Federal Labor Relations Authority v. U.S. Dept. of Defense, Army and Air Force Exchange Service, Dallas, Tex.

• Decision Date: 20 January 1993
• Docket Number: 90-9562,Nos. 90-9561,90-9572,90-9569,90-9573,90-9579,90-9578,90-9570,91-9509 and 91-9517,s. 90-9561
• Citation: 984 F.2d 370
• Parties: 142 L.R.R.M. (BNA) 2348, 61 USLW 2500 FEDERAL LABOR RELATIONS AUTHORITY, Petitioner/Cross-Respondent, v. UNITED STATES DEPARTMENT OF DEFENSE, ARMY AND AIR FORCE EXCHANGE SERVICE, DALLAS, TEXAS; United States Department of Defense, Army and Air Force Exchange Service, Fort Leavenworth, Kansas, Respondents/Cross-Petitioners, American Federation of Government Employees (AFGE), Intervenor, National Treasury Employees Union, Amicus Curiae. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner/Cross-Respondent, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, WASHINGTON, D.C.; United States Department of Veterans Affairs, Medical Center, Denver, Colorado, Respondents/Cross-Petitioners, American Federation of Government Employees (AFGE), Intervenor. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner/Cross-Respondent, v. DEPARTMENT OF INTERIOR, Respondent/Cross-Petitioner. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner/Cross-Respondent, v. UNITED STATES DEPARTMENT OF THE AIR FORCE, TACTICAL AIR COMMAND, 27TH COMBAT SUPPORT GROUP (TAC), CANNON AIR FORCE BASE, NEW MEXICO, Respondent/Cross-Petitioner. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner/Cross-Respondent, v. FEDERAL AVIATION ADMINISTRATION, AVIATION STANDARDS NATIONAL FIELD OFFICE, AIRCRAFT AND ENGINEERING DIVISION, OKLAHOMA CITY, OKLAHOMA, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 370

984 F.2d 370

142 L.R.R.M. (BNA) 2348, 61 USLW 2500

FEDERAL LABOR RELATIONS AUTHORITY, Petitioner/Cross-Respondent, v. UNITED STATES DEPARTMENT OF DEFENSE, ARMY AND AIR FORCE

EXCHANGE SERVICE, DALLAS, TEXAS; United States Department

of Defense, Army and Air Force Exchange Service, Fort

Leavenworth, Kansas, Respondents/Cross-Petitioners,

American Federation of Government Employees (AFGE), Intervenor,

National Treasury Employees Union, Amicus Curiae.

FEDERAL LABOR RELATIONS AUTHORITY, Petitioner/Cross-Respondent, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, WASHINGTON,

D.C.; United States Department of Veterans

Affairs, Medical Center, Denver,

Colorado, Respondents/Cross-Petitioners,

American Federation of Government Employees (AFGE), Intervenor.

FEDERAL LABOR RELATIONS AUTHORITY, Petitioner/Cross-Respondent, v. DEPARTMENT OF INTERIOR, Respondent/Cross-Petitioner.

FEDERAL LABOR RELATIONS AUTHORITY, Petitioner/Cross-Respondent, v. UNITED STATES DEPARTMENT OF THE AIR FORCE, TACTICAL AIR

COMMAND, 27TH COMBAT SUPPORT GROUP (TAC), CANNON

AIR FORCE BASE, NEW MEXICO,

Respondent/Cross-Petitioner.

FEDERAL LABOR RELATIONS AUTHORITY, Petitioner/Cross-Respondent, v. FEDERAL AVIATION ADMINISTRATION, AVIATION STANDARDS NATIONAL

FIELD OFFICE, AIRCRAFT AND ENGINEERING DIVISION,

OKLAHOMA CITY, OKLAHOMA,

Respondent/Cross-Petitioner.

Nos. 90-9561, 90-9569, 90-9562, 90-9570, 90-9572, 90-9578,

90-9573, 90-9579, 91-9509 and 91-9517.

United States Court of Appeals, Tenth Circuit.

Jan. 20, 1993.

Pamela P. Johnson (William E. Persina, Solicitor, William R. Tobey, Deputy Sol., with her, on the brief), Federal Labor Relations Authority, Washington, D.C., for Federal Labor Relations Authority.

Sandra Wien Simon (Leonard Schaitman and Stuart M. Gerson with her, on the brief), U.S. Dept. of Justice, Civil Div., Appellate Staff, Washington, D.C., for the U.S. Dept. of Defense and other U.S. agencies.

Stuart A. Kirsch and Mark D. Roth, American Federation of Government Employees, AFL-CIO, Washington, D.C., for intervenor.

Gregory O'Duden and Elaine Kaplan, Nat. Treasury Employees Union, Washington, D.C., for amicus curiae.

Before BALDOCK and KELLY, Circuit Judges, and CAUTHRON, District Judge. ^*

BALDOCK, Circuit Judge.

The sole issue in these consolidated appeals is whether federal agencies are required to release their employees' home addresses ¹ to the unions which are the exclusive representatives of the employees' bargaining units. Virtually every federal circuit court of appeals has addressed this issue within the last few years, and a split has emerged. The District of Columbia Circuit, as well as the First, Second, Sixth, Seventh and Eleventh Circuits, have held that disclosure of federal employees' home addresses is prohibited by law. See FLRA v. U.S. Dep't of Defense, 977 F.2d 545 (11th Cir.1992) [hereinafter Eleventh Circuit Defense ]; United States Dep't of the Navy v. FLRA, 975 F.2d 348 (7th Cir.1992) [hereinafter Seventh Circuit Navy ]; FLRA v. Department of the Navy, 963 F.2d 124 (6th Cir.1992) [hereinafter Sixth Circuit Navy ]; FLRA v. United States Dep't of Veterans Affairs, 958 F.2d 503 (2d Cir.1992) [hereinafter Second Circuit Veterans ]; FLRA v. U.S. Dep't of the Navy, 941 F.2d 49 (1st Cir.1991) [hereinafter First Circuit Navy ]; FLRA v. U.S. Dep't of the Treasury, 884 F.2d 1446 (D.C.Cir.1989), cert. denied, 493 U.S. 1055, 110 S.Ct. 863, 107 L.Ed.2d 948 (1990) [hereinafter D.C. Circuit Treasury ]. The Ninth, Third and Fifth Circuits have held that federal unions are entitled to the addresses of their bargaining unit employees. See FLRA v. United States Dep't of Defense, 975 F.2d 1105 (5th Cir.1992) [hereinafter Fifth Circuit Defense ]; FLRA v. U.S. Dep't of the Navy, 966 F.2d 747 (3d Cir.1992) (en banc ) [hereinafter Third Circuit Navy ]; FLRA v. U.S. Dep't of the Navy, 958 F.2d 1490 (9th Cir.1992) [hereinafter Ninth Circuit Navy ]. The Fourth Circuit has vacated its 2-1 panel decision, which enforced disclosure of federal employees' home addresses, pending a rehearing en banc. FLRA v. Department of Commerce, 954 F.2d 994 (4th Cir.), vacated, 966 F.2d 134 (4th Cir.1992) [hereinafter Fourth Circuit Commerce ]. We have jurisdiction under 5 U.S.C. § 7123(a) and (b), and we join the majority of the circuits in holding that disclosure of federal employees' home addresses is prohibited by law, denying enforcement of the Federal Labor Relations Authority (FLRA) decisions ordering disclosure.

Under the Federal Service Labor-Management Relations Statute (the Labor Statute), 5 U.S.C. §§ 7101-7135, a federal agency must furnish to the exclusive bargaining representative information which is "normally maintained by the agency in the regular course of business," which is "reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining," and which is "not prohibited by law." 5 U.S.C. § 7114(b)(4). ² It is undisputed that the home addresses of agency employees are "normally maintained by the agency in the regular course of business." Therefore, we are faced with two issues: (1) whether the home addresses of federal employees are "necessary" for collective bargaining; and (2) whether disclosure is prohibited by law.

Because the Labor Statute does not speak to the issue of whether the addresses of federal employees are "necessary" for collective bargaining, we must determine whether the FLRA's interpretation, that the name and address list is necessary for collective bargaining, is "based on a permissible construction of the statute." Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). In Farmers Home Administration Finance Office, St. Louis, Missouri, 23 F.L.R.A. (No. 101) 788, 796 (1986), the FLRA outlined its reasons for finding the name and address list to be necessary:

[W]e find that the mere existence of alternative means of communication is insufficient to justify a refusal to release the information. Further, we find that it is not necessary for us to examine the adequacy of alternative means in cases involving requests for ... home addresses because the communication between unit employees and their exclusive representative which would be facilitated by release of ... home addresses [sic] information is fundamentally different from other communication through alternative means which are controlled in whole or in part by the agency. When using direct mailings, the content, timing, and frequency of the communication is completely within the discretion of the union and there is no possibility of agency interference in the distribution of the message. Further, direct mailings reach unit employees in circumstances where those employees may consider the union's communication without regard to the time constraints inherent in their work environments, and in which any restraint the employee may feel as a result of the presence of agency management in the workplace is not present. We find that the ... home addresses of unit employees are necessary and should be provided whether or not alternative means of communication are available.

Id. at 796-97. See also United States Dep't of the Navy, Portsmouth Naval Shipyard v. International Federation of Professional & Technical Engineers, Local 4, 37 F.L.R.A. 515, 523 (1990). Giving due deference to the FLRA's interpretation of its own enabling statute, the Labor Statute, and finding that the interpretation is based on a permissible construction of the statute, Chevron U.S.A., Inc., 467 U.S. at 842-43, 104 S.Ct. at 2781-82, we conclude that the disclosure of employee home addresses is "necessary" for the collective bargaining process under § 7114(b)(4). See Second Circuit Veterans, 958 F.2d at 507-08; D.C. Circuit Treasury, 884 F.2d at 1449.

The final inquiry for determining whether the FLRA is entitled to disclosure of federal employee home addresses is an examination of whether the request is "prohibited by law." The Privacy Act generally prohibits disclosure of personnel information of federal employees without their consent, and lists exceptions to this general prohibition. 5 U.S.C. § 552a(b). ³ The FLRA does not dispute that the home addresses of federal employees are protected by the Privacy Act's general prohibition but asserts that the disclosure falls within two Privacy Act exceptions. The two exceptions the FLRA asserts as applicable are the exception for information requested under the Freedom of Information Act (FOIA) and the exception for information disclosed for "routine use." 5 U.S.C. § 552a(b)(2) and (3).

Although the FLRA was entitled to due deference with regard to its interpretation of the Labor Statute, it is not entitled to such deference with regard to the Privacy Act and FOIA, because these statutes are not within the FLRA's area of expertise. Therefore, we review the FLRA's interpretations of these two statutes de novo. See Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 1472, 103 L.Ed.2d 774 (1989) [hereinafter Reporters Committee ] ("[u]nlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden 'on the agency to sustain its action' and directs the district courts to 'determine the matter de novo' "). See also Seventh Circuit Navy, 975 F.2d at 351; Ninth Circuit Navy, 958 F.2d at 1493-94; First Circuit Navy, 941 F.2d at 55; D.C. Circuit Treasury, 884 F.2d at 1451.

FOIA, 5 U.S.C. § 552, generally requires disclosure of information but exempts information in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Id. at § 552(b)(6). To determine whether disclosure constitutes a "clearly unwarranted invasion of personal privacy," we...