LOCAL 2047, AM. FED. OF GOV'T EMP. v. Def. Gen. Sup.

• Citation: 423 F. Supp. 481
• Decision Date: 17 November 1976
• Docket Number: Civ. A. No. 75-0573.
• Parties: LOCAL 2047, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Plaintiff, v. DEFENSE GENERAL SUPPLY CENTER, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

423 F. Supp. 481

LOCAL 2047, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Plaintiff, v. DEFENSE GENERAL SUPPLY CENTER, Defendant.

Civ. A. No. 75-0573.

United States District Court, E. D. Virginia, Richmond Division.

November 17, 1976.

Jay J. Levit, Stallard & Levit, Richmond, Va., for plaintiff.

Robert W. Jaspen, Asst. U. S. Atty., Richmond, Va., for defendant.

MEMORANDUM

MERHIGE, District Judge.

Plaintiff, a labor organization representing government employees (Union), brings this action to redress an alleged breach of a collective bargaining agreement by the defendant, Defense General Supply Center (DGSC). Plaintiff seeks injunctive relief. Jurisdiction is alleged under 28 U.S.C. § 1331. The matter comes before the Court on cross-motions for summary judgment.

The material facts are not in dispute. The parties entered into a Collective Bargaining Agreement (Agreement) on January 14, 1972. The Agreement was authorized by Executive Order 11491, October 29, 1969, 3 C.F.R. 1969 Comp. 191; 34 Fed.Reg. 17605, as amended. Under the Collective Bargaining Agreement, the Union has been entitled to receive, and the government has been obliged to furnish, certain information pertaining to employees. The defendant acquiesces in the plaintiff's contention that the requested information is relevant to its representative function. Prior to September 25, 1975, DGSC regularly provided the Union with this information. By letter dated September 25, 1975, Roger J. Simboli, an agent of the defendant, informed the Union that six categories of documents theretofore furnished, would no longer be made available.¹ The reasons cited for this position was the then recently enacted prohibitions contained in the Privacy Act of 1974, Pub.L.No. 93-579, 88 Stat. 1897, 5 U.S.C. § 552a. The Union vigorously opposed what it viewed as a unilateral change of the collective bargaining agreement. Subsequently, DGSC agreed to continue furnishing two categories of information while supplying one in a "sanitized" form (i. e., without disclosing the identity of individuals). Three categories of information previously available, however, were deemed by the defendant to be nondisclosable under the Privacy Act.

It is the Union's position that the Privacy Act cannot be utilized to affect a unilateral change in an existing collective bargaining agreement. Accordingly, the Union views the defendant's action herein, as an unjustifiable breach of the Agreement. The DSGC, on the other hand, maintains that the Privacy Act precludes the disclosure of the requested information. Section 12(a) of Executive Order 11491 and Article IV, Section 1(a) of the Collective Bargaining Agreement enacted thereunder, specifically provide that the terms of the Agreement are governed by existing and future law. The defendant maintains that the Privacy Act and its implementing regulations,² enacted subsequent to the signing of the Agreement, is just such a future law which alters the provision of the Agreement. In light of the future laws clause, the defendant's action of withholding the information is proper if: (1) disclosure is prohibited by the Privacy Act and its regulations; and (2) regulations effectuating nondisclosure are valid.

Absent the written consent of the individual, any disclosure of information covered by the Privacy Act is prohibited, unless authorized by one or more of eleven specific exceptions. 5 U.S.C. § 552a(b).³ See generally, Note, The Privacy Act of 1974: An Overview, 1976 Duke L.J. 301 (1976). The parties agree that the information sought by the Union is covered by the Act.⁴ It is also undisputed that there has been no written consent by individual employees to release the information to the Union. Disclosure is permissible, therefore, only if one of the enumerated exceptions to the Act is applicable.

The only relevant provision for purposes of this action is the routine use exception. That provision enables an agency to disclose an individual's record without written consent for routine uses. 5 U.S.C. § 552a(b)(3). Routine uses are those "which are compatible with the purpose for which ... the information was collected." 5 U.S.C. § 552a(a)(7). This rather general definition is given some degree of precision by regulations promulgated by each agency. On an annual basis, each affected agency is required to publish "each routine use of the records contained in the system, including the categories of users and the purpose of such use." 5 U.S.C. § 552a(e)(4)(D).⁵ Pursuant to this scheme, the Civil Service Commission (CSC) published the routine use of the records kept under its authority. See 40 Fed.Reg. 54355 et seq. (November 21, 1975). Record keeping by the DGSC is classified within the system as "general personnel records" or "CSC/GOVT-3." 40 Fed. Reg. 54361 (November 21, 1975). Of the eighteen published routine uses, only use (i) pertains to labor unions. That particular use involves disclosures to unions made "in response to requests for names of employees and identifying information." The information requested by the plaintiff goes substantially beyond the mere identification of employees.⁶ Its disclosure, therefore, does not fall within the routine use exception under that term's current perimeters. The Court, accordingly, concludes that the requested information cannot be disclosed, absent written consent, under the Privacy Act and its implementing regulations. The Court must, therefore, determine whether the pertinent regulations are valid.

Validity, in the context of the instant action, must be viewed in terms of a failure to list as a routine use the disclosure of information to a recognized labor union pursuant to a negotiated collective bargaining agreement. It is essentially the Union's position that the CSC is obligated to include disclosures pursuant to the Agreement in listing routine uses under the Privacy Act. This contention is essentially an equitable one. Since neither the Act nor its legislative history specifically precludes disclosure of relevant information to a recognized labor union; and since it lies within the government's rule-making power to allow for such disclosure, the government, it is argued, should not be permitted to promulgate regulations which have the effect of terminating the flow of information contracted for under a valid collective bargaining agreement. The Union's position ultimately rests upon the proposition that an agency's authority to promulgate regulations under the Privacy Act is limited by the terms of a previously negotiated collective bargaining agreement.

The Court agrees with the Union, for the purposes of this action, that the Privacy Act and disclosure of the contested information to a recognized union are not inherently inconsistent.⁷ The Court does not, however, conclude that an agency's rule-making authority is restricted by a contractual agreement entered into prior to the enactment of the legislation which necessitates the promulgation of regulations. Cf. J. I. Case Co. v. N. L. R. B., 321 U.S. 332, 337, 64 S.Ct. 576, 88 L.Ed. 762 (1944); Forbes Federal Credit Union v. National Credit Union Administration, 477 F.2d 777, 784 (10th Cir. 1973).

Agency regulations promulgated pursuant to specific congressional authority are presumptively valid and are entitled to great deference. Griggs v. Duke Power Co., 401 U.S. 424, 433-34, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1968). It is not enough to show that other policy considerations could justify the adoption of a different regulation. The burden is placed upon the person attacking the regulation to establish that it is inconsistent with the statute it implements. Florida v. Matthews, 526 F.2d 319, 323 (5th Cir. 1976); Grubbs v. Butz, 514 F.2d 1323, 1330 (D.C.Cir. 1975). The Court is not satisfied that a regulation which restricts the unconsented disclosure of personal information is inconsistent with the Privacy Act.⁸ Legislative history of the Act, while silent as to the disclosure of information to unions, reflects a general congressional concern over disclosures of information by the collecting agency to third parties.⁹ This particular purpose of the Act¹⁰ is advanced by the listing of a limited number of narrowly defined routine uses. When, as is contended here, such a listing is so narrow as to impair the legitimate flow of information,¹¹ the answer lies in expanding the list.¹²

In summary, the requested information may not be disclosed, absent individual consent, under the current CSC listings of routine uses. The failure of the CSC to include a routine use to cover the information, moreover, is not inconsistent with the Privacy Act. It follows, therefore, that the defendant is entitled to judgment.

1 The categories of documents and information no longer supplied the Union are:

a. The names of employees nominated for outstanding performance appraisals, quality step increases, and cash awards for sustained superior performance formerly provided under Article XXII, Section 2.

b. Copies of referral lists for promotion and lists of employees selected for promotion formerly provided under Article XXI, Section 2 (Revised).

c. Copies of retention registers for each competitive level subject to reduction in force and informational copies of reduction in force notices affecting unit employees formerly provided under Article XXV, Sections 2 and 3.

d. Names of employees suspected of abusing sick leave, employees with excessive unscheduled emergency leave and employees continually late for duty formerly provided under Article XII, Section 1.

e. A copy of the justification furnished to the Office of Civilian Personnel when an employee entitled to priority consideration for repromotion fails to be selected when his name appears among the best qualified candidates formerly provided under Article XXI, Section 4.

f. Any matter not specifically covered by the Agreement such...