[ v19 p899 ]
19:0899(107)CA
The decision of the Authority follows:
19 FLRA No. 107
PHILADELPHIA NAVAL SHIPYARD
Respondent
and
PHILADELPHIA METAL TRADES COUNCIL
Charging Party
Case No. 2-CA-40243
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed exceptions
to the Judge's Decision and the General Counsel filed an opposition to
the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. Upon consideration of the Judge's Decision
and the entire record, the Authority hereby adopts the Judge's findings,
conclusions and recommendations only to the extent consistent herewith.
The Judge concluded that the Respondent failed to comply with the
requirements of section 7114(b)(4) of the Statute /1/ in violation of
section 7116(a)(1), (5) and (8) of the Statute when it refused to
provide the Union, upon request, with the names and home addresses of
all unit employees represented by the exclusive representative. In this
regard, the Judge, inter alia, found that: an exclusive representative
must be able to communicate effectively with its constituency; that the
exclusive representative's access to the addresses of unit employees was
necessary for it to carry out its representational responsibilities in
the area of collective bargaining because it had no other effective
means of communication with unit employees; and that the Privacy Act
/2/ was not a bar to such disclosure.
The Authority disagrees. In a recent decision, Farmers Home
Administration Finance Office, St. Louis, Missouri, 19 FLRA No. 21
(1985), petition for review filed sub nom. American Federation of
Government Employees, AFL-CIO, Local 3354 v. FLRA, No. 85-1493 (D.C.
Cir. Aug. 6, 1985) (hereinafter Farmers Home Administration) the
Authority, relying on its prior decision in Army and Air Force Exchange
Service (AAFES), Fort Carson, Colorado, 17 FLRA No. 92 (1985), petition
for review filed sub nom. American Federation of Government Employees,
Local 1345 v. FLRA, No. 85-1378 (D.C. Cir. June 21, 1985) (hereinafter
AAFES), stated that the disclosure of unit employees' names and home
addresses, like the disclosure of other data sought pursuant to section
7114(b)(4) of the Statute, requires not only a case by case
determination as to whether the data has been requested, whether it is
normally maintained, whether it is reasonably available, and whether it
is necessary to enable the exclusive representative to fulfill its
representational obligations, but also requires a determination that the
disclosure of the data sought would not be prohibited by law, including
the Privacy Act. In AAFES, the Authority decided that, in determining
whether the disclosure of any data sought pursuant to section 7114(b)(4)
of the Statute is or is not otherwise "prohibited by law," i.e., the
Privacy Act, it will use the same balancing test applied by the courts
in evaluating whether information sought under the Freedom of
Information Act (FOIA) /3/ should be disclosed or should be protected
from disclosure as a clearly unwarranted invasion of privacy under the
FOIA exemption set forth at 5 U.S.C. 552(b)(6). The application of the
(b)(6) balancing test requires weighing the necessity of the data for
the union's purposes against the degree of intrusion on the individuals'
privacy interests caused by disclosure of the data. /4/
Guided particularly by the decision of the Fourth Circuit in American
Federation of Government Employees, AFL-CIO, Local 1923 v. United States
Department of Health and Human Services, 712 F.2d 931 (4th Cir. 1983),
wherein the Court adopted the lower court's determination that the
balance of all factors led to the conclusion that an exclusive
representative was not entitled to the home addresses of unit employees
which it had sought pursuant to the FOIA, the Authority in Farmers Home
Administration applied the foregoing balancing test and concluded that
the exclusive representative there was not entitled to the names and
home addresses of unit employees under section 7114(b)(4) of the
Statute.
As in Farmers Home Administration, the Authority finds that the same
findings and conclusions flow from the similar facts of the present
case. Thus, for the reasons stated in Farmers Home Administration, we
find that the employees' strong privacy interest in their home addresses
outweighs the necessity of the data for the Union's purposes in the
circumstances of this case. Moreover, the record in this case clearly
establishes that alternative means of communication with unit employees
were available to the Union herein. /5/ Further, we find that the
records sought by the Union herein, as in Farmers Home Administration,
i.e., the names and addresses of unit employees, are not of the type
that generally must be disclosed pursuant to the FOIA's (b)(6) exemption
for the purposes for which they were sought herein. Thus, the Authority
finds that the disclosure of unit employees' names and home addresses
for the purposes for which they were sought herein was "prohibited by
law" and that their release by the Respondent therefore was not required
pursuant to section 7114(b)(4) of the Statute. Therefore, the Authority
concludes that the Respondent did not fail to comply with section
7114(b)(4) of the Statute in violation of section 7116(a)(1), (5) or (8)
of the Statute when it refused to provide the exclusive representative
with the names and home addresses of unit employees. /6/ Accordingly,
the Authority shall order that the complaint be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 2-CA-40243 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., August 22, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CA-40243
Barbara S. Liggett, Esquire
E. A. Jones, Esquire
For the General Counsel
Elizabeth A. Martinez, Esquire
For the Respondent
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
7101, et seq. and the Rules and Regulations issued thereunder.
Pursuant to a charge filed on March 6, 1984, by the Philadelphia
Metal Trades Council (hereinafter called the Union), a Complaint and
Notice of Hearing was issued on May 29, 1984, by the Regional Director
for Region II, Federal Labor Relations Authority, New York, N.Y. The
Complaint alleges that the Philadelphia Naval Shipyard (hereinafter
called the Shipyard or Respondent), violated Sections 7116(a)(1), (5)
and (8) of the Federal Service Labor-Management Relations Statute,
(hereinafter called the Statute), by refusing to honor the Union's
request for the home addresses of the employees working in a unit
represented by the Union.
A hearing was held in the captioned matter on July 9, 1984, in
Philadelphia, Pennsylvania. All parties were afforded the full
opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues involved herein. The General
Counsel and the Respondent submitted post hearing briefs on August 30,
1984, which have been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions, and recommendations.
Findings of Fact
The Union is the exclusive representative "of all non-supervisory
ungraded employees of the Philadelphia Naval Shipyard, excluding
ungraded employees in units where other labor organizations have been
granted exclusive recognition." Of the approximately 7000 employees
included in the unit, only about 4400 are dues paying members of the
Union. The Union and the Respondent are parties to a collective
bargaining agreement which became effective on March 12, 1982. The
contract is for a three year period, "and from year to year thereafter",
in the absence of a notice from either party to the contrary.
On February 16, 1984, Union President Bill Reil wrote a letter to the
Commander of the Philadelphia Naval Shipyard which reads in pertinent
part as follows:
As provided for by public law, the Philadelphia Metal Trades
Council is the official bargaining and employee representational
organization for all non-supervisory ungraded employees of the
Philadelphia Naval Shipyard excluding ungraded employees in units
where other labor organizations have been granted exclusive
recognition. In order for this organization to carry out it's
entitled responsibilities, within the scope of collective
bargaining, it is necessary that this Council have the opportunity
to carry out full and proper discussions and likewise receive
information from all bargaining unit employees. This Council
requires feedback from employees of this bargaining unit in order
to frame bargaining proposals and to undertake it's multi-faceted
representational obligations.
Accordingly, we do request that name and address information on
all bargaining unit employees be made available to this Council so
that we can proceed to fulfill our obligations as provided for
under labor statute. Precedent for this request has been
determined by the FLRA (reference Defense Mapping Agency Center,
St. Louis, Missouri; 7-CA-20482, OALJ No. 83-85).
On March 5, 1984, the Commander of the Naval Shipyard replied by
memorandum to the Union President's letter of February 16, 1984. The
memorandum reads in pertinent part as follows:
1. By reference (a), you requested the home addresses of all
employees in the Shipyard who fall within the scope of the
bargaining unit represented. You state that you need to receive
information from "all" bargaining unit employees in order to frame
bargaining proposals and to otherwise undertake your
representational obligations. You assert that the Federal Labor
Relations Authority has set precedent on this issue in favor of
your request, and provided the reference applicable.
2. Although I agree that the union has responsibility to
represent the interests of all bargaining unit employees and
therefore having access to the employees represented is necessary,
the question to resolve is whether or not the union already has
such access in order to receive the "feedback" you require. Under
the provisions of reference (b), the union has been granted four
(4) means of access to and communication with all bargaining unit
employees.
3. Article VIII, section 1 of reference (b) provides for the
union's designation of one steward for every eighty-five
employees, excluding chief stewards. The union is free to
designate stewards in such a way as to provide representation in
virtually all areas of the Shipyard where bargaining unit
employees exist. These stewards are most certainly in a position
to have access to and communication with employees in their
respective areas. Section 16 of this same article provides that
your representatives may distribute union literature to employees
in the Shipyard. Surely any polling on questions of concern may
be accomplished via this means.
4. Article XXXV, section 1 of reference (b) provides for the
union's use of one-half of all unofficial bulletin boards within
the bargaining unit. This section also provides for the union's
recommendations for the location of such bulletin boards in order
to satisfy any inadequacies of access to employees. Section 2 of
this same article grants the union the opportunity to publish
notices or other appropriate news items of general interest or
concern in the Shipyard newspaper which is issued weekly. Once
again, this means of communication can be effective in order to
receive feedback from employees.
5. In regards to the case reference you provided, I note that
it does not represent a case decided by the Authority as you
suggest. Instead, the case (decided by an administrative law
judge) is pending decision by the Authority. In any event a
review of that case reveals dissimilar circumstances between that
agency and union, and ourselves. The Shipyard (and it's
employees) is situated at one facility, as opposed to being
geographically dispersed. Union representatives by and large
possess the security clearance necessary to facilitate access to
virtually all areas. You publish a monthly news bulletin that
your representatives distribute which does not require prior
review by management. You maintain an office here on site with
both shipyard and commercial telephone lines.
6. In consideration of the foregoing, I have concluded that
you have adequate, effective means already available to you in
order to accomplish the objective of communication and feedback.
Accordingly, your request is denied."
With respect to the physical layout of the Philadelphia Naval
Shipyard and the Union's avenues of access to the unit employees, the
record discloses that some 11,000 individuals are employed at the
Shipyard which is approximately three and one-half by two miles in area.
The employees work in many buildings, on ships and in outside field
areas operating cranes and servicing fuel depots. The employees arrive
by ferry from New Jersey, on mass transit buses, private automobiles,
walking and bicycles. The shipyard is entered by four gates. The buses
do not drop their passengers at such gates, but proceed through the
gates and drop their passengers at various locations throughout the
Shipyard.
The employees composing the work force commute from New York, New
Jersey, Delaware and Pennsylvania, an area of approximately 90 miles
from the Shipyard.
The Union has access to half the 35 unofficial bulletin boards at the
Shipyard. However, according to Mr. John Meyer, Vice-President of the
Machinists Union and a member of the Metal Trades Council's negotiation
team, the bulletin boards are not an effective means of communication
because of their location and the fact that there is no way to prevent
notices from being ripped off the bulletin boards. There are no
bulletin boards on the ships where a majority of the unit employees
work. At the time of the hearing, some 2500 of the 7000 unit employees
were working on the U.S. Forrestal.
The Union has no access to the Shipyard's internal mailing system.
The collective bargaining agreement gives the Union access to the
Shipyard's weekly newspaper. However, the Shipyard reserves editing
control over the Shipyard newspaper. The record is barren of any
evidence indicating that the Union has ever been denied the right to
publish anything in the Shipyard newspaper. The Shipyard's newspaper is
distributed at various drop-off points throughout the Shipyard.
The Union publishes a monthly newspaper which is also distributed at
various drop-off points throughout the Shipyard.
The Union holds monthly meetings both on and off the base. The
meetings are generally attended by not more than thirty-five of the unit
employees.
While the Union has two telephones in its office at the Shipyard, it
finds that the telephones are an ineffective means of communication
because the telephones in the work areas are too remote from the
employees' respective duty stations. Few telephones are located on the
ships and the employees do not, in any event, have ready access to such
telephones.
The Union does not have the right to official time for purposes of
soliciting employees' views on working conditions.
While the Union is entitled in accordance with the collective
bargaining agreement to one steward for every 85 employees, according to
the Union, only about twenty-five of such stewards are considered
"active". The Union does not have control over where stewards are
placed. The Union currently has approximately 124 designated
representatives.
The unit employees have no break periods during their respective
shifts and are entitled to only thirty minutes for lunch.
The unit employees work on three shifts. In emergency situations the
employees are assigned to "12's", where they "might work from six in the
morning to six at night, or six at night to six in the morning."
While there are "musters" at the beginning and end of the shifts for
about three minutes, the "musters" are generally supervisors' time.
Each work gang musters separately.
The Union has in the past attempted to reach the unit employees by
means of handbilling. However, the handbilling proved unsuccessful due
to traffic problems.
The Shipyard employees all park in designated parking lots.
The Union has the right to distribute literature on the Shipyard
premises during non-working time.
Discussion and Conclusions
Section 7114(b)(4) of the Statute obligates an agency to furnish to
the exclusive bargaining representative of its employees, upon request,
data which is reasonably available and necessary for free and proper
discussion, understanding, and negotiation of subjects within the scope
of collective bargaining.
Predicated upon the above cited provision of the Statute the Union
requested the addresses of all unit employees for purposes of soliciting
their views with respect to possible contractual proposals to be
included in the Union's presentation to management in future
negotiations for a new collective bargaining agreement. Respondent
refused to give the Union the addresses of the unit employees on the
sole ground that the addresses of the employees were not necessary since
the Union had other effective avenues of communication with the unit
employees such as bulletin boards, newspapers, telephone, stewards, etc.
In both the private and public sector, it has been recognized that in
order for a union to carry out its representational responsibilities
flowing from its selection as an exclusive bargaining representative,
the union must be able to communicate effectively with its constituency
and obtain their respective views with respect to what proposals should
be included in any prospective collective bargaining agreement.
Internal Revenue Service, Office of the District Director, Jacksonville,
Florida, A/SLMR No. 214, Aff'd. FLRC No. 72A-50; United Aircraft v.
NLRB, 434 F.2d 1198; Prudential Insurance Co. of America v. NLRB, 412
F.2d 77.
The above cited cases, in addition to acknowledging a union's
representational responsibility to contact unit members for purposes of
ascertaining their comments and desires in order to frame meaningful
collective bargaining proposals, make it clear that to the extent that a
union is unable through the available channels of communication to
effectively reach its constituency and solicit proposals, the union is
then entitled to the home addresses of the unit employees for purposes
of effectively carrying out its representational responsibilities.
According to both the Federal Labor Relations Council, the
Authority's predecessor, and the Circuit Courts of Appeal, a
determination of whether an exclusive representative has in fact
effective means of communication with unit employees, absent their
respective addresses, must be made solely on a case-by-case basis. Only
after a finding is made that a union lacks an effective means of
communication with unit employees is the Union entitled to the addresses
of unit employees. If on the other hand a contrary determination is
made, i.e. that the union does have an effective means of communication
with unit employees, then the union is not entitled to the addresses of
unit employees, since such data would not be necessary for purposes of
negotiation of subjects within the scope of collective bargaining.
While both the General Counsel and the Respondent appear to
acknowledge the above conclusions with respect to the state of the law,
both urge contrary findings predicated upon their respective analysis of
the facts underlying the instant complaint. Thus, the General Counsel
would find that the requested information is relevant to the Union's
representational responsibilities and necessary since without same the
Union has no effective means of communication with unit personnel.
Respondent, on the other hand, takes the position (1) that the requested
information is not relevant since the collective bargaining contract was
some fourteen or fifteen months away from expiration; and (2) even
assuming a contrary conclusion with respect to relevance, the requested
information is not necessary since the Union has other effective means
of communication with unit personnel. Finally, Respondent raises for
the first time in its post-hearing brief the Privacy Act as a defense to
its failure to make the requested addresses available to the Union. /7/
Contrary to the Respondent and in agreement with the General Counsel,
I find that the requested information was indeed relevant to the Union's
collective bargaining needs. As noted above, once certified as an
exclusive bargaining representative a Union has a responsibility to
represent all unit personnel. Such representational responsibility
includes, among other things, solicitation of bargaining proposals,
etc., sensitive to the unit personnel's respective desires and problems.
Without same, a union would be frustrated in its attempt to frame
meaningful bargaining proposals for inclusion into any prospective
contract. The fact that a collective bargaining contract reopener may
be some fourteen or fifteen months away does not serve to diminish the
Union's representational responsibilities. It is not for the Respondent
to decide when the Union should embark on a course of action designed to
serve its unit members and fulfill its representational
responsibilities. In the instant case there are some seven thousand
employees in the unit. Assuming that each and every employee had a
different view on what subjects etc., should be addressed in any final
collective bargaining agreement, it can hardly be argued that fourteen
months is too long a period to allow for the synthesis of such numerous
proposals and/or comments. According to a literal reading of Section
7114(b)(4), if the requested information is relevant to the collective
bargaining process, the Union is entitled to the information.
Again, contrary to the Respondent, I find, predicated on the facts of
the instant case, that union access to the addresses of the unit
employees is necessary to carry out its representational
responsibilities in the area of collective bargaining, since without
same it has no effective means of communication with the unit employees.
In reaching this conclusion I rely on the fact that the unit
employees are spread out over a vast area working on cranes, in fuel
depots, on ships and in a multitude of other buildings, many of which
locations do not possess bulletin boards or readily accessible
telephones; employees enter the shipyard through four gates and
handbilling on the streets leading up to the gates has proven in the
past to be an ineffective means of communication; while there are
designated parking lots on the premises for unit employees, many of the
employees arrive at work by bus, foot or bicycles; the buses do not
drop their passengers at one location, but rather proceed through the
base and drop off the employees along their respective routes; while
the Union possesses the names of unit employees, telephone contact with
such employees would be an insurmountable task since the unit employees
live in New York, New Jersey, Delaware and Pennsylvania, an area of
approximately 90 miles in area; Union access to half of the thirty-five
unofficial bulletin boards at the Shipyard is an insufficient means of
communication since such bulletin boards are not located at each and
every work area and there is no way to prevent notices from being
removed from the bulletin boards; there are no bulletin boards on the
ships where a majority of the employees work; while the Union is
entitled to a steward for every eighty-five employees, the stewards are
not allowed official time for purposes of soliciting employees' views on
conditions of employment; while both the Union and Respondent publish
monthly and weekly newspapers, respectively, such newspapers are not
delivered directly to the unit employees but rather are left at various
drop off points throughout the base; the unit employees generally work
on three shifts and in emergency situations are assigned to shifts of
"12's" where they "might work from six in the morning to six at night or
six at night to six in the morning."
In sum, I find the facts of the instant case to be essentially
similar to those appearing in United Aircraft Corporation, supra,
Prudential Insurance Company of America, supra, and Magma Copper Co.,
208 NLRB 329, wherein the National Labor Relations Board, with Court
approval, determined that the Unions involved therein were entitled to
have the addresses of unit employees in order to carry out their
respective representational responsibilities.
Having concluded that Union access to the home addresses of the unit
employees is necessary in order for the Union to carry out its
representational responsibilities, I find that Respondent's refusal to
acquiesce in the Union's request for the home addresses of unit
employees violated Sections 7116(a)(1), (5) and (8) of the Statute.
Accordingly, it is recommended that the Federal Labor Relations
Authority issue the following:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Philadelphia Naval Shipyard, shall:
1. Cease and desist from:
(a) Refusing or failing to furnish upon request of the
Philadelphia Metal Trades Council the addresses of all unit
employees.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute.
(a) Upon request, make available to the Philadelphia Metal
Trades Council, addresses of all unit employees.
(b) Post at its facilities at the Philadelphia Naval Shipyard,
Philadelphia, Pennsylvania, copies of the Notice To All Employees,
attached hereto as Appendix A, on forms to be furnished by the
Regional Director, Region II, Federal Labor Relations Authority.
Upon receipt of such forms they shall be signed by the Commander,
Philadelphia Naval Shipyard, and shall be posted and maintained by
him for sixty (60) consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. The Commander shall
take all reasonable steps to insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, Federal
Labor Relations Authority, in writing within 30 days from the date
of this Order, as to what steps have been taken to comply
herewith.
BURTON S. STERNBURG
Administrative Law Judge
Dated: September 24, 1984
Washington, D.C.
APPENDIX A
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse or fail to furnish, upon request, to the Philadelphia
Metal Trades Council the addresses of all unit employees. WE WILL, upon
request, furnish to the Philadelphia Metal Trades Council addresses of
all unit employees. WE WILL NOT in any like or related manner,
interfere with, restrain, or coerce any employee in the exercise of
rights assured by the Federal Service Labor-Management Relations
Statute.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for sixty
(60) consecutive days from the date of posting and must not be altered,
defaced or covered by any other material. If employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region II, whose address is: 26
Federal Plaza, Room 24-102, New York, New York 10278 and whose telephone
number is: (212) 264-4934.
--------------- FOOTNOTES$ ---------------
/1/ Section 7114(b)(4) of the Statute provides:
Sec. 7114. Representation rights and duties
. . . .
(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--
(A) which is normally maintained by the agency in the regular
course of business; (and)
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining(.)
/2/ Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified
as amended at 5 U.S.C. 552a (1982)).
/3/ Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256
(codified as amended at 5 U.S.C. 552 (1982)).
/4/ The interrelationship of the Privacy Act and the FOIA exemption
are set forth more fully in AAFES.
/5/ In this regard, the Union could have communicated with unit
employees, e.g., through the use of its right, pursuant to the parties'
collective bargaining agreement, to one steward for every 85 employees;
through access to one-half of all unofficial bulletin boards, which are
placed in accordance with Union recommendations; through access to the
Respondent's weekly newspaper; through its own monthly newspaper and
other literature which is distributed throughout the Shipyard; and
through its holding of monthly meetings on and off the base. The extent
to which some of these means of communication were subject to
restrictions, such as the Respondent's right to approve Union entries in
the Respondent's newspaper, or the times during which distributions may
be made, does not in our opinion detract from our finding that the Union
had alternative means of communication available, especially as we note
the established bargaining history of the parties, including matters
with regard to means of communication.
/6/ In so concluding, the Authority does not reach the question of
whether the data sought herein meets the other requirements of section
7114(b)(4) of the Statute.
/7/ With respect to Respondent's reliance on the Privacy Act as a
defense to its refusal to make the requested information available, I
find such defense to be without merit. Bureau of Alcohol, Tobacco and
Firearms, National Office and Western Region, San Francisco, California,
8 FLRA 547; Veterans Administration Regional Office, Denver, Colorado,
7 FLRA 629; Local 2047 AFGE v. Defense General Supply Center, 423
F.Supp. 481, 485 fn. 7, 94 LRRM 2058, aff'd. per curiam, 573 F.2d 184,
97 LRRM 3207.