth ordered the Navy to release the requested address information to the union. The FLRA applied the Portsmouth decision, without further elaboration, to the Naval Communications Unit case and again ordered disclosure. 5 In this court, the FLRA petitions for enforcement in both cases, and the Navy cross-petitions for review of the FLRA's decisions and orders. The Navy argues that names and associated addresses need not be disclosed without a showing of the inadequacy of alternatives, although it concedes that the information may have to be released if alternative means of reaching the employees are shown to be inadequate.
The Labor Statute, 5 U.S.C. § 7114(b), provides:
(b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation--
. . . . .
(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data--
. . . . .
(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining;....
For disclosure to be required under the Labor Statute, therefore, the information (in this case the employees' addresses), must be both: (1) "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining"; and (2) "not prohibited by law." 6
The Navy asserts that disclosure of the employees' addresses is not "necessary" within the meaning of § 7114(b)(4)(B), absent a showing that alternative means of communication are inadequate. In addition, the Navy argues that disclosure is, in any event, precluded by the Privacy Act, 5 U.S.C. § 552a, which prohibits disclosure of personal information about federal employees without their consent. 7 There is no dispute but that the employees' addresses sought here fall within the general Privacy Act protection of § 552a(b). The FLRA determined, however, that two exceptions to the Privacy Act allow disclosure. The Navy argues that neither exception is applicable.
The first Privacy Act exception at issue permits disclosure of an agency record where required under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). The FOIA, in turn, establishes "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976) (quoting S.Rep. No. 813, 89th Cong., 1st Sess. 3 (1965)); see 5 U.S.C. § 552. Subsection 552(b)(6) ("exemption 6") of the FOIA exempts from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The applicability of the Privacy Act FOIA exception here thus turns on the applicability of exemption 6. The Supreme Court has explained how courts are, in general, to apply exemption 6:
Congressional concern for the protection of the kind of confidential personal data usually included in a personnel file is abundantly clear. But Congress also made clear that nonconfidential matter was not to be insulated from disclosure merely because it was stored by an agency in its 'personnel' files. Rather, Congress sought to construct an exemption that would require a balancing of the individual's right of privacy against the preservation of the basic purpose of the [FOIA] 'to open agency action to the light of public scrutiny.' The device adopted to achieve that balance was the limited exemption, where privacy was threatened, for 'clearly unwarranted' invasions of personal privacy.
Department of the Air Force v. Rose, 425 U.S. at 372, 96 S.Ct. at 1604.
The second claimed Privacy Act exception allows disclosure for a "routine use." Under this exception, disclosure must be "compatible with the purpose for which [the information] was collected," and be in accordance with a routine use notice published by the agency in the Federal Register, which describes the routine use, the categories of users, and the purpose of such use. See supra note 7. The applicability of this exception turns on the interpretation of a routine use notice published by the Office of Personnel Management ("OPM"), which maintains "Official Personnel Files" that contain federal employees' names and home addresses. That routine use notice specifies in "paragraph j" that the information may be used j. To disclose information to officials of labor organizations recognized under 5 U.S.C. Chapter 71 when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.
Privacy Act of 1974: Publication of Notices of Systems of Records and Proposed New Routine Use, 49 Fed.Reg. 36,346, 36,949 (Sept. 20, 1984).
Federal agencies' obligation to disclose, upon request, names and related home addresses of bargaining unit employees to the exclusive bargaining representative union has been the subject of much litigation. The FLRA first held that federal agencies were not required to disclose this information. Farmers Home Administration Finance Office, 19 FLRA (No. 21) 195 (1985) ("Farmers Home I "). The Second Circuit granted a petition for review of the FLRA's "Farmers Home I " position and held that, because the record supported the administrative law judge's finding that alternative means to reach employees were inadequate on the facts of that case, and because disclosure fell within the FOIA exception to the Privacy Act, the Labor Statute required the disclosure of employees' addresses. AFGE, Local 1760, AFL-CIO v. FLRA, 786 F.2d 554, 557 (2d Cir.1986). Thereafter, the FLRA not only reversed its own anti-disclosure position, but laid down a presumptive rule of necessity requiring disclosure regardless of the adequacy of alternatives in a particular case. The FLRA ruled that both exceptions to the Privacy Act applied. Farmers Home Administration Finance Office, 23 FLRA 788 (1986), supra note 4, ("Farmers Home II ").
A number of courts of appeals have upheld orders of disclosure issued by the FLRA in keeping with its position in Farmers Home II. Upholding the FLRA's determination that disclosure of names and addresses was "necessary" within the Labor Statute, the Eighth and Fourth Circuits also endorsed the FLRA's rule that disclosure was presumptively necessary. Department of Agriculture v. FLRA, 836 F.2d 1139 (8th Cir.1988), supra note 4; Department of Health and Human Services v. FLRA, 833 F.2d 1129 (4th Cir.1987), cert. denied, 488 U.S. 880, 109 S.Ct. 632, 102...
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